But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe's central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. — “Casey”

"The earliest point."
Now, just for the heck of it, in a well-crafted sentence or two, what do you say viability is? As noted above, I take it to be the time when a fetus can be expected to survive pretty much on its own outside the womb.

Here is my equally as quippy a rule: a woman has a right to abortion on demand at any point until the fetus has been detached from her body. Viability is of no moment and the state never has a compelling interest in coercing someone to reproduce. — Ennui Elucidator

And I think five states agree with you, as I almost do. But do you not think an abortion three minutes before live birth grotesque, even bordering on murder, even if technically not murder? So it's either whenever, or setting a limit of some kind that must be to some degree arbitrary. As to some limit, real viability seems pretty good. Would you have a better standard, beyond whenever?

As to some limit, real viability seems pretty good. — tim wood

I am not anti-science or “pro-natural.” Any level of medical technology available that can make a fetus viable is reasonable because for the most part, those technologies exist to SAVE THE PREGNANCIES OF WOMAN WHO WANT THEM. So I will not quibble that some post conception thing is or is not viable because it couldn’t breath/nurse/etc. without medical intervention. And once it is separated from its mother, I will not argue that the mother can simply withhold medical care by fiat because the thing is “not viable” without the gestational analogs made available to it.

I will not, therefore, engage in the mental game of whether the decision is about “all or none” where a magic moment in time is the arbiter between murder and meaningless abortion. Clearly different people have different relationships to a potential life and how to regard it. What I will say is that REPRODUCTIVE CHOICE is the point of abortion advocacy and the reason why it is essential that a right to reproductive choice be read into the Constitution with no allotment for governmental interests. What makes my line in the sand simple is that it comports with general notions of identity - something inside of you which springs from your own cells is you. Something detached from you is something else, even if it can be reintegrated (consider an amputated hand that is reattached).

The moral confusion here is precisely about notions of ensoulment - that somehow magic happens when a sperm unites with an ovum and a new genetic mix is formed. I do not agree and find the idea to be intellectually indefensible. There is no moment in time during gestation that changes the relationship of the mass of growing cells in the uterus to the mother - it is her and she has absolute say over what happens to her body.

If your issue is simply that being inside the uterus and being three inches to the right outside of the uterus shouldn’t be the difference between permitted feticide and criminal murder, I would have you think long and hard about whether your queasiness about that situation should override someone’s choice to reproduce or otherwise do what they will with their own bodily integrity. Put differently, once the state has an interest in being in someone’s womb to override their reproductive choice because of your unease about murder/feticide, when does it stop being murder? And if it isn’t viability (which I imagine it isn’t), why pretend like it is?

Abortion should be/will be a non-issue. Why? We have effective contraception (pills, condoms, etc.) and once these become both widely available and used judiciously, women can nip the problem in the bud as it were. No fetus to begin with, no abortion-related headaches for women.

My suggestion to the pro-choice camp of the debate is try the alternative route of contraception; promote it with the greatest of vigor and a time will come when the pro-choice movement will become utterly irrelevant; after all, there would be no unwanted pregnancies to abort, if all goes well that is.

Since Marbury v. Madison, issued in 1803, it's been accepted that the federal courts may review legislation and executive actions and declare them unconstitutional, and therefore void. So, if you want to get rid of Roe v. Wade, a federal law may not necessarily get you what you want.

Surely Congress has the needed authority under the commerce clause. <ducking>

In all seriousness though, there is a conundrum here: how to make a just law that by definition will neither constrain nor protect the behavior of just under half the American population, but only the behavior of the other half, and based on a characteristic not of their choosing and about which they can do nothing.

Your only option is not to target women at all, but either their unborn children or the providers of the service. Constraining or protecting the behavior of providers looks like the dodge that it is though: only half of Americans could conceivably seek that service, so I don't know why judges wouldn't treat that as in effect constraining or protecting only half the population. Which means you're practically forced to consider the unborn children, and there's no consensus on what to do there.

Therefore neither the several States nor the federal government should enact laws either restricting or protecting abortion. Unless, of course, you can make a case that we can make just laws that only apply to tall people or fat people or gay people or people between the ages of 30 and 35. (Obviously I'm passing by stuff like anti-discrimination laws, which are just the inverse.) I suppose there's a sense in which we already do this with serious mental illness and proclivity to anti-social and criminal behavior -- but that's a can of worms in itself.

Notwithstanding the law, the Constitution, rules, regulations, minority or majority of public opinion, I hereby reserve unto myself sovereign jurisdiction over the life of anyone who resides within my body. No matter how they got there, when they got there, and no matter any consideration of them; I can kill and remove them, or direct their killing and removal. I also expressly reject jurisdiction of any other entity.

Finally, I hereby recognize and stipulate to the sovereign jurisdiction of all others over any who reside within their body.

Surely Congress has the needed authority under the commerce clause. <ducking> — Srap Tasmaner

Don't call me "Shirley" (sorry, I can't resist an Airplane reference).

I think the pro-life folks have reached such a level of zeal that as far as they're concerned, there can be no reasonable law permitting abortions.

There is no moment in time during gestation that changes the relationship of the mass of growing cells in the uterus to the mother - it is her and she has absolute say over what happens to her body. — Ennui Elucidator

"It is her seems the key idea. But what exactly does that mean? Unfortunately your enthusiastic use of categorical absolutes is bluff rather than substance, being distraction and obfuscation. What is "her"? What even does "her" have to do with it? Perhaps we may be able to avoid the difficulty of that definition by just agreeing that it is not her, any more than and for the same reason that your leg is not you.

Instead, "hers" suggests itself. It is hers. But in what if any sense does that crystalize and resolve all arguments? By itself in no sense. Her house and car are hers as well as her children and never does she or anyone else have "absolute say over what happens" to any of it.

A combination of "her" and "hers"? The real issue here is the quality and quantity of a right of disposal, and whether any aspect of the thing to be disposed of ever informs that right.

Let's start by recognizing there are no absolutes in this discussion, and the ideas of any of them pernicious. To be sure, there may have been in the wild, the wilderness, but none of us for whom this discussion is meaningful live in those conditions.

And with the greatest possible brevity let's review what is happening. Actually happening, not conjecturally happening. Before conception, it seems no one claims controlling interest in the ingredients of conception. Men produce sperm on a scale that would quickly populate a planet, and ova have their own life cycle and window of opportunity which seemingly lies beyond control.

At conception people start to claim interest, but on conjectural rather than actual grounds. And so forth, until at the end a baby appears, a legal person. Is it that simple? Or, if abortion is ok at any point, and there seems good reason to suppose it is and no good reason to oppose, does that mean it is ok at every point? Obviously not, automatically.

For the obvious reason that it is a process of change; what applies to one thing does not automatically apply to another, and when things change, they become an other. Thus any law concerning abortion would appear to necessarily have to account for actuality. Of course law could be deliberately arbitrary. Abortion legal through the thirteenth month of pregnancy! That would be arbitrary!

But good law aspires to take in the actual.

It would seem that if you cannot reasonably kill a newborn, you cannot reasonably kill it one minute before. The question becomes determining when you can reasonably kill it. And two answers possible. One, it is a dependent body part of the mother until separated, thus she can dispose of it. And two, at some point it is a person by any reasonable standard, and thus at that point cannot reasonably be killed.

The standard is viability. I don't know how viability is defined at law. For present purpose I suggest it be when the fetus has a fair chance of survival on its own without extraordinary care if born at that time. In any case, that places the state in the womb as representing the interests of something for which compelling argument can be made just is a person.

Which leaves the question of the state's interest. "From time immemorial" is Roe's language, but in practice varying state-by-state from little to a lot. Nor is viability the only possible standard.

Until science sorts it out to a certainty, it is and remains absent that certainty all a grey area, wherein reasoned and reasonable compromise works and is appropriate to reconcile the irreconcilable. Roe fits that bill. Refinable perhaps, but in substance a good rule.

Until science sorts it out to a certainty — tim wood

What exactly is science supposed to sort out to a certainty?

Three variations on the same question. Is abortion ok, or not, or sometimes ok and not? The only answer that can reasonably govern all is one that science gives. That is what science is supposed to figure out, if it can. As to how or on exactly what basis, who knows?

It may start with trying to figure what exactly a person is. The mother is already a person. And a living baby is understood to be a person. When does a non-person become a person? For example, science may invent a test by which a mild electric current evokes one response in what is understood to be a person, and not in something not yet a person.

Science all the way down? It seems some of it would have to be definitions, but maybe those arcane enough to obviate current arguments.

I myself like the idea that a mother should have enough time to make a decision, which decision lacking is itself a decision. But then she has to know that there is a decision she has to make - the world presenting us sometimes - or all the time - with a need to make a decision. Of course being able to make a sound decision presupposes an education that makes that possible. Education, information, deliberation, decision. These all within the mother's purview - her business. But when the fetus becomes a person, her business merged/sublated into their business, hers and her new person's, for either to trump the other depending on particulars.

This presupposes that personhood is not achieved merely by completing transit of the birth canal, but that there must be more to it.

Three variations on the same question. Is abortion ok, or not, or sometimes ok and not? The only answer that can reasonably govern all is one that science gives. That is what science is supposed to figure out, if it can. — tim wood

Science is a systematic and logical approach to discovering how things in the universe work. It is also the body of knowledge accumulated through the discoveries about all the things in the universe. Science does not determine what actions are "ok" because what's ok and not ok is a moral question or a question based on things like moral intuition, subjective values, and cultural norms. If, for example, science somehow determined that personhood began at around week 23 and, miraculously, even the religious community accepted this as true, does that make it okay to terminate life that's becoming a person? That seems to suggest that it's more ok to terminate a baby than an adult. Doesn't really work that way, right?

Science doesn't determine our moral intuitions. Regardless of science, abortion feels wrong and that's "ok", we're not slaves to our intuitions. We're also not slaves to our values and culture, though science is notoriously bad at influencing these things.

If, for example, science somehow determined that personhood began at around week 23 and, miraculously, even the religious community accepted this as true, does that make it okay to terminate life that's becoming a person? — praxis

What's becoming, isn't yet, or it would already be and no longer becoming. Your question yields to the mother's right to control as to her own body.

And you're correct about science and moral decisions. But that's not to the point. Science provides information that can ground and shape moral decisions, and that being scientific, a matter of reason, ought to govern or at least substantively inform moral decisions. And it often does.

I appreciate that you want to have the abortion debate, but that was not the point of @Ciceronianus’ post or my engaging with you regarding the shortfalls of Roe’s reasoning. If you want to read about Roe and the conceptual problems with the viability standard (later affirmed by the Casey court), you can do so. If you want to debate Roe, we can always do that in a different thread, but many articles have already done a better job than you and I will at hashing out viability (as a Constitutional, scientific, or philosophical matter).

Your initial participation in the thread regarding Roe

I invite any and all to read Roe v. Wade and to present here what they think are any failures in that law so far as reason shows - unreason disallowed. I think it's a pretty good law. And if any think they have better, let them present it, and absent which, let them be silent and comply. — tim wood

invoked my response because Roe is an unworkable standard from the perspective of anyone advocating for reproductive freedom. The Casey court acknowledge that it was a moving goal post and that as soon as viability is reached (based upon current medical technology), the state has an interest in protecting the potential person. Ciceronianus made the following comment

I think this decision is craven--it's a cowardly abdication of responsibility in these circumstances. I think it should be characterized as craven by anyone, regardless of their feelings on abortion. And, given the composition of the court, that such decisions are likely to be repeated whenever a law that is constitutionally questionable but politically or socially agreeable to the Justices is before them. — Ciceronianus

While I certainly agree with him about the realpolitik of the Texas decision, I am not so sure that Roe, Casey, and many other cases don’t follow a similar path. To simply hold up prior SC decisions as if they are some great accomplishment of human reason which engages in line drawing in some unquestionable fashion is naive at best.

Abortion has historically brought about suspect judicial behavior in service of a greater practical goal. The Texas decision is more reprehensible in-so-far as it permits the undoing of SC precedent by way of the shadow docket and the frustration of final adjudication while people are being intentionally denied their ability to exercise a constitutional right (the undue burden standard of Casey).

Whenever someone confuses the method of the SC in a brazen expansion of Constitutional rights of people with the goal of the SC, an error has been made. The viability standard, as unworkable as it is, is what the SC is stuck with if it hopes to maintain any sense of legitimacy in the public’s eye when upholding the Roe/Casey line of cases. The opponents to abortion know this and they can, therefore, fight the battle on at least three fronts with a straight face:

1) the SC was wrong in Roe regarding a fundamental right,

2) the SC’s viability standard is the most that can be supported under the Constitution and the period of time where a woman has an unfettered right to abortion is reduced each time medical technology improves while the state’s ability to regulate abortion in all instances (except for health and welfare of the mother) is increased, and

3) the regulation of medical practice or other necessary supports for obtaining an abortion (indirect obstacles/burdens) combined with directly frustrating a woman seeking an abortion by increasing the time, inconvenience, expense, etc. of getting the abortion (direct obstacles/burdens) up until the line that the SC deems such burdens “undue”.

What is novel about the Texas case is that it was designed specifically to go outside of the traditional context of discussion by allowing a private right of action against people other than woman seeking an abortion. As intimated by the court’s discussion of who the injunction would be enforceable against in the event it was issued, the due process clause is a restriction on governmental action, not private action. Even if Roe/Casey said that the government can’t restrict women in getting an abortion (a direct burden), maybe there is enough of a hole in the due process clause that a private person (under a new grant of right) can limit third person’s from assisting a woman in getting an abortion. This move is close to terrifying in that it privatizes behavior that the government could not get away with if engaged in directly.

A few excerpts from the dissents in Texas:

. . . Texas’s law delegates to private indi- viduals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion dur- ing that first stage. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 846 (1992); Roe v. Wade, 410 U. S. 113, 164 (1973). And a “State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercis- ing during the first trimester of pregnancy.” Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976) (internal quotation marks omitted). Indeed, we have made clear that “since the State cannot regulate or pro- scribe abortion during the first stage . . . the State cannot delegate authority to any particular person . . . to prevent abortion during that same period.” Ibid. . .

. . .I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm. — “Breyer”

The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law. See, e.g., Virginia Office for Protection and Advo- cacy v. Stewart, 563 U. S. 247, 254 (2011) (citing Ex parte Young, 209 U. S. 123 (1908)). By prohibiting state officers from enforcing the Act directly and relying instead on citi- zen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis.“ — “Sotomayor”

A somewhat lengthy quote from a SC case dealing with the reach of the 14th amendment protections (prefaced by Roe’s invocation of the 14th Amendement for the right to privacy):

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
— “Roe vs Wade”

Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action. "[T]he principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U. S. 1, 13, and n. 12 (1948).

Shortly after the Fourteenth Amendment was adopted, we decided two cases interpreting the Amendment's provisions, United States v. Harris, 106 U. S. 629 (1883), and the Civil Rights Cases, 109 U. S. 3 (1883). In Harris, the Court considered a challenge to § 2 of the Civil Rights Act of 1871. That section sought to punish "private persons" for "conspiring to deprive anyone of the equal protection of the laws enacted by the State." 106 U. S., at 639. We concluded that this law exceeded Congress' § 5 power because the law was "directed exclusively against the action of private persons, without reference to the laws of the State, or their administration by her officers." Id., at 640. In so doing, we reemphasized our statement from Virginia v. Rives, 100 U. S. 313, 318 (1880), that "'these provisions of the fourteenth amendment have reference to State action exclusively, and not to any action of private individuals.'" Harris, supra, at 639 (misquotation in Harris).

We reached a similar conclusion in the Civil Rights Cases.

In those consolidated cases, we held that the public accommodation provisions of the Civil Rights Act of 1875, which applied to purely private conduct, were beyond the scope of the § 5 enforcement power. 109 U. S., at 11 ("Individual invasion of individual rights is not the subject-matter of the [Fourteenth] [A]mendment"). See also, e. g., Romer v.

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Evans, 517 U. S. 620, 628 (1996) ("t was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations"); Lugar v. Edmondson Oil Co., 457 U. S. 922, 936 (1982) ("Careful adherence to the 'state action' requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power"); Blum v. Yaretsky, 457 U. S. 991, 1002 (1982); Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 172 (1972); Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970); United States v. Cruikshank, 92 U. S. 542, 554 (1876) ("The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society").

The force of the doctrine of stare decisis behind these decisions stems not only from the length of time they have been on the books, but also from the insight attributable to the Members of the Court at that time. Every Member had been appointed by President Lincoln, Grant, Hayes, Garfield, or Arthur-and each of their judicial appointees obviously had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment.

Petitioners contend that two more recent decisions have in effect overruled this longstanding limitation on Congress' § 5 authority. They rely on United States v. Guest, 383 U. S. 745 (1966), for the proposition that the rule laid down in the Civil Rights Cases is no longer good law. In Guest, the Court reversed the construction of an indictment under 18 U. S. C. § 241, saying in the course of its opinion that "we deal here with issues of statutory construction, not with issues of constitutional power." 383 U. S., at 749. Three Members of the Court, in a separate opinion by Justice Brennan, expressed the view that the Civil Rights Cases

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were wrongly decided, and that Congress could under § 5 prohibit actions by private individuals. 383 U. S., at 774 (opinion concurring in part and dissenting in part). Three other Members of the Court, who joined the opinion of the Court, joined a separate opinion by Justice Clark which in two or three sentences stated the conclusion that Congress could "punis[h] all conspiracies-with or without state action-that interfere with Fourteenth Amendment rights." Id., at 762 (concurring opinion). Justice Harlan, in another separate opinion, commented with respect to the statement by these Justices:

"The action of three of the Justices who joined the Court's opinion in nonetheless cursorily pronouncing themselves on the far-reaching constitutional questions deliberately not reached in Part II seems to me, to say the very least, extraordinary." Id., at 762, n. 1 (opinion concurring in part and dissenting in part).

Though these three Justices saw fit to opine on matters not before the Court in Guest, the Court had no occasion to revisit the Civil Rights Cases and Harris, having determined "the indictment [charging private individuals with conspiring to deprive blacks of equal access to state facilities] in fact contain[ed] an express allegation of state involvement." 383 U. S., at 756. The Court concluded that the implicit allegation of "active connivance by agents of the State" eliminated any need to decide "the threshold level that state action must attain in order to create rights under the Equal Protection Clause." Ibid. All of this Justice Clark explicitly acknowledged. See id., at 762 (concurring opinion) ("The Court's interpretation of the indictment clearly avoids the question whether Congress, by appropriate legislation, has the power to punish private conspiracies that interfere with Fourteenth Amendment rights, such as the right to utilize public facilities").

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To accept petitioners' argument, moreover, one must add to the three Justices joining Justice Brennan's reasoned explanation for his belief that the Civil Rights Cases were wrongly decided, the three Justices joining Justice Clark's opinion who gave no explanation whatever for their similar view. This is simply not the way that reasoned constitutional adjudication proceeds. We accordingly have no hesitation in saying that it would take more than the naked dicta contained in Justice Clark's opinion, when added to Justice Brennan's opinion, to cast any doubt upon the enduring vitality of the Civil Rights Cases and Harris.
— “US vs. Morrison”

US vs. Morrison

And if you are interested in the state action requirement for the 14th Amendment, this is a reasonable enough article: Cornell LLI on State Action.

Beyond this are cases where a private individual discriminates, and the question is whether a state has encouraged the effort or has impermissibly aided it.1361 Of notable importance and a subject of controversy since it was decided is Shelley v. Kraemer.1362 There, property owners brought suit to enforce a racially restrictive covenant, seeking to enjoin the sale of a home by white sellers to black buyers. The covenants standing alone, Chief Justice Vinson said, violated no rights protected by the Fourteenth Amendment. “So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated.” However, this situation is to be distinguished from where “the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements.”1363 Establishing that the precedents were to the effect that judicial action of state courts was state action, the Court continued to find that judicial enforcement of these covenants was forbidden. “The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desire to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. . . .”1364
— “Cornell LII on State Action”

Near as I can tell, we're on similar ground on these:
1. Texas law bad. Check.
2. There exist right(s) to abortion. Check.

And not so much opposed but close-but-no-cigar on the rest.

Abortion. Apparently you feel the state should be altogether out of the abortion regulation business, and while that may be best, it seems unlikely. As to the state's interest, Roe remarks on that, its interest in the mother and the fetus, as being interests of very long standing. You don't like Roe, but you have yet to say specifically why, while at the same time providing reference to its careful reason and the general soundness of its conclusions, while acknowledging the possibility of some fine-tuning.

And you don't like viability. I infer because via viability, the state grounds its interest. A comment: the state's interest, imo, is prior to issues of viability. Roe notes that the fetus has potential rights, requiring live birth to perfect. The state might well have an interest in whether or why a birth was live or not.

You seem to base your advocacy on "reproductive rights," which you hold would be absolute in favor of the mother until birth itself, allowing, presumably, an abortion even during birth.

In the smallest nutshell I can manage, are these correct or close to?

I buy reproductive rights for the mother, but not as absolute. Not least because with late-term abortions it would allow for the killing of what was legally not a person, but which by any reasonable standard is a person. Your "reproductive rights" then would confound both pro-choice and pro-life sides, and resolve it all in an arbitrary legal standard that would elevate the mother's side and deny completely the fetus's side, which in the case of late-term abortion is pretty clearly a person's side.

Roe, then, doesn't satisfy you. You still have not made clear any of its supposed flaws, except perhaps although not necessarily a datedness. Your reference even noted that if technology is to be accommodated, then viability becomes a function of time, place, circumstance, and availability of technical aid. But you're clearly a generous and patient writer: what's wrong with Roe? Shouldn't take more than few sentences.

-----

An afterthought, there seems to me incoherence in the following:

The opponents to abortion know this and they can, therefore, fight the battle on at least three fronts with a straight face:

1) the SC was wrong in Roe regarding a fundamental right,

2) the SC’s viability standard is the most that can be supported under the Constitution and the period of time where a state has an interest in regulating abortion is reduced each time medical technology improves, and

3) the regulation of medical practice or other necessary supports for obtaining an abortion (indirect obstacles/burdens) combined with directly frustrating a woman seeking an abortion by increasing the time, inconvenience, expense, etc. of getting the abortion (direct obstacles/burdens) up until the line that the SC deems such burdens “undue”. — Ennui Elucidator

1) No issue.
2) Eh? The state's time increases as technology improves.
3) Are there some words missing here? Are the pro-lifers arguing that they can regulate and obstruct up to the line?

An afterthought, there seems to me incoherence in the following: — tim wood

2) Eh? The state's time increases as technology improves. — tim wood

Yes, I presented that incorrectly and have adjusted my post accordingly.

As for 3, that isn’t an argument, but a description of what they have done and the types of laws that have survived judicial scrutiny. 1 has failed and there has been no great movement on 2 even though the line of viability has clearly been pushed closer to conception than at the time of Roe (as acknowledge in Casey).

P.S. The three points should not be taken as an exhaustive list, by the way. For instance, there has been much ink wasted on whether there should be a different standard other than viability (such as pain, heartbeat, etc.), but arguing Roe got it wrong on viability being the standard is similar to the first point - that Roe was wrong.

Roe, then, doesn't satisfy you. You still have not made clear any of its supposed flaws, except perhaps although not necessarily a datedness. Your reference even noted that if technology is to be accommodated, then viability becomes a function of time, place, circumstance, and availability of technical aid. But you're clearly a generous and patient writer: what's wrong with Roe? Shouldn't take more than few sentences. — tim wood

I believe I have previously addressed this, but I will try one more time.

There is a fundamental right to reproductive choice which should, under current Constitutional analysis, require a governmental law/regulation/policy narrowly tailored to a compelling state interest in order to regulate (or place an “undue” burden on).

Roe, which serves as the first explicit recognition of such right, both affirms that and at the same time grants the government a compelling interest in regulating behavior around potential lives.

Roe provides a bright line test of “viability” as the point at which the state has its compelling interest.

“Viability” is not a jurisprudential concept, but one that is plucked from medicine around the time of Roe. Such concept is inherently tied to the ability of contemporary medicine/science to permit the development of a clump of cells into a person.

In logic, then, Roe both establishes a right and details the way in which that right can be denied in virtually all circumstances based merely upon an accident of timing of non-judicial concepts. A woman can have a right to an abortion on day 35 and get it without incident in the wilds of Jabib, but if similarly situated woman had minor changes in date of pregnancy, length of pregnancy, place of pregnancy, overall health, etc., her right to an abortion may be different based merely upon the filing of a patent, the distribution of a machine, etc. So viability is not a standard by which a woman’s right to reproductive choice is protected, but rather a standard by which the state’s ability to regulate abortion is momentarily (and contextually) delayed.

Discussion of viability is, therefore, an abrogation of the SC’s obligation to provide judicial grounding for the existence and protection of rights. If a woman has a right to reproductive choice, there should be an articulable, consistent judicial basis for such right, not a punt that splits the baby between warring camps.

If you want to discuss the other jurisprudential reasons why Roe was probably wrong, we can do that, but I am trying to focus on those issues currently relevant to the abortion case law rather than re-hashing whether the right to privacy under Griswold was a judicial invention or something properly subject to protection under the due process clause of the 14th Amendement.

In Griswold, the Supreme Court found a right to privacy, derived from penumbras of other explicitly stated constitutional protections. The Court used the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to find that there is an implied right to privacy in the Constitution. The Court found that when one takes the penumbras together, the Constitution creates a "zone of privacy." While the holding in Griswold found for a right to privacy, it was narrowly used to find a right to privacy for married couples, and only with regard to the right to purchase contraceptives.

Justice Harlan's Concurrence in Griswold

Also important to note is Justice Harlan's concurring opinion in Griswold, which found a right to privacy derived from the Fourteenth Amendment. In his concurrence, he relies upon the rationale in his dissenting opinion in Poe v. Ullman (1961). In that opinion, he wrote, "I consider that this Connecticut legislation, as construed to apply to these appellants, violates the Fourteenth Amendment. I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life."

In privacy cases post-Griswold, the Supreme Court typically has chosen to rely upon Justice Harlan's concurrence rather than Justice Douglas's majority opinion. Eisenstadt v Baird (1971), Roe v. Wade (1972), and Lawrence v. Texas (2003) are three of the most prolific cases in which the Court extended the right to privacy. In each of these cases, the Court relied upon the Fourteenth Amendment, not penumbras.
— “Cornell LII on Privacy”

LII on Privacy

This move is close to terrifying in that it privatizes behavior that the government could not get away with if engaged in directly. — Ennui Elucidator

Yes. I'm guessing someone in a think-tank somewhere was damn pleased with themselves when they had this idea. (And somebody in the Texas legislature got a copy of the inevitable white paper.)

Maybe they had been reading about the Cultural Revolution and thought it looked like a clever way of unleashing third-party true believers on the trouble-makers.

Perhaps state governments all over the United States will decide it's about time they substituted the Party for the State.

It is an absolutely jaw-dropping perversion of our system of representative government, and I shudder to think what this country will be like soon if it catches on.

:sad:

And the idea of private parties performing traditional acts associated with government is our new reality on every level - local, state, federal, international, regulatory, etc. We are really watching the willful undoing of our public systems of government to the benefit of entrenched powers (political and capital).

While I certainly agree with him about the realpolitik of the Texas decision, I am not so sure that Roe, Casey, and many other cases don’t follow a similar path. To simply hold up prior SC decisions as if they are some great accomplishment of human reason which engages in line drawing in some unquestionable fashion is naive at best. — Ennui Elucidator

That isn't required, however, in order for one to take the position Roe must be respected as precedent and treated as such. The majority's approach is to merely ignore it, thereby allowing a law which it admits is constitutionally questionable to remain in effect (encouraging the adoption of other, similar laws) until it is compelled to address it. I frankly wonder whether the majority decided the law is so bizarre they would be compelled to strike it down, and declined to review it in order to avoid doing so. But I'm a cynic in the common sense, though an aspiring Stoic in the philosophical sense.

Fuck Texas, and fuck the Supreme Court. — James Riley

Yeah! Fuck 'em all. The problem - Texas and the idiots in the Supreme Court migh just give birth to more Texas and more idiots at the Supreme Court! :scream: Let's not fuck anyone for the moment! :lol:

Texas and the idiots in the Supreme Court migh just give birth to more Texas and more idiots at the Supreme Court! — TheMadFool

Being from Colorado, a common carving on bathrooms walls: "Here I sit, buns a flexin'; givin' birth to another Texan."

Being from Colorado, a common carving on bathrooms walls: "Here I sit, buns a flexin'; givin' birth to another Texan." — James Riley

:lol:

If a woman has a right to reproductive choice, there should be an articulable, consistent judicial basis for such right, not a punt that splits the baby between warring camps. — Ennui Elucidator

If I read you right, The SC two generations ago found a constitutional ground to protect women's reproductive choice as a matter of right. But at the same time they acknowledged a state's interests concerning the well-being of both mother and fetus, the well-being of the fetus understood as its ability to survive outside the womb, viability.

We see that viability includes medical intervention. A fetus is considered viable if when born its chances of survival with best available medical intervention beat 50%. I happen to think viability in itself is reasonable while this version of it is not. In any case, we find online that viability by any standard comes into play only after about 22 weeks and not before.

You object to the lack of a strict limit, and also to the residual divisiveness of the rule. What I suspect you would like is a rule that settles the matter once and for all, estopping new laws and litigation and leaving all with a satisfied after-glow. As with Aesop and the frogs who wanted a king, be careful what you wish for. And you have not noted flaws in Roe so much as you don't find it bespoke for your purposes. Roe is not the enemy. The enemy is the unthinking unreason of fanatics who from the extremes of both ends of the continuum insist theirs is the only way. And reason, in the midst of this, finds itself in a fight for its own sake that in even a slightly more perfect world would be ridiculous.

But it's the way of the word. There is one thing, and two or more want it. And some can handle the inevitable disappointment and some cannot. But which is to rule? Reason or unreason?

Earlier you espoused an absolute right to abortion. Does that seem reasonable to you?

I think a viability test on whether something qualifies as abortion or not is problematic because medicinal developments may result in the right to abortion to disappear altogether. I think a reasonable period of reflection (a month?) upon becoming aware of the pregnancy should be the deciding factor. I think it's more important that children arrive in families that want them to be there than being unwanted. Moreover, why are we considering forcing women to carry to term against their will?

And you have not noted flaws in Roe so much as you don't find it bespoke for your purposes. — tim wood

A flaw is contextual. In my context, Roe is flawed. In yours, you see it is a good decision. We can go round the bush again with you trying to get us to say the same thing, but we won’t. I pointed you to literature in law, politics, academia, etc. which also discuss Roe’s flaws, but you don’t seem very interested in anything besides repeating your view about how I or other people might see it.

I am not looking for a final resolution in Roe when I judge it on jurisprudential grounds, but well founded legal reasoning. My critique of Roe in this thread has not been a matter of what I prefer, but rather whether Roe accomplishes what it purports to do or people understand it to do.

My view on the right to reproductive choice has been stated and one would imagine that I believed it reasonable when I wrote it. In terms of Constitutinal analysis, my preference is for a right that is not consumed by the exception, which is the obvious inevitability of Roe.

I was responding to Tim. I didn’t mean to imply that you were uncritical of the SC or other precedent. Sorry.

But yes, it would be hard not to strike down this law if considered on its merits and so I can see them using procedural delays to avoid doing so (such as invoking issues of standing, ripeness, and enforceability).

PSA:

Proof the SC is political will be found in their hearing of a case over legislation from a Blue State that is drafted using the same exact work-around language that Texas used. (guns, anybody?)

When that happens, feel free to hold the SC in contempt of the United States.

The more you know . . . ***

Abortion advocates have trouble defending their positions without resorting to sophism. The first and only principle involved is whether the pre-born are humans. The life, liberty, and pursuit of happiness of the child obviously trumps the feelings of the mother not only because it is dependent on her and her body created it but because it is human. So talk of the mother's body and her bodies rights are not appropriate in the conversation. Abortion supporters at times try to turn abortion into an act of self-
defense. Saying a woman is defending her body from an invader. But if the pre-born is human this is like saying a person who leaves her front door unlocked and a baby crawls can blow its head off with a shotgun. The right to life is universal, not limited to groups, sexes, etc.The right to life is paramount because it listed first and is needed for the other rights. It's not about how far someone is in development. If human life starts at conception it is equal to a 3 year old girl who is still developing (yet fully human).

Did you have the right to live at 8 months old but not 1 month before your birth? Is a person’s value defined by her abilities, by what she can or can’t do? No. With age you gain more freedoms but not more human rights. Now it is obvious that human LIFE starts at conception, so it must be assumed that this life is human. If you have a building that needs to be demolished and there might be a person inside, yet the building is in need of destruction, do you destroy the building although a person might be there just because it seems more practical? No. If human life might be there you must respect it.

Now abortion supporters seem to be saying, although they seldom say what they really mean, that life would not have put such a duty on women and so the child cannot be human until birth. However, from the logic of this would follow that:

1) assisted suicide should be allowed (right to one's body over duty to protect life)
2) the death penalty cannot be imposed for justice's sake (the contrary reality would be too hard to be right)
3) doctors can't force an operation to save someone's life when there are no pain killers available (pragmaticism over human dignity)
4) and death should be imposed on those who are in great pain and can't respond

Now a pro-life person might stay pro-life and have one or the other opinions on these, but the pro-choice idea, implied in much of what they say, is that without abortion life is too hard and so abortion should be allowed. And from this principles flows the listed positions above follow