What Has the Pro-Life Movement Won?
by Ross Douthat - 2 April 2021
Excellent review of what it has come to in the US. Legally and politically well-informed.
[Content of Roe and a Moral Rationale](https://www.objectivistliving.com/forums/topic/11208-gop-debates/?tab=comments#comment-143569)They’ve certainly convinced a lot of people that “life” begins at conception. People like Biden can’t really challenge it because they believe it too. All they can do is be hypocrites and say they won’t impose their beliefs on others, when they’re perfectly willing to impose other beliefs on others.
On 4/3/2021 at 2:50 PM, MisterSwig said:
They’ve certainly convinced a lot of people that “life” begins at conception. People like Biden can’t really challenge it because they believe it too. All they can do is be hypocrites and say they won’t impose their beliefs on others, when they’re perfectly willing to impose other beliefs on others.
Politicians’ best posture is to NOT impose abortion regulation. In itself, this shows a respect for women’s rights.
Regarding “pro-choice vs. pro-life” the main criteria here is that government has no right, constitutional or otherwise, to a woman’s body. No matter what a President, an individual member of Congress, or state and local representative, or governor believes, it is imperative that government stay out of the race to restrict or prohibit a woman’s right to an abortion.
“In granting this case, Dobbs v. Jackson Women’s Health Organization, the court takes us all the way back to the heart of the matter, to whether a state can skip all the rigmarole and just impose a flat-out ban on some—or all—abortions before fetal viability.
“Do I think the court will use this case to permit states to ban abortion entirely? No, not directly and not soon; there’s no need for the new majority, handpicked for that very purpose, to go that far this fast. The question the court has agreed to answer, as framed by the state’s petition, “Whether all previability prohibitions on elective abortions are unconstitutional,” suggests but doesn’t require an all-or-nothing response.
“[Presently] what a state can’t do at the end of the day is actually prevent a woman with the resources and will to get to one of the diminishing number of private providers . . . from terminating her pregnancy.
“Once the viability firewall is breached, it’s hard to see what limiting principle the new majority might invoke even if so inclined. . . .
“Limiting principles usually matter a great deal at the Supreme Court, and it’s common during oral argument for justices to demand that lawyers articulate one. The justices need to know: ‘If we buy what you’re trying to sell us, exactly what are we buying? What’s the next case in line after yours?’” —Linda Greenhouse—20 May 2021, NYT
I expect readers here know what’s in the long and growing line from state governments where appeals to mystical metaphysics of the electorate have seated officials committed to the end of all previability abortions (a fortiori, all abortions) in America. (90% percent of US abortions are performed before the 13th week of gestation; present technology for support of a fetus outside the womb is good for effecting live deliveries at about 22 weeks and on up to full-term.)
Today at the US Supreme Court, arguments concerned the Mississippi anti-abortion law and the Texas one titled Senate Bill 8.
In the abortion providers’ lawsuit to challenge the latter, “the majority of justices pushed back on the enforcement mechanism that has allowed the law to skirt judicial review so far . . . .
“‘There’s a loophole that’s been exploited here or used here,’ Kavanaugh said, noting that the same mechanism could be applied to limit other constitutional rights if allowed to stand. ‘It could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights, if this position is accepted here.’
“Texas’ law, which blocks abortions at about six weeks into a pregnancy, has been successful in suspending most constitutionally protected abortions in the state by using a unique tactic: forbidding state officials from enforcing SB 8 and instead relying on private citizens to sue those who violate it. Typically, in suits aiming to overturn laws considered unconstitutional, courts don’t block the laws themselves — they block their enforcement. Since SB 8 is not enforced by any state officials, opponents seeking to block it have struggled to narrow their focus and name the right defendants.” Texas Tribune - 11/1/21
“Justice Barrett took issue with the state’s assertion that providers could adequately challenge the law by violating it, getting sued and defending themselves by arguing that the law is unconstitutional.
“‘The full constitutional defense cannot be asserted in the defensive posture, am I right?’ she asked.
“Solicitor General Elizabeth B. Prelogar, representing the federal government, said the Texas law was designed ‘to thwart the supremacy of federal law in open defiance of our constitutional structure.’
“‘States are free to ask this court to reconsider its constitutional precedents,’ she said, ‘but they are not free to place themselves above this court, nullify the court’s decisions in their borders, and block the judicial review necessary to vindicate federal rights [eg. Bill of Rights]’” New York Times - Adam Liptak - 11/1/21
Draft Opinion Shows that Republican-Appointed Justices Will Overturn Roe v. Wade in This Session
Mystical metaphysics slithers back on throne.
3 hours ago, Boydstun said:
Draft Opinion Shows that Republican-Appointed Justices Will Overturn Roe v. Wade in This Session
Mystical metaphysics slithers back on throne.
If you read the draft opinion you will see that the court’s reversal on Roe and Casey is based on the legal grounds that those decisions were unsupported by law, precedent, or practice and that what legal history was covered in Roe was irrelevant or simply wrong. The Supreme Court’s assertion of judicial power to attempt to settle the abortion controversy by decree was unconstitutional because the Court has no such authority. Mystical metaphysics has nothing to do with it. No metaphysical hypotheses of any kind is offered.
Grames,
That is not what I asserted, implied, or insinuated, in the context of the thread, including the second link in the first post. I’m a step or three beyond being an idiot.
The mystical metaphysics is with the voters who voted for Republican candidates in state-wide races or for the Presidency in the these last decades because they favored overturning Roe and outlawing pre-viability abortions. The Justices appointed by G. W. Bush and by Donald Trump were candidates for appointment because they satisfied the requirement of being in step with that electoral constituency.
We do not know what will be in the final opinion, only which Justices (other than Roberts) will overturn Roe. But if the reasoning is roughly along the lines of the draft, then strictly speaking, the Supreme Court case overturning state prohibitions of contraceptive pills and the one overturning state laws against sodomy should likewise now be reversed. I don’t expect cases in those areas to arise because the culture has evolved so far that no states will attempt to restore those old prohibitions. Prohibition of the morning-after pill, however, may well get into state law.
Now the fight over abortion turns back full-tilt to the States. In the US Senate, I doubt either side can get a super-majority to go along with a federal abortion law. Hopefully, anti-abortion states, such as my birth state of Oklahoma, will suffer boycotts over their political Bible-thumping regression and the rational citizens get more voice in those states.
7 hours ago, Boydstun said:
The mystical metaphysics is with the voters who voted for Republican candidates in state-wide races or for the Presidency in the these last decades because they favored overturning Roe and outlawing pre-viability abortions. The Justices appointed by G. W. Bush and by Donald Trump were candidates for appointment because they satisfied the requirement of being in step with that electoral constituency.
After reading the leaked draft, this is indeed the main line of reasoning presented: the argument from democracy. Highly contentious moral views ought to be decided by the people, this is one, therefore this ought to be decided by the people.
A second line of reasoning in the draft is an appeal to history or tradition. He argues that if a freestanding individual right to bodily autonomy is appealed to, well there’s no historical basis for that, and after all it would lead to legalization of drugs and prostitution and that would just be crazy.
As somewhat of an aside , though possibly tangential, is there a meaningful and useful distinction between ‘legalisation’ and ‘decriminalization’? Are there such ‘things’ as delegalisation and criminalization ? Are all actions legal inherently until or when we ‘make’ specific actions criminal?
2 hours ago, tadmjones said:
is there a meaningful and useful distinction between ‘legalisation’ and ‘decriminalization’?
I’m not sure how consistent usage is here, but I’ve seen the distinction drawn as follows. Decriminalization makes the penalty just a fine. Legalization makes it totally legal.
10 hours ago, Boydstun said:
The mystical metaphysics is with the voters who voted for Republican candidates in state-wide races or for the Presidency in the these last decades because they favored overturning Roe …
Yeah, that would be me. Except my motives were not mystical. Adherence to some judicial methodology is better than arbitrariness. What was granted by judicial fiat can be taken away by judicial fiat. Individual rights that are properly secured against the federal government and the states are to be spelled out in plain language in constitutional amendments.
Grames,
Now that it’s coming back to your state, are you going to support candidates who run on outlawing abortion in Pennsylvania? By outlawing abortion, I mean like the way your state had it before Roe (e.g. your House Bill 2252 introduced last January). I have a clear and public answer on my state of Virginia: No.
I have a clear forthright answer also on:
Virginia prohibition of the morning-after pill – No
Virginia prohibition of same-sex marriage – No
How about you in Pennsylvania?
Stephen, abortion (pro or con) is way down the list of more important issues to consider. I’m not even anti-abortion so would not support any candidate that was a single-issue lunatic. Philadelphia, Pennsylvania was where Kermit Gosnellran his abortion charnel house, for which he has been given three life sentences with no parole. I am not threatened by the prospect of some state level regulation of abortion but also see no prospect for a full abortion ban here. If one did pass it would not last long before the political pendulum swung back the other way. Neither side of the issue has the numbers and political power to have it all their way once and for all.
Prohibition of the morning-after pill – No.
Prohibition of same-sex marriage – No. But I could see forbidding adoption of children into same-sex marriage households as reasonable.
2 hours ago, Grames said:
Individual rights that are properly secured against the federal government and the states are to be spelled out in plain language in constitutional amendments.
I would say that your right to your own body is an unenumerated right, and such rights are protected by the Ninth and Tenth Amendments of the Constitution.
Technically a right to production and trade could also be upheld in such a manner (although probably not by this Court.)
More explicit amendments wouldn’t necessarily do any harm, but I suppose the concern of the Founding Fathers was precisely that it’s impossible to enumerate all rights. I think they preferred that the powers of the government be enumerated instead.
2 hours ago, necrovore said:
Technically a right to production and trade could also be upheld in such a manner (although probably not by this Court.)
https://en.m.wikipedia.org/wiki/Lochner_v._New_York
Alito actually mentions Lochner v NY in the opinion and explicitly calls it “freewheeling” and “discredited.”
On 5/3/2022 at 8:03 PM, necrovore said:
I would say that your right to your own body is an unenumerated right, and such rights are protected by the Ninth and Tenth Amendments of the Constitution.
I am sympathetic. There are also clauses forbidding the use of any money but gold and silver that have never been repealed or altered by amendment.
7 hours ago, Grames said:
There are also clauses forbidding the use of any money but gold and silver that have never been repealed or altered by amendment.
Can you be more specific?