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June 24, 2022
SCOTUS overrules Roe with Dobbs ruling, raising new criminal justice and sentencing issues
The Supreme Court this morning released its much anticipated opinion in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (S. Ct. June 23, 2022) (available here). The opinions are 200+ pages long, but these lines from the start of the Court's opinion authored by Justice Alito provides the basics: "We hold that Roe and Casey must be overruled ... [and so] return the issue of abortion to the people’s elected representatives."
Both before and after the Dobbs majority opinion was leaked last month, I spotlighted in a few posts a few issues that would seem to arise from existing state laws poised to criminalize and punish abortions in various ways:
- What might be crime and punishment echoes if Supreme Court overturns Roe v. Wade?
- Without Roe, what does sentencing law and policy look like surrounding criminalized abortions?
- Continuing to scratch the sentencing surface if Roe is overturned and abortions are criminalized
There are, of course, lots of other jurisprudential and policy and political questions outside the criminal justice area that flow from Dobbs and its aftermath. But I think it is quite important and will be quite legally consequential that most laws seeking to restrict or prohibit abortions will be criminal laws raising all sorts of (obvious and not-so-obvious) enforcement and sentencing issues.
June 24, 2022 at 10:36 AM | Permalink
Comments
What a great two days! The constitution makes a comeback!
Posted by: TarlsQtr | Jun 24, 2022 10:53:59 AM
Absolutely terrible decision--making women second class citizens. Taking away a right recognized for 50 years. Forcing women to carry a child--forcing her to undergo labor. How ugly, awful, disappointing. Women, what say you? Your mothers had more rights than your daughters do now. Rise up!!
Posted by: Michael R. Levine | Jun 24, 2022 11:03:31 AM
I agree with Mr. Levine for other reasons. forcing women to go through labor is dangerous to their lives. In any event, women will seek abortions and many will die from back-alley abortions, quack doctors, coat hangers, etc. Not just women need to "rise up." Men, you too must rise up.
Posted by: anon1 | Jun 24, 2022 11:20:20 AM
The question before the Court was whether the Constitution sets forth a right to abortion. It does not. All you have to do to know this is read it.
Whether and under what circumstances abortion is a good and valuable idea is another question entirely. Reasonable minds will differ on that. It is precisely this fact that makes the question suitable for resolution by the political process, which is where it was placed by today's opinion.
Some states will have very tight restrictions. Others will have none or practically none. Most will be somewhere in the middle. This is exactly what federalism -- the Constitution's heart -- contemplates.
As a practical matter, abortion will remain widely available, both through "abortion pills" which produce non-surgical abortions, and through the fact that anyone who wants a surgical abortion will be able to get one for the price of a bus ticket to a permissive state.
Finally, it's very regrettable that this needs to be mentioned, but it does: Security will have to be re-doubled at the Justices' homes and for their children. We have already seen one attempted murder. The people who believe in that sort of thing will be even angrier now. Having the Justices fear for their lives is simply not compatible with having the independent judiciary liberals have (up to now) claimed to cherish. In addition, of course, it's vile and contemptible.
Posted by: Bill Otis | Jun 24, 2022 11:20:43 AM
Mr. Otis writes that "The question before the Court was whether the Constitution sets forth a right to abortion. It does not. All you have to do to know this is read it." No, the question is whether 50 year old precedent should be overruled and a right given to women whould be taken away.
Posted by: anon3 | Jun 24, 2022 11:38:48 AM
Mr. Otis says the right to abortion is not in the constitution. Neither is the right to marry. I don't see it. Should the right to marry be up to the states?
How about the right to procreate and have children. Not in the Constitution. Do we have it? The right to be presumed innocent if charged with a crime. I don't see that in the Constitution. Do you?
Posted by: Mary from Kansas | Jun 24, 2022 11:43:32 AM
I see the right to a jury trial is in the constiution, but I don't see the right to a "fair" trial. Where is it?
Posted by: Mary from Kansas | Jun 24, 2022 11:45:02 AM
I don't see the "right to marry" in the constituion, or to procreate and have children. Am I missing something?
Posted by: Mary from Kansas | Jun 24, 2022 11:46:10 AM
My hunch is that in the red states, surgical abortion will effectively not exist or will be done by a handful of doctors operating in secret. Nobody is going to openly risk criminal penalties for providing an abortion.
Medical abortions will be tougher to regulate. Absolutely no pharmacy in a state with restrictive abortion laws will provide them, but it might be possible to get them by mail. How many police departments will spend time getting search warrants to intercept mail that might contain abortion pills is an open question, but I doubt many will make it a priority.
While, in theory, women in red states can travel to blue states, that will make the process much more burdensome. There are issues of travel time, making arrangements for places to stay, and scheduling the procedure. I know that I recently had to deal with being executor on the estate of a relative who lived several states away. It was possible to get things done, but much more complicated than it would have been if we lived in the same area.
Posted by: tmm | Jun 24, 2022 12:00:33 PM
Mary from Kansas --
If rights are "fundamental" and implicit in widely accepted notions of ordered liberty, it won't be a bit of trouble for you to get them adopted (probably overwhelmingly) by normal political process. So go for it. Fine with me.
But if "rights" (like, say, the "right" to marry your first cousin) is much more controversial and/or recent, then IT'S JUST THAT MUCH MORE IMPERARIVE THAT THE PEOPLE HAVE THE ABILITY TO DECIDE THE ISSUE, rather than it's being spliced into the Constitution by unelected judges.
Posted by: Bill Otis | Jun 24, 2022 12:08:49 PM
It is telling that people like Michael Levine and Anon1 do not get to the constitutionality of it, just their political preferences. If that is how it is supposed to work, we have no constitution.
Posted by: TarlsQtr | Jun 24, 2022 12:31:28 PM
Hi Bill, when can we expect you to support the abolition of qualified immunity?
Posted by: THSHSH | Jun 24, 2022 12:32:45 PM
Mary from Kansas,
Your analogy does not work. The constitution was not written ex nihilo. It came from British and colonial common law. In other words, history. The right to a fair trial, marry, procreate, presumed innocence were all rights for centuries before the constitution was written.
Roe was a made up “right” in the 1970’s without the historical pedigree.
Posted by: TarlsQtr | Jun 24, 2022 12:36:12 PM
Anon 3,
“…the question is whether 50 year old precedent should be overruled…”
Interesting that Brown v Board of Education came roughly 50 years after Plessy v Ferguson.
To leftists, “precedent” only matters when it goes against their policy prescriptions.
Posted by: TarlsQtr | Jun 24, 2022 12:45:31 PM
TarlsQtr, I don't see the "right to travel" anywhere in the Constitution. Can you point it out to me?
Posted by: Mary from Kansas | Jun 24, 2022 1:19:54 PM
TarlsQtr, I don't see the right to purchase or use contraceptives in the Constitution. How do you feel about that?
Posted by: Mary from Kansas | Jun 24, 2022 1:21:52 PM
Mary from Kansas,
Travel was considered a right long before the constitution. It’s another analogy that doesn’t work.
The majority made it clear several times that this does not touch contraception (Griswold v Connecticut). You can read the decision for their reasoning.
Personally, I agree with Thomas in his concurrence. Griswold, Obergefell, etc., should all be revisited. Neither are rights and should be state issues. It does not mean that I, or even Thomas, would agree with a law limiting contraception. It merely means that the constitution is silent about it.
Posted by: TarlsQtr | Jun 24, 2022 1:49:56 PM
Mary from Kansas. --
So how exactly do we know which invisible rights are really in there after all. The ones you personally like? The ones other people like? How do we know? Count noses? But isn't that an election after all?
Posted by: Bill Otis | Jun 24, 2022 2:05:08 PM
TarlsQtr: you write "Personally, I agree with Thomas in his concurrence. Griswold, Obergefell, etc., should all be revisited. Neither are rights and should be state issues. It does not mean that I, or even Thomas, would agree with a law limiting contraception. It merely means that the constitution is silent about it."
So if say Missouri passed a law saying it will be a crime for anyone to purchase, possess, or use contraceptives; (understanding you would vote against such a law were you in Missouri), you would be fine with the legality of the statute?
Posted by: Mary from Kansas | Jun 24, 2022 2:32:37 PM
So a fanatical religious minority now believes "life begins at conception."
The Supreme Court has implitly raified this view turned us all into Catholics or Evangelicals. Congress can "make no law respecting an establishment of religion," but the Supreme Court can do so. Who would have thought we would turn back the clock 50 years.
Posted by: Jill from Nebraska | Jun 24, 2022 2:56:17 PM
Mary from Kansas:
“ So if say Missouri passed a law saying it will be a crime for anyone to purchase, possess, or use contraceptives; (understanding you would vote against such a law were you in Missouri), you would be fine with the legality of the statute?”
I’d be fine with the legality of the statute because it would be legal. Laws can be 100% good and 100% unconstitutional. Likewise, they can be 100% awful and 100% constitutional. It’s not the job of SCOTUS to determine “good” and “awful.”
I would then have the opportunity to change minds and through the vote employ politicians that will advocate for my policy preferences. Or, I could move. It’s the same reason NY and California are hemorrhaging people to Texas and Florida. They can vote at the ballot box or with their feet.
That’s what federalism is. Today’s decision made the issue more, not less, democratic.
Posted by: TarlsQtr | Jun 24, 2022 3:08:09 PM
Tarls, but if you actually read Brown, the Supreme Court in Brown took Plessy as being good law. They then found that segregation in schools was inherently unequal. Basically, what the Supreme Court did with Plessy is the same thing that they did earlier this year with Teague. Separate but equal remained legally fine, they just kept finding that separate was not equal.
Posted by: tmm | Jun 24, 2022 3:10:13 PM
The abortion equivalent to Brown would have been the position taken by the Chief Justice -- keep on finding that no regulation imposed a substantial burden on the right to abortion.
Posted by: tmm | Jun 24, 2022 3:11:05 PM
Jill from Nebraska,
The majority gave absolutely zero religious reasons for overturning Roe/Casey. Although mine is not the argument they use as they don’t go nearly far enough for me, the best and strongest argument against abortion is biological, not religious. The science is 100% on the side of pro-life. No need for religion.
Posted by: TarlsQtr | Jun 24, 2022 3:13:01 PM
It is amazing to read these comments. The message from those lamenting Roe's demise appears to be "any Constitutional right invented by the Supreme Court that is (or has become) politically popular must remain a right in perpetuity, no matter how illegitimate the invention was." The lamenters cannot see the invention of the right as illegitimate because they agree with the outcome of Roe as a policy matter.
Well, I am the rare case of someone who thinks Roe was an absolutely illegitimate, indefensible decision, even though I personally support abortion rights. So I will vote for representatives who will guarantee that right at the state level (and who won't threaten it at the federal level). But Roe got it wrong and Dobbs gets it right. The Constitution, and the People, prevailed yesterday.
Posted by: Da Man | Jun 25, 2022 8:36:37 AM
Can someone show me where in the Constitution there is an "It's really important to me clause"? If a man finds sex with prostitutes essential to his emotional and physical well-being, can he ask the SCOTUS to invent a right that renders all laws forbidding prostitution unconstitutional?
Posted by: Man Splain | Jun 25, 2022 8:42:24 AM
I agree with Mr. Levine. Paraphrasing a letter-writer from the New York Times, a woman woman facing an unwanted pregnancy but denied access to a legal abottion by state law is a captive of her condition: forced to serve as a vessel to carry a fetus to term, subjected to the traumas and dangers of pregnancy, deprived of the life she would lead were she not pregnant, and compelled to endure childbirth in a nation with a shamefuly high rate of maternal mortality. Being denied an abortion has significant long-term negative consequences for her physical and mental health, financial condition and family life. State laws forbidding abortion should be challenged as vioating the prohibition of involuntary servitude under the 13th amendment; otherwise, we allow a cruel deprivation of a woman's life, liberty and happiness.
Posted by: Amy from Alabama | Jun 25, 2022 10:47:51 AM
THSHSH --
You may expect my support for that position when you guarantee that cops and prosecutors will not be pelted with hundreds or thousands a frivolous lawsuits launched by child rapists and other of your favorite criminals who, sitting in their earned jail cells, have a sourpuss temperament, time on their hands, and nothing to lose by trying a lawsuit every other day.
Posted by: Bill Otis | Jun 25, 2022 2:39:25 PM
tmm --
I respectfully disagree. What the Brown Court found, quite correctly, was that separate was always and inherently unequal, and therefore, although the words sounded good enough, in fact they were hollow BS. The entire premise of Plessy was decimated, and Plessy thus overruled by whatever name one wishes to call it.
Posted by: Bill Otis | Jun 25, 2022 2:44:59 PM
Amy from Alabama --
The young lady get buy a bus ticket to a permissive state and get her abortion. And not having been born yesterday, I'm not going to believe that a person just cannot get ahold of a bus ticket in order to do something that's very important to her.
Posted by: Bill Otis | Jun 25, 2022 2:47:55 PM
Jill from Nebraska --
Glad to hear that you think secular law should not be dictated by particular religions, but thus far I haven't been able to find your making that same point in response to the numerous posts here that we should abolish the death penalty because the Pope says so.
Posted by: Bill Otis | Jun 25, 2022 2:51:02 PM
Mr. Otis, you write "the young lady get buy a bus ticket to a permissive state and get her abortion. And not having been born yesterday, I'm not going to believe that a person just cannot get ahold of a bus ticket in order to do something that's very important to her.
So we tell an 11 year old girl in the middle of Texas who has been raped by her uncle, "here's a bus ticket, dear, just go off [to who knows where], find an abotion clinic--somewhere, and do it fast, before that state shuts down." Give me a break, Mr. white man of privilege. If you were black or brown and could get pregnant, you'd be singing a different tune.
Posted by: Amy from Alabama | Jun 25, 2022 3:27:32 PM
Amy from Alabama --
"Give me a break, Mr. white man of privilege."
I'll give you what you earn and that's it. As for your snarling race-huckstering, what else would I expect?
What you really want are organ harvesting abortions and sex-selection abortions, and to get them you front the Parade of Horribles. Sorry, seen that show. If there actually were an 11 year-old rape victim, her parents would take her to get a legal abortion in any of the many venues that would continue to have them (as you already know). Indeed, you could pay for the ticket yourself if you feel so strongly about it. Gonna?
BTW, what's the point with all this silly "Amy from Alabama" and "Jill from Nebraska" and "Mary from Kansas." It's obvious you're the same person. What you're doing is absurd and childish. Grow up and sign your name like Doug Berman does and Michael Levine does and I do.
Posted by: Bill Otis | Jun 25, 2022 6:44:44 PM
Amy from Alabama:
Forgive me if this sounds insensitive, but “boo hoo.” There are many states that afford some rights but not others. That’s America.
Posted by: Da Man | Jun 25, 2022 8:06:46 PM
Amy from Alabama,
You know you lost the argument when you have to bring up fringe cases. You don’t care about victims of rape and incest. If we offered you that legal cut out, pun intended, you wouldn’t be any happier. You are merely standing on those victims for selfish reasons.
The rest of your comments are only screeds against self-responsibility. Instead of being “captive to their condition,” they are almost all willing participants in putting themselves in such a “condition.”
Birth control is everywhere and cheap. Not to mention, God forbid, abstinence! 😱
Posted by: TarlsQtr | Jun 25, 2022 10:34:18 PM
Amy from Alabama,
How dare you call Bill a “white man of privilege.” I know Bill, who identifies as a pansexual unicorn that pi$$es rainbows, sh!ts Skittles, and likes to purr like a kitten while reading books about Bigfoot erotica. Preferred pronouns: Sasquatch/dinosaur
Stop misgendering people.
Posted by: TarlsQtr | Jun 25, 2022 10:40:55 PM
TarlsQtr and others - your joy at the maverick acts of a politically motivated Supreme Court's actions this week is inappropriate and misjudged as "upholding the Constitution". Actually what the Court has done is absolve itself of responsibility for using the Constitution to protect the Rights of women in society. That is a grave, highly irresponsible, and regressive action for which the Court itself will suffer loss of popular respect and credibility. But that is nothing compared to the misery that countless women will now suffer in the years to come as health and reproductive rights are emasculated in law.
Posted by: peter | Jun 25, 2022 11:42:59 PM
You gave a diatribe of why you want abortion instead of what was wrong with the decision. When Roe was originally decided, a poll found 85% of law professors disagreed.
Constitutionality is not based on your policy preference.
To your credit, you are very astute in recognizing my “joy.”
Posted by: TarlsQtr | Jun 26, 2022 12:07:51 AM
How many of the Trump appointees lied during their nomination hearings. All of them. The Supreme Court of Liars. The stench of this opinion (withdrawing a constituional right after 50 years) will never go away.
Posted by: anon15 | Jun 26, 2022 12:48:47 AM
Tarls, that you can find "joy" in having women forced to undergo the trauma and risk of pregnancy is sad.
Posted by: anon15 | Jun 26, 2022 12:51:04 AM
TarlsQtr --
I using that description of me as the leadoff line in my next resume' -- not that anyone's going to hire me anyway.
Posted by: Bill Otis | Jun 26, 2022 5:56:08 AM
"For the first time in history, the Supreme Court has eliminated an established constitutional right involving the most fundamental of human concerns: the dignity and autonomy to decide what happens to your body. As of June 24, 2022, 64 million American women of childbearing age have less power to decide what happens to their own bodies than they did the day before, less power than their mothers and even some of their grandmothers did....The implications of this reversal will be devastating, throwing America into a new era of struggle over abortion laws--an era that will be marked by chaos, confusion and human suffering....Many women may be forced by law to carry pregnancies to term, even, in some cases, those caused by rape or incest. Some will liely die, especill those with pregnancy complications that must be treated with abortion or those who resrt to unsafe means of abortion because they cannot afford to travel to states where the procedure remain legal. Even those who are able to travel to other states could face the risk of criminal prosecution....
The insult of Friday's ruling is not only in its blithe dismissal of women's dignity and equality. It lies as well in the overt rejection of a well-established legal standard that managed for decades to balance and reflect Americans' views on a fraught topic...
By the majority's reasoning, the righ to terminate a pregnancy is not "deeply rooted" in the hisotry and traditon of the United States--a country whose Constitution was written by a small band of wealthy white men, many of whom owned slaves and most, if not all, of whom considered women to be second-class citizens without any say in politics....
The majority on this Supreme Court has demonstrated its disregard for precedent, pulic opinion, and the court's own legitimacy in the eyes of the American people. We will be paying the price for decades to come."
New York Times Editorial June 26, 2022
Posted by: Michael R. Levine | Jun 26, 2022 8:55:17 AM
Is the Supreme Court naive or just kidding when the majority holds that abortion rights must be struck down as a way of bringing Americans together? I’m going with naive, because the same majority repeatedly extols the superior wisdom and judgment of state legislatures — an opinion that can be held only by people who have never seen a real state legislature in action. This is what America gets from raising its most powerful jurists in sealed ideological bubbles like rare orchids, uncontaminated by life.
"I will go out on a limb and predict that Alito’s opinion will in no way pacify the United States’ culture wars. The Dobbs opinion asserts no clear limits on the restrictions that states can impose on abortion, except possibly — possibly — in cases where the mother will die if she continues her pregnancy. After the draft was leaked in early May, state legislators scrambled to dream up the most extreme restrictions possible, including laws prohibiting travel to jurisdictions where abortion is legal. ...The prospect of cops hauling teenage girls into confinement to gestate babies will not bring Americans together ..."
David von Drehle (Washington Post)
Posted by: anon | Jun 26, 2022 9:08:44 AM
To critics of the Court's decision --
An observation and a question. The observation is that the Constitution says what it says and doesn't say what it doesn't say. It doesn't say anything about abortion, and it didn't change its wording 50 years ago from what it had been for 180 years before that. If you're arguments are as compelling as you believe -- and I think some of them are worthwhile -- then the great majority of states will adopt them, or some modified variant of them, and make the law largely what you want it to be. That's how federalism works and how democracy works.
The question is this: Do you believe the state is without power to regulate (or in some cases forbid) any of the following: 1. sex-selection abortion 2. abortion done to retaliate against a partner who refuses a demand for money 3. organ-harvesting abortion 4. partial birth abortion.
Posted by: Bill Otis | Jun 26, 2022 10:03:52 AM
Michael R. Levine,
You don’t need to be an attorney to know the NYT’s editorial is junk. We literally took away the “constitutional right” to own other human beings and the bodily autonomy to physically keep them in bondage with violence.
“[Womens’} bodies?” Anti-scientific BS. At conception, there is someone else’s body inside a woman. It’s not even biologically controversial.
The “pro-choice” movement is one of science deniers.
Posted by: TarlsQtr | Jun 26, 2022 10:03:56 AM
Anon 15,
That you cannot find joy in saving the lives of hundreds of thousands of human beings a year is psychopathic.
FYI, there is “trauma and risk” for the mother with abortion as well.
Posted by: TarlsQtr | Jun 26, 2022 10:10:41 AM
The left credits itself with holding the torch of democracy, while the bad orange man and his minions are Hitler.
Well, congratulations on winning the most democratic Supreme Court decision of my lifetime.
Posted by: TarlsQtr | Jun 26, 2022 10:16:18 AM
Tarlsqtr writes, "that you cannot find joy in saving the lives of hundreds of thousands of human beings a year is psychopathic" There's the rub. I don't accept, and indeed utterly reject, your religious view (and that of the pro-lifers) that a fertilized egg, at least during the first three months or so, is a "human being."
Posted by: anon15 | Jun 26, 2022 11:16:06 AM
Anon15,
I never use religion to make the case against abortion, nor did I here.
It is pure biology, as any textbook used in embryology or teratology will tell you. As I said, to Michael, dismissal of this is antiscientific.
-“Human life begins at fertilization, the process during which a male gamete or sperm unites with a female gamete or oocyte (ovum) to form a single cell called a zygote. This highly specialized, totipotent cell marked the beginning of each of us as a unique individual.” “A zygote is the beginning of a new human being (i.e., an embryo).” (Keith L. Moore, The Developing Human: Clinically Oriented Embryology, 7th edition. Philadelphia, PA: Saunders, 2003. pp. 16, 2.)
‐“Fertilization is the process by which male and female haploid gametes (sperm and egg) unite to produce a genetically distinct individual.” (Signorelli et al., Kinases, phosphatases and proteases during sperm capacitation, CELL TISSUE RES. 349(3):765, March 20, 2012.)
‐“Although life is a continuous process, fertilization (which, incidentally, is not a ‘moment’) is a critical landmark because, under ordinary circumstances, a new, genetically distinct human organism is formed when the chromosomes of the male and female pronuclei blend in the oocyte” (Emphasis added; Ronan O’Rahilly and Fabiola Mueller, Human Embryology and Teratology, 3rd edition. New York: John Wiley & Sons, 2000, p. 8).
Are you a science denier?
Posted by: TarlsQtr | Jun 26, 2022 11:33:52 AM
Tarlsqtr, according to the two "scientific" opinions you cite (and I'm sure there are contrary ones), "human life" begins at fertilization. But "human life" is not the same thing as a "human being." In my religious tradition, a human being comes into the world only at birth. I accept science, but I also accept reality. How about you?
Posted by: anon15 | Jun 26, 2022 12:36:35 PM
anon15 --
"I don't accept, and indeed utterly reject, your religious view (and that of the pro-lifers) that a fertilized egg, at least during the first three months or so, is a "human being."
Some people accept it and and others don't. The question for present purposes is why is that an issue for a COURT to decide, and still less to decide as a matter of constitutional mandate? In a matter that mysterious and that important, the truth is that we lack any very good way of deciding. The best we're going to do is let the people decide democratically, after having a robust debate about science and religion and whatever else the electorate deems important. That is what the Court's opinion does, and that is why in my view it is correct.
Posted by: Bill Otis | Jun 26, 2022 1:49:40 PM
Anon 15,
“The science denial is strong in this one,”
Why the quotes around “scientific?” Do you have credentials these embryologists do not?
Please feel free to cite some embryology textbooks that are “contrary.” I’ll check back, but really do not need to. You won’t, because they are not out there.
Source one literally equates the two (human beings and human life).
Source two uses the phrase “genetically distinct individual.” An individual rock? Cat? Sofa? Or human?
Source three uses the phrase “genetically distinct human organism.” Let’s look up the definition of “organism.”:
“An individual form of life, such as a bacterium, protist, fungus, plant, or animal, composed of a single cell or a complex of cells in which organelles or organs work together to carry out the various processes of life.”
Thus, a “HUMAN organism” is an “individual form of LIFE,” in this case, of the human animal.
You say that a human life is not the same as human being. WTF? What an absurd statement. Human beings and only human beings contain human life. Again, please find an embryology textbook that sees a distinction.
You say too much with the last two sentences. It is YOU who is using a “religious view.” You deny science to do so. You literally separate “science” from “reality.”
Posted by: TarlsQtr | Jun 26, 2022 2:16:28 PM
Bill Otis,
I categorically disagree with your last post. There is nothing “mysterious” and we do not lack a good way of deciding. Embryology has done that for us.
What the pro-killing side wants to do is have their cake and eat it too. They want to be able to kill babies and not admit they are killing babies. I absolutely refuse to give them that refuge.
If they want to claim that the human life they want to kill does not deserve protection under the law, that’s one thing. However, they need to come to the table admitting that they want to extinguish human beings.
Posted by: TarlsQtr | Jun 26, 2022 2:25:50 PM
TarlsQtr --
"I categorically disagree with your last post. There is nothing 'mysterious' and we do not lack a good way of deciding. Embryology has done that for us."
I don't know beans about embryology. Of course neither do judges, which is the reason, apart from the others, that they should not be making rules in this area, much less claiming that the rules somehow snuck into the Constitution 180 years after it was written.
"What the pro-killing side wants to do is have their cake and eat it too. They want to be able to kill babies and not admit they are killing babies. I absolutely refuse to give them that refuge."
What they actually want to do is make a good profit selling body parts. And the irony -- which seems entirely to escape them -- is that the reason the body parts bring a good price is that THEY ARE HUMAN BODY PARTS.
I personally don't know when recognizably human mental functioning starts. My wife says she's still waiting for mine to start.
Posted by: Bill Otis | Jun 26, 2022 2:40:38 PM
tarsqtr, contrary to your belief that making a distinction between human life and ahuman being is absurd, the question is hotly debated. See e.g., Personhood status of the human zygote, embryo, fetushttps://www.ncbi.nlm.nih.gov/pmc/articles/PMC5499222/
Posted by: anon15 | Jun 26, 2022 3:16:10 PM
tarslqtr, You write "“An individual form of life, such as a bacterium, protist, fungus, plant, or animal, composed of a single cell or a complex of cells in which organelles or organs work together to carry out the various processes of life.”
So, by this definition, a sperm cell is clearly a form of life. So when men masturbate, as they unversally do, are they not destroying billions of forms of life and potential babies [were they to fertilize an egg] ? Do you or other pro-lifers favor enacting state laws prohibiting masturbation?
Posted by: David | Jun 26, 2022 3:23:51 PM
Anon15-
Your link didn’t work. 🤔
Virtually all discussion around the word “personhood”, centers on the ethical component (when it “deserves” rights), not the biological. Again, I’d love to see an embryology text that breaks from the obvious.
Posted by: TarlsQtr | Jun 26, 2022 3:59:02 PM
David,
Huh? Is semen an animal? I assume you took enough science in grade school to know it is not fungi, plant, etc. Does sperm have organs?
Posted by: TarlsQtr | Jun 26, 2022 4:04:42 PM
David,
One more point. A life has its own distinct DNA, unique from every other organism. A sperm cell is a mere replication of the DNA of a male mammal, no different than the DNA in the same mammal’s organs, hair, teeth, and nails. It does not achieve DNA uniqueness until fertilization.
Posted by: TarlsQtr | Jun 26, 2022 4:21:34 PM
TarslQtr and Mr. Otis, Is it true or not, as some of the above commentators assert, that "For the first time in history, the Supreme Court has eliminated an established constitutional right."
Posted by: Harry | Jun 26, 2022 5:19:45 PM
Harry --
No, it is not true, because it was never a "constitutional" right to begin with, as the Dobbs opinion explains at length. Indeed, abortion is not mentioned in the Constitution at all.
If a point be made of it, however, in Brown v. Board, the Court did away with the alleged "established constitutional right" of bigoted white people not to be in the same school as black children. The Court found that segregation was constitutionally-blessed in 1896, then reversed ground on this segregationist "right" 58 years later in Brown. There was never a constitutional right to segregation; it was merely something dominant, elite opinion favored in the 1800's, so the Court, using its power rather than reason, simply declared it to be constitutional. Same deal with Roe. But declaring it doesn't make it so. It depends on what the Constitution actually says, not on what the elites want it to say.
Now let me ask you the question no one seems to want to take on. Do you believe the state is without power to regulate (or in some cases forbid) any of the following: 1. sex-selection abortion 2. abortion done to retaliate against a partner who refuses a demand for money 3. organ-harvesting abortion 4. partial birth abortion?
Posted by: Bill Otis | Jun 26, 2022 6:31:46 PM
Tarls, I got the anon15 link to work:
"Personhood status of the human zygote, embryo, fetus"
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5499222/
Posted by: Doug B. | Jun 26, 2022 8:41:25 PM
Thanks, Doug.
And it is exactly what I knew it would be. It’s not a paper on the biology of when a human being comes into existence. It’s about the ethics of when a human being should be seen as having legal rights.
I’m willing to have that discussion, but anon wants to have it on the premise that a human life is not being destroyed. His obstinacy in the face of incontrovertible scientific fact tells me he knows it is true, but does not like how admitting he wants to kill human beings feels.
He doesn’t get to hide behind that charade.
Posted by: TarlsQtr | Jun 26, 2022 10:26:39 PM
Tarlsqtr, I'm not persuaded that all scientists agree that human life begins at fertilization. see the discussion by Scott Gilbert, the Howard A. Schneiderman Professor of Biology (emeritus) at Swarthmore College, found at https://www.swarthmore.edu/news-events/when-does-personhood-begin. It seems that, contary to your insistence, the issue remains unsettled.
Posted by: Mary | Jun 26, 2022 10:48:31 PM
In those states banning abortion (expected to be about 25), forcing women to bare a child will lead to a dramatic increase in deaths in a country that already ranks the highest among mortality in childbrith. By way of one example only, women with very hight blood pressure undergoing labor will sometimes need to have a surgical abortion to lower risk of death in childbirth. Doctors cannot say that the woman will definitely die if she does not undergo the abortion, but they can say that to give birth will definitely put her at a higher risk of death. With these ant-abortion laws, however, no doctor will risk losing his license to practice. In shot, no doctor will undertake the abortion procedure necessry to safeguard the life of the mother. Just watch the stats start to rise.
Posted by: msn | Jun 27, 2022 8:31:07 AM
The Supreme Court says its ok for a state to force a woman who has been raped to carry and give birth to the to the rapist's child. Sounds very Nazi-like, doesn't it? Fascistic? Orwellian? What am I missing here?
Posted by: Paul T | Jun 27, 2022 8:35:47 AM
So Republican Justices wrote Roe v. Wade. And for fifty years many Repubican Justices have upheld it (and Casey). But McConell robs Obama of his choice of Garland by refusing to hold a hearing for 8 months on the specious claim the choice should wait for new president. The Trump gets in and in comes Gorsuch and Kavanaugh, lying to the Committee about their worship of stare decisis. McConell suddenly changes his mind when Biden gets elected and slips in Coney-Barrett just before Biden takes office. (I may have the timing wrong). So we get three Catholic judges who believe (but never say) that abortion is murder rescinding a right that women had for 50 years to control their own reproductive choice (at least for the first trimester, and most of the second). So what was x for 50 years suddenly becomes y because of a stacked court. As Sotomayor (herself a Catholic) says the "stench" surrounding this court's power play will linger for our lifetimes and beyond.
Posted by: srn | Jun 27, 2022 8:55:04 AM
Paul T --
Sounds like the Court understands that the basic rules under which the people must live are, in a country founded on the idea of self-government, to be decided by the people themselves. What you're missing here is that that's the essence of democracy, and that sometimes democracy will produce law inconsistent with your values. On the other hand, sometimes it will produce law favorable to your values but inconsistent with other people's values. That's how democratic life works.
Posted by: Bill Otis | Jun 27, 2022 8:58:11 AM
Mr. Otis, but I though the Supreme Court was there to protect against the tyranny of the majority when it comes to fundamental rights. Are you suggesting that it's perfectly o.k. for the majority of state A to force an 13 year old to give birth to her rapist's child?
Posted by: srn | Jun 27, 2022 9:06:08 AM
Some commentators above point to Brown's overruling of Pleassy as an example of the Court's about face on stare decisis. The distinction is that Brown expanded the rights of millions of Americans and protected them from government punishment. Hobbs eviscerated an established right and returned power to the government at the expense of the people. Dobbs is truly without precedent and brings the Court into disrepute.
Posted by: Alice M | Jun 27, 2022 9:09:08 AM
srn --
"So we get three Catholic judges who believe (but never say) that abortion is murder rescinding a right that women had for 50 years to control their own reproductive choice (at least for the first trimester, and most of the second)."
Why stop there? How 'bout all of the second trimester? And the third? If the essence of the (invisible) constitutional right to abortion is to ensure that a woman has "control of her own body and destiny," why does that imperative exist for three months but not six or seven or eight? Does a woman's autonomy somehow fade away into male dominance?
Please explain.
Posted by: Bill Otis | Jun 27, 2022 9:12:04 AM
Mr. Otis, I'm curious to see your response to srn's comment above addressed to you,
"The Supreme Court says its ok for a state to force a woman who has been raped to carry and give birth to the to the rapist's child. Sounds very Nazi-like, doesn't it? Fascistic? Orwellian? What am I missing here?"
Posted by: anon11 | Jun 27, 2022 12:27:41 PM
Senator Susan Collins appeared angry this morning at having actually believed Kavanagh's praise of stare decisis: “Throwing out a precedent overnight that the country has relied upon for half a century is not conservative,” Collins said in a statement. “It is a sudden and radical jolt to the country that will lead to political chaos, anger, and a further loss of confidence in our government.”
Is she serious? If so, too little, too late.
Posted by: anon | Jun 27, 2022 12:34:24 PM
These are just some musings - 1. When IDD organ transplants are performed is the donor alive when the vital organ is removed. Their heart is still beating although there should not be brain waves?
The fetus develops brain waves in the 6th month. Organs are harvested when the heart is still beating but brain waves are not detected. This seems to be a conflict in the definition of human life.
Are unused invitro fertilized embryo that are frozen considered to be people when they are disposed of?
When life begins cannot be settled science - If it is settled - it is not science.
Posted by: beth curtis | Jun 27, 2022 1:36:02 PM
srn --
"I though the Supreme Court was there to protect against the tyranny of the majority when it comes to fundamental rights."
Then you thought wrong. People have lots of disagreements about what a "fundamental" right is. The Court does not sit to resolve those disagreements; the political branches do. The Court sits to decide the interpretation of the written Constitution. That Constitution says nothing one way or the other about abortion. That brings the Court's role to an end.
"Are you suggesting that it's perfectly o.k. for the majority of state A to force an 13 year old to give birth to her rapist's child?"
It's not what I would favor, so I would lobby my state legislature to adopt a law permitting abortion to young minors who are rape victims. I would expect such a proposal to pass easily, wouldn't you?
Another example: If you didn't like capital punishment in State A, you could lobby against that, too. But simply because you have strong feelings about one issue or another does not mean that issue is addressed in the Constitution.
And now a question for you: Do you believe the state is without power to regulate (or in some cases forbid) any of the following: 1. sex-selection abortion 2. abortion done to retaliate against a partner who refuses a demand for money 3. organ-harvesting abortion 4. partial birth abortion?
Posted by: Bill Otis | Jun 27, 2022 2:03:49 PM
Mr. Otis, I believe the state should have power to regulate organ-harvesting abortion. With respect to sex-selection abortion and abortion done to retaliate against a partner who refuses a demand for money, I would like more facts and would like to hear the arguments on both sides. I do not know exactly what "partial birth abortion" is, so I have no view on that.
Posted by: srn | Jun 27, 2022 3:57:10 PM
srn --
Thanks for your answer, the first I've received to those questions. I appreciate it.
Once it is conceded that the state should have a degree of control on when abortions are allowed, the only questions are when and under what circumstances. In part but not completely because of advancing medical technology, the answers should be provided by the legislature, which is relatively nimble in responding to constantly changing circumstances, rather than by the Constitution, which is (intentionally) ossified.
Posted by: Bill Otis | Jun 27, 2022 6:31:21 PM
It is settled. Go find any university embryology textbooks.
If you can find one that uses heartbeat or brainwave function, let me know.
Does a person in cardiac arrest cease being human? A person in a coma? Does science refer to them as “meat slabs” until the heart resumes function? Does the person in a coma become a dog? No, it’s a living human being in both cases. If you want to argue the value of a human life, that’s one thing. That it is a human being is unarguable.
Posted by: TarlsQtr | Jul 1, 2022 3:13:46 PM
Anon11,
Since the Nazis endorsed, even forced, abortions, you may want to rethink your comparison regarding which side stands next to them.
In fact, Sanger had Nazis speak here before the war and used their very own justifications for getting rid of “human weeds” here in America.
Posted by: TarlsQtr | Jul 1, 2022 3:19:06 PM
