Roe Redux: Is The Viability Test Still Viable as a Constitutional Doctrine?

#SCOTUS

Below is my column in The Hill on the argument in Dobbs vs. Jackson Women’s Health Organizationthe Court’s most watched case this term on abortion rights. The oral argument is scheduled for December 1st, the same week that the United States Court of Appeals for the Fifth Circuit will hear an expedited appeal over the even more stringent Texas abortion law.

Here is the column:

The Supreme Court is on the eve of arguments in what could be the most consequential abortion case in decades, Dobbs vs. Jackson Women’s Health Organization. For years, many analysts overhyped cases as possible death knells for Roe v. Wade. Despite annual columns questioning such apocalyptic predictions, which often seemed more political than legal, the granting of Dobbs led me to write my first “this could be it” column.

Dobbs has everything that you would need for a Roe-killing case. That does not mean the court will do so, but it could substantially reduce Roe’s hold over states.

The more interesting question is not whether Roe will go but whether “viability” is still a viable basis for limiting states on abortion legislation.

There is no constitutional question that has left more lasting, continuing divisions in society and on the court. This case has attracted the third highest number of briefs in the court’s history (after leading same-sex marriage case in Obergefell v. Hodges and the ObamaCare ruling in NFIB v. Sebelius); the majority supports Mississippi in its ban on abortions after the 15th week of pregnancy.

Forty-eight years ago, the court held in Roe that “the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.” The court embraced a trimester system of escalating state authority, with little such authority in the first trimester but considerable authority — including possible bans — in the third trimester when a baby is viable outside of the womb.

Then, in 1992, a deeply fractured court upheld the “essential holding” of Roe, but a plurality dispensed with the trimester approach in favor of the current “viability” standard. Under this approach, a state could protect the “potentiality of human life” through legislation once a fetus has reached viability “except where it is necessary … for the preservation of the life or health of the mother.” That line was viewed as around 23 or 24 weeks. (The Washington Post confirmed that the United States is one of only seven out of the world’s 198 countries that allow for abortions after the 20th week of pregnancy.)

Since then, abortion has remained a matter of deep divisions. Indeed, the late Justice Ruth Bader Ginsburg was a critic of Roe, seeing it as too sweeping in supplanting state laws. She later blamed the case for reversing the trend toward more pro-choice states.

To uphold Roe, the court likely will require more than the usual arguments of stare decisis, the doctrine that the court should generally stand by its precedents. Pro-choice members and advocates have insisted that Roe is a “super precedent” that cannot be set aside like other cases. (Worth noting is that senators denouncing even the thought of overturning Roe as judicial activism have demanded overturning cases like Citizen’s United and Heller.)

However, putting aside the very existence of such a special category of “super precedent,” the court has never found terra firma on abortion. For roughly 50 years, it issued a litany of plurality or 5-4 decisions. For example, in 2000, a 5-4 majority struck down a partial-birth abortion law in Stenberg v. Carhart but, two years later, voted 5-4 to uphold a ban on partial-birth abortion.

Today, the country remains deeply divided. Polls show strong support for Roe in principle but also support for limiting it. For example, a new poll out of Marquette University Law School showed 2-1 support for Roe, but a greater number of respondents (37 percent) supported the 15-week limit in Dobbs than opposed it (32 percent).

This term the court was presented with two pre-viability challenges. After Dobbs was accepted with its 15-week limit, advocates sought to enjoin a Texas law that banned abortion after just six weeks. The court ruled 5-4 to allow the Texas law to be enforced. The Biden administration returned to ask for an injunction from the same justices a few weeks later and for a ruling on the statute. As expected, the justices did not enjoin the law but they could address it, either by putting it on the docket for a ruling on the merits or rendering it moot in a decision under Dobbs. In the meantime, this coming week the United States Court of Appeals will hear an expedited appeal on the Texas law in Whole Woman’s Health v. Jackson.

Abortion under ancient laws was treated as a criminal offense, and that status remained when our Constitution was written. The line drawn under many of these early laws was not viability but the “quickening.” In writing Roe, Justice Harry Blackmun noted that “before ‘quickening’ — the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy — was not an indictable offense.” The Mississippi law put the line along that earlier quickening stage.

Pro-choice advocates hope Chief Justice John Roberts and Justice Brett Kavanaugh can again be lured to the center to vote with the three liberal justices. Arguments over “super precedent” may have traction with Roberts, who is known as an institutionalist and incrementalist, uneasy about the court ordering transformative changes in society. Reversing Roe is the ultimate sticker-shock moment for Roberts. Yet, it was Roberts who wrote in Citizens United v. Federal Election Commission (2010): “We cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”

Some justices are already on record questioning the constitutionality basis for Roe. Some of these justices do not agree with the sweeping privacy “penumbra” found in Roe. While he often sides with Roberts, Kavanaugh also said in Ramos v. Louisiana (2020) (a non-abortion case) that the court cannot maintain a precedent that is “grievously or egregiously wrong.” In the same case, Justice Neil Gorsuch wrote: “The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents.”

So how viable is “viability” if a majority of justices do not see a constitutional privacy basis for the right to abortion?

First, these justices will have to decide whether Roe was flawed from the start or whether, as argued by some, such views of unconstitutionality must be set aside due to historical reliance. Then, unless they overturn Roe entirely, they will have to return to the maddening task of drawing a line between the relative authority of a woman and the state — a line that has wavered between the quickening and viability.

Of course, the court could reaffirm Roe, which — with a six-conservatives majority — would likely mean Roe will remain good law for the foreseeable future. However, it also could abandon viability, or otherwise increase the right of states to place limitations on abortions in the pre-viability stage.

Justice Ginsburg once noted that “it’s hard not to have a big year at the Supreme Court.” That is true — but Dobbs would make for a historic year, if the court were to find the one thing that has long evaded it on reproductive rights: Clarity.

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

150 thoughts on “Roe Redux: Is The Viability Test Still Viable as a Constitutional Doctrine?”

  1. Turley claims: “The court ruled 5-4 to allow the Texas law to be enforced. ” This is misleading. The SCOTUS refused an emergency injunction against enforcement. That is not a final ruling, which Turley only sort of admits in the succeeding sentences, but he give the disciples something to hang onto: the notiion that the SCOTUS rejected the appeal to the Texas abortion bounty hunter law. There is no final ruling from the SCOTUS. This is the sort of misleading characterizations of Turley that are all too commonplace since he went on the Fox payroll.

    As to the Marquette University poll, both results are within the margin of error, so they don’t have much meaning, either.

    Unless you weren’t paying attention during the 2016 campaign, Gorsuch, Kavanaugh and Barrett were nominated to the SCOTUS after being vetted by the Federalist Society specifically because of their opposition to abortion rights. Trump was told that promising anti-Roe judges would reel in the Evangelicals, even though he has hinted that he has paid for abortions for various paramours in the past. Elections have consequences, even those elections that were procured by cheating, as in Trump’s case. That’s what’s so outrageous: he cheated to get into office even though he lost the popular vote, so he shoves in radical conservative judges whose views run extremely to the far-right of most Americans. In the case of Kavanaugh, there were dozens of witnesses who were denied an opportunity to testify by the Republcians at his confirmation hearing. Now, we’re stuck with them for life.

    The concept of stare decisis is supposed to mean that we don’t go revisitng SCOTUS cases every time there is a change in administrations, especially when such cases were based on interpretation of the Constitution, applicable to the states via the 14th Amendment. In the case of abortion rights, the Constitution recognizes a right of individual privacy, so the question is how that applies to a state trying to prevent a woman from obtaining an abortion and at what point does a state have the right to dictate to a woman that she is not allowed to terminate an unwated pregnancy? The SCOTUS in Roe held that the point at which a fetus is viable outside of the womb is the point at which it is entitled to protection by a state. That is a smart holding that makes sense, and which most Americans have always supported.

    I just don’t get why there are so many people who think they should have a right to dictate to a woman that she has no right to determine her own destiny when she finds herself with an unwanted pregnancy, even in the case of rape and incest.

    1. So, you support unrestricted elective abortion rites for social, medical, and fair weather causes? The edge cases of rape (rape-rape) (i.e. involuntary exploitation) and incest (i.e. superior exploitation) are resolved through reconciliation, the viability apology is an arbitrary threshold that ironically endangers the viability of child and mother, and are strawman arguments. People… persons have an equal right to self-defense under The Constitution.

      There is no mystery in sex and conception. A woman and man have four choices, and still six weeks for a wicked solution. The Pro-Choice religion denies a woman and man’s dignity and agency, and reduces human life to a negotiable asset, in order to keep women appointed, available, and taxable approved by feminists and masculinists alike.

      1. Nothing you wrote makes any sense. Prior to the age of viability an undeveloped fetus is not a fully-developed living person. The question in Roe is at what point does a fetus not able to live outside the uterus have rights that the state can protect? Roe answered that question by holding that the point of viability is the age in which the state may regulate, which, with improvements in neonatology, is younger than it was at the time Roe was decided. The Evangelicals harp about “unborn babies being murdered”, but many people do not believe that an undeveloped fertilized egg or fetus is a baby. And, abortion is far less risky than pregnancy. So, are you trying to say that your passionate opposition to abortion is that a fertilized egg has the same rights as a fully-developed person? Even so, don’t others have the right to a contrary opinion, and what gives you the right to force someone who disagrees with you to live according to your rules?

        1. Wrong as usual….the question is at what point does “Life” begin….as it is at that point the unborn child has Rights too.

          Remember the science….not the artificial construct you just offered.

          That “Life” inside the Womb left unharmed shall come forth at birth…..depriving it of that chance at life based upon mere whim is murder.

          Some Baby Killers are quite happy to see an abortion take place on the day of birth….how can anyone argue for that position?

          Forcing someone to live by your rules…..so tell me then….you must be against Covid Vaccine Mandates then….right?

          My body…my choice….the baby killers tell us….until it is not about abortion.

          Kill the innocent but not the guilty….again….the baby killers protest the killing of other killers.

          Abortions are being done to babies that can feel pain….would you kill a Kitten or Puppy the same way abortionists kill babies?

          I am weary of those in society killing their own and defending it by saying it is their “Right”.

          There is nothing “right” about killing an unborn child.

          1. Ralph, a man of faith, says:

            “That “Life” inside the Womb left unharmed shall come forth at birth…..depriving it of that chance at life based upon mere whim is murder.”

            By that logic, preventing 2 people in the midst of flagrante delicto is murder as well since you are depriving a chance at life merely based upon Evangelical prudishness.

            Let’s face it. People of faith and people of reason will never agree when life begins. If the SC overturns Roe, the people of faith may regret the political and sexual backlash from the overwhelming majority of women who favor their right to choose.

    2. Every “right” is a derogation of the people’s prerogative to make laws through their elected representatives which suit their culture, mores and beliefs.

  2. Perhaps abortion would be less contentious of an issue if it was left to the states to legislate. People would have more of a say in the matter, and it would be easier to make changes to reflect the will of the people. Roe v Wade suddenly created a right to an aboriton that had never been voted upon. Many felt the right to privacy was a stretch, and this was legislating from the bench.

    Viability, gestation, ability to feel pain, fetal abnormality…all these are culturally based. Some cultures believed a baby wasn’t a human until it was 8 days old, and infanticide was legal. Some Brazilian tribes gave a child until the age of 2 or 3 to develop normally or be killed.

    Abortion is a bioethics problem.

    So many want someone else to decide these tough issues. Congress seems to want SCOTUS to take it out of their hands.

    Leave this to the states, and let the people of each state decide.

    The vast majority of Americans do want there to be some limits on abortion. For instance, aborting a healthy, full term, viable infant moments before birth would appall most. So at some point, there is agreement that it is no longer the woman’s right to choose.

    Later term abortions do not spare a woman from childbirth. She still has to undergo labor and delivery, only there is the added step of lethally injecting the infant, carrying the dead baby for a day, returning to the doctor to ensure it’s dead, dilation, and then delivery of a still born. A 2nd trimester abortion involves reaching in blind through a dilated cervix with forceps, gripping whatever part of the live baby reached first, and then twisting and popping off parts. It’s quite a gruesome process. I think the more people learned about 2nd and 3rd trimester abortions, the more restrictions they would want.

    I have never heard of a single reason for a 3rd trimester abortion of a viable infant that would save the life of the mother. Early emergency delivery, absolutely, but not the added step of killing the infant. Most reasons given by 3rd trimester abortion supporters involve a nonviable abnormal fetus, incest, or rape. Aborting a viable fetus is not necessary to save the mother. Delivery does that.

    The argument about fetal abnormalities, discovered late plus time to make a choice, is a difficult one, as it is eugenics. But have that difficult conversation. There are very severe abnormalities that lead to poor quality of life, and then there are far more mild ones. There needs to be a bioethics conversation that balances the rights of the child with those of the mother. At least by viability, I think the child has a right not to be killed.

    As for the issue of rape, why would an innocent victim be killed when it was the perpetrator’s fault? This is especially true once the pregnancy has reached viability. The risks of pregnancy already occurred. There is no escaping labor and delivery. I have great sympathy for rape survivors. It’s a soul wounding crime. Even if you were a victim, I don’t think you should victimize your own blood. At the very least, you should figure out what you want to do by the first trimester’s end.

    For those whose contraception failed, procreation is a consequence of sex. If you have sex, you take the risk that your contraception may fail. Choose your partners wisely. Contraception failure is not an argument for 2nd or 3rd trimester abortions. The 6 week limit is pretty strict, because that’s right around when a lot of women find out they’re pregnant. You have to be late to take the test, and not everyone keeps track of their cycle. But let the states decide. Some states will want more restrictions, and some will want less.

    I’m glad there are people who speak for the voiceless unborn. It brings some balance to the conversation.

    I’d bet that if wombs were transparent, there would be less abortion in the world.

    Not every woman is a good person. There are women who would abort their 8 months gestation perfect baby because they broke up with the father, got a promotion, or wanted to be in a rock band. There are women who do drugs during pregnancy. We can legislate abortion restrictions, but the reality is that there is no more vulnerable position for a human being, than our time within the womb. If you are not conceived by a loving, responsible, protective mother, you are at risk.

    1. No matter what is determined via legislation and court cases, I hope that our society becomes more protective of the unborn. We need to see through the rhetoric that a fetus is a parasite, a ball of cells, or tissue. That’s dehumanizing rhetoric. A fetus is a unique human, and he or she is alive.

      Parents, show your children videos on human embryology. Show them how the baby develops, when it starts to suck its thumb, when it kicks, when it dreams. Make them feel connected to that process.

      There is no casual sex without consequences. Pregnancy, disease, broken heart, unfulfilled emotional needs, jealousy, breakups, pressure to get married, disinterest in marriage, feeling used, hedonism…Sex should be taken more seriously than it is. There is even a documentary on how this latest generation has no idea how to actually date or look for a mate. They just swipe left or right. It’s sad.

      1. Karen says:

        “We need to see through the rhetoric that a fetus is a parasite, a ball of cells, or tissue. That’s dehumanizing rhetoric. A fetus is a unique human, and he or she is alive.”

        If only you Trumpists would see through your rhetoric of calling Liberals a parasitic “enemy” and dehumanizing us as evil incarnate. We would like to be regarded by you as the equal of fetuses.

    2. We have a Constitution as our guiding force in this country, and it applies to the States via the 14th Amendment. States cannot enact laws that are unconstitutional, like preventing blacks from voting, or denying women the right to determine their own destiny. The right of privacy is enshrined in the Constitution, and the 17th Amendment specifically says that not every right is spelled out in detail, so morons like the Governor of Louisiana don’t know what the hell they’re talking about when they claim that abortion isn’t in the Constitution, so it can be outlawed. The 4th Amendment says that searces and seizures of property without probable cause is illegal. That is one right of privacy, but not the only one. If some states had their way, cops could bust into your home or office any time they wanted and could seize anything they wanted, blacks couldn’t vote and abortion would be illegal in certain states, but not others. That’s why we have a Constitution.

      Karen says: “Viability, gestation, ability to feel pain, fetal abnormality…all these are culturally based.” No, they aren’t. These things are science-based. And it takes a well-formed brain to “feel pain”, another non fact-based emotional argument put out by the anti-abortion groups” that abortion causes fetal suffering. Abortion of a healthy, full-term infant is illegal in ALL states. You’ve been corrected about this before, so stop repeating it. All of the gory sh*t you claim about abortions is some of the indoctrination crap you got off of “pro-life” sites. You really need to stop referring to undeveloped blobs of tissue “unborn babies”, which is intentionally calculated to evoke emotion over reason. It takes multiple weeks to even be able to distinguish a human fetus from that of an ape or other primate.

      And, inferring that women who choose abortion are neither loving nor responsible is another misrepresentation. There are lots of reasons why some women choose abortion, and severe fetal abnormality is just one of them. It takes a loving mother to choose to terminate when her badly-deformed fetus would develop to the point when it could feel the pain of something like a malformed heart for there is no treatment available and when the child might only live a matter of days or hours, and would have to be sedated while waiting for the inevitable. What about the suffering of the child’s siblings, who are horrified by the appearance of a deformed sibling? The same is true for a woman who conceived an anencephalic child with no cerebral cortex, who will inevitably die. Why shouldn’t a decision about the destiny of such a pregnancy belong to those most directly-connected to the situation, instead of a state legislature?

      1. Deformities or divergence from normal in the form of mental or physical limitations, genetic incongruities, right? Your are offering apologies for a general rule (her Choice) using edge cases that are mostly Her Choice.

        The Constitution, less the Twilight Amendment, never discriminated by diversity [dogma] (e.g. racism, sexism, ageism, social) to deny Life, Liberty, and the pursuit of Happiness.

        There is no mystery in sex and conception. A woman and man have four choices: abstention, prevention, adoption, and compassion, and still six weeks (i.e. detectable Posterity or “person”). Baby steps. The Pro-Choice religion, established under the Twilight Amendment, denies a woman and man’s dignity and agency, and reduces human life to a negotiable asset is a progressive path and grade with diverse precedents.

      2. Don’t you think it is a bit telling that you feel the need to resort to flowery language such as “a woman’s right to determine her own destiny” rather than more concrete language such as “a woman’s physician-assisted right to scrape a developing human out of her uterus on demand” in support of your claims?

        When the “destiny” for many women is “five year plan at middling university doing minimum work to earn a sociology or communications degree without distinction, then working 40 hour weeks in a cubicle farm for $30,000 per annum” it sounds much less compelling when put against the interests of nascent human life.

        Regardless of your position on the issue, or the outcome of Dobbs, it would be better for everyone if people who hold your view would at least acknowledge the gravity of the issue sometimes.

        1. More of your emotion-based anti-abortion rhetoric. A woman should not be forced to carry a pregnancy against her will, but the larger issue is: what business is it of yours whether some woman you don’t even know decides to terminate an unwanted pregnancy in the first place? What is your interest, and how or why should it prevail over the interest of a woman deciding what is best for her? Why do people like you get so emotional over an undeveloped mass of tissue? Because you believe that it has an immortal soul that was created the moment a sperm penetrated the wall of an ovum? What is that belief based on, other than religion? It certainly doesn’t come from science. Since I know it comes from religion, what about people who don’t share this belief? Should they be forced to live according to the rules for your religion? I am personally opposed to abortion, and would never get one, but I’m even more opposed to people shoving their religious beliefs down the throats of others. America is a secular country, and diversity of religious beliefs are also part of our Constitution. Don’t ever forget that slave owners justified slavery based on biblical interpretation.

      3. No, viability, ability to feel pain, etc are quite literally culturally based thresholds for when a fetus is given rights. A fetus is still alive, and still human, before and after these thresholds. When that fetus is allowed to live is entirely cultural.

        There have been societies that did not deem someone to have rights until 8 days after birth. There is a tribe in Brazil that does not consider someone a member of a tribe until they have reached all their milestones at around 2 or 3 years of age. If they don’t, they are buried alive in the jungle.

        Those are cultural thresholds, not science. The science determines the gestation of the fetus, its neurological and sensory activity, its viability with current medical technology, but the culture decides the threshold for right to live.

  3. Jim Crow! Came home!
    To his wife and familee!
    After raping all the convicts overseas!
    And the time that he’d served ..
    Had shattered all his nerves…
    And left a full rubber on his knees!

    1. Jim Crow was a socially just practice under diversity [dogma], inequity, and exclusion.

      Roe, Roe, Roe your baby down the river Styx. Deja vu.

  4. The U.S. Supreme Court has a 70 year crisis that they don’t seem to fully understand “Covert Blacklisting” (aka: Cointelpro tactics) perpetrated by local, state and federal Executive Branch agencies. Covert Blacklisting – unlike any other judicial issue – robs innocent Americans of “legal standing” in court.

    The Executive Branch very skillfully obstructs justice by preventing the Judicial Branch from seeing these cases in the first place. 70 years and this is still going on. “Carpenter v. US” ruling was a great step in that direction but the U.S. Supreme Court needs a Bush-like “Preemption Policy” to watch the watchers.

    Cointelpro destroys innocent Americans and has even included assassination programs (ie: Fred Hampton). The Judicial Branch courts have a duty to really understand this 70 year abuse of power started by J. Edgar Hoover.

  5. If we are to look to the past to help discern the constitutionality of things such as “quickening” and “viability”, then we must take a holistic view which includes the changing legal status of females in our society.

    At the time of the writing of the Constitution, women did not in general have any right to vote and they often had no right to property (depending upon the laws of individual states and territories).

    A woman could be beaten by her husband in many jurisdictions without any repercussions for the man.

    The very future of a woman was directly tied to her husband.

    As the inherent rights of women have gradually become recognized and codified, the question of what a woman can do with her body–including anything growing in her uterus–must be now considered in a new contemporary context.

    It must be made clear in any deliberations that the laws written into our constitution regarding the bodies of women were written by men who had an interest in controlling women.

    I am regrettably pro-choice come on because even though I believe life begins at conception, my son’s mother contracted cancer in the fifth month of her pregnancy, and every responsible medical source encouraged her to have an abortion to protect your own health.

    She chose otherwise, having a modified radical mastectomy with limited anesthesia and virtually no postoperative pain medications, in order to protect the life that was growing inside her.

    She is my hero for doing that, and because she did come on our son is now healthy in his 30s

    1. Unfortunately I accidentally pressed send too quickly so I didn’t write my concluding thought.

      I believe she had the choice to do what she did and I’m glad that she did what she did oh, but I would never impose my will on another woman in a similar situation.

      If a woman decides it is best for her health to have an abortion, and especially if a doctor agrees, then who are we to tell her to do otherwise?

      1. A woman can abort another life (e.g. her child) in self-defense (her/his Choice). Not even in the most liberal religions is there an open rite of elective abortion. The edge cases of involuntary (rape) and, perhaps, superior (e.g. incest), exploitation can be considered separately, but even then, there are four choices other than the wicked solution. A life should not be aborted for social, medical, and fair weather causes.

      2. Gordy, as was proven by the Kermitt Gosnell case, there are plenty of women who would abort healthy, full term fetuses because they just didn’t want the child. Totally healthy, Fully formed. Could live outside the womb. But unwanted. Killing healthy full term children is unethical and immoral to many, just like infanticide.

        There are plenty of fathers who desperately want those kids, but the mother would rather that child be dead, even though she’d have to go through labor and delivery anyway.

        it doesn’t matter if this happens 200 times, 2,000 times, or 20,000 times. Most Americans would impose limits that after viability, a healthy child should have the right to not be killed, even though there are plenty of doctors who would gladly get paid to kill them. Heck, Gosnell killed babies after they were born and drew air. Should that be left up to the mother and her doctor?

        1. No state allows abortion of a full-term healthy fetus. No doctor, nurse or other health care provider would “kill” a healthy, full-term child born as a result of an abortion. This is murder in all 50 states, so stop trying to pretend that it happens, because it doesn’t. What Gosnell did was illegal, and it has nothing to do with legal abortions. More emotional rhetoric from anti-abortion groups.

            1. But if you think that aborting a full term, healthy fetus is murder, then does that mean that it’s not a woman’s right to choose, and that VT is guilty of murder?

              See how much overlap there is in the abortion debate? Even the most hard core pro-choice advocates often can find common ground in those who advocate for life.

          1. Kermit Gosnell is in prison because he, a doctor, killed healthy full term babies and violated numerous laws.

            Of course there are doctors willing to terminate healthy, full term pregnancies…for a fee. You can find someone to do anything if you’re willing to pay enough.

      3. “If a woman decides it is best for her health to have an abortion, and especially if a doctor agrees, then who are we to tell her to do otherwise?”

        We’re members of the society in which the woman resides, and aside from the fact that since Roe we’ve been under constant pressure to pay for abortions from the Treasury, many find abortions to be acts of grave injustice and barbarity. It’s ridiculous to think that the people wouldn’t, through their elected representatives, employ their lawmaking power to abate grave injustices and acts of barbarity. It was only by a Deus Ex Machina intervention of the Court that the will of the people has been suppressed for nearly fifty years.

        Further, it’s not a good faith position to pretend that the doctor is part of the decision-making process exercising independent medical and moral judgment on a case by case basis when elective abortions are at issue. There are clinics and doctors known to perform abortions through, inter alia, political advocacy, and women seeking abortions seek out these clinics and doctors. It’s like pretending that Peter Luger’s is going to provide reliable advice about the relative merits of vegetarianism and meat eating.

        1. El Cid says:

          “It’s like pretending that Peter Luger’s is going to provide reliable advice about the relative merits of vegetarianism and meat eating.”

          Or no unlike pretending that Trumpists who lost the election are not lying that it was rigged.

  6. After 24 hours, the fertilization process results in a human being, a very young human being to be sure, but a human being nonetheless.

    Abortion aborts something; that something is a human being.

    Voluminous extraneous prevarication notwithstanding, abortion is homicide.
    ___________________________________________________________

    Zygote

    A zygote (from Ancient Greek ζυγωτός (zygōtós) ‘joined, yoked’, from ζυγοῦν (zygoun) ‘to join, to yoke’)[1] is a eukaryotic cell formed by a fertilization event between two gametes. The zygote’s genome is a combination of the DNA in each gamete, and contains all of the genetic information necessary to form a new individual organism.

    In multicellular organisms, the zygote is the earliest developmental stage. In humans and most other anisogamous organisms, a zygote is formed when an egg cell is fertilized by a sperm cell. In single-celled organisms, the zygote can divide asexually by mitosis to produce identical offspring.

    German zoologists Oscar and Richard Hertwig made some of the first discoveries on animal zygote formation in the late 19th century.

    – Wiki

  7. Viability is an arbitrary threshold that denies human evolution (“life”). A woman’s rite to abort her child is, with rare exception (e.g. fourth trimester negligence, special and peculiar interests), restricted to the second or third trimester in every jurisdiction. The advocates for the wicked solution (the final solution) are arguing with a straw man dressed as a straw clown.

    That said, there is no mystery in sex and conception. A woman and man have four choices: abstention, prevention, adoption, and compassion, and still six weeks. Baby steps. The Pro-Choice religion (i.e. a philosophy that prescribes and proscribes behavior, a protocol) denies women and men’s dignity and agency, and reduces human life to a negotiable asset.

    Over a half a million “grannies” were aborted, ostensibly with or by a virus, but observationally, clinically, through the standard of care (e.g. planned parent/hood) and cargo cult science (e.g. masks, non-sterilizing vaccines). Over half a million babies (fetus for social distance) are aborted (her Choice) annually in America alone for social progress (keep women appointed, available, and taxable), medical progress (“Mengele clinics”), and climate mitigation (“fair weather”). A progressive path and grade. When, and by whose choice, dose a human life acquire and retain her right to Life, Liberty, and the pursuit of Happiness?

    Roe, Roe, Roe your baby down the river Styx.

  8. I am speaking honestly, and I say this as someone that supports early term abortion (later term abortion is infanticide, period); it is indeed tragic when this comes up in any conversation. Liberals and Conservatives alike need to address why abortion might even be an option in the first place. It’s called ‘birth control’, and it is readily available. if you belong to a sect that does not educate about that when it is readily available and a fact of life – all of this shame is on you. We wouldn’t need to even talk about this if people actually took responsibility, and that is you, conservative parents. there is a middle ground, but the current attitudes sure an’t going to reach it.

  9. The depraved two faced left is astounding. They profess caring about life in their quest to ban executing criminals the likes of Jeffery Dahmer or Paul Casey, yet are in favor of aborting life up to birth.

  10. Give out free rubbers in first grade and to all people thereafter. Some girls get ” knocked up” on purpose so they can get their welfare check. Like their mom did.

    1. Damn, my age is showing. Here I was first asking myself what schools would be handing out rain boots?

  11. “However, putting aside the very existence of such a special category of “super precedent,” the court has never found terra firma on abortion. For roughly 50 years, it issued a litany of plurality or 5-4 decisions. For example, in 2000, a 5-4 majority struck down a partial-birth abortion law in Stenberg v. Carhart but, two years later, voted 5-4 to uphold a ban on partial-birth abortion.”
    *******************************************
    This is what happens when courts venture out into areas that involve morality and its policy ramifications – a place where they have no expertise. It’s why we have legislatures – specifically state legislators. Ideas about morality vary from state to state and even from county to county. There’s nothing wrong with that approach and it’s why the Court in Roe should have stated as much. Roe is a horribly reasoned and even written opinion that ranks up there with Dred Scott in terms of its moral/religious overtones both for and against religion. (Penumbra, anyone?). One size fits all government is a dying system as I thought we learned in 1776. Apparently, Warren, CJ never got the memo when he tried to brand his view of morality – the so-called woman’s right to choose — on an entire nation.

    Incidentally, the “woman’s right to choose” is an awfully flawed concept since in excludes some very important persons in interest – namely, the biological father who played a very important role in the situation and the viable fetus who we all agree has a very vested interest in the outcome. Not to mention society itself which also has an interest, albeit to a lesser degree. I’ve said (not so originally) for years that an “acorn isn’t an oak tree” and birth confers most rights, but there are lots of competing interests in the creation of any child. Hell, wars have been fought over it. Shouldn’t we put this genie back into the morality bottle and let cooler, accountable and more multitudinous heads prevail. Let the legislators handle it.

    Oh and for those who say we don’t legislate morality, I ask you: what is the criminal law but codified “you can’t do that” ethics? That sounds like a pretty good definition of morality to me. As Connor Mighell quoted in the New Republic: “‘You can’t legislate morality’ actually means ‘You shouldn’t make laws based on your morality, but on mine instead.'” Amen, Brother.

    1. “Incidentally, the “woman’s right to choose” is an awfully flawed concept since in excludes some very important persons in interest – namely, the biological father who played a very important role in the situation and the viable fetus who we all agree has a very vested interest in the outcome.”

      Figure out a way for the father to gestate the embryo/fetus and a means of transplantation, and then he can have an equal say.

      And “the viable fetus” isn’t playing a role here, since Roe allows states to proscribe abortion after viability. Unless the mother’s life or health are endangered, it’s an embryo or non-viable fetus that is aborted.

      1. “Figure out a way for the father to gestate the embryo/fetus and a means of transplantation, and then he can have an equal say.”
        *******************
        Figure out a way to have one without the donor sperm

          1. Women willing receive a man’s sperm, unless they are raped. The Pro-Choice religion, not limited to the wicked solution (the final solution), denies a woman and man’s dignity and agency, and reduces human life to a negotiable asset.

            1. Being willing to “receive a man’s sperm, unless they are raped” is not an agreement to bring a pregnancy to term, should a sperm fertilize an egg.

              Many women who become pregnant are using contraception specifically because they are not willing to bring a pregnancy to term. All forms of birth control sometimes fail.

              I am pro-choice. It is not a religion, and your choice to refer to “the Pro-Choice religion” makes clear that you are not trying to have a good faith discussion.

          2. That means female consent that creates a responsibility for both the male and female. But under your logic, the male should have no responsibility for any pregnancy. A lot of men would be happy to be relieved of such responsibility.

            Let’s go Brandon.

            1. A strawman not in evidence. Ok.

              Three is no mystery in sex and conception. A woman and man have mutual responsibility to each other and “our Posterity” including four choices: abstention, prevention, adoption, and compassion… and still six weeks. Baby steps. I guess that people hope to avoid another civil war, especially where political congruence (e.g. law) and social progress (i.e. Pro-Choice religion) has normalized the elective abortion of demos-cracy in darkness.

            2. But men are not “relieved of such responsibility.” Immediately after the deed, men are subject to the whim and election of the woman. You’ll quote Kennedy’s “sweet mystery of life” language about a “woman’s destiny,” but have never made the effort to propose that both sexes have “destinies” that are impacted by a pregnancy that was not planned. Note that I think that all of the destiny talk is bunk, so I’m not advocating for such a change. I just notice that the tentacles of these “super precedents” go only so far for the people who advocate them.

            3. Ding, ding, ding…why should he, when she doesn’t care about HIS feelings and wants?? It takes two.

        1. A father in absentia for a certain class of feminists (without reconciliation), transgenders (e.g. homosexuals), and people… persons with alternate priorities.

      2. Anonymous:

        Although this is admittedly a very specific example, let’s take the case of a full term, healthy fetus. There are those who claim there should be no restrictions whatsoever on abortion. 3rd trimester abortion requires labor and delivery. There is the added step of killing the infant which takes a couple of days. Since the mother is not spared pregnancy, not spared any of the risks of child birth, then why should she be allowed to kill a healthy baby, able to survive outside the womb, who is desperately wanted by the father? It seems like a pretty terrible thing to do.

        2nd trimester requires cervical dilation. The abortionist reaches in blind with forceps, and twists and pops off pieces of the live baby, laying it all out on a tray to ensure they got it all. It’s a gruesome death. Pregnancy is 40 weeks. 2nd trimester is 14 to 26 weeks. Viability starts at 23 weeks, though it’s risky. 29 weeks is safest. The cervix has to be dilated anyway to kill a 2nd trimester child. It must be agonizing for a father to learn a woman had his child killed like that. A viable child.

        There does indeed come a point, at least in my opinion, where it’s no longer just the woman’s right to choose.

        1. “There are those who claim there should be no restrictions whatsoever on abortion.”

          But you already know that I’m not one of them, Karen, because you and I have discussed this before. I don’t see the point of focusing on a situation that both of us object to.

          “There does indeed come a point, at least in my opinion, where it’s no longer just the woman’s right to choose.”

          You and I already agreed about that. There are a few exceptions for me: serious risks to the woman’s life or health, situations where the fetus has a condition that means it will never be viable, and rare other cases, like the 12 y.o. who became pregnant after her father repeatedly raping her, where it took the courts months to allow her to have an abortion (the father-rapist wanted to force his 12 y.o. daughter to bring the pregnancy to term, as did the girl’s mother). Again: I am using my green icon in part because you asked for a way to know that it’s me.

          1. Anonymous:

            I recall discussing with you prior that I had never heard of a single example where the abortion of a viable fetus was necessary to save a woman’s life or health, instead of just an early delivery. I recall you gave examples of non viable 3rd trimester pregnancies that were a threat to her health, such as when a fetus failed to develop properly, alongside a life threatening complication. But I do not recall if you ever did locate an example where an abortion of a viable fetus was necessary to save the mother’s life. By definition, viable means it could survive outside the womb. An abortion after viability would require labor and delivery, plus it takes longer than an emergency delivery.

            What I do not recall is if you ever agreed with me that there is no reason that the abortion of a viable fetus would save the mother’s life or health. Early delivery would do that. All you have to do is end the pregnancy to save her life. Killing the child is an entirely separate and time wasting step.

            There may be reasons why a woman would want her viable infant dead, rather than delivered, regardless of whether I agree, but none of those would involve her own health or safety.

            Refresh my memory, where we stood on that issue?

            1. I think our most recent extended exchange was here (you can read it rather than having me summarize it):
              https://jonathanturley.org/2021/11/01/roe-roulette-biden-administration-takes-a-gamble-with-emergency-appeal-of-texas-abortion-law/

              Also, I see that I misremembered the case with the 12 year old. It was her brother who raped her, not her father. Her parents wanted to force her to bring the pregnancy to term, and it took a long time to get a court order overruling the parents’ preference.

              1. Anonymous: If you click on the greyed out date at the top of a particular comment, you can link directly to that comment. That’s easier than linking to the entire blog post.

              2. Anonymous:

                I skimmed through our previous discussions. Unless I missed something, none of the examples were of a viable fetus requiring to be aborted in order to save the life of the mother. Just ending the pregnancy would save her, without the extra step of killing the infant.

                If I understand correctly, you believed that the decision about a viable, but abnormal pregnancy should be between a woman and her doctor. I agree, if the abnormality was severe. I think fetal abnormality should be a separate issue than the abortion of a healthy viable fetus. There is a movement of Down Syndrome adults advocating to save their people, who are at risk for 2nd and 3rd trimester abortions due to how long it takes to get test results.

                I think, therefore, that we’ve found some agreement that the arguments in favor of abortion of viable fetuses concern reasons that baby would be unwanted (viable but abnormal, product of rape, etc), and NOT a threat to the life or health of the mother. If I’ve missed something, let me know.

                Your belief that aborting a product of rape or incest also does not support the risk to the woman’s health or life argument. Personally, I don’t think it’s ethical to kill an innocent person for the crimes of another. At the very least, once the victim, the pregnant woman, has passed a certain gestational age, she’s going to go through childbirth no matter what. A late term abortion still requires dilation and delivery of either a still born (3rd trimester), or a dismembered infant (2nd trimester). Even though the woman was a victim, I do not think it is ethical to kill her innocent late gestation baby.

                That poor 12 year old. In cases of such trauma, and young age, it would seem more likely that a pregnancy would be farther along than average before being discovered.

          2. Oh, and thank you again for pointing out your icon. It does help to be able to know whom I’m talking to. We may quarrel and argue, but I still enjoy talking to you, and hope you’re doing well.

    2. “Oh and for those who say we don’t legislate morality, I ask you: what is the criminal law but codified ‘you can’t do that” ethics?'”

      There is a world of difference between these two premises: 1) That criminal law is *based on* a certain code of ethics, and 2) That criminal law ought to *enforce* a certain code of ethics.

      It is, for example, ethical to be independent and self-supporting, i.e., productive. That does not mean that the government ought to jail those who mooch off others.

      “‘You can’t legislate morality’ actually means ‘You shouldn’t make laws based on your morality, but on mine instead.’”

      It means that only if one does not think in principles.

  12. The common practice of using the word ‘viability’ in this way is inaccurate. Unless by violence the baby’s life is ended, it is perfectly viable from conception to birth. What should be said every time is ‘viable outside the womb.’ To me that is just throwing a mystic dart at a timeline to determine a life that has value and one that does not. It’s the same life before and after viability outside the womb.

    1. And this life has its own diatinct DNA, something unknown at the time of Roe. That distinct individual is part of a conversation and therefore making the “privacy” arguement null.

      1. “this life has its own diatinct DNA”

        That doesn’t make it a person.

        A zygote with distinct DNA might develop into 0 persons (even dying prior to implantation), 1 person, 2 persons, or even 3 persons. Conversely, two eggs with different distinct DNA may merge and develop into a single person with different DNA in different parts of their body.

        “making the “privacy” arguement null.”

        Nonsense. If you needed someone to donate some of their bone marrow to you to save your life, you have no legal right to it, even though you’d die without it. The embryo has no right to demand that the woman donate the use of her uterus to save its life either.

        1. That would be Her Choice, where women and men, people… persons have some influence, but not the final word.

          The privacy argument is oriented around the observation that demos-cracy is aborted in darkness. That is to say, a life can be aborted (e.g. planned parent/hood), a crime can be committed (e.g. redistributive change), when there is no social conscience or liability. Selective-child is essentially once-child, delegated, and approved by feminists and masculinists alike.

        2. “That doesn’t make it a person.”

          The zygote both has its own distinct DNA, which is human, and is alive (otherwise you wouldn’t have to kill it). You’re splitting hairs to propose it might die on its own (like, most human people do).

          “Nonsense. If you needed someone to donate some of their bone marrow to you to save your life, you have no legal right to it, even though you’d die without it. The embryo has no right to demand that the woman donate the use of her uterus to save its life either.”

          To take your analogy one step further, once someone does donate bone marrow or an organ and you accept the donation you don’t have the right to change your mind and insist that the donation be put back into the donor, consequences be damned, as if nothing ever happened.

          Nevertheless, the law distinguishes between invitees and trespassers – if you sour of a house guest you’re generally not legally authorized to shoot him because you’ve changed your mind about his socks on your floor. Nor are you permitted to force him out into a flood or a hurricane or demand that he leave by your 10th story window and not your door, all of which would yield certain death.

          1. “The zygote both has its own distinct DNA, which is human, and is alive (otherwise you wouldn’t have to kill it).”

            That doesn’t make it a person. Sperm and unfertilized eggs also have distinct (haploid) DNA and are alive. And even if you want to focus on an entity with diploid DNA, the majority of zygotes don’t even have a biological capacity to develop into a person: many die prior to implantation, some implant and are miscarried before the woman is even aware that she’s pregnant, a smaller number are miscarried later, a smaller number develop into hydatidiform moles, etc. For those zygotes that develop to live birth, the zygote might develop into 1 person, 2 people (identical twins), 3 people (identical triplets), or part of a person (if two blastocysts merge prior to implantation).

            Your own DNA includes more than 1 genetically distinct DNA, due to copy errors.

            IVF embryos that get discarded are also alive (until they’re killed) and have distinct DNA.

            For these and more reasons, living cells with distinct DNA do not have the same significance as a person does.

            An embryo is not a “house guest.” House guests are people, and you can ask them to leave or even call the police to have them removed from your house if they refuse. An embryo is not a person. It is living INSIDE the woman, using her lungs and circulatory system to get oxygen and get rid of CO2, using her digestive and circulatory systems to get nutrition, etc.

            So drop the false equivalence.

        3. Anonymous:

          I think everyone has their own ideas about when a human being becomes worthy of life. When they are a person and not just homo sapiens. There is a Brazilian tribe that buries toddlers alive in the jungle if they fail to meet developmental goals. They are not considered people.

          Let’s say I could rewind time, while looking at you, like a movie running backwards. It would be you, all the way back to the very beginning. I could point to you floating in the womb, and say, “that’s you.” I always consider that developing l life to be a person, even if they cannot develop until birth. A baby who lived 5 minutes was a person. An elderly person with Alzheimers and no memory is a person. I absolutely felt my own child was a person in my womb.

          Not everyone agrees, however.

          An embryo is voiceless, and cannot demand anything. However, as you reminded me, we agree that at some point, the people of the United States believe that there is a point where WE can say a woman no longer has the right to kill her unborn child. There comes a time where enough people feel it is morally wrong that there is support for legal restrictions.

          There is usually a spectrum of belief about abortion. I suppose laws should reflect the overlap in the Venn Diagram of these positions.

          1. Karen,

            Even without elective abortions, more blastocysts and embryos die prior to implantation or shortly after — often before a woman knows that she was pregnant — than develop to birth. I don’t see people mourning the deaths of blastocysts that fail to implant in the same way that we mourn the deaths of our parents, siblings, friends, other relatives, or even significant people who we may never have met, like Stephen Sondheim.

            No “you” ever develops for the blastocysts that die prior to implantation. What would you say at a memorial for a blastocyst?

            1. Anonymous:

              People die everyday, from everything like heart attacks and diabetic shock. That’s natural causes, such as a spontaneous abortion. An abortion is an unnatural cause of death, deliberately ordered. It is not in any way the same as someone naturally reaching the end of their life, which might be at 3 weeks gestation due to an abnormality or accident, or it could be at 103 peacefully asleep in your bed.

              Every human embryo that forms is a unique homo sapiens. I do think of them as people who never lived.

              This brings to mind an article I read about Snow Children. Those are people who were born from donated frozen embryos. When people go through IVF, they get more embryos than they need, as backup. Many don’t know what to do with those embryos. Some remain in cold storage indefinitely, some are thrown away, and some are donated to science, straight out of Monty Python’s, “it’s to the lab you go.” There is a movement now where people can donate their unused frozen embryos to people who want to adopt children, to either carry themselves or use a surrogate.

              It’s incredibly moving to see photographs of beautiful children, who had been frozen in time for months or years, at their earliest stage of life.

              I actually have had a miscarriage, and I can tell you that I did grieve quite deeply. I cannot imagine how women mentally take it for whom this happens repeatedly. It is a blessing that most pregnancies that spontaneously abort do so before a woman even takes a pregnancy test. She’s spared that anguish, and is just late.

              There are women who have tried for years to get pregnant, who get that positive test, and then lose the baby within weeks, over and over. They grieve. Some carry later only to lose them. They grieve.

              I think women have a wide range of reactions to pregnancy and miscarriage, because we’re all human, and humans are complicated.

        4. Anonymous says:

          “The embryo has no right to demand that the woman donate the use of her uterus to save its life either.”

          Precisely right. Generally speaking, there is no duty under the law to rescue or assist another person who is in danger or in an emergency situation. You cannot be held liable for not helping out- neither in a civil lawsuit nor criminal count.

          There may be some argument of a duty to protect a viable fetus conceived during *unprotected* *consensual* sex, but certainly none in an instance of rape or immaculate conception.

      2. And this life has its own diatinct DNA, something unknown at the time of Roe. That distinct individual is part of a conversation and therefore making the “privacy” arguement null.

        Roe v Wade was ruled based on antiquated, flawed scientific understanding of embryology given the era it was decided. Look at any video of a baby in-utero and immediately after an egg is fertilized by a sperm, and what you will observe is life, at the molecular level and physical structural level.

        The fact pro-aborts sell organs and tissues from aborted babies is testament that the pro-aborts consider those tissue$ valuable and $ignificantly viable and profitable. No one donates dead organs. The organs are kept fresh, on ice, in preservatives, so that they can further life.

        They dont consider the developing baby valuable because proaborts are all about them. A mother killing the baby within is the ultimate homicide. They have no interest in “the other” anymore than their feigned interest in minorities, immigrants, the poor, the downtrodden, etc, except until election day. They have effectively killed all societal processes that procreate and populate our world. Witness decades trajectory of the falling fertility rate, falling marriage rate in younger generations, destruction of the nuclear and extended families, and the increase in single parenting which is to say the production of a failed younger, insecure, neurotic generation.

        Point of fact: pro-aborts are infertile not only when it comes to live births and families, but they are infertile in the realm of intellectual thinking. Destruction is all they know, e.g. ANTIFA BLM Anarchy, Black on Black violent crime, etc. You can draw a straight line to our current societal woes to the infertile ideas of the Left, their grandest signature being killing the most defenseless life.

        1. “Look at any video of a baby in-utero and immediately after an egg is fertilized by a sperm, and what you will observe is life, at the molecular level and physical structural level. ”

          Estovir, as a physician, you should know that if you look at a sperm and an unfertilized egg, they are **also** alive “at the molecular level and physical structural level.” The issue is not about whether an entity (sperm, unfertilized egg, zygote, embryo, …) is alive. Any educated person understands that they are alive.

          Your choice to call people who are pro-choice “pro-aborts” shows that you are not attempting to have a good faith discussion. I am not “pro-abortion.” If no one ever chose to have one, that would be fine by me. Nor is your dishonesty in your description limited to the “pro-aborts” label.

          If you truly care about the country, figure out how to have good faith discussions with people whose views are different than yours.

          1. If you truly care about the country, figure out how to have good faith discussions with people whose views are different than yours.

            My patients are the people discarded by society: poor blacks with no family to care for them, single mothers with children who’s husbands left them, teens swayed by peers to use crack (I just saved one last week), illegal and legal immigrants on the run or lacking language skills, job skills, who work jobs blacks and whites think are beneath them, so as to send money back home to help their family, kids struggling with their sexual identity with no father to guide them and mothers overwhelmed with their own brokenness, HIV + patients who can’t afford medical care and meds who come to my clinic when they are super complex patients and I have to step in as an HIV researcher, and not a few elderly women disregarded by their own children who struggle to remove the caps to the bottles that have their pills that they may or may not remember to take.

            What I do for a living is something I do with passion, with gusto and do so as long as God allows me to use my intellect and people skills as a multilingual professional. What others might think of my commitment to people of this country would be entertained if they were in the trenches with me and getting their hands dirty.

        2. “Roe v Wade was ruled based on . . . defenseless life.”

          You could have saved yourself a lot of space by simply writing: A woman is just a broodmare.

    2. “Unless by violence the baby’s life is ended, it is perfectly viable from conception to birth. ”

      Nope. The majority of fertilized eggs die of natural causes prior to birth. In fact, close to half die of natural causes prior to implantation.

      “What should be said every time is ‘viable outside the womb.’ ”

      That’s what viability refers to, so there is no need to be redundant.

      1. Humans are perfectly alive until they die as well, so by anonymous logic humans can be killed at will. Does that make sense? Of course not. Though more intelligent facts exist, the fact that the fertilized egg can die is not a reason to kill it and doesn’t enhance the argument.

      2. I suppose dictionaries other than Webster’s may say that. Webster’s defines viable as “3 technical : capable of living or of developing into a living thing”.

        1. Viable is from Latin vīta, life, or able to live.

          A gunshot to the chest or head, a car running over a person, a comatose patient, etc, all of these are not viable. However, due to this nation’s Christian foundations, we intervene because we wish them to live. If we were to take the “not viable” argument to the literal interpretation, all surgical suites, trauma centers, life support units and hospital in general would be closed. Thankfully, unlike pro-aborts, we are not savages. We do not accelerate death, we protect, extend, enhance life, unless if you are a pro-abort

  13. Roe was a wrong decision, and that bad choice led to problems. Abortion was not and still is not a federal issue. It is a state issue. That being said, no matter what happens to Roe, abortion will remain with us. If the people want abortion rights to be a federal issue, they should pass a constitutional amendment. The arguments of the left are purely political, not legal.

  14. If people really knew what transpires upon fertilization, they would be genuflecting towards women in gratitude and awe. Life is sacred.

    1. If life were sacred, you’d be equally concerned about kids and adults who die from hunger or diarrheal dehydration globally, about people discarding unimplanted IVF embryos, about ending the death penalty, etc.

      There are very few anti-abortion people who actually consider life sacred.

      1. Dumb argument, but expected. Estovir, from what we have seen on the blog, is more concerned about the life of everyone than you are. Look at what you promote. Mass genocide, not just of black babies, but also living souls of all ages that were killed by people who thought like you (over 100 million in the 20th century). Daily more are being killed and many are enslaved by what Anonymous (ATS) thinks is good politics.

        Being a liar, that fool doesn’t admit to promoting ideas that enslave and kill, but that is what we see in those people that adopt certain ideologies because of dumb hate.

      2. Life is sacred, and people are equally concerned about children and adults who die from preventable causes globally, even before the transnationals forced mass hunger and depravation among the natives with motives of diversity and redistributive change. They support a woman and man’s right to choose: abstention, prevention, adoption, and compassion. They normalize a religion (i.e. behavioral protocol) that advises functional and responsible behavior, in lieu of progress that has denied and delayed both to later and riskier stages of a woman’s life. The death penalty is only judged and administered to people who subscribe to the Pro-Choice religion and abort life for social progress, social justice, and other light, casual, and fair weather causes.

  15. Of course, the court could reaffirm Roe, which — with a six-conservatives majority — would likely mean Roe will remain good law for the foreseeable future.

    Jim Crow was also considered “good law”, until it wasn’t.

    1. But, stare decisis, precedent is inviolable. NOW, people… persons abort “our Posterity”, and granny, too, for social progress, social justice, redistributive change, and fair weather causes.

  16. Abortion proponents always frame the argument as “pro-choice” or a woman’s right to control what happens to her own body (except when a vaccine is involved). This argument ignores the fact that there actually are two choices. In the vast majority of cases, the first choice is the decision to have unprotected sex. Without this first choice, the second choice is needed only when a woman’s right to make the first choice is taken from her by rape or some other wrongful conduct. Constitutional rights require responsibilities: a person who yells fire in a crowded theater is not protected by the first amendment; the right to vote is sacrosanct but it does not shield illegal voting. The “right” to an abortion should be the same.

    1. The position that you articulate is one that I have taken ever since Roe v. Wade was decided. I’m not sure why the “two choice” analysis has never gotten more traction. Reverence for life. Amen.

    2. “This argument ignores the fact that there actually are two choices. In the vast majority of cases, the first choice is the decision to have unprotected sex”
      ***************************
      It’s just limited to two choices though it shouldn’t be. Since the only woman who gets to choose anything is outside the womb, about half the time the other one (with a very vested interest after viability) isn’t even consulted. And if it’s a male fetus, well in our misandrist world neither he nor the biological father even count, apparently.

    3. “Without this first choice, the second choice is needed only when a woman’s right to make the first choice is taken from her by rape or some other wrongful conduct.”

      That’s false. You’d know this if you actually listened to women talking about their individual choices to have abortions. It’s false because ALL forms of contraception sometimes fail. It’s false because sometimes with wanted pregnancies, there’s a serious health concern for the pregnant woman. It’s false because sometimes with wanted pregnancies, the embryo/fetus is diagnosed with a condition that’s incompatible with life after birth. Etc.

      Listen to one woman’s story:

      1. Anonymous the Stupid, you provide one anecdote and a few reasons to consider in the debate over abortion. Those worthy of discussion account for a small fraction of the millions of babies aborted over the years.

        The remainder of those killed didn’t fit into what can be considered rational exceptions. That means you are a killer at heart with a particular affinity to the killing of black babies. You have successfully “killed” many where only a few fit the criteria. That is shameful, but trolls like you have no shame. Your objective is the preservation of your despotic ideology rather than life itself.

        1. II doubt that any unbiased people exist with respect to abortion, including you and me.

          Do you have anything to say about her actual experience? Would you have forced her to bring that second pregnancy to term?

          1. Forced after the first, second, or third trimester? The apology for elective abortion is a strawman in most jurisdictions, and, even in the most liberal sects, reproductive rites or elective abortion (“right to Choice”) a.k.a. planned parent/hood are politically incongruent.

            There is no mystery in sex and conception. A woman and man have four choices, and, in light of liberal progress (people hope to avoid another civil war, especially when demos-cracy can be aborted in darkness), still six weeks for the wicked solution, a reproductive rite.

      2. People like Jayapal make me reconsider my views on Abortion…..as in her case….I so wish her Mother had had one and spared us this Woman’s existence.

        1. Ralph, a man of faith,

          Protecting life is one thing; wishing someone was never borne is another. Your god must be ashamed of you. You are setting a disgraceful example. Be more like the Jewish sage Jesus.

      3. She’s using the pronoun “they” for her own child.

        Imagine if she’d had that 2nd child, who’d been perfectly healthy. She probably would not be able to imagine her life without that person. I’m not clear if her unwanted unborn child was actually diagnosed with a fetal abnormality, or if it was her ability to carry to term that was at issue.

        Fetal abnormalities are a separate issue with its own debate.

    4. Yes, personal responsibility, self-defense, and reconciliation of edge cases. A couple, a woman and man, have four choices: abstention, prevention, adoption, and compassion, and, in light of social progress, still six weeks for the wicked (final) solution for light and fair weather causes.

  17. Johnathan Miller said this on Dick Cavett about forty years ago: “Abortion arguments cannot be solved by discovery, they can only be resolved by decision.” He meant that there are no clear deductions from basic rights in cases where there are not only conflicts about the rights themselves, the woman versus fetus for example, but also conflicts about what you are dealing with, in this case a human or a prehuman assemblage of cells. We can use deduction from basic rights and constitutions when there is litlle or no conflicts of this nature. The federal system is a partial answer to the conundrum . We allow states to make make the finer distinctions on these issues, which resolves them on a trial and error basis. The state could reverse itself. Indeed, the states become 50 labratories for observing whether these resolutions seem fair, instead of the “one lab” character of federal law. This may seem to be a chaotic situation like democracy in general, but Churchill’s declaration ” democracy is the worst system except for all the others” applies here. To summarize: let Federal Law obtain where the are clear and compelling possible violations of the constitution and basic rights, and let states make law for insolvable conflicts. The states resolves (using decisions) whereas the Federal government solves using the overlapping authority of deduction from the constitution and uncontroversial basic rights. The penumbra of privacy violation in Roe v Wade is really a haze that cannot be made absolutely clear. And that is where the states should step in.

    1. To summarize: let Federal Law obtain where the are clear and compelling possible violations of the constitution and basic rights, and let states make law for insolvable conflicts.

      We should put that in the Constitution
      Oh, wait

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

  18. Almost everywhere the right of abortion was determined by a democratic process, usually a referendum.

    As a pro-life person for whom abortion is the first issue when I participate in politics, I would be fine if abortion were legalized via a vote. If society wants to kill its young, so be it.

    But Roe is much worse for it has corrupted an entire branch of government. Justices are chosen solely on their stance on abortion. Its insane

    1. I am at best ambiguous, at worse indifferent on this particular issue, but the concept of putting Constitutional Rights up for popular vote is a dangerous slippery slope. Think for a moment about the insanity of the current woke brigade. Do you want them to go to the polls to help determine the limits of speech, or the right to defend yourself?

      1. but the concept of putting Constitutional Rights up for popular vote is a dangerous slippery slope

        But still much preferred to 6 unelected, unaccountable, robed oracles forcing their ideas on a Nation.

        1. The point, particularly regarding the Bill of Rights, is that these are things that are not open to debate or abridgement, no matter how much popular support there is to do so. The worst thing that could happen to the nation is to be ruled by the emotion or cause celeb of the day. A nation governed by our most base passions would make today look downright placid in comparison.

        2. Nothing prevents the country from overruling SCOTUS via a constitutional amendment — except the fact that the majority of the US population does not want to amend the Constitution to outlaw abortion.

          1. The majority of Americans don’t like the leftist way of approaching abortion. Most think that using abortion as birth control is heinous. Many believe that abortion in some respects is the equivalent to black genocide.

            No matter which way one focuses on the solution, all should recognize that abortion is morally wrong even if is supported. The left lacks the morality to gain the support of those that have a moral compass.

        3. iowan2 — I’d rather have nine educated people who are knowledgeable in the law and the Constitution making this decision, than an hysterical and violent mob. We have come a long way from mob justice — even though it still rears its ugly head occasionally with BLM/Antifa — and we cannot as a society afford to regress. What the “woke” mob still doesn’t get is that living in a society means you accept the social contract that, at base, means you agree to abide by its laws, and to change those laws in legally prescribed ways. In the past 11 months we have seen egregious and deliberate violations of the Constitution by a president up to his ears in corruption (but shielded by the feckless media). No doubt if this Roe decision doesn’t go the “left” way, there will be more “mob justice.” The mob has been turned loose too often now to expect it to abide by a decision it doesn’t like.

      2. A few thoughts on this:

        1. I believe the privacy argument of Roe was abandoned in favour of a substantive due process rationale in Planned Parenthood. As I understand it, the power to have an abortion for any reason or for none is now viewed as one of the liberty interests for which there is substantive protection under the due process clause. It is not clear why this power should benefit from special protection while others do not. Nor is it clear how the court is to balance this power against others, for example the power of a state to protect potential life, when there is a conflict. Like many substantive due process cases, there is here no anchor in the constitution to provide stability, and so the outcome depends entirely on the values of the justices. For this reason, Roe/Planned Parenthood should be overturned.

        2. It is unclear what the genuine “reliance” interests are, which would support the precedents even if they are thought by the court to be wrong. The only people who actually rely on the constitutional right are women who have sex with the expectation that if they become pregnant they can avoid having a baby by getting an abortion prior to viability, and who live in a state where abortion is, or will immediately become, unlawful. Any concern about this kind of reliance would be eliminated by having a negative ruling take effect 24 weeks after the decision is announced. I suppose it could also be said that organisations established, and doctors trained, to provide abortions could find less demand for their services after a negative ruling. But any reliance they may have placed on the continuing existence of a woman’s constitutional right is at best indirect — the right is not theirs. A possible reduction in demand for services whose level of supply is based on reliance on the continued existence of a contested right enjoyed by others is hardly a societal detriment that should preserve precedents that are otherwise thought to be wrong.

        3. If the right is overturned, the Federal government may have no power to act. It is not clear that anything in the constitution could be relied on to support Federal regulation of abortion. Maybe a threat to withhold Federal funds from states that outlaw abortion could provide leverage, but it is not certain that this would be constitutional.

        4. Assuming the matter devolves to the states, this could be problematic for Republicans seeking to enhance or maintain their position with constituencies who are generally pro-choice, such as suburban women. Many Republicans may have to moderate their pro-life position to reach a compromise acceptable to these constituencies, perhaps such as that reflected in the Mississippi law, which is close to the position of nearly all European countries. This perceived need for moderation could well lead to civil war within the Republican Party as true believers battle those advocating compromise.

        I hope the court has the integrity to overturn these precedents. Personally, I would support a state law along the lines of Mississippi’s and probably others that are even more pro-choice. But these are entirely value judgments, based on the balancing of a wide variety of often conflicting considerations that are moral and practical in nature. Unless disputes over value judgments of this sort have been removed from politics by an express term of the constitution, they should be left to the political process to resolve.

        1. “I hope the court has the integrity to overturn these precedents.”

          This likely depends upon Roberts and Kavanaugh understanding that the “institution” of the Court is dependent not only upon the elite opinion of the small fraction of people who are represented by Linda Greenhouse, but also upon the opinions of many more people who see the Court contort itself and cater to the written directions of Linda Greenhouse.

      3. As a practical matter, rights are dependent upon a robust culture which respects them. The “woke brigade” will not “go to the polls” to limit speech, they’re already in the process of indoctrinating the credentialed youth of the nation that speech is subject to regulation because the First Amendment “doesn’t apply to hate speech.” That you’re “hiding behind the First Amendment” to “excuse your bigotry.” It’s a mere matter of time on the current trajectory until Justice Jaxson Jackson (xe/xer) writes for a majority of the Court that hate speech is violence and deadnaming may be punished by a lengthy term in prison. The scribblings of dead white cismen won’t matter a whit when they do this.

    2. Abort its young and old (e.g. planned parent/hood). Enslave a diversity class (e.g. Kenya’s Luo vs deplorables). Lynch its competitors (e.g. Xhosa vs Zulu). Practice its medical art (e.g. Mengele clinics). Engage in a Great Leap forward (e.g. Mao’s Choice). There are diverse precedents and religions (i.e. behavioral protocol) for denying a woman and man’s dignity and agency, and reducing human life to a negotiable asset that prepares the progressive path and grade.

  19. Nice article on SCOTUS contortions to find Constitutional Power to do what is not in the Constitution.

    All the leftist point to the erudite Europeans on all things (that they agree with). European Nations treat abortion as a political (Peoples) decision. Legislation, not judicial fiat.

    1. The Twilight Amendment (i.e. “penumbras and emanations”) is not limited to the wicked solution (e.g. selective-child or one-child, delegated) a.k.a. planned parent/hood (e.g. reproductive rites), but a source of diverse (quantity, quality, not color) mischief that undermines human rights, civil rights, and social stability.

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