The Roe Countdown

[Skeptic Ginger]

Decapitation of a full term baby to 'manage' an obstructed labour is a recognised medical procedure.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4540979/

So this is not something that we can all agree on.

That article says only an already dead fetus should be decapitated. I see Bob pointed that out as well.

 

[Skeptic Ginger]

But it did say that an alternative procedure would have been decapitation.

Apologies for lack of warning, re picture. Mea culpa. I should be aware that a dead baby picture might be distressing to normal people. I will take this on board and and flag the issue in future posts if the issue might arise again.

Nowhere in that article is decapitation of a live fetus discussed.

Could you quote where you think it referred to decapitating an infant that wasn't already dead. Thanks.

 

[Meadmaker]

The premise of Roe v. Wade is that the Constitution does in fact protect a right to privacy that covers medical decisions, and the Alito draft would negate that right. The SC has issued numerous decisions about matters not explicitly named in the Constitution. The word "corporation," for example, does not appear in the Constitution. But they have rights.

That's true.

So the question has to be whether that right of privacy is in there, and if it covers abortion. Alito et. al. seem to think it either isn't there, or doesn't cover abortion.

If it's in there, it's in the "substantive due process" area. I looked a little bit into the leaked Dobbs draft. Not surprisingly, Alito covers that question in the draft. In doing so, he uses an extremely narrow interpretation of what non-enumerated rights can be covered under substantive due process. His interpretation would call into question some important rulings, including Griswold (birth control), Obergefell (gay marriage), and Lawrence (anti-sodomy laws). He doesn't address any of those explicitly, but the reasoning would definitely call into question Oberfell and Lawrence, and Griswold is definitely arguable.

In terms of direct impact, there is none. He's explicitly saying that none of those other rights from those opinions are impacted. However, the implications are cause for concern to anyone who wants those rights protected.

It will be very interesting to read what finally comes out when the opinion is published. We've never had, to my knowledge, a case where a draft opinion was shown to the public in time for public commentary to influence the final opinion. As I said, the "substantive due process" description in the draft opinion is very narrow. It is more narrow than necessary in order to say that Roe is on the outside of it. It will be interesting to me to see if that very narrow description is changed so that it will allow some or all of the other important opinions to be covered, even if the right to abortion is overturned.

An outside possibility is that one justice may decide that he cannot accept the narrow restrictions and actually changes the vote on overturning Roe. I, and the rest of the country, would be extremely surprised if it happened, but it can't be completely ruled out. (But if I were a betting man, I would expect Roe to be overturned.)

 

[Delphic Oracle]

That's true.

So the question has to be whether that right of privacy is in there, and if it covers abortion. Alito et. al. seem to think it either isn't there, or doesn't cover abortion.

If it's in there, it's in the "substantive due process" area. I looked a little bit into the leaked Dobbs draft. Not surprisingly, Alito covers that question in the draft. In doing so, he uses an extremely narrow interpretation of what non-enumerated rights can be covered under substantive due process. His interpretation would call into question some important rulings, including Griswold (birth control), Obergefell (gay marriage), and Lawrence (anti-sodomy laws). He doesn't address any of those explicitly, but the reasoning would definitely call into question Oberfell and Lawrence, and Griswold is definitely arguable.

In terms of direct impact, there is none. He's explicitly saying that none of those other rights from those opinions are impacted. However, the implications are cause for concern to anyone who wants those rights protected.

It will be very interesting to read what finally comes out when the opinion is published. We've never had, to my knowledge, a case where a draft opinion was shown to the public in time for public commentary to influence the final opinion. As I said, the "substantive due process" description in the draft opinion is very narrow. It is more narrow than necessary in order to say that Roe is on the outside of it. It will be interesting to me to see if that very narrow description is changed so that it will allow some or all of the other important opinions to be covered, even if the right to abortion is overturned.

An outside possibility is that one justice may decide that he cannot accept the narrow restrictions and actually changes the vote on overturning Roe. I, and the rest of the country, would be extremely surprised if it happened, but it can't be completely ruled out. (But if I were a betting man, I would expect Roe to be overturned.)

I always attributed privacy as the fourth amendment, as it spells out exactly what the government has to do to intrude on "persons, houses, papers, and effects."

This then leads on to other court decisions where there's more meat to what is considered "reasonable" or not, what constitutes a "compelling interest" by the government, etc.

And of course a whole lot of depressing real world results (see: behavior of U.S. police thread).

 

[Random]

I always attributed privacy as the fourth amendment, as it spells out exactly what the government has to do to intrude on "persons, houses, papers, and effects."

This then leads on to other court decisions where there's more meat to what is considered "reasonable" or not, what constitutes a "compelling interest" by the government, etc.

And of course a whole lot of depressing real world results (see: behavior of U.S. police thread).

The Ninth Amendment says that there are Rights the government can’t decide to screw around with simply because they are not explicitly stated in the Constitution. The fact that the founding fathers believed in some sort of fundamental right of privacy is then laid out pretty clearly by Amendments One, Three, Four, and Five. You kind of have to turn your brain way down low to say that there is no implicit Right of Privacy in the Constitution.

 

[mumblethrax]

I'm well aware of that. But it still requires a transition, from society not caring to society caring.

If you're well aware of that, why did you attempt to paint those who reject fetal personhood as a politically irrelevant minority who are ok with infanticide?

The idea that society would have to transition to caring about babies is laughable.

Pushing that transition to some point earlier than delivery isn't a fundamental change.

Well, that will depend very much on where they want to draw the line, and why. There might not be a single clear answer for where we should draw the line, but there are some places where we can be confident it shouldn't drawn. Like, personhood should probably begin somewhere before the age of thirty, and sometime after the development of synaptic connections in the pre-frontal cortex.

Someone who wants to draw the line at, say, the development of a fetal heartbeat, or at conception, is in fact doing something fundamentally different, because they are relying on morally irrelevant characteristics as criteria for personhood. Someone could advance a less demanding account of personhood than I would, for example by setting the capacity to experience pain as the only necessary condition for personhood. But in all these cases they will be confronted with the problem that we fail to grant personhood to almost everyone who seems to deserve it, and will generally then try to incoherently exclude those morally significant others from consideration.

You're both deciding that society gets a say in things at some point.

No. You're conflating morality with public policy. The next step after reasoning your way to a moral conclusion is not automatically "there oughta be a law!", and we're talking about whether "society" gets a say in the abortion. If I say that my position on abortion is that it should be between a woman and her doctor, I am explicitly saying that society does not get a say in things.

If a woman is 9 months pregnant, performing an abortion is not really less invasive or safer for the mother than just inducing labor. So there are better options available even before birth that discharge any obligation the parents might have.

In the third trimester, you're inducing labor either way. I would not so much say there are better options than abortion at 40 weeks as I would that abortion is no longer an option at all. You won't find a licensed physician willing to perform an abortion at 40 weeks, even in the places where it's legally permissible at every stage of pregnancy, even in the case of fetal abnormality. Like I said, an abortion at 40 weeks is implausible.

But sure, if someone wants to say "Abortion should be permissible prior to the 40th week of pregnancy, but after that there are better options", that's no skin off my nose.

The practical distinction you're trying to make is not nearly so clear cut as you seem to think.

The practical distinction between a fetus and an infant is very clear cut.

 

[Meadmaker]

The Ninth Amendment says that there are Rights the government can’t decide to screw around with simply because they are not explicitly stated in the Constitution. The fact that the founding fathers believed in some sort of fundamental right of privacy is then laid out pretty clearly by Amendments One, Three, Four, and Five. You kind of have to turn your brain way down low to say that there is no implicit Right of Privacy in the Constitution.

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.

 

[cosmicaug]

Nowhere in that article is decapitation of a live fetus discussed.

Could you quote where you think it referred to decapitating an infant that wasn't already dead. Thanks.

Whenever someone says that x is supported in the literature and they cite something in the literature that absolutely does not support x, I tentatively (but with strong bias) draw the conclusion that x is contradicted by the literature. That is, if x is both relevant to something that a non negligible number of people care about and supported by the literature, efforts to find such support would have found such support in the literature and no one would bother bringing up non relevant examples (that only seem like they might support the literature if you do not read past the title).

 

[TurkeysGhost]

Also using the word "convenience" is a bit thick.


If the universe were just every person who uses the word "convenience" in an argument against abortion would wake up ten weeks pregnant.

It's pretty absurdly bad faith to describe becoming a parent, perhaps one of the most life-altering commitments a person can make, as a matter of "convenience".

 

[Skeptical Greg]

Why on earth would you? There's nothing about medicine which makes doctors intrinsically ethical people. History has shown otherwise.

That is worth repeating...

 

[Ziggurat]

If you're well aware of that, why did you attempt to paint those who reject fetal personhood as a politically irrelevant minority who are ok with infanticide?

Where's the damn facepalm smilie when I need it?

That wasn't my point in any way, shape, or form. I am saying that the people who are OK with infanticide are a politically irrelevant minority. They are NOT identical to the people who reject fetal personhood. The division between these two groups was the entire god damn point.

No. You're conflating morality with public policy.

Public policy is always entangled with morality. You cannot avoid the moral aspect of public policy. I'm pretty damn sure you don't even WANT to avoid it, if you stop and think for more than a second. Why don't we practice eugenics? Because it's ******* immoral. Why don't we allow pedophilia? Because it's ******* immoral. Why don't we allow animal torture? Because it's ******* immoral.

Not all moral judgments need to become law. Not all moral judgments should become law. Not all moral judgments CAN become law, just as a practical matter. But many can, and should be, and are. The fact that a particular public policy position is grounded in a moral belief is not an argument against it.

The next step after reasoning your way to a moral conclusion is not automatically "there oughta be a law!"

That step is not automatic.

In the third trimester, you're inducing labor either way. I would not so much say there are better options than abortion at 40 weeks as I would that abortion is no longer an option at all. You won't find a licensed physician willing to perform an abortion at 40 weeks, even in the places where it's legally permissible at every stage of pregnancy, even in the case of fetal abnormality. Like I said, an abortion at 40 weeks is implausible.

OK, what about at 39 weeks? 38 weeks? 37 weeks? Where do you draw the line?

I'm not actually very interested in your answer. The point is that you need to have an answer, if you think abortion is ever OK but infanticide is not. Is your answer arbitrary, or does it have some deeper meaningful basis?

 

[Meadmaker]

I went grocery shopping today, and in the parking lot, I signed a petition to put a provision protecting abortion rights on the Michigan ballot for the fall.

Dobbs, and the demise of Roe v. Wade, will not be the end of the right to an abortion.

 

[mumblethrax]

That wasn't my point in any way, shape, or form. I am saying that the people who are OK with infanticide are a politically irrelevant minority.

I know that's what you're saying, because that's what you said. You said that in response to me saying that there are, in fact people who reject fetal (and infant) personhood.

What I'm asking is why, if you are "well aware" that the rejection of fetal (and infant) personhood does not entail the belief that infanticide is morally permissible, did you treat those who endorse infanticide as coterminous with those who reject fetal (and infant) personhood, such that the latter, as well as the former, could be set aside as politically irrelevant?

Public policy is always entangled with morality.

You're badly confused. The fact that morality is relevant to public policy does not mean that morality is public policy. This is just a category error.

Talking about what people believe about a moral question (who counts as a person), and how that belief can be rational or irrational, is, in no way, shape or form, "deciding that society gets a say".

The fact that a particular public policy position is grounded in a moral belief is not an argument against it.

Who said it was?

That step is not automatic.

That's literally what I just said?

OK, what about at 39 weeks? 38 weeks? 37 weeks? Where do you draw the line?

If you're asking where I think personhood begins, I already told you. Sometime after birth.

If you're asking me at what point I think abortion should be regulated, I don't. I don't think there's any point during the gradual accrual of moral significance where a fetus becomes so significant as to override a woman's autonomy. I think the matter should be between a woman and her doctor. I see no credible reason for the state to get involved in this decision. The idea that it should strikes me as kind of authoritarian.

More generally, I think increasing access and removing barriers to abortion care will result in fewer late-term abortions, which would be a good thing for everyone involved.

I'm not actually very interested in your answer.

It shows.

 

[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.

 

[theprestige]

It's pretty absurdly bad faith to describe becoming a parent, perhaps one of the most life-altering commitments a person can make, as a matter of "convenience".

It's certainly not a matter of medical necessity.

 

[mumblethrax]

It's certainly not a matter of medical necessity.

If I had a parasite growing inside me that could easily be killed with a pill, or with a minor surgical procedure if it was caught a little later, but would also eventually pass through me in an immensely painful process with a whole panoply of risks and health consequences, I think I'd be pretty ******* infuriated if someone told me that such a procedure was not "medically necessary."

(It's possible you're saying that becoming a parent is not a matter of medical necessity, in which case I apologize for misunderstanding you.)

 

[Bob001]

Another unforeseen consequence:

A potential Supreme Court decision to overturn Roe v. Wade, amid the roiling landscape of state reproductive politics, is expected to open the door to state laws that give human embryos legal rights and protections — a possibility that would throw the fertility industry into upheaval and potentially limit choices would-be parents currently have about whether to use, store or discard genetic material that is part of the in vitro fertilization process.

https://www.washingtonpost.com/health/2022/05/11/roe-overturn-ivf/

 

[theprestige]

If I had a parasite growing inside me that could easily be killed with a pill, or with a minor surgical procedure if it was caught a little later, but would also eventually pass through me in an immensely painful process with a whole panoply of risks and health consequences, I think I'd be pretty ******* infuriated if someone told me that such a procedure was not "medically necessary."

(It's possible you're saying that becoming a parent is not a matter of medical necessity, in which case I apologize for misunderstanding you.)

And people accuse me of using emotionally loaded language.

 

[psionl0]

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.

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

 

[Meadmaker]

Another unforeseen consequence:

https://www.washingtonpost.com/health/2022/05/11/roe-overturn-ivf/

That's actually a pretty foreseen consequence. It's something that has been around quite a while and well understood by abortion supporters and foes alike. However, I understand that an awful lot of people are unaware of it, so it's good for news outlets like WaPo to publicize it.