NJlonghorn
2,500+ Posts
decision is 5-3, with Thomas, Alito and Roberts on the 3 side. Haven't read it, but I'm guessing The pro-choice crowd will be happier than the aright-to-life crowd.
Whole Women's Health
- Thread starter NJlonghorn
- Start date
NJlonghorn
2,500+ Posts
From live chat on Scotusblog:
NJlonghorn
2,500+ Posts
Decision is actually 5-2-1. Thomas would have upheld the statutes. Alito and Roberts would have sent the case back to the District Court for additional proceedings based on specific guidelines.
Statalyzer
10,000+ Posts
Which, in a vacuum, with no agenda either way, just seems like common sense.
The requirement for doctors to also have admitting privileges at a separate hospital within 30 miles did not. Don't see anything in the US Constitution against it, but I know it shouldn't have been in the bill.
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NJlonghorn
2,500+ Posts
It would make sense if the statistics backed up the need, but they don't. For example, colonoscopies -- which have dramatically higher mortality rates than first-trimester surgical abortions -- are routinely performed in a GI doctor's office. Nobody is clamoring to force those offices to upgrade facilities.
I am all for reasonable restrictions on abortion, as the SCOTUS opinion in Casey permits. But the Texas restrictions were far from reasonable. They were about one thing and one thing only -- forcing abortion clinics to shut down.
Not for the baby, and just wondering why did you just state first trimester? Is that all that the law included?
NJlonghorn
2,500+ Posts
Of course, but that's a different issue.
I actually don't know in detail what HB 2 required, but a law that infringes on a constitutional right cannot be broader than necessary/reasonable. (That's a vast oversimplification, but sufficient to make the point.) Thus, in assessing the constitutionality of a statute, it is normal and acceptable to look at its broadest application.
That said, one criticism of today's ruling is that it was too sweeping. Justice Alito argues in Point II of his dissent that even if the statute is partly unenforceable, it is okay in other respects and should not be overturned carte blanche. I don't know enough about the details of the case to endorse Alito's point altogether, but I agree with him in principle.
My colon scopes are done across the street from the hospital and the facilities are upgraded (it is a specialized center, not a doctor's office). It was the same building where I had my gall bladder removed (outpatient surgery).
Horns11
10,000+ Posts
Lawmakers failed that test when their district court lawyers admitted that impoverished, West Texas women could just go across the border to New Mexico and get an abortion without strings attached.
If this was about "common sense" women's health concerns, then you wouldn't admit (ok, well, a decent lawyer wouldn't admit) the same basic flaw that Casey exposed years ago. You're not protecting patient health. You're just making it harder to acquire a legally-allowable medical procedure. If you can't ban abortion, which about 1 in 7 people actually want to do altogether, then the other 6 in 7 should probably try to come to some "common sense" compromises. Texas GOP lawmakers made it abundantly clear that they're not interested in that.
NJlonghorn
2,500+ Posts
That's great, but it isn't legally required. Why? Because the risk levels are too low to justify the expense. Abortion risk levels, at least in most cases, are way lower.
NJlonghorn
2,500+ Posts
I read up the law and the SCOTUS opinions. It appears that HB2 applies to all abortions. Even medical abortions (in which all the doctor does is give the woman a pill) have to be performed in a surgical-center with a hospital-admitted doctor present. The patient s then sent home, where any potential consequences would occur.
The unreasonableness of the law is best illustrated by post-miscarriage D&C surgery. This is exactly the same surgery as an abortion, except that the fetus is dead. Yet D&Cs aren't subject to HB2.
I am tired of renaming stuff. I wish we could just pick a name and stick with it. Abortion is abortion. Then it was pro choice and pro life. Now it's "women's health" and I guess the other side will be "children's health." Instead of inaccurate propaganda names, I wish people would just stick with "for abortion" and "against abortion." Instead we have this "If you are against me, you are against choice/life/women's heath" nonsense.
I cannot even discuss this topic because both sides begin with a lie when phrasing the topic as "pro life" or "pro choice/women's health".
I cannot even discuss this topic because both sides begin with a lie when phrasing the topic as "pro life" or "pro choice/women's health".
NJlonghorn
2,500+ Posts
And how is "pro choice" a lie? Supporting a women's right to have an abortion is better described as "pro choice" than as "pro abortion".
Imho, both "pro choice" and "pro life" are reasonable representations of the two sides' positions. Regardless, I don't think there is any reason for people to get their panties in a wad about the word choice. The issues are tough enough without making that important.
As to "women's health", that is an attempt to spin abortion into a component of a larger set of issues. I don't buy it, but I'm not altogether worried about it, either.
^^ Do you support the death penalty or wars? Pro life implies all life just like pro choice implies all freedom or women's health implies the health of all women. In reality, we are just talking about one very narrow issue the affects a very small group of people (especially with the invention of birth control). It's not an issue or all life, freedom or women's health. It's just abortion and the relevant parties to it (the woman, the baby, the father, etc). It's not as grandiose or as ecompassing as the names imply. If you are for abortion, you probably are not against life in general. If you against abortion you probably are not against women's freedom or health in general.
I'll admit pro life and pro choice were better than "women's health". We've really gone off the train tracks with that one. By that logic, a man wanting his wife to get implants is a "women's health" issue.
I'll admit pro life and pro choice were better than "women's health". We've really gone off the train tracks with that one. By that logic, a man wanting his wife to get implants is a "women's health" issue.
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It's all in how you see the hand of government. A girl gets raped at 17 by a bunch of drunks or her stepfather and gets pregnant. Some see God's hand in a precious life. Some see a young person given a burden she should get to choose whether she will bear.
A woman and husband are planning a family. First rattle out of the box and she's pregnant. An ultrasound shows a baby severely deformed and unlikely to have anything but a short, very painful life. Should the woman have the child anyway or have the choice to free her womb for likely conception of a much healthier baby?
Some of us are fine with government making the painful "pro life" decision for the woman. Some want to leave it up to the woman. I don't favor abortion, but I am in favor of letting the woman decide.
A woman and husband are planning a family. First rattle out of the box and she's pregnant. An ultrasound shows a baby severely deformed and unlikely to have anything but a short, very painful life. Should the woman have the child anyway or have the choice to free her womb for likely conception of a much healthier baby?
Some of us are fine with government making the painful "pro life" decision for the woman. Some want to leave it up to the woman. I don't favor abortion, but I am in favor of letting the woman decide.
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NJ, I completely agree. When I hear people for the State say this is about women's health or anything like that, I roll my eyes. It's a ******** argument. HB 2 is about stopping abortion by imposing a more onerous regulatory scheme on abortion providers in hopes of putting them out of business or at a minimum, making abortion more expensive. That's all that it's about.
However, two points are worth mentioning. First, while you may be for reasonable restrictions, Democratic Supreme Court appointees generally are not. There are no Democratic Anthony Kennedys. This is why the current election gives me conflict. I know that Hillary Clinton will appoint justices who will strike down pretty much any restriction on abortion regardless of viability, whether a minor is seeking the abortion, etc. They would effectively (if not expressly) overturn Casey and likely even overturn the trimester framework set forth in Roe. At least in the legal and judicial realm, Democrats are the unreasonable crackpots on abortion. Despite the phony political narrative to the contrary, GOP nominees are far more compromising and open on the issue. Even the conservative wing of the Court would only turn the issue over to the states, where it was for almost 200 years. They wouldn't ban anything.
Second, as much of a BS argument as the State of Texas made, it's an argument they shouldn't have to make, because the entire framework they're having to work is BS. It takes a hell of a lot of rhetorical leaps and a butchering of the language to make the current legal framework on abortion exist. Start with the relevant text from the 14th Amendment. "[N]or shall any State deprive any person of life, liberty, or property, without due process of law."
The conundrum is that there is no mention of abortion or even an implication of that class of issue. First leap - Liberty is synonymous with personal privacy, even though it's not. Second leap - Personal privacy is synonymous with abortion, even though almost by definition, abortion isn't a matter of personal privacy. For starters, it involves a completely disinterested party (the doctor). Furthermore, that disinterested party is acting under a state license. Like it or not, that's not a private matter. I'm not saying it's everybody's business, but it is the state's business. Frankly, there's a much stronger case that smoking pot in one's home is a matter of personal privacy.
The next conundrum is that even if the double leap is accepted as legitimate, the text authorizes the the state to deprive someone of an abortion/personal privacy/liberty if it follows a due process. In order for the current legal framework to exist, we have to interpret "without due process of law" to have no effect at all. Basic statutory construction rules are supposed to prohibit that.
Forget the politics of abortion and the colossal mess that goes with it. Who the hell reads anything that way? Two types of people do. First, people who don't know how to read. Second, people who trying to force an agenda.
NJlonghorn
2,500+ Posts
I agree, but I think you overstate the point.
It seems clear that at least two of the Democratic appointees (Sotomayor and Ginsburg) would expand Casey so far that it would prohibit all regulation of abortion. I'm not so sure about Kagan or Breyer.
It seems clear that at least one of the Republican appointees (Thomas) would restrict Casey so severely that it would allow any regulation of abortion, to the point of effectively banning it. I suspect the same is true of Alito, but that's less clear. Kennedy and, to a much lesser degree, Roberts are more open-minded.
Plus, the names being thrown out by the right today are knee-jerk conservatives who align with Thomas, not Kennedy or Roberts.
My only C in law school came in Con Law, where I was expected to understand and defend things like Roe v. Wade. So I'm not going to disagree with you here. While I'm happy with the result of the case, I agree that the reasoning is, uhm, strained.
You're correct that the GOP would ain't people who align with Thomas and Alito, but can we really say they would effectively ban abortion even if they held a majority? If that happened, they would reverse Roe. Respectfully, that wouldn't be an effective ban. Some states would, but many would not. For example, they would not dictate to New York that it can't allow abortion as the Court currently dictates the opposite.
To be fair, though the Left does this the most, the Right was happy with the same rationale used to strike down the City of Chicago's gun ban. I think both are abuses of judicial power.
chango
2,500+ Posts
"Pro life" is a lie if you aren't pro all lives. (hint... death penalty)
ProdigalHorn
10,000+ Posts
So a person who is pro-choice is in favor of all choices? Or only the choices he agrees with?
NJlonghorn
2,500+ Posts
I'm pretty sure Thomas would hold that abortion violates a fetus's right to equal protection of the laws, and must be banned nationally. There's no way Kennedy would go there, and I doubt Roberts would, but I can't say the same about Alito.
I'm happy with a Court where Roberts, Kennedy, and Breyer form the middle. I don't want to see the Court pushed too far from there in either direction.
Statalyzer
10,000+ Posts
It's also often an attempt to demonize the opposition and shut down any rational discussion of the issue. Instead of addressing their arguments, you just paint them as a bunch of oppressive woman-hating chauvinists.
No, it isn't. Must anyone who believes abortion to be murder be a 100% literal pacifist also when it comes to war?
There's nothing hypocritical about believing that innocent lives should not be taken, while also believing that someone can, through taking an innocent life, forfeit the right to their own life. The reverse of the two positions is far more hypocritical, that while the guilty cannot have their life ended, the innocent can.
Both sides seem more concerned with that rulings get the end result they want than that rulings follow what's actually written in the law. Everyone reads into it what they want it to say, rather than what it actually says - with the result that almost anything can be a Constitutional Right - except the ones that are actually in it. Neither side is interested in any consistency between how they rule on various issues.
Just for one example, if "right to bear arms" which is directly written doesn't apply to modern firearms that weren't around back then, then how does a "right to privacy" indirectly inferred still apply to modern procedures that weren't around back then?
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Have you actually heard or read about Thomas taking that position? I have not.
On social issues, I don't see much evidence of Breyer being in the middle. For all the crap he has taken from the Right because they didn't like one ruling the guy made, I don't see much evidence of Roberts being in the middle on social issues either.
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