The Roe Countdown

[Meadmaker]

Originally Posted by psionl0

Do you really trust the conservative judges in the SC to stick to that "precedent"?

Yes.

[The Great Zaganza]

Originally Posted by Meadmaker

Yes.

you have no basis for that trust.

[mumblethrax]

Originally Posted by theprestige

And people accuse me of using emotionally loaded language.

Letting you know that I would have a strong emotional reaction if I were denied a procedure that would save me a great deal of suffering because "Eh, you don't need it" is not "emotionally loaded language."

But if you want a response that does not acknowledge that human beings have emotions: you don't know what "medical necessity" means, either.

[bruto]

Originally Posted by Skeptic Ginger

BTW, 'abortion' or rather pregnancy termination in the third trimester is almost always because the mother gets into physical trouble like with a hypertensive crisis or failing heart or something like hemorrhaging in which case they always try to save the fetus/infant if they can, or, it's because the fetus is doomed or already dead.

That brings up an odd dilemma, doesn't it? What constitutes a late term "abortion," anyway? One might suppose that accepted medical procedures and practices would prevail, but to assume so one might have to suppose that the persons fomenting these laws are not ignorant sanctimonious idiots, and that could be a fatal error.

Such issues should not even be a matter of concern or consideration, but those of us who, like MacDuff, were "ripp'd untimely" might have reason to question whether our, and our mothers', lives should be entrusted to politicians rather than doctors.

[The Great Zaganza]

I have a scenario that I would like to know what people think would be the outcome if the Alito draft was adopted by a majority of SC judges.


By accident/violence/illness, a pregnant woman has become brain dead. She has a living will of not wanting to be kept alive as long as possible, and does not want to become an organ donor.
The pregnancy is past the arbitrary "heartbeat" line, but not anywhere where an early birth would be advisable and likely to result in a healthy child.

Does the Alito opinion mean that this woman's body has to be kept alive until the child can be extracted?
and if yes, who would have to pay for the hospital costs?

[The Don]

Originally Posted by The Great Zaganza

Does the Alito opinion mean that this woman's body has to be kept alive until the child can be extracted?
and if yes, who would have to pay for the hospital costs?

In my uninformed opinion, probably yes and the woman's family would have to pay the medical costs. To fail to do so would leave the family open to charges of attempted murder.

Once the child is born however, the state has no interest in its welfare.

[gnome]

Originally Posted by Meadmaker

I can't cite specific rulings, but I think that it's pretty clear. In every case I've ever heard of that was remotely similar, laws aren't applied retroactively. If it's legal at the time you did it, you can't be prosecuted. If Roe v. Wade is overturned, no one has to worry about being prosecuted for having or for assisting an abortion that occurred prior to Roe being overturned.

At least, so I'm told.

(standard IANAL disclaimer)
Could someone argue that an overturned Roe v Wade doesn't change the law, but demonstrate that the blocked laws that are still on the books were constitutional all along, and go ahead and enforce past cases?

[SuburbanTurkey]

Originally Posted by theprestige

It's certainly not a matter of medical necessity.

A strange dichotomy you sort the world into, "medical necessity" in one pile, everything else convenience.

[BobTheCoward]

Originally Posted by The Great Zaganza

I have a scenario that I would like to know what people think would be the outcome if the Alito draft was adopted by a majority of SC judges.


By accident/violence/illness, a pregnant woman has become brain dead. She has a living will of not wanting to be kept alive as long as possible, and does not want to become an organ donor.
The pregnancy is past the arbitrary "heartbeat" line, but not anywhere where an early birth would be advisable and likely to result in a healthy child.

Does the Alito opinion mean that this woman's body has to be kept alive until the child can be extracted?
and if yes, who would have to pay for the hospital costs?

No. The Alito opinion doesn't direct states to make any particular law. It seems clear in California that it would be acceptable to terminate the pregnancy

[TragicMonkey]

Originally Posted by BobTheCoward

No. The Alito opinion doesn't direct states to make any particular law. It seems clear in California that it would be acceptable to terminate the pregnancy

And anyone in Texas could then sue the family and hospital employees for committing abortion. A sensible legal system for a sensible nation.

[The Great Zaganza]

Originally Posted by BobTheCoward

No. The Alito opinion doesn't direct states to make any particular law. It seems clear in California that it would be acceptable to terminate the pregnancy

what about Mississippi, which is the law Alito is upholding?

[SuburbanTurkey]

This recent change in the courts reveals a nasty little fact about the Democrats, which is the history of their defense of these civil rights really isn't that good.

The party has been agnostic about the issue of Roe, allowing anti-abortion conservatives within their ranks. They considered it not a fight worth having because Roe made it a moot point.

The same could be said about gay rights. If Obergefell had not settled the issue, I very much doubt that gay marriage ever would have passed beyond the state level, because the Democrats at the national level weren't willing to support it.

With the courts pulling out the rug on these rights, are we supposed to pretend that Hillary didn't run with an anti-abortion VP, or that Obama famously was mealy mouthed about gay rights? These were not unique stances within the party which was happy to ride the fence and let the courts do all the heavy lifting.

The party is going to try to run on the idea that they are stalwart defenders of these lost rights, but the facts in evidence are quite lacking. The party, as it exists now, will certainly have to meaningfully and publicly reorganize on these issues if they want to have any credibility.

[The Great Zaganza]

To be fair, a 50 year precedent, affirmed multiple times in related cases, seems to be solid enough that it doesn't need extra legislation, as the SC had determined that the Constitution was Law enough.

It's the failing of progressives to think that progress is always ratcheting up, and that certain advances can't be undone.

[SuburbanTurkey]

Originally Posted by The Great Zaganza

To be fair, a 50 year precedent, affirmed multiple times in related cases, seems to be solid enough that it doesn't need extra legislation, as the SC had determined that the Constitution was Law enough.

It's the failing of progressives to think that progress is always ratcheting up, and that certain advances can't be undone.

Changing circumstances demand changing stances.

The fact that leadership is still out stumping for an anti-choice candidate for the House of Representatives strikes me as hard to justify given these new circumstances. No SCOTUS is going to save the party from their own cowardice on these issues, this is no longer a pointless purity test.

[Ziggurat]

Originally Posted by The Great Zaganza

what about Mississippi, which is the law Alito is upholding?

Technically, Alito's draft opinion does not uphold the Mississippi law. It overrules the Fifth Circuit's ruling against the law, and remands it back to the Fifth Circuit to be ruled on again consistent with this new decision. It is conceivable (though unlikely) that the Fifth might find some other reason besides Roe to overturn the law.

[BobTheCoward]

Originally Posted by The Great Zaganza

what about Mississippi, which is the law Alito is upholding?

The Alito decision does not direct Mississippi to do anything

[Suddenly]

Originally Posted by gnome

(standard IANAL disclaimer)
Could someone argue that an overturned Roe v Wade doesn't change the law, but demonstrate that the blocked laws that are still on the books were constitutional all along, and go ahead and enforce past cases?

I could see someone trying.

It would be a good reason for more than just West Virginia adopting a desuetude doctrine as it would apply here imo.

[Ziggurat]

Originally Posted by gnome

(standard IANAL disclaimer)
Could someone argue that an overturned Roe v Wade doesn't change the law, but demonstrate that the blocked laws that are still on the books were constitutional all along, and go ahead and enforce past cases?

I'm not sure the term for it, but I think there's a legal principle along the lines of if some government body tells you something is permissible and you have good reason to believe them and you do it, and it turns out they were wrong, your justifiable reliance on their guidance relieves you of responsibility. The Supreme Court is certainly a proper authority figure to make such a declaration about legality, and if you rely on them, I believe that qualifies, even under the theory that the laws in question were constitutional all along.

IANAL either, but I can't realistically envision a scenario in which you can get in trouble for doing what the Supreme Court says you can do. I don't think anyone is interested in opening THAT can of worms.

[The Great Zaganza]

Originally Posted by BobTheCoward

The Alito decision does not direct Mississippi to do anything

You are being inconsistent.
Mississippi is not asking the SC to do anything apart from letting its law going into effect.

And if it does (after a lower circuit round, which would go to Mississippi if the SC sides with Alito), the State would have to deal with scenarios as I described.

[Ziggurat]

Originally Posted by The Great Zaganza

I have a scenario that I would like to know what people think would be the outcome if the Alito draft was adopted by a majority of SC judges.


By accident/violence/illness, a pregnant woman has become brain dead. She has a living will of not wanting to be kept alive as long as possible, and does not want to become an organ donor.
The pregnancy is past the arbitrary "heartbeat" line, but not anywhere where an early birth would be advisable and likely to result in a healthy child.

Does the Alito opinion mean that this woman's body has to be kept alive until the child can be extracted?
and if yes, who would have to pay for the hospital costs?

No, I don't think the Mississippi law requires that the mother be kept alive. From what I can tell of the Mississippi law, letting the woman die does not qualify as an abortion, even if the baby dies as a result. Here is how the law defines abortion:

(a) “Abortion” means the use or prescription of an instrument, medicine, drug, or other substance or device with the intent to terminate a clinically diagnosable pregnancy for reasons other than to increase the probability of a live birth, to preserve the life or health of the unborn human being, to terminate an ectopic pregnancy, or to remove a dead unborn human being.

So if you were to euthanize the woman with a drug, that might arguably qualify as an abortion, but just letting her die due to a lack of intervention would not.

[The Great Zaganza]

Originally Posted by Ziggurat

No, I don't think the Mississippi law requires that the mother be kept alive. From what I can tell of the Mississippi law, letting the woman die does not qualify as an abortion, even if the baby dies as a result. Here is how the law defines abortion:

(a) “Abortion” means the use or prescription of an instrument, medicine, drug, or other substance or device with the intent to terminate a clinically diagnosable pregnancy for reasons other than to increase the probability of a live birth, to preserve the life or health of the unborn human being, to terminate an ectopic pregnancy, or to remove a dead unborn human being.

So if you were to euthanize the woman with a drug, that might arguably qualify as an abortion, but just letting her die due to a lack of intervention would not.

I guess that's one interpretation.
i think the opposite can be argued, too, that the "use" of a device could also be the switching off of a device, as it is being operated to cause a specific result, in this case, not prolonging a life artificially.
We have seen many court cases about whether life support can be switched off or not - this will make things even more contentious.

[Ziggurat]

Originally Posted by The Great Zaganza

I guess that's one interpretation.
i think the opposite can be argued, too, that the "use" of a device could also be the switching off of a device, as it is being operated to cause a specific result, in this case, not prolonging a life artificially.
We have seen many court cases about whether life support can be switched off or not - this will make things even more contentious.

You don't have to switch off any device. You can simply not feed the patient, so that they starve to death. It's not a pleasant or quick way to go, but if you're brain dead, then you don't experience it anyways.

[The Great Zaganza]

Originally Posted by Ziggurat

You don't have to switch off any device. You can simply not feed the patient, so that they starve to death. It's not a pleasant or quick way to go, but if you're brain dead, then you don't experience it anyways.

What about the unborn? Would it experience not being fed?

[Ziggurat]

Originally Posted by The Great Zaganza

What about the unborn? Would it experience not being fed?

That probably depends on how developed it is.

[Random]

Originally Posted by Meadmaker

In a sense, I agree with you. I think the right of privacy, or substantive due process, or both, is, in fact, in there, even though they aren't mentioned. i think it's a good way of stating principles and generalizing those priciples to non-enumerated rights.

But the idea that is is "clear", because it's in four different places but never actually said, is a bit odd. And the idea that no one noticed it for 176 years implies that everyone had thie "brain turned way down", doesn't make a lot of sense.

I think it's a bit less clear than you would like. I think it's in there, but I'm going to go easy on insulting people who can't see it right away.

Fine if you are talking about random people off the street. I think Supreme Court Justices should know better.

As far as taking a long time to figure it out, Gideon v Wainright was decided unanimously, over 150 years after the ratification of the Constitution, even though the Constitution does specifically say the accused has a right to counsel.

[Bob001]

Another assessment of the legal issues that will follow overturning Roe v. Wade:

Quote:

Meanwhile, federal courts, no matter how much they might want to get out of the business of deciding abortion cases, would face complex questions of constitutional law. Under Alito’s draft, abortion restrictions must only have a “rational basis” to pass constitutional muster. Permissive as this is, it will still present questions: Would it be rational for a state to prioritize fetal life over the life of the mother? Does protecting the fetus takes priority over serious risk to maternal health? Is it rational for a state to prohibit contraceptive methods, such as intrauterine devices or morning-after pills, which prevent implantation of a fertilized embryo? Can a state prohibit in vitro fertilization because it involves the destruction of such embryos?

Again, these are not far-fetched hypotheticals. Louisiana lawmakers are weighing a measure that would “ensure the right to life and equal protection of the laws to all unborn children from the moment of fertilization by protecting them by the same laws protecting other human beings.” This language could transform IUDs or discarding embryos created for IVF into homicide cases.

That’s just the start. Life without Roe introduces uncharted legal questions that law professors David S. Cohen, Greer Donley and Rachel Rebouché describe as “a novel world of complicated, interjurisdictional legal conflicts over abortion,” pitting state against state.

The rise of telemedicine and the availability of abortion-inducing medication — which now accounts for more than half of all abortions — mean that abortion is increasingly untethered from physical clinics and state borders. Do states that prohibit abortion have the power to prevent their citizens from obtaining abortions elsewhere, or to punish them if they do?

What happens if a woman takes abortion medication in a state where that is legal but expels the fetus in a state that prohibits abortion? Could states seek to punish out-of-state doctors who prescribe medication abortions — or, alternatively, shield in-state physicians from being held to account by states where abortion is illegal? State laws in this area would raise unresolved questions about the constitutional right to travel, the reach of the commerce clause, and the extent of extraterritorial jurisdiction — issues that make deciding what constitutes an “undue burden” on abortion rights simple by comparison.

https://www.washingtonpost.com/opini...opinion-myths/

[The Great Zaganza]

A pregnant woman having a sip of alcohol or a cigarette could be charged with "reckless endangerment".

[theprestige]

Originally Posted by The Great Zaganza

A pregnant woman having a sip of alcohol or a cigarette could be charged with "reckless endangerment".

Turns out we have a whole long list of things that are potentially crimes for parents, but not for the childfree.

[The Great Zaganza]

Originally Posted by theprestige

Turns out we have a whole long list of things that are potentially crimes for parents, but not for the childfree.

so you think that the abolition of Roe would cause the Pregnant to be treated as parents in legal terms?

[Disbelief]

Originally Posted by The Great Zaganza

so you think that the abolition of Roe would cause the Pregnant to be treated as parents in legal terms?

Start getting a tax break from the moment of contraception.

[cosmicaug]

Originally Posted by Suddenly

That sort of thing is a good example of how legal formalism hurts people. Having a law criminalizing abortion except when the mother's life is in danger sounds at least humane but in practice involves a doctor weighing their ethical responsibility to the patient against the unknowable opinion of a prosecutor.

Originally Posted by cosmicaug

I tried to communicate that but you have done it better.

From https://www.newyorker.com/science/annals-of-medicine/what-the-life-of-the-mother-might-mean-in-a-post-roe-america

Quote:

All of the ob-gyn practitioners I spoke to are haunted by post-Roe nightmares to come, and these are not limited to life-or-death scenarios. “People really focus just on imminent death,” Moayedi told me. “What we don’t always capture is morbidity—the actual sustainable harm that people also experience from pregnancy complications.” A miscarriage-related infection known as a septic embolus can restrict blood flow to the extremities and cause necrosis; vasopressors, which are medications used to stabilize blood pressure during sepsis, can also choke off blood flow in this way. Moayedi told me about patients she has treated who have had to have limbs amputated, “because physicians refused to intervene in a timely fashion in their miscarriages.”

I think we can all agree that, even without a full abortion ban yet, the FUD surrounding this has the desirable effect of forcing sluts to take responsibility for their pregnancies, paying with their very limbs (if need be), such as in cases like this.

And besides, babies.

[Meadmaker]

Originally Posted by bruto

That brings up an odd dilemma, doesn't it? What constitutes a late term "abortion," anyway? One might suppose that accepted medical procedures and practices would prevail, but to assume so one might have to suppose that the persons fomenting these laws are not ignorant sanctimonious idiots, and that could be a fatal error.

Such issues should not even be a matter of concern or consideration, but those of us who, like MacDuff, were "ripp'd untimely" might have reason to question whether our, and our mothers', lives should be entrusted to politicians rather than doctors.

RE: Hilited.

But that's absurd. You are considering them right now.

So, option 1 is to say that there are no rules at all, which is basically the Mumblethrax option. If it's on the inside, it's legal to kill it. In that case, it's putting the life of that other organism into the mother's hands, although she might have to find some doctor somewhere to assist.

Option 2 is to have some sort of restriction, in which case it's in the hands of politicians, be those politicians legislators or judges.

[Meadmaker]

Originally Posted by gnome

(standard IANAL disclaimer)
Could someone argue that an overturned Roe v Wade doesn't change the law, but demonstrate that the blocked laws that are still on the books were constitutional all along, and go ahead and enforce past cases?

I think Ziggurat's answer in post 1618 is accurate.

If you could not have been prosecuted at the time you did something, you can't be prosecuted for it later, regardless of changes in laws before or after you did it.


In case anyone doubts this, consider a simple fact. Has there been any news sourse with any sliver of credibility running any news story that begins with a headline like, "If Alito's Opinion Becomes' Law, Thousands of Women in Michigan Could Face Felony Charges".

[Meadmaker]

Originally Posted by The Great Zaganza

I have a scenario that I would like to know what people think would be the outcome if the Alito draft was adopted by a majority of SC judges.


By accident/violence/illness, a pregnant woman has become brain dead. She has a living will of not wanting to be kept alive as long as possible, and does not want to become an organ donor.
The pregnancy is past the arbitrary "heartbeat" line, but not anywhere where an early birth would be advisable and likely to result in a healthy child.

Does the Alito opinion mean that this woman's body has to be kept alive until the child can be extracted?
and if yes, who would have to pay for the hospital costs?

As others have said, Alito's opinion would send the matter to states.

The remaining question would be whether there is some other constitutional issue that would prevent a state from passing a law about what must be done in such a case. I think the answer is no. There is no constitutional right saying that you have the right to specify what happens to your remains after you die. It is conceivable that in some cases there might be a freedom of religion case for some people, but figuring that out would require a more specific claim than what you've laid out. In general, I think the state could demand that the body remain on life support until the baby was delivered, if such a thing were medically possible.

As for costs, the family could not be held liable, nor the estate of the dead woman. You can't incur debts after you are dead, and family can't be forced to pay medical costs that they didn't agree to.

[johnny karate]

Originally Posted by Meadmaker

I think Ziggurat's answer in post 1618 is accurate.

If you could not have been prosecuted at the time you did something, you can't be prosecuted for it later, regardless of changes in laws before or after you did it.


In case anyone doubts this, consider a simple fact. Has there been any news sourse with any sliver of credibility running any news story that begins with a headline like, "If Alito's Opinion Becomes' Law, Thousands of Women in Michigan Could Face Felony Charges".

The naiveté of those who fail to acknowledge how extremest and irrational the Republican party have become seems boundless.

[The Great Zaganza]

Many Thanks to everyone who gave me an answer to my scenario.

[Meadmaker]

Originally Posted by Bob001

Another assessment of the legal issues that will follow overturning Roe v. Wade:

https://www.washingtonpost.com/opini...opinion-myths/

Some comments:

Quote:

Under Alito’s draft, abortion restrictions must only have a “rational basis” to pass constitutional muster. Permissive as this is, it will still present questions: Would it be rational

Just this wording makes me know that equivocation is coming. A "rational basis" is a legal term. They ask "would it be rational", which is used, arguably incorrectly, as "would it make sense". Be that as it may...

Quote:

for a state to prioritize fetal life over the life of the mother?

And of course, the equivocation can be found in the very next phrase.

The right to life is an enumerated right, specifically, and so depriving the mother of the right to life would require something beyond a rational basis. It would require a strict scrutiny (also a legal term) analysis.

I don't think that any law requiring that the life of a fetus be prioritized over the life of the mother would survive such a strict scrutiny analysis in any federal court, anywhere.

I also don't think any such law would ever be passed, but we're dealing in hypotheticals.

And no, no one has done it ever and I don't care that you saw something published by NPR. If you think that proves that states have already passed such laws, you don't understand the laws, and you don't even understand the NPR piece.

Quote:

Is it rational for a state to prohibit contraceptive methods, such as intrauterine devices or morning-after pills, which prevent implantation of a fertilized embryo?

I believe such laws would be held to have a rational basis. Whether or not they are rational is a separate issue. See equivocation.

Quote:

Can a state prohibit in vitro fertilization because it involves the destruction of such embryos?

I believe a state could do that. [QUIBBLE]There are some technicalities I could go into, but I think it's easier to just say the state could do that.[/QUIBBLE]

Quote:

This language could transform IUDs or discarding embryos created for IVF into homicide cases.

No, it couldn't. However, it could make them crimes.

Quote:

Do states that prohibit abortion have the power to prevent their citizens from obtaining abortions elsewhere, or to punish them if they do?

I don't think they do. State laws don't cross state lines. If I do something in Michigan that is illegal in Ohio, I can't be prosecuted in Ohio. I don't see any reason abortion would have some sort of special standing in this regard. I'll use the IANAL disclaimer here, but I'm fairly confident that it wouldn't work.

The closest thing might be something that I think is currently in the Texas law (which I predict, again, will be found unconstitutional eventually), where somebody in Texas might be prosecuted for facilitating an attempt to leave the state to procure abortion services. I think some of that might be ruled unconstitutional as well, but it's not completely far fetched to think that some sort of laws that make it more difficult to get out of state abortions might be found to be constitutional.

Quote:

What happens if a woman takes abortion medication in a state where that is legal but expels the fetus in a state that prohibits abortion?

That's a more difficult question. I would say they probably could be prosecuted at least in some circumstances, but the details of the case would matter.

Quote:

Could states seek to punish out-of-state doctors who prescribe medication abortions

No. Texas law can't tell doctors in Colorado what they can do.

Texas law could, and probably would, dictate that pharmacists in Texas could not fill prescriptions from out of state physicians.

Quote:

— or, alternatively, shield in-state physicians from being held to account by states where abortion is illegal? State laws in this area would raise unresolved questions about the constitutional right to travel, the reach of the commerce clause, and the extent of extraterritorial jurisdiction — issues that make deciding what constitutes an “undue burden” on abortion rights simple by comparison.

Yes, there are legal issues and plenty of court cases coming.

Lawyers don't really mind that.

[Meadmaker]

Originally Posted by The Great Zaganza

A pregnant woman having a sip of alcohol or a cigarette could be charged with "reckless endangerment".

I'm not absolutely certain, but I think there are already such laws, and they have been enforced. Of course, they don't involve "a sip of alcohol", but they do involve substance abuse that can cause birth defects. I'm sure I have heard of charges arising from substance abuse by pregnant women. I just don't know the exact terms of the laws.

I would suppose binge drinking or drug use might induce late term miscarriages. I don't know if a case has ever been brought under such circumstances, or what the charge was.

[Meadmaker]

Originally Posted by johnny karate

The naiveté of those who fail to acknowledge how extremest and irrational the Republican party have become seems boundless.

That's right. They're coming to eat your babies. Oh, wait. That was the Democrats, wasn't it? I think they were used as pizza toppings or something.

This gets so confusing.

[cosmicaug]

Originally Posted by Meadmaker

Some comments:

[...]

I think that what you are missing is that all (most?) of the Post article is premised on fetal (zygotic?) personhood. Once you allow that, it's a different game altogether and your entire analysis goes out the window like a Russian dissident.