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America transitions into Gilead

Minoosh said:
I agree, but I'm not sure what the argument would be under constitutional terms.
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Why would you agree it's unconstitutional if you don't know why it's unconstitutional? Perhaps you mean that it's unjust or has inconsistent motivations or something?
 
phiwum said:
Perhaps, but what argument do you have in mind? Which part of the Constitution is violated?
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Starting from a specifically non Constitutional standpoint...

The instigator of a crime is generally held responsible along with the perpetrator. Such as in the case of a killing by hire.

Taking abortion as 'murder', this act by a doctor can be considered as a 'hit' commissioned by the mother. She makes the decision; she's not under the spell of a Svengali. All free agents involved in a crime bear responsibility.

Unless one gets a good deal by testifying against the other(s) in order that some conviction be secured.

But to craft a law where only one party of an illegal act involving two or more knowing, willing participants (of the age of majority) bears the *sole* responsibility would seem to fly in the face of equality under the law.
 
Lurch said:
Starting from a specifically non Constitutional standpoint...

The instigator of a crime is generally held responsible along with the perpetrator. Such as in the case of a killing by hire.

Taking abortion as 'murder', this act by a doctor can be considered as a 'hit' commissioned by the mother. She makes the decision; she's not under the spell of a Svengali. All free agents involved in a crime bear responsibility.

Unless one gets a good deal by testifying against the other(s) in order that some conviction be secured.

But to craft a law where only one party of an illegal act involving two or more knowing, willing participants (of the age of majority) bears the *sole* responsibility would seem to fly in the face of equality under the law.
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I just don't see an argument about constitutionality there. I totally get the intuition, but I don't know how to put it in terms of constitutionality.

I'm not saying a court wouldn't buy it in some sort of terms of equality under the law, but it would require going beyond the literal wording of the text, far as I know. Of course, I don't know much.
 
The Great Zaganza said:
Equality before the law, 14th amendment.
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But everyone is equal before this law. All doctors who provide abortions are prosecutable and no woman receiving an abortion is, unless I suppose she is a doctor performing her own abortion.

This law lays out which people violate the law and applies uniformly. The distinctions are not obviously arbitrary, since the actions are different.

Maybe a court would buy the argument you suggest, I don't know. We'll probably never know, unless Roe is tossed into the garbage heap of history. (I don't mean to suggest it belongs there.)
 
phiwum said:
Perhaps, but what argument do you have in mind? Which part of the Constitution is violated?
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I was agreeing about the part that said I didn't know what the constitutional argument would be.

But I now realize it's pretty simple. The Supreme Court made first-trimester abortion an absolute right in 1973. So putting the mark at 6 weeks, is by definition, unconstitutional.

ETA: Right now, a law establishing segregated schools would be unconstitutional. A law against gay marriage would be unconstitutional. AFAIK, states can't take away rights that the Supreme Court has established. The Supreme Court can change its mind though.
 
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Alabama doesn't get to make up a special kind of murder that only a certain profession can be guilty of.
If there is a crime, solicitation of it is a crime, too.
Also, no normal abortion can happen without a women's consent, making the women an accessory.
 
Minoosh said:
I was agreeing about the part that said I didn't know what the constitutional argument would be.

But I now realize it's pretty simple. The Supreme Court made first-trimester abortion an absolute right in 1973. So putting the mark at 6 weeks, is by definition, unconstitutional.
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Sure, sure, the law undoubtedly is unconstitutional because of the Roe ruling. I was taking that for granted. It was the bit about making the doctor criminally liable but not the woman that I was asking about.
 
The Great Zaganza said:
Alabama doesn't get to make up a special kind of murder that only a certain profession can be guilty of.
If there is a crime, solicitation of it is a crime, too.
Also, no normal abortion can happen without a women's consent, making the women an accessory.
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Solicitation to murder is a crime because there's a law saying so. Another law can carve out an exception to the first law. I just don't see the problem.

Again, maybe a court would buy that there's a problem in terms of unequal treatment, but it's sure not obvious to me.
 
I'm finding conflicting answers on whether women face prosecution in Georgia. The sponsor of the bill says no, but the fetus is legally a human, and if you participate in killing a human, generally all the plotters are prosecuted. Some may receive leniency for cooperation, but they're usually not entirely off the hook. I also saw the figure "10 years" (vs. 99 for doctors) but I'm not exactly sure where I read it.

I see potential for people falsely accusing doctors.
 
phiwum said:
Solicitation to murder is a crime because there's a law saying so. Another law can carve out an exception to the first law. I just don't see the problem.
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Of course it can, but I don't know if the law would stand. But as far as I can tell, there's no explicit "carve out" in the Georgia law. The claim that women could not be punished rests on interpretation of pronouns but that usage is not entirely consistent. More assurance offered up is a Georgia Court of Appeals ruling that absolved a woman for shooting herself in the abdomen, killing the fetus.

Apparently there are laws still to be written that might clarify things, but one big question looms: If fetuses are counted as people, holding women harmless who self-abort would IMO be a MASSIVE constitutional issue. The fetus is a person with human rights, and how can you provide equal protection if it's OK for some people to kill them?
I got frustrated searching around and this seemed like a reasonable link from snopes.com which lists the more dire claims as "unproven." It uses precedents and traditions to speculate that women will not be held liable. But as far as I can tell there is no explicit statement that gets women off the hook. An expert said a woman could be charged. It's just not clear that it would stick.

ETA: I don't mean to browbeat, but I'm baffled that you don't see a problem allowing some people to get away with killing people.
 
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Minoosh said:
I'm finding conflicting answers on whether women face prosecution in Georgia. The sponsor of the bill says no, but the fetus is legally a human, and if you participate in killing a human, generally all the plotters are prosecuted. Some may receive leniency for cooperation, but they're usually not entirely off the hook. I also saw the figure "10 years" (vs. 99 for doctors) but I'm not exactly sure where I read it.

I see potential for people falsely accusing doctors.
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I'm pretty sure you are conflating the Georgia and Alabama laws. In the case of Alabama law (as of last week), the provider is punishable as a class A felony, which carries a sentence of 10-99 years. The law is absolutely explicit that the woman on whom the abortion is performed faces no punishment and has committed no crime.

Under the Georgia law, anyone who performs an abortion after six weeks (i.e. the law says after the heartbeat, which is basically six weeks) or 20 weeks in the case of rape or incest, has performed an illegal abortion. Illegal abortions carry a penalty of 1 to 10 years under Georgia law. (The new law doesn't change the penalty for illegal abortions. It redefines what constitutes an illegal abortion.)

Where the confusion comes in from the Georgia law is that the Georgia law specifies specific bits of the legal code for Georgia will be changed, but in its introduction, it also talks about the personhood of a fetus. It is from that clause that all of the other hype has been generated, because people start from that and connect the dots, in whatever way they find most convenient to connect the dots. Some people manage to connect the dots in such a way that it ends up calling abortion the crime of murder.

Here's the thing. That particular way of connecting the dots really constitutes coloring outside the lines. Find me a lawyer who says a woman could end up with life in prison for getting an abortion, and I'll show you a lawyer who is receiving payment from an advocacy group, or wants to. It just isn't there. However, there is sufficient ambiguity in the actual words of the statute that we can say exactly who will be charged with exactly what. For example, the idea that women seeking abortions cannot be charged in Georgia is firmly established by legal precedent. However, that's legal precedent, not the actual text of the law. I can easily see a judge, even an appellate judge, saying that the precedent doesn't apply since it was formed under a prior statute, and at a time when Roe v. Wade was a defining precedent for abortion generally. I can easily see a woman being charged under the Georgia law (not the Alabama law, which explicitly says she can't be) for participating in an illegal abortion.

Summary: Give up on the online magazine articles, or the web pages of PACs, or of advocacy groups. Find what lawyers are saying about the laws. You'll find them saying that abortion is not murder, and that the pregnant women (probably) can't be charged in Georgia. I say "probably" because opinion is not unanimous among the authors I have read, even after dismissing the agenda driven authors whose purpose is to stir the pot, as opposed to telling the truth.
 
One more thing. A lot of people wonder what the point is of saying the fetus is a person, if not to say that killing one is murder.


It's all about Roe v. Wade. It has been many years since I read the Roe v. Wade decision, so I don't remember it absolutely clearly, but one of the lines of argument used by the court majority was that the rights of the woman clearly overrode the rights of the fetus, because the fetus was not a person. To bolster that judgement, they noted that fetuses weren't counted in the census. Fetuses weren't counted as dependents for tax purposes, etc. Well, the Georgia legislature is trying to shortcut that argument. By declaring the fetus to be a person, complete with all the tax implications, census counts, everything else that they can count the fetus as a person for the purposes of state law, they are stating that under Georgia law, the fetus is a person, and so any consideration of equal rights under the law, as provided by the 14th amendment, must include the fetus among those that have equal rights.
 
One final thought.

In recent weeks, four different states have passed four different laws that are clearly in violation of the Roe v. Wade decision, but each is somewhat different.

One of the things abortion rights proponents have been hoping is that the Supreme Court will not simply overturn Roe v. Wade, but will allow restrictions or somehow phrase their opinion in such a way that Roe stays largely intact. With four different laws that violate Roe in four different ways, that becomes nearly impossible. It's almost certain to be all or nothing.
 
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