Contributor Post Created with Sketch. Abortion and the Supreme Court

 

shutterstock_133423673-e1444998785546The Supreme Court will soon decide whether to review two cases, both from the Fifth Circuit, that reach diametrically opposed conclusions about abortion. In Jackson Women’s Health Organization v. Currier, a panel of Fifth Circuit judges stopped Mississippi from enforcing a law that required all physicians performing abortions to have admitting privileges at a local hospital. In Whole Woman’s Health v. Cole, a different panel of Fifth Circuit judges refused to stop the enforcement of two key abortion restrictions in Texas law H.B.2. The first requires that the physician performing the abortion has admitting privileges to a hospital located within 30 miles of the place where the abortion was to be performed. The second provision requires that all abortion clinics comply with the applicable standards for ambulatory surgical centers.

The Mississippi legislation would have shut down the only abortion clinic in the state. The Texas legislation would shut down about three-fourths of the 40 abortion clinics within the state. The two cases are in obvious tension with each other.

The Supreme Court would do well to hear both cases, and to affirm the Mississippi decision in JWHO and overturn the Texas decision in WWO, so that all of the restrictions are struck down. That is evidently the position of those who support Roe v. Wade, which I criticized strongly in 1973, and about which I retain serious reservations today. In the current disputes, however, my qualms with Roe are water under the bridge. The only issue presented in these two new cases is whether either the Mississippi or Texas restrictions comport with the current legal test for examining statutory limitations as set out in the much mooted 1992 Supreme Court decision of Planned Parenthood v. Casey, whose basic rule reflects the deep ambivalence about the constitutional status of abortion. Casey provides that the regulation of a previable abortion is constitutional if the law satisfies two conditions:

 (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.

It takes little imagination to see that this formulation is just asking for trouble. The first prong does not address the difficulties in having abortion rights turn on viability. Nor when it does so can it make up its mind whether “purpose or effect” matters, or both. Nor does it give any clear guidance as to how purpose should be decided when restrictions on abortion, such as the two laws raised here, are passed in the name of safety.

The second requirement tries to measure the fit between the means chosen and the purported end, so that “only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”

As is routinely the case with constitutional law, the outcome of the analysis under Casey will depend critically on the level of scrutiny that the court applies to the proposed legislation. Indeed, it was on just this question that JWHO and WWO parted company. In JWHO, the court took a close look at the potential impact of the regulation on the practices in question and found that the admitting privileges requirement did little to advance the safety of the procedures and much to shut down the availability of abortion care. The court was quite pointed that Mississippi could not deny the undue burden of its restrictions by showing that women could receive abortions from out-of-state providers, any of whom might change their own rules. They had to make sure that local clinics were available.

WWO took a very different approach. It first held that it was not the duty of the Court to “second guess legislative fact finding,” because “the rational basis test seeks only to determine whether any conceivable rationale exists for an enactment.” At this point the actual size of the burden no longer matters. Under this standard, the state has wide discretion to decide what safety standards are necessary to guarantee that women getting abortions receive the highest standard of health care, wholly without regard for how much they were at risk of adverse health consequences under the prior legal regime.

And it is now permissible to note that the out-of-state alternatives available to women (no matter what their safety levels) insulate the law from attack. The WWO’s blistering petition for certiorari details the evidence that the District Court assembled showing that the Texas restrictions were far more likely to increase the risk of abortions notwithstanding the willingness of the Fifth Circuit to take at face value the claim that the “State truly intends that women only receive an abortion in facilities that can provide the highest quality of care and safety—the stated legitimate purpose of H.B.2.”

As a matter of simple constitutional interpretation, the rational basis test should not be allowed to eviscerate the painful compromises wrought in Casey. The commonly used test gives undue credit to legislative wisdom on this highly charged political issue. Indeed, the weaknesses of this lax standard of constitutional review are not confined to the abortion cases, but are universal in any case that applies this highly deferential standard. The term “conceivable” appears in no constitutional text anywhere, but too often is the death knell to any and all constitutional challenges.

Nonetheless, that word was invoked with telling effect in the 1984 decision in Hawaii Housing Authority v. Midkiff, as the Supreme Court held that “where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.” The upshot of that opinion was to uphold a transparent scheme whereby the tenants take their landlord’s interest in property by putting in advance into public escrow the dollars necessary to pay for the transferred property. That outright transfer was now magically justified as a way to combat the supposed “economic evils of a land oligopoly” which was in reality no economic oligopoly at all.

The Court’s deferential standard of review approach used in Midkiff was reflected in its evaluation of a trade secret case of Ruckelshaus v. Monsanto Co, decided that same year. At first look, Ruckelshaus seems to have nothing to do with WWO because it only asked whether the United States could publicly disclose trade secret information about a pesticide that the company owned, when the owner supplied the information for the government’s evaluation of the product’s health and safety risks. Justice Harry Blackmun’s incoherent argument anticipated the Fifth Circuit’s argument in WWO, when he foolishly wrote that “Monsanto could decide to forgo registration in the United States and sell a pesticide only in foreign markets”—just as women could travel outside Texas to get an abortion.

Blackmun’s argument in Ruckelshaus was that the advance notice of the regulation left Monsanto choices for how to minimize its risk. True enough, but the residual risk is all too great. Quite simply, no firm is entitled to ask for state aid to force its competitor to divulge its secrets. The United States has a legitimate interest in making sure that products dangerous to health and safety do not reach the market, but it has no legitimate interest in upsetting the sound competitive balance that existed prior to the regulation. It is therefore not proper for the government to give Monsanto the unduly restrictive choice between registering with full release of its trade secrets or foregoing the U.S. market.

The basic point easily generalizes. It is always wholly improper for the government to defend its forced removal of choice A by pointing out that a private party may still choose between B and C. This position applies not only to cases involving economic liberties, but also to social issues of deep concern to the feminist and liberal groups rightly condemning WWO.

The point arises most clearly in connection with two sets of cases that arise under the First Amendment’s protection of the free exercise of religion, which is now under attack. Unlike the dubious constitutional pedigree of the right to an abortion, the free exercise clause gives explicit protection to religious liberty, subject only to the restraints that are properly imposed on all other forms of liberty, such as the use of force and fraud against outsiders. It therefore should be clear that neither the federal nor the state government should be allowed to impose an undue burden on religious freedoms

Most feminists and liberals are united in their deep hostility to the recent Supreme Court decision in Burwell v. Hobby Lobby, in which a bitterly divided court struck down the HHS mandate that would have required “closely held corporations [to] provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.” Under the rational basis test adopted in WWO it is all too easy to give these owners the choice of going out of business, or of denying their employees all forms of health coverage, if they decide not to honor the mandate. After all, reproductive freedom is important to women’s participation in economic markets. But so long as alternative sources of contraception are available in competitive markets, a firm shouldn’t be forced out of business for exercising its own religious beliefs. Rational basis is as inappropriate here as in WWO.

The same analysis applies to the aggressive efforts of various state civil rights commissions to subject small photographers and bakers to the hard choice between serving same-sex couples in ways inconsistent with their religious beliefs or going out of business. The undue burden of analysis that should have been applied in WWO works equally well here.

There is a constant temptation on the part of judges and scholars to avoid this conclusion by splitting the constitutional universe between those individual rights that merit serious protection and those that do not. One famous way of framing that distinction is to say that the higher protection is given to “discrete and insular minorities” who are unable to protect themselves in the political process. However, fundamentalist Christian groups surely are unable to protect themselves in states that have adopted strong civil rights laws. Nonetheless, the application of this test inspires people to do rhetorical handstands to announce themselves as politically vulnerable in order to gain an additional leg up in contentious constitutional adjudications.

The correct approach is to scrap any rational basis test that allows state legislatures to paper over their improper motivation with high-sounding statements of lofty legislative purposes. The need to increase judicial scrutiny when any test involving undue burdens is implicated is not confined to the abortion cases, but runs the full length of constitutional law. The Supreme Court should stop the charade in WWO, and do so in an opinion that rejects the rational basis test across the board.

© 2015 by the Board of Trustees of Leland Stanford Junior University

There are 45 comments.

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  1. BThompson Inactive

    This whole argument is garbage, Richard. Abortion advocates in those states can certainly come up with the means and effort to create abortion clinics which comport with the very reasonable requirements being placed on them. To pretend that these laws necessarily put undue impediment on a woman’s ability to get an abortion is to expect nothing in the way of respecting sensible regulation on the part of abortion advocates and providers. Bad rulings and laws which allow for the careless and unsafe murder of infants and endangerment of the mothers shouldn’t be upheld out deference to the unwillingness of the abortion industry to expect accountability and safe medical practice from it’s providers.

    • #1
    • November 3, 2015, at 1:58 PM PST
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  2. 1967mustangman Inactive

    BThompson:This whole argument is garbage, Richard. Abortion advocates in those states can certainly come up with the means and effort to create abortion clinics which comport with the very reasonable requirements being placed on them. To pretend that these laws necessarily put undue impediment on a woman’s ability to get an abortion is to expect nothing in the way of respecting sensible regulation on the part of abortion advocates and providers. Bad rulings and laws which allow for the careless and unsafe murder of infants and endangerment of the mothers shouldn’t be upheld out deference to the unwillingness of the abortion industry to expect accountability and safe medical practice from it’s providers.

    I agree with this 100%

    • #2
    • November 3, 2015, at 2:10 PM PST
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  3. Herbert defender of the Realm,… Inactive

    Thanks Dr. Epstein.

    • #3
    • November 3, 2015, at 2:16 PM PST
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  4. Larry3435 Member

    Good argument Richard. I have always been uncomfortable with the way that the rational basis test allows courts to make up the silliest explanations for legislative actions, and justify the legislation on that basis. At least when a Constitutional right is infringed, I would prefer if the legislature was required to state the reasons for its legislation, and the evidence on which it based its conclusion that the legislation was needed. The Court could then evaluate the legislation on that basis, instead of just making up something.

    • #4
    • November 3, 2015, at 2:17 PM PST
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  5. Shawn Buell, Jeopardy Champ! Contributor

    I think it’s fair to impute bad motives on behalf of the legislature in their creation of these laws – “bad motives” in this case being the desire to circumvent existing Constitutional jurisprudence by essentially banning something through the back door via making access to it functionally impossible.

    What if the Massachusetts legislature decided to place a $5,000 tax on each round of ammunition in an obvious attempt to restrict peoples’ right to keep and bear arms? They could just as easily claim that they had no such intent in doing so, as people would still be free to own their guns, even if they were just fancy metal bricks at that point.

    • #5
    • November 3, 2015, at 2:21 PM PST
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  6. Herbert defender of the Realm,… Inactive

    Majestyk: They could just as easily claim that they had no such intent in doing so, as people would still be free to own their guns, even if they were just fancy metal bricks at that point.

    and could claim that ammunition buyers were free to go to other states to buy ammunition.

    • #6
    • November 3, 2015, at 2:24 PM PST
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  7. Shawn Buell, Jeopardy Champ! Contributor

    Herbert:

    Majestyk: They could just as easily claim that they had no such intent in doing so, as people would still be free to own their guns, even if they were just fancy metal bricks at that point.

    and could claim that ammunition buyers were free to go to other states to buy ammunition.

    I should point out as well that MA would have a huge problem of smuggling on their hands at that point, just as NY City does with Cigarettes.

    They could try to pass a law such that the only allowable ammunition had a tax stamp or somesuch and that resale/reloading was also illegal. This would have the same effect and ought to be equally unconstitutional.

    • #7
    • November 3, 2015, at 2:30 PM PST
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  8. Jennifer Johnson Inactive

    Richard Epstein: After all, reproductive freedom is important to women’s participation in economic markets.

    Let’s look at the premises of reproductive freedom. It seems to be founded on ideas that I find very flawed:

    • that we can separate sex from conception, and that we can do so with perfect precision.
    • that people are entitled to as much a sexual activity as they want without a live baby ever resulting.

    These ideas are obviously flawed. Sex is nature’s way of creating the next generation, so to fight this is to fight nature. And what about the children who are conceived as a result of sexual encounters premised thereupon? They are often either aborted, or they must live their lives in fractured family structures, with all of the resulting problems those structures create for them.

    In that sense, reproductive freedom reminds me of the sort of economic freedom that slave owners possessed. It is easy to imagine the sort of economic freedom they had, but their freedom required somebody else’s pain and misery. I think we can all agree that such ideas of freedom, while certainly appealing to those who can exercise them, are ultimately unjust on the aggregate.

    • #8
    • November 3, 2015, at 2:37 PM PST
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  9. Herbert defender of the Realm,… Inactive

    Majestyk: They could try to pass a law such that the only allowable ammunition had a tax stamp or somesuch and that resale/reloading was also illegal. This would have the same effect and ought to be equally unconstitutional.

    Are there any restrictions on people who reload ammo? I’m from Georgia, and 35 years ago when I was amongst the hunting crowd, I don’t think there was any restrictions at all. Would seem ripe for safety concern legislation….

    • #9
    • November 3, 2015, at 2:40 PM PST
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  10. Shawn Buell, Jeopardy Champ! Contributor

    Jennifer Johnson:

    Richard Epstein: After all, reproductive freedom is important to women’s participation in economic markets.

    Let’s look at the premises of reproductive freedom. It seems to be founded on ideas that I find very flawed:

    • that we can separate sex from conception, and that we can do so with perfect precision.
    • that people are entitled to as much a sexual activity as they want without a live baby ever resulting.

    These ideas are obviously flawed. Sex is nature’s way of creating the next generation, so to fight this is to fight nature. And what about the children who are conceived as a result of sexual encounters premised thereupon? They are often either aborted, or they must live their lives in fractured family structures, with all of the resulting problems those structures create for them.

    In that sense, reproductive freedom reminds me of the sort of economic freedom that slave owners possessed. It is easy to imagine the sort of economic freedom they had, but their freedom required somebody else’s pain and misery. I think we can all agree that such ideas of freedom, while certainly appealing to those who can exercise them, are ultimately unjust on the aggregate.

    Abortion and Contraception are two different issues.

    Don’t try to conflate them. There is no “pain and misery” created from fetuses that were never conceived.

    • #10
    • November 3, 2015, at 2:43 PM PST
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  11. Shawn Buell, Jeopardy Champ! Contributor

    Herbert:

    Are there any restrictions on people who reload ammo? I’m from Georgia, and 35 years ago when I was amongst the hunting crowd, I don’t think there was any restrictions at all. Would seem ripe for safety concern legislation….

    None that I’m aware of – I’m just saying that these are possible things they could do.

    • #11
    • November 3, 2015, at 2:45 PM PST
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  12. Tom Meyer, Common Citizen Contributor

    Majestyk: What if the Massachusetts legislature decided to place a $5,000 tax on each round of ammunition in an obvious attempt to restrict peoples’ right to keep and bear arms?

    Shhhhh! Don’t give them ideas!

    • #12
    • November 3, 2015, at 2:46 PM PST
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  13. Shawn Buell, Jeopardy Champ! Contributor

    Tom Meyer, Ed.:

    Majestyk: What if the Massachusetts legislature decided to place a $5,000 tax on each round of ammunition in an obvious attempt to restrict peoples’ right to keep and bear arms?

    Shhhhh! Don’t give them ideas!

    The price of your trip to the firing range just went up a tad, Tom. :D

    • #13
    • November 3, 2015, at 2:50 PM PST
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  14. Jennifer Johnson Inactive

    Majestyk:Abortion and Contraception are two different issues.

    Of course they are not identical issues, but there is some overlap between them. For example, contraception induces people to engage in sexual activity they might not otherwise engage in, with people they might not otherwise engage with. The justices in Planned Parenthood vs. Casey even acknowledged the connection:

    “in some critical respects abortion is of the same character as the decision to use contraception… for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”

    • #14
    • November 3, 2015, at 2:53 PM PST
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  15. Shawn Buell, Jeopardy Champ! Contributor

    Jennifer Johnson:

    Majestyk:Abortion and Contraception are two different issues.

    Of course they are not identical issues, but there is some overlap between them. For example, contraception induces people to engage in sexual activity they might not otherwise engage in, with people they might not otherwise engage with. The justices in Planned Parenthood vs. Casey even acknowledged the connection:

    “in some critical respects abortion is of the same character as the decision to use contraception… for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”

    That gets us to the fact that not all abortion is alike either. Do you concede that there is a difference in kind between a woman’s use of RU-486 or other abortifacients and a late term abortion?

    To that end there is also contraception which is more or less invincible as well.

    The point is this: because of natural barriers that exist in how we enforce laws and the fact that we lack perfect information, abortion is essentially ineradicable.

    Conservatives should be horrified at the notion of living in a world where the government has such intimate information about you as to know the conditions of how and when a woman might be pregnant, and if so, prevent her from terminating that pregnancy – particularly in the early stages.

    • #15
    • November 3, 2015, at 3:05 PM PST
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  16. Tom Meyer, Common Citizen Contributor

    If I’m reading this correctly, Richard is saying that:

    1. State governments should have a very limited ability to curtail the expression of rights protected by the federal constitution;
    2. That abortion is — under current jurisprudence — considered such an activity; so
    3. Therefore, laws that restrict abortion as much as these ones do should be considered unconstitutional abridgments of liberty, for the same reason that states should have a very limited ability to curtail our other federally-guaranteed rights.

    Obviously, the clincher here is whether abortion should be considered among those rights; if not, the syllogism falls apart.

    As I read Richard, he’s saying that, as Roe is in effect, these laws are unconstitutionally restrictive for the same reasons that state laws curtailing freedom of speech or religion would be unconstitutional even if they passed some made up test.

    • #16
    • November 3, 2015, at 3:08 PM PST
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  17. Jim Kearney Contributor

    The correct approach is to scrap any rational basis test that allows state legislatures to paper over their improper motivation with high-sounding statements of lofty legislative purposes.

    I agree. Many legislators (on both sides, on many issues) believe that their ends justify their means, so they will say anything, do anything to mask their motives, sometimes even from themselves.

    … difficulties in having abortion rights turn on viability

    To this layman, it always sounded like a shaky foundation for a permanent right. Science will figure out ways to sustain and grow younger and younger fetuses. Also, some biased jurists will want to rule that any fetus can be considered viable, while others would argue that viability is only proven at birth.

    Thanks for writing this article, and for publishing it here.

    Your writing — to the degree that I have the background to appreciate it — encourages the thought that there are still some legal thinkers out there who can place the constitution over politics.

    Now we just need a President independent enough from both of the prevailing orthodoxies to appoint such honestly fair-minded jurists to the Supreme Court.

    • #17
    • November 3, 2015, at 3:21 PM PST
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  18. Wiley Inactive

    Requiring admitting privileges to a hospital seems directly related to possible complications and does not seem like an undue burden. The need for states to regulate abortion clinics should be set in context, since it would have prevented the tragedy below (the preview opens this month in Philly).

    • #18
    • November 3, 2015, at 3:29 PM PST
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  19. Jennifer Johnson Inactive

    Majestyk:That gets us to the fact that not all abortion is alike either. Do you concede that there is a difference in kind between a woman’s use of RU-486 or other abortifacients and a late term abortion?

    I am not sure of the distinction you draw. They both terminate a human life. The latter more closely resembles a human life that we can readily recognize, the former does not. The latter appears more like murder than the former, for the same reasons.

    What I am getting at is that the distinction seems to rest on appearances. Since we know that they are both human lives, the fact that we place more protections on the latter may mean that we are ignorant of other facts regarding the former.

    Conservatives should be horrified at the notion of living in a world where the government has such intimate information about you as to know the conditions of how and when a woman might be pregnant, and if so, prevent her from terminating that pregnancy – particularly in the early stages.

    I am not horrified at government doing one of its jobs–upholding justice. If intimate details are needed to uphold justice, as they often are in various kinds of legal actions, then that just what is required for justice to be upheld. Wouldn’t you agree with that?

    • #19
    • November 3, 2015, at 3:38 PM PST
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  20. Larry3435 Member

    Wiley: Requiring admitting privileges to a hospital seems directly related to possible complications and does not seem like an undo burden.

    The extent of the need, and the extent of the burden, are factual questions that should be resolved based on evidence, not on speculation. Are there actual examples of complications? Is there any reason that such complications, if they arise, could not be handled by a doctor in the local emergency room? Are other outpatient procedures with possible complications subject to the same kind of regulation? If we don’t know the facts, how can we be expected to form an opinion on the “rational basis” for the statute?

    • #20
    • November 3, 2015, at 4:11 PM PST
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  21. Nick Stuart Inactive

    Doesn’t matter what the legal reasoning is one way or the other. It all comes down to how Justice Kennedy feels about it.

    • #21
    • November 3, 2015, at 4:13 PM PST
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  22. Profile Photo Member

    Having admitting privileges at a hospital shouldn’t be too much to ask from abortionists, but in most cases it is. The only reason this is an issue is because the vast majority of doctors do not want to perform abortions, and the few who do are getting older. That is a problem for the abortion industry that won’t go away, even if they win every court case.

    Great to know that making sure women have access to abortion is more important than making sure that the abortion is safe. We can always count on the abortion industry to do what’s best for women.

    • #22
    • November 3, 2015, at 4:40 PM PST
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  23. Metalheaddoc Member
    MetalheaddocJoined in the first year of Ricochet Ricochet Charter Member

    The Texas legislation treats abortion like any other surgical procedure and sets standards for practitioners and facilities. Richard’s argument singles out abortion as the only medical procedure that doesn’t have to meet the customary standard of care. Does this extend to the malpractice claims against an abortionist? Can a shoddy abortionist defend himself/herself based on a defense that there are no other nearby abortion facilities and therefore can operate without any standard of care as long as they provide access? Access is more important than patient safety?

    • #23
    • November 3, 2015, at 4:40 PM PST
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  24. Mate De Inactive

    So much for safe, legal and rare. I agree 100% with Judithann. The only reason this is an issue for the abortion industry is because of the difficulty to find qualified people to actual perform abortions or even work in the clinics. The job can weigh on the conscience. Also we have multiple examples of unsanitary clinics and unsafe practices being done in these clinics. This is NOT about women’s health at all because many women get infections, their uterus’ punctured, become infertile due to the procedures and some women have died. Why should only the abortion industry have their sanitary standards lowered or credential standards lowered? In sure some community health clinics or walk in type clinics would like those cost savings too.

    • #24
    • November 3, 2015, at 6:22 PM PST
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  25. I Walton Member

    I don’t understand his arguments and I don’t understand why R v W is water under the bridge. It was a fabricated right that denies the 9th and 10th Amendments. These are written down in black and white in clear language and can’t be permanently erased by the precedent of a nonsense decisions.

    • #25
    • November 4, 2015, at 5:20 AM PST
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  26. I Walton Member

    John Penfold:I don’t understand his arguments and I don’t understand why R v W is water under the bridge. It was a fabricated right that denies the 9th and 10th Amendments. These are written down in black and white in clear language and can’t be permanently erased by the precedent of nonsense political decisions.

    • #26
    • November 4, 2015, at 5:21 AM PST
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  27. Tom Davis Member
    Tom DavisJoined in the first year of Ricochet Ricochet Charter Member

    One huge problem is that the Court made up a right that does not exist in the Constitution. Now it has to define the boundaries of that right using a Constitution that did not contemplate a Constitutional right to an abortion in the first place. It is impossible to define something that does not exist so the Court has to rely on legal alchemy.

    • #27
    • November 4, 2015, at 6:31 AM PST
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  28. Kwhopper Inactive

    Tom Meyer, Ed.

    If I’m reading this correctly, Richard is saying that:

    1. State governments should have a very limited ability to curtail the expression of rights protected by the federal constitution;
    2. That abortion is — under current jurisprudence — considered such an activity; so
    3. Therefore, laws that restrict abortion as much as these ones do should be considered unconstitutional abridgments of liberty, for the same reason that states should have a very limited ability to curtail our other federally-guaranteed rights.

    Unlike abortion, gun ownership is plainly in the Constitution and yet non-trivial barriers exist to lawfully owning one in licensing.

    Maybe Texas and Mississippi should have kept it simple and required someone seeking an abortion to get a license. It has survived many legal challenges, and would at least provide minimal accountability.

    • #28
    • November 4, 2015, at 7:53 AM PST
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  29. Tom Meyer, Common Citizen Contributor

    Kwhopper: Unlike abortion, gun ownership is plainly in the Constitution…

    Agreed; high — to my mind — among the reasons why Roe should be over turned. Unfortunately, we’re stuck with it for the moment.

    Kwhopper: and yet non-trivial barriers exist to lawfully owning one in licensing.

    As Massachusetts resident, believe me, I know, though things are much better in many places of the country because state’s ability to regulate away its residents’ rights has been curtailed by Heller and MacDonald.

    Stipulating that Richard isn’t a Heller/MacDonald fan, I think he’s making a similar point to that decision: that if a right has been identified as being protected by the federal constitution — as abortion, foolishly, has been — then the states should not have the power to regulate them into non-existence.

    A law that created gun shops such that three quarters of them were forced to close should not pass constitutional muster. That’s the principle Richard is talking about.

    • #29
    • November 4, 2015, at 9:11 AM PST
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  30. iDad Inactive

    Balderdash.

    • #30
    • November 4, 2015, at 9:13 AM PST
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