> Firstly, can you even prosecute a woman for abortion? Aren't they legal?
In case you've been living under a rock for the last while: several American states have banned abortions[0][1] after the Supreme Court overturned Roe vs Wade. The federal government failed to implement any laws to safeguard access to abortions so overturning Roe vs Wade was all that conservatives needed.
Some states have exceptions for rape and incest, some don't. Texas even offers a sizeable bounty for reporting abortions. This has already resulted in medical care being refused to women carrying stillborn children and other pregnancy complications fatal to either the mother or the child out of fear of prosecution.
As for secondary criminal activity: I agree, if the police finds other illegal acts during a legal investigation, they should be allowed to act on that. This is the proof that the whole "if you've got nothing to hide" narrative surrounding state surveillance is dangerous.
> The immediate political debate in the U.S. isn't about zygotes, but rather fetuses.
No, it's already law that currently 10 states have bans on all abortions past 6 weeks, restricting women's control over their own body. But feel free to move to Texas where a 12 year old daughter could be raped and forced to carry a baby. Sounds like freedom to me. /s
> But abortion couldn't be one of those rights because abortion was banned in some states.
Abortion was not, in fact, banned when that amendment was written. The first full ban was in New York in 1829. [1]
Besides, the legal issue is not whether abortion is one of those rights per se, but rather whether privacy is an implicit right (almost certainly), and whether family planning (abortion, yes, but also contraception & choice of sex partner) is a sufficiently private decision that the government is restrained from regulating it.
> Regardless, Texas cannot hold you liable for an abortion that you get performed in another state.
Texas can do whatever the US Supreme Court allows them to do, and if you think well-established Constitutional precedent is a firm guide on that...how do you think they have the ability to ban abortion in Texas in the first place?
But even under established precedent, I don't think it's at all clear that they cannot punish you for anything you do while in Texas with the intent of getting an abortion, even if the actual abortion is performed outside of Texas.
And even if they can't (based on what the courts will eventually decide) punish you, they can arrest you, charge you, try you, convict you, sentence you, and send you to prison, possibly awaiting execution, before your case is even ripe for appeal.
There is no Federal law governing abortion. State law governs abortions, subject to Roe v. Wade and subsequent cases that provide a Constitutional right to abortion within certain parameters that the States cannot abrogate.
The Supreme Court is already considering a Mississippi abortion law case (Dobbs v. Jackson Women’s Health Organization, nr. 19-1392) that, depending on the outcome, could significantly curtail this right, possibly lowering the deadline to 15 weeks. The decision is expected in June.
> There is a zero percentage chance the Supreme Court re-hears the [Texas] case on abortion.
If they do, will you come back and admit you were wrong?
> Overall its just a slippery slop when you give the government this right. What happens if conservatives get in power and decided abortion should be banned outright as they consider a fetus a person? By the same logic you are using, they would be perfectly reasonable to do that.
This is a ridiculous argument and I'd say mostly FUD. Abortion is pretty well litigated. Conservatives have been in power in state and national govts for years and they've barely managed to get anywhere close to this.
>And it's somewhat unclear to me why this should be a federal issue at all... isn't murder a state issue?
That's an odd framing for a self-described "pro-abortionist" to use, but no, obviously federal law against murder exists[0].
But of course the question of whether or not abortion is a matter of murder, fundamental bodily autonomy or both is a quagmire not worth getting into. Not that it's relevant to Roe v. Wade, or its appeal, because that rested on the question of the existence of a fundamental right to privacy and stare decisis.
I mean, read the dissenting opinions on Dobbs[1]. I think a good case is made there as to why this shouldn't be an issue left to the states, and why Roe wasn't repealed because it was bad law, but because the court was stacked with ideologues who were opposed to Roe for religious reasons.
You should be at least as angry about that as Roe itself, if not more so because that represents a far more egregious corruption of the system, but I suspect you aren't.
> Also, is it not the case that most Americans support some abortion rights? Thus, this could force conservatives to move center on the abortion spectrum in order to appease their constituents.
13 states have trigger laws going into effect with this. It’s not going to move the needle at all. The red states will ban it. Blue won’t. And it’ll still be a hot button topic in the reversed states. Red candidates in blue states will want to outlaw it. Blue candidates in red states will want to allow it.
> Now consider states make it illegal to get birth control pills and retroactively go after anyone who has them prescribed. It's according to the law, ain't it?
Your example is ex post facto, but it doesn't even have to be that egregious. State A makes it illegal to leave the state with the intention of having or facilitating an abortion. Because CVS operates nationally, cops in State A can go to a CVS locally and pull records of a CVS in State B filling a prescription for a medication that is sometimes, but not always, used for abortion. They can then use that to build a case for prosecuting the person in State A.
> Well if we assume that some states are going to treat abortion as murder, one could argue encrypted communications about getting such an medical procedure are under higher pressure than when they are not.
But that has nothing to do with outlawing encryption. There have already been cases where the government has been unable to access data related to murders. Classifying abortion as murder wouldn't change anything in that regard.
>I wouldn't trust a system that is this unreasonable when it comes to bodily autonomy to suddenly have it's ducks in a row when it comes to privacy (or for that matter: any other freedom US citizens currently enjoy).
Roe's problem is that it asserts a right that is never directly described in the amendment it's supposed to be based upon. This is unique to abortion as most fundamental rights are explicitly described in the constitution.
> Now it is and I fully expect them to use their newfound power to oppress women seeking lifesaving medical care.
I fail to see how an abortion is lifesaving medical care, can you explain what you mean by that?
If you're referring to ectopic pregnancies, it looks like the majority of abortions are not due to an ectopic pregnancy. The only source I could find that actually reported the number of abortions due to ectopic pregnancies only covered 1981-1991[0]. It looks like the number of ectopic pregnancies was consistently around 80-100k whereas there were around 800k-1million abortions per year.
In addition to this, I don't know of any laws that have been passed in any state banning abortions that save the life of the mother. I would love to read up on some laws that prohibit this, not an article from NYT, or Washington Post, or some other political news agency. If you know of any, please let me know because I would like to be well informed and change my mind if that's the case.
> I can think of no group more dangerous than religious fanatics bent on protecting "innocents" in the name of God.
And I can think of nothing more dangerous than a political group oppressing and killing people unable to defend themselves in the name of "reproductive rights".
I would seriously like to see actual laws that are passed or trying to be passed to ban abortions that save the life of the mother. If you can show me evidence of that I would be willing to reconsider the consequences of overturning roe v wade. But right now, it looks like the only thing happening is states have the power again instead of the federal government.
Edit: I reread your comment and it looks like you're referring to rape. Rape and incest laws also haven't been discussed yet. I don't see any Republicans targeting victims of rape and incest, and I'm sure if you talk to most of then they are OK with exceptions in these cases. Unfortunately, once again, the vast majority of abortions are not due to rape and incest.
There were around 140k abortions due to rape in 2019.[1] If every single rape resulted in a pregnancy, and every single victim aborted that pregnancy, that would only account for 22% of abortions (around 640k abortions in 2019[2]). It's highly unlikely that this is the case, which means the vast majority of abortions are not due to rape and incest. It doesn't matter anyways, because even if Republicans pass laws allowing victims of rape and incest, and ectopic pregnancies to abort, I have a feeling you still won't be happy.
> Because it's not really relevant—the laws making it illegal are making it illegal across the board, no matter how early.
This doesn't make any sense. Since the recent SCOTUS decision, laws are surely being drafted in many states right now. People may still be discussing, writing, overturning, and re-writing abortion law twenty years from now. Having a coherent moral position on the issue is absolutely relevant.
> But now that's no longer a concern, the bans are across the board.
This is just completely false. There are fifty states, and most of them have now and will continue to have threshold or multi-threshold laws. By my count six states have blanket bans, and the percentage of the population living under those blanket ban laws is extremely small.
And this is exactly what's bugging me. I think there is a vast middle ground of people who believe all these things:
1. Aborting a fetus with a functioning brain is wrong.
2. Forcing women to carry pregnancies to term against their will is wrong.
3. (1) becomes more wrong the further developed the fetus is.
4. (2) becomes more wrong the greater the harm or risk of harm to the mother is.
And these are the people writing most of the laws in most states. They're also the people that drafted the original Roe v. Wade opinion. These people fall on a spectrum between pro-choice and pro-life, because it's a complicated moral question.
> So it's not discussed much because it's not a big part of what happens.
I think these are Internet goggles. I think it's discussed a lot, given how many different laws there are throughout the world and how detailed many of them are in their timelines and conditions. But for some reason on message boards, it's all Christians unsubtly implying that aborting a fertilized embryo is like making somebody who exists not exist anymore, and on the other side people saying "you're so dumb, a fetus isn't a person" as if that completely settles the question. And the same people act like it's equally obvious that's it's a horrific atrocity to kill an infant that only gestated for 24 weeks, just because its using its lungs and its location in space relative to the mother has changed.
Does it make sense if I say that I'm just as appalled by the simplistically-pro-choice disregard for somewhat-cognitively-developed fetuses as I am by the simplistically-pro-life disregard for a mother's burden? Why is it sufficient that late term abortions are just "rare, expensive, and unpleasant"? Aren't they just as wrong as keeping an unwilling mother from aborting a microscopic blastocyst?
> The Supreme Court neither banned abortion nor prohibited the legislature from protecting the right to abortion.
Which means that New York, California, Massachusetts will retain abortion access. And Texas, Indiana, will remove abortion access.
This sounds like States rights is actually working.
But the media is distorting the overturning of Roe vs Wade with the sensational claim that “Abortion is banned in the US”.
No, it’s not banned. This just means Texas and New York have differing policies with regards to abortion access. Yes, 46 million women living in conservative states will lose access to abortion, but not all of those women are liberal quite frankly. Moreover, those states are exactly that: conservative. And the Conservative Majority of that state isn’t required to accommodate the views of the Liberal minority of that state.
Just like the Liberal Majority of California isn’t required to accommodate their Conservative Minorities.
That’s the nature of how US Democratic institutions were built.
Sounds fair to me and the Supreme Court made the correct decision by returning that authority back to the states.
> It is fun to cherry-pick the most favorable facts for your argument from a source.
I randomly picked a state I assumed would be the most conservative.
> The rest all use the much higher bar of "serious risk of the substantial and irreversible impairment of a major bodily function.”
You said: “red state abortion laws do not make exceptions for the mother's health.” By your own admission that’s false.
The “higher bar” you mention is similar to the “grave permanent injury” standard used in France. (Note also that France had a seven day waiting period until recently, and Germany still has one plus mandatory counseling.)
> All ban abortions starting within the first trimester, most at 6 weeks.
Yes, but all those bans have been blocked by federal courts, and none have gone into effect, because Roe prohibits banning abortion prior to viability (20-24 weeks). Under Roe, most EU abortion law would unconstitutional for the same reason. That’s why Roe is radical compared to Europe.
> I'm not discussing the upper thread. You are an attorney; this isn't ignorance, it's dishonesty. US abortion laws are not more radical than other developed nations.
One of the central issues Roe and Casey grapple with is at what point is the fetus sufficiently developed that the State has an interest in protecting its life. That’s the whole point of Roe’s trimester framework. It’s also a fundamental moral question about human life. Casey says this about “Roe’s essential holding.”:
> It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.
The parts italicized above are ones that most EU countries disagree with. They draw the line at the end of the first trimester. There may be various exceptions beyond that—e.g. impairment of mental health in Denmark—but at that point the ball is squarely in the court of the government to choose what to allow under what circumstances.
What’s “intellectually dishonest” about pointing out that Roe’s viability line is quite radical compared to the ones other developed countries draw?
All but three EU countries limit “on demand” abortions to 14 weeks or earlier. The earliest limit in the US, that has actually been allowed to go into effect, is 20 weeks.
> However, I think where we disagree is the assumption that the Court can only perform judicial review on state laws when they violated explicitly enumerated rights in the constitution or US federal law.
Actually no. I think there are unenumerated rights: marriage, procreation, inheritance, paternal and maternal rights, and countless others.
Abortion is not one of them unless you are also arguing against the paternal interest of the Father and the life interest of fetus (mind I’m not going to say that begins at birth, I actually don’t have a strong position on that specific question at this time). That’s what makes it no longer simply a matter of privacy, or bodily autonomy or whatever substantive due process claim you could make; another human being is implicated.
That doesn’t mean we shouldn’t pass any legislation at all legalizing abortion to a point, but we have to make a political determination where that point is, and that will vary State to State, and it has to be legislation, not the Courts. That said I’ll give you this, if the courts want to step in at some point and protect the right to abortion in the cases of ectopic pregnancies, I’m all for it. I just hope they never have to.
> There is no way this can be upheld, right? How on earth can citizens of state 1 go after citizens of state 2 for something that's legal in state 2?
Yes, it’s insane. But I don’t have faith in our courts to not split this hair and allow it for abortion specifically because they are so clearly partisan on social issues here.
Even without the insanity of the Texas law though, it’s still a huge issue for poor women in red states.
> Who decides when the will of a state's majority is "democracy at work" and when it's "persecution of the minority violating equal protection"?
The federal government passes laws, or a constitutional convention passes amendments, and federal courts interpret them. The 14th amendment was interpreted to apply this protection before but now it is not.
> Yes, but that is the preference of anyone who believes that they're right and the others are wrong. Federalist pro-life voters certainly bemoan that any state allows for abortion.
Yes, I said something similar in my own comment.
> demonstrating overwhelming will of the people
The bar for "overwhelming" is too high. The status quo always benefits certain people over other people. So under this system, the status quo, and the people who already benefit from it, almost always win. And thus I claim, contrary to yours, that the country as a whole never benefits from the system.
> In this case, being able to move to places with the rights you want to have enshrined is a good option.
There's actually an important difference between having a freedom and having a right, and not every freedom needs to be a right. That's because freedom is the default in our system. No action is illegal unless a specific law is passed to outlaw that action. A Constitutional right means that the government cannot pass a law to outlaw an action. The Supreme Court struck down the right to abortion, but it did not thereby make abortion illegal. Women are still free to get an abortion, unless some government passes a law against it, which is now allowed. My point here is that you don't have to support a national Constitutional right to abortion in order to support the freedom to get an abortion. Consequently, there's still no reason to support the right of individual states to outlaw abortion, regardless of the Dobbs decision. The only reason that abortion is illegal anywhere is because individual states have passed specific laws banning it. It's a restriction of the default freedom. The states are the problem here, not the solution. There's no federal law banning abortion.
Of course there's a tradeoff here, because going back to the original long lost topic of the submitted article, regulating tech, if states have the right to pass more restrictive legislation than the federal government, that allows individual states to regulate tech in a way that Congress won't.
On the other hand, big tech companies have already shown the inclination to completely bypass entire states or indeed entire countries, so it's unclear how effectively individual states can regulate tech. And my personal opinion is that it's not a good tradeoff to allow state's rights for good causes when they have been so obviously and pervasively abused for bad causes.
> Abortion isn’t 0 or 1, legal or not legal.
As others have already pointed out below, and I already mentioned, over half of states are ready to enact total bans. The repeal of Roe doesn't make abortion illegal, but it does make a _ban_ on abortion legal, which is exactly what is happening.
> I would guess in 10-20 years the US would arrive at the same conclusion, with small differences between red and blue states.
This data visualisation [0] highlights the problem with this approach.
This isn't an issue where you can sit back and contemplate it as some abstract exercise of democracy. So many women will die, or be persecuted during that 10-20 year span you mention and it is completely needless. No one should be adopting a "it'll all work out in the end" mindset.
In case you've been living under a rock for the last while: several American states have banned abortions[0][1] after the Supreme Court overturned Roe vs Wade. The federal government failed to implement any laws to safeguard access to abortions so overturning Roe vs Wade was all that conservatives needed.
Some states have exceptions for rape and incest, some don't. Texas even offers a sizeable bounty for reporting abortions. This has already resulted in medical care being refused to women carrying stillborn children and other pregnancy complications fatal to either the mother or the child out of fear of prosecution.
As for secondary criminal activity: I agree, if the police finds other illegal acts during a legal investigation, they should be allowed to act on that. This is the proof that the whole "if you've got nothing to hide" narrative surrounding state surveillance is dangerous.
[0]: https://www.nytimes.com/interactive/2022/us/abortion-laws-ro...
[1]: https://en.wikipedia.org/wiki/Abortion_law_in_the_United_Sta...
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