US judge: Mississippi 15-week abortion ban unconstitutional

[jmyrlefuller]

To start with, the rights of liberty and property, which give the individual robust protection from the government interference in what that individual does with his or her own body, and until viability at least, that is all it is: the individual’s own body. 

What provision of the Constitution allows you to use the force of government to impose your personal religious views on others and on what they do with their own bodies?

1. Article I, Section 8, Clause 18, a.k.a. the "Necessary and Proper" Clause
2. The same 5th Amendment clause you purposely selectively quoted to leave out life.

You have also made a statement of faith that a child not yet "viable" to not be a person. There is no clear definition of what constitutes viability: a child born premature later in pregnancy might still die before one born earlier, depending on any number of circumstances. There's no clear threshold that can make viability a valid standard.

Now, let's talk about the 9th Amendment, the main excuse for justifying the courts' action. The 14th Amendment explicitly puts all persons born in the U.S. and subject to its jurisdiction under U.S. citizenship. Does that leave a loophole for those not yet born? The 9th Amendment was purposely written to close those kinds of loopholes, such that persons not explicitly covered might still be implied to be covered.

[Oceander]

1. Article I, Section 8, Clause 18, a.k.a. the "Necessary and Proper" Clause
2. The same 5th Amendment clause you purposely selectively quoted to leave out life.

You have also made a statement of faith that a child not yet "viable" to not be a person. There is no clear definition of what constitutes viability: a child born premature later in pregnancy might still die before one born earlier, depending on any number of circumstances. There's no clear threshold that can make viability a valid standard.

Now, let's talk about the 9th Amendment, the main excuse for justifying the courts' action. The 14th Amendment explicitly puts all persons born in the U.S. and subject to its jurisdiction under U.S. citizenship. Does that leave a loophole for those not yet born? The 9th Amendment was purposely written to close those kinds of loopholes, such that persons not explicitly covered might still be implied to be covered.

Wow.  Now that is incoherent.

The necessary and proper clause is not the end-all/be-all you seem to think it is. It does not give Congress a license to enforce a general police power.  Only the states have a general police power.

[TomSea]

1. Article I, Section 8, Clause 18, a.k.a. the "Necessary and Proper" Clause
2. The same 5th Amendment clause you purposely selectively quoted to leave out life.

You have also made a statement of faith that a child not yet "viable" to not be a person. There is no clear definition of what constitutes viability: a child born premature later in pregnancy might still die before one born earlier, depending on any number of circumstances. There's no clear threshold that can make viability a valid standard.

Now, let's talk about the 9th Amendment, the main excuse for justifying the courts' action. The 14th Amendment explicitly puts all persons born in the U.S. and subject to its jurisdiction under U.S. citizenship. Does that leave a loophole for those not yet born? The 9th Amendment was purposely written to close those kinds of loopholes, such that persons not explicitly covered might still be implied to be covered.

Excellent post.

[TomSea]

Alan Dershowitz is god?

What he has to say is certainly interesting, but also certainly not determinative.  And the right to control over ones own body is certainly one of the aspects of liberty and property that the Constitution protects, and therefore cannot be abridged in the absence of a compelling state interest.

Dershowitz is immoral in still supporting the killing of the fetus/baby from my understanding.

The Founders made it clear the Constitution was based on Christian principles. They dealt with abortion back then. Only double-talk by an activist court has changed things.

[Oceander]

Dershowitz is immoral in still supporting the killing of the fetus/baby from my understanding.

The Founders made it clear the Constitution was based on Christian principles. They dealt with abortion back then. Only double-talk by an activist court has changed things.

They did no such thing.  They intentionally divorced the Constitution from Christianity, or any other religion, and they said nothing whatsoever about abortion. Before the 1800s there was no legislation dealing with abortion, and the common law generally did not criminalize pre-viability abortions. 

[Hoodat]

@Oceander

You still haven't explained the why this twisted explanation of Constitutional [sic] reasoning [sic] applies to abortion but not to prostitution.

[TomSea]

The thread title is about a ban on abortion after 15 weeks, after which, Mississippi was called "stupid", likening it to sticking their fingers in an electrical socket.  Also derisive terms and scapegoating were used fairly early.

Now, let's see who else is stupid internationally or at least in this case, Europe:

No abortions after 12 weeks:

AUSTRIA
BELGIUM
CZECH REPUBLIC
DENMARK
FINLAND
GERMANY
GREECE
HUNGARY
NORWAY
ROMANIA
SLOVAKIA
FRANCE

ITALY (only in first 90 days)

Limited Circumstance, Ireland (not sure if this has changed now), Poland and Spain.

Just wanted everyone to know, Mississippi should not be singled out here. 

Must be a great heart that argues for having abortions after 15 weeks. Furthermore, the 15 week limit is the title of this thread, I would be wary of pro-choicers turning the debate into something so, this limit is not what is under discussion but Roe V. Wade in general, no talk of Planned Parenthood, women killed in abortion, etc. etc.

[Oceander]

The thread title is about a ban on abortion after 15 weeks, after which, Mississippi was called "stupid", likening it to sticking their fingers in an electrical socket.  Also derisive terms and scapegoating were used fairly early.

Now, let's see who else is stupid internationally or at least in this case, Europe:

No abortions after 12 weeks:

AUSTRIA
BELGIUM
CZECH REPUBLIC
DENMARK
FINLAND
GERMANY
GREECE
HUNGARY
NORWAY
ROMANIA
SLOVAKIA
FRANCE

ITALY (only in first 90 days)

Limited Circumstance, Ireland (not sure if this has changed now), Poland and Spain.

Just wanted everyone to know, Mississippi should not be singled out here. 

Must be a great heart that argues for having abortions after 15 weeks. Furthermore, the 15 week limit is the title of this thread, I would be wary of pro-choicers turning the debate into something so, this limit is not what is under discussion but Roe V. Wade in general, no talk of Planned Parenthood, women killed in abortion, etc. etc.

I wasn’t aware that all of those other countries were governed by the US Constitution. 

[txradioguy]

With zero Constitutional basis for this decision, how is it a slam-dunk case?

@Hoodat when have Libs (Oceander) included ever worried about a Constitutional basis for any "legal'" decision they hand down or support?

[Oceander]

@Oceander

You still haven't explained the why this twisted explanation of Constitutional [sic] reasoning [sic] applies to abortion but not to prostitution.

Funny how you call the protection of an individual’s fundamental rights to liberty and property twisted. 

Reveals you to be the liberal tyrant you are. 

But that’s quite simple, for anyone who bothers to think it through:  context.  The impact on the individual’s liberty and property interests are much more attenuated in the case of prostitution than in the case of pregnancy, and the state has a compelling interest in prohibiting prostitution that is sufficiently narrowly drawn that it meets the requirements to infringe on that attenuated liberty and property interest.

Another point of difference is that making prostitution illegal doesn’t prevent any of the individuals involved from continuing to have sexual relations if they wish, it just prohibits the exchange of money for sex. 

Quite simple, really.  Maybe you should think about taking some legal courses before you continue to make a fool of yourself.

[Oceander]

@Hoodat when have Libs (Oceander) included ever worried about a Constitutional basis for any "legal'" decision they hand down or support?

Well, well, well.  Look at what crawled out of the toilet.

[IsailedawayfromFR]

To start with, the rights of liberty and property, which give the individual robust protection from the government interference in what that individual does with his or her own body, and until viability at least, that is all it is: the individual’s own body. 

What provision of the Constitution allows you to use the force of government to impose your personal religious views on others and on what they do with their own bodies?

Look at the irony of your own self-congratulatory supposedly 'astute' observation:  You can find a federal place in the Constitution for someone to keep oneself with control of their own body in an abortion argument, yet you at the same time cannot find a similar federal place to keep others from controlling your own body in a female mutilation argument.  And one time you say religion has no place in an abortion argument and yet religion has to be honored in the other argument.

You are completely unequivocally inconsistent.  And blind to see any of it.

[Oceander]

Look at the irony of your own self-congratulatory supposedly 'astute' observation:  You can find a federal place in the Constitution for someone to keep oneself with control of their own body in an abortion argument, yet you at the same time cannot find a similar federal place to keep others from controlling your own body in a female mutilation argument.  And one time you say religion has no place in an abortion argument and yet religion has to be honored in the other argument.

You are completely unequivocally inconsistent.  And blind to see any of it.

Uh, Con-law 101:  the Constitution limits the powers of the government, not private individuals, unless it expressly says otherwise. 

In the context of the abortion debate, the government is seeking to force an individual to do something, is seeking to override that individual’s rights.  That is governed by the Constitution. 

In the context of the FGM issue, one private individual did things to another private individual that all here agree was reprehensible.  The Constitution does not apply here because the person who acted was a private individual and the Constitution does not generally limit the actions of private individuals.

However, even in that context, your accusations against me are FoS because I have already said at length that I believe the Commerce Clause gave the Congress sufficient authority to criminalize at least some of the conduct, and that the judge was wrong to dismiss the Commerce Clause ground.  That being said, however, I have also noted that the statute was poorly drafted because it does not contain the jurisdictional hook that it should have contained.  It would be a real tragedy if this prosecution is utterly lost because Congress failed to include the Commerce Clause hook. 

[txradioguy]

What provision of the Constitution allows you to use the force of government to impose your personal religious anti Second Amendment views on others and on what they do with their own bodies guns?

 


That question can cut both ways.

Just sayin...

[Oceander]

 


That question can cut both ways.

Just sayin...

First, what anti-Second Amendment biases on my part?

Second, if a state or the federal government can articulate a compelling interest which infringes on the Second Amendment in a narrow manner, then that right can be abridged.  The same as with any other fundamental right. 

[HoustonSam]

In the context of the abortion debate, the government is seeking to force an individual to do something, is seeking to override that individual’s rights.  That is governed by the Constitution. 

Artfully worded, but no, a law which prohibits abortion does not force anyone to do anything.  By definition a prohibition against abortion *prevents* someone from doing something - procuring an abortion - on the basis that abortion violates the right to life of the unborn child.  No one denies the right of a woman to "control her own body"; that she is pregnant is merely a consequence of the way she chose to exercise that right.

Of course one can respond that federal law denies the right to life of the unborn child, and in fact prohibits the states from recognizing that right, until "viability."  Fair enough, I think that is a reasonable statement of fact, if not of virtue.

I agree with you @Oceander on the FGM case; while we all acknowledge the practice is odious and should be prohibited, I think it is legitimately a federalism call reserved to the states, not the federal government, just as the prosecution for murder and the regulation of medicine are reserved to the states.

But the courts consistently bring themselves into disrepute and contempt when they override principles of federalism to manufacture rights about the control of a woman's own body in order to further a progressive agenda of sexualism, while refusing to protect the same rights for minor girls by invoking the very principle they've routinely discounted in multiple other instances.  If a woman has the *Federal Constitutional* right to control her own body, then the federal government *does* have a compelling interest in protecting this same right for minor girls.  As is, the federal courts have now asserted for years that there is a compelling federal interest in protecting a woman's right to her own body, such that the states may not interfere, and they have now denied that there is such a compelling federal interest and in fact that it should be left to the states to decide.

No recitation of the theoretical grounding of abortion law in Constitutional principle can overcome this fundamental contradiction.  The decades-long practice of sophistry by the federal courts has done great, perhaps irreparable, harm to the general respect for law in this country.

[Oceander]

Artfully worded, but no, a law which prohibits abortion does not force anyone to do anything.  By definition a prohibition against abortion *prevents* someone from doing something - procuring an abortion - on the basis that abortion violates the right to life of the unborn child.  No one denies the right of a woman to "control her own body"; that she is pregnant is merely a consequence of the way she chose to exercise that right.

Of course one can respond that federal law denies the right to life of the unborn child, and in fact prohibits the states from recognizing that right, until "viability."  Fair enough, I think that is a reasonable statement of fact, if not of virtue.

I agree with you @Oceander on the FGM case; while we all acknowledge the practice is odious and should be prohibited, I think it is legitimately a federalism call reserved to the states, not the federal government, just as the prosecution for murder and the regulation of medicine are reserved to the states.

But the courts consistently bring themselves into disrepute and contempt when they override principles of federalism to manufacture rights about the control of a woman's own body in order to further a progressive agenda of sexualism, while refusing to protect the same rights for minor girls by invoking the very principle they've routinely discounted in multiple other instances.  If a woman has the *Federal Constitutional* right to control her own body, then the federal government *does* have a compelling interest in protecting this same right for minor girls.  As is, the federal courts have now asserted for years that there is a compelling federal interest in protecting a woman's right to her own body, such that the states may not interfere, and they have now denied that there is such a compelling federal interest and in fact that it should be left to the states to decide.

No recitation of the theoretical grounding of abortion law in Constitutional principle can overcome this fundamental contradiction.  The decades-long practice of sophistry by the federal courts has done great, perhaps irreparable, harm to the general respect for law in this country.

Wrong.  Prohibiting someone from getting an abortion forces her to carry the fetus to term. Why dodge the issue?

And one doesn’t have to deny that the fetus has a life to still believe that the Supreme Court was correct about abortion.  In circumstances of irreconcilable conflict, a line has to be drawn, and prior to viability, that line is drawn in favor of leaving the decision to be woman alone.  In the circumstances, it’s more reasonable than the alternative.

[HoustonSam]

Wrong.  Prohibiting someone from getting an abortion forces her to carry the fetus to term. Why dodge the issue?

No more than prohibiting one from interfering with another's vote forces one to allow the other to vote.  I'm afraid the dodge is yours @Oceander, but you are in numerous company.

[Oceander]

No more than prohibiting one from interfering with another's vote forces one to allow the other to vote.  I'm afraid the dodge is yours @Oceander, but you are in numerous company.

Nonsense.  Why are you dodging something that is so blatantly obvious.  If a woman says “I wish to have an abortion” and the government says “no, you may not,” then the government has clearly forced her to do something, it has stopped her from doing something she wants to do. 

If you think that cutesy rhetoric about whether stopping a woman from having an abortion is not forcing her to do something solves the issue, then I regret my otherwise high estimation of your intellect. 

[HoustonSam]

Nonsense.  Why are you dodging something that is so blatantly obvious.  If a woman says “I wish to have an abortion” and the government says “no, you may not,” then the government has clearly forced her to do something, it has stopped her from doing something she wants to do. 

I understood your argument above, stated to @IsailedawayfromFR, to be that the US Constitution limits the authority of government, not the rights of individuals; and consequently that the Federal Government cannot compel a woman to continue a pregnancy and can compel the states to refrain from any similar regulation.  I agree with the premise of your argument but not with its conclusion.

In the quote immediately above you've argued that an anti-abortion law would both require a woman to do something, and prevent a woman from doing something.  Which is it?

All laws prevent people from doing things, and any law can be re-stated as requiring someone to do the opposite of what it prevents.  Your position that prohibiting abortion is fundamentally unconstitutional because it requires a woman to continue a pregnancy begs the question of the right of the unborn child to live.  I can just as easily, and speciously, argue that the protection of one man's vote is fundamentally unconstitutional because it requires that another man do something - not interfere with the franchise.

I join you wholeheartedly in arguing that the Constitution limits the powers of government, not the freedoms of individuals.  But laws inevitably limit the freedoms of individuals, and we cannot avoid this reality by arguing that a prohibition of one behavior is a requirement of its opposite.

If we simply agree that the current state of federal law is that an unborn child has no right to life before viability, and that no state may assert such a right, then you and I have no argument @Oceander.  Attempting to square that (in my opinion lamentable) legal fact with larger principles inevitably comes down to begging the question that an unborn child has no right to live.  My ancestors were "pro choice" on a critical issue of their day, and made similar arguments that other people lacked other fundamental rights, up until 1865.

[Dexter]

@Oceander

Would you support the right of the states to choose in this matter if it wasn't a loser in court as you say? Would you be okay with an interpretation of the constitution that was different if it meant giving the states the right to choose? I get the feeling that this isn't just about the constitution for you. Do you think the federal government should be mandating the behavior of the states?

[Oceander]

I understood your argument above, stated to @IsailedawayfromFR, to be that the US Constitution limits the authority of government, not the rights of individuals; and consequently that the Federal Government cannot compel a woman to continue a pregnancy and can compel the states to refrain from any similar regulation.  I agree with the premise of your argument but not with its conclusion.

In the quote immediately above you've argued that an anti-abortion law would both require a woman to do something, and prevent a woman from doing something.  Which is it?

All laws prevent people from doing things, and any law can be re-stated as requiring someone to do the opposite of what it prevents.  Your position that prohibiting abortion is fundamentally unconstitutional because it requires a woman to continue a pregnancy begs the question of the right of the unborn child to live.  I can just as easily, and speciously, argue that the protection of one man's vote is fundamentally unconstitutional because it requires that another man do something - not interfere with the franchise.

I join you wholeheartedly in arguing that the Constitution limits the powers of government, not the freedoms of individuals.  But laws inevitably limit the freedoms of individuals, and we cannot avoid this reality by arguing that a prohibition of one behavior is a requirement of its opposite.

If we simply agree that the current state of federal law is that an unborn child has no right to life before viability, and that no state may assert such a right, then you and I have no argument @Oceander.  Attempting to square that (in my opinion lamentable) legal fact with larger principles inevitably comes down to begging the question that an unborn child has no right to live.  My ancestors were "pro choice" on a critical issue of their day, and made similar arguments that other people lacked other fundamental rights, up until 1865.

I don’t see the need to play cutesy games of rhetoric.  Whether it is forcing someone to do something they do not want to do, or preventing someone from doing something they want to do, the principle is the same: the government has interfered with that individual’s liberty and properry interests, and it is that interference that is in question. 

[Oceander]

@Oceander

Would you support the right of the states to choose in this matter if it wasn't a loser in court as you say? Would you be okay with an interpretation of the constitution that was different if it meant giving the states the right to choose? I get the feeling that this isn't just about the constitution for you. Do you think the federal government should be mandating the behavior of the states?

I’m not sure i understand the question.  If there is no constitutional issue, then clearly it’s up to the states.  One could, of course, make a Commerce Clause argument that would allow the federal government to regulate, at least to some degree, but I don’t really see the point to that. 

[Dexter]

I’m not sure i understand the question.  If there is no constitutional issue, then clearly it’s up to the states.  One could, of course, make a Commerce Clause argument that would allow the federal government to regulate, at least to some degree, but I don’t really see the point to that.

I feel like your position is more related to the fact that you personally have no issue with abortions than anything else. You make your legal arguments, but law and our constitution are malleable. If you found the practice abhorrent you would be singing a different tune I think.

[Oceander]

I feel like your position is more related to the fact that you personally have no issue with abortions than anything else. You make your legal arguments, but law and our constitution are malleable. If you found the practice abhorrent you would be singing a different tune I think.

The Constitution is not so malleable as all that.  And the test of one’s commitment to the rule of law is best measured by how one responds to things one does not like, rather than to how one responds to things one likes. 

I find it intensely grotesque that some would countenance making an adult human being a slave to a small collection of cells that cannot survive but for its parasitic relationship to that adult.

I also find it intensely grotesque that some think it’s ok to kill a near-term normally developed fetus just because it hasn’t technically been born yet.  Aborting a fetus after, say, six months of normal development, is not good. 

And for me, the litmus text, the point at which the balance of the equities switches, is the point at which, with reasonable surgical intervention, the fetus could be born prematurely but still survive without the attachment to the womb - ie, when the state can actually do something constructive and step in to take over the role of raising the fetus to normal childhood.   Perhaps that should be mandated as a quid pro quo for the right to proscribe abortions:  namely, if you’re going to outlaw it, then you’d damn well be ready to step in and take over.