In March 2018, the state of Mississippi passed the Gestational Age Act, which banned any abortion operation after the first 15 weeks of pregnancy, with exceptions for a medical emergency or severe fetal abnormality but none for cases of rape or incest.
Republican Governor Phil Bryant said that he was:
“We’ll probably be sued here in about a half hour, and that’ll be fine with me. It is worth fighting over.”
An abortion clinic named the Jackson Women’s Health Organization and one of its doctors filed a suit in Federal District Court the day the Gestational Age Act was enacted against various Mississippi officials, alleging that the Act violated Supreme Court precedents establishing a constitutional right to abortion. The District Court granted summary judgment in their favour and permanently enjoined enforcement of the Act, reasoning 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” and that 15 weeks’ gestational age is “prior to viability.”
Mississippi appealed against the Fifth Circuit to the Supreme Court in June 2020, challenging the viability standard set by previous Supreme Court decisions and asking the Court to allow the prohibition of “inhumane procedures”.
The Ninth Amendment to the United States Constitution provides that:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Section 1 of the Fourteenth Amendment to the United States Constitution provides that:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Roe v. Wade (1973)
In Roe v. Wade, 410 U.S. 113 (1973), the US Supreme Court majority opinion in striking down Texas’s abortion ban as unconstitutional held that women in the United States had a fundamental right to choose whether to have abortions without excessive government restriction:
“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 … in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.”
“A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.”
Roe v. Wade decided that a state’s right to regulate abortion was limited according to which trimester of pregnancy:
“With respect to the State’s important and legitimate interest in the health of the mother, the ‘compelling’ point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.”
“To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Planned Parenthood v. Casey (1992)
The subsequent case of Planned Parenthood v. Casey, 505 U.S. 833 (1992) resulted in a particularly divided Court.
The plurality’s opinion overturned the Roe trimester framework in favor of a viability analysis allowing states to implement abortion restrictions that apply during the first trimester of pregnancy, and the Court also replaced the strict scrutiny standard of review required by Roe with the undue burden standard.
However, the plurality emphasised that stare decisis had to apply because the Roe rule had not been proven intolerable:
“The sum of the precedential enquiry to this point shows Roe’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant.”
“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
Justices Blackmun and Stevens approved of the plurality’s preservation of Roe. Justice Blackmun, the author of Roe, argued for a woman’s right to privacy and again insisted that all non-de-minimis abortion regulations were subject to strict scrutiny.
Justices Rehnquist and Scalia dissented from the plurality’s decision to uphold Roe v. Wade and strike down the spousal notification law, contending that Roe was incorrectly decided.
The Gestational Age Act
Mississippi’s Gestational Age Act, see Miss. Code Ann. §41–41–191 (2018) provides that:
“Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” §4(b).
US Supreme Court decision
Justice Alito held that the divisive issue of abortion properly belongs and should be given back to the people:
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997)”
“The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.””
“Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.”
“I think the studies, and I think they date back from the 1950s, assert that Eric Abetz is still living in them”
(by SockPuppet ~ a real 70s guy when chicks and booze were cheap)
I dunno about you but I bet that Senator Eric A Bet was having a bet eachway when he tryed hard to get out of what he said on Channel Gen Ys cutting edge The Project show last night:
‘I was cut off’: Eric Abetz blames Mia Freedman for reports he linked abortion to breast cancer on The Project
“I think the studies, and I think they date back from the 1950s, assert that there is a link between abortion and breast cancer.”
Now yous on the far right wing side where Eddie ‘I bet’ Abetz sits too will no doubt sprung to his defences position no doubt you will.
And yous on the left side of the far right wing will just say:
“Hes a dickhead from Tasmania”
which would then actuallymakes him a double dickhead because Tasmanians have Two heads.
(studies from the 1950s say so).
I on the other hand I am above politics and like the Buddha Zen deity I say this:
I think my post heading sort of says itall.
Comment away (God f*cken knows we need it)
As long term readers should be aware I have argued many times that when it comes to the issue of abortion what we have is a matter of competing imperatives which change in their primacy over the duration the gestation. Further I argue that denying the humanity or the person-hood of the unborn is a shallow conceit that is created purely to sidestep the social strictures that we quite rightly have about killing other human beings. Simply put the denial of the humanity of the unborn makes it easier to kill them.
Personally I have always argued that there are times when abortion can be justified but you need ever more pressing reasons to kill the unborn the further that gestation progresses. Thus at the earliest stages of gestation abortion because of the lifestyle implications of a continuing pregnancy are both understandable and justifiable but once you get closer to term there just has to be a much more substantive reason to kill the unborn. That is the ethical territory that is in play here and Julie Hamblin is right to acknowledge that this law may have implications beyond its intended remit. However is that really such a bad thing for our society? It may make it tough for the “kill for convenience” pro-abortionists because they will have to honestly argue their case for once, that abortion is about killing real human beings rather than just “removing a bunch of cells” but if we as a society are not honest about this issue can we really claim to be a moral society?
- 10 reasons not to have an abortion (liveactionnews.org)
- Abortion: Right or Rights Violation? (studentsforlifeoxford.wordpress.com)
- ‘Unborn human beings’ question makes Colorado ballots (aurorasentinel.com)
- Abortion and Slavery: The Same Old Arguments (str.typepad.com)
Some regular readers may be wondering why I have been quiet for a couple of days well the answer is simple enough the silence is due to yours truly taking some time to reconsider my entire political philosophy. No longer will this blog be endorsing the Coalition at the next election, after due consideration I have decided that Labor really deserves a chance to achieve greatness and that there is only one way that they can do that and that is if Julia Gillard is re-elected on September 14.
This was the email message that finally did the deed for me:
As someone who has been an economist for more than 25 years, including almost 13 years with global banks, I’m sick of the misinformation campaign being run by the Liberal Party and sections of the media about the Australian economy.
Let’s have a debate on the economy, for sure, but let’s make sure we stick to the facts.
This morning it continued with a beat up in the tabloid press misrepresenting Australia’s modest debt.
The fact is Australia’s net debt is dramatically lower than the net debt levels for every single major advanced economy.
Our current net debt is 10 per cent of GDP, compared to around 80 per cent for the USA and the UK, and around 35 per cent for Canada.
Labor made a choice to support local jobs during the GFC, a choice many countries around the world didn’t or couldn’t make. And as you can see on the graph below, they will be paying a very high price for many years.
Australia’s debt is so low, it has the rolled gold triple-A rating. Interest rates are low and our economy is the envy of the industrialised world.
Join the thousands of people taking a stand against misinformation who’ve already shared this graph on Facebook. Just click here or on the graph below and then share to help spread the truth. Basic indisputable facts.
Listening to the Liberal Party you’d think they hadn’t voted against the measures that kept Australia out of recession in the darkest moments of the GFC.
It’s fair to say that if the Liberal Party had their way we’d have gone into recession, more Aussies would be out of work and we’d have higher debt.
How could I continue to endorse Tony Abbott after reading a message like that?
We need to have the Australian Labia Party holding the keys to the lodge to finish the great job that they are doing for the country and without the steely resolve of their great leader Julia Gillard the nation will be lost to the evil forces of the Murdoch media, big coal, rampant capitalism, forced conversion to the catholic faith, and the the evils of Workchoices MK2 .
Cheers indeed Comrades
Having children is probably the easiest when human beings are first capable of conceiving, however that also tends to coincide with a time when the ambitious are focused upon their careers. Personally I find it no real surprise that in our society there is a a large cohort of women who find themselves in the unenviable position of seeking to conceive when they are well past the peak of their fertility, its just the legacy of feminist ideology that has told our women and girls that their careers are more important than having children.
Interestingly there are two stories in today’s media offerings from Murdoch and Fairfax respectively that made me think about this matter today.
Firstly there is the story about the way that Tony Abbott supported Christopher Pyne and his wife through their battle to conceive their children through IVF:
Secondly there is the piece in Fairfax which is a great example of that which so many of my friends from the left constantly complain about when they see stories which begin with “the leader of the opposition says” but on this occasion its a case of “a government minister says”
The Labor party of course hate the idea that Tony Abbott could possibly be anything other than a absolute and abject slave to his Catholic faith, the idea that he could be a man who applies personal discretion to the way that he considers the teachings of the church on matters like IVF is something that the government wants to hide from the people. It serves the purposes of this desperate government far better that Abbott can be portrayed as an unthinking peon of Rome rather than a modern man who makes his own choices on issues of fertility and sexual morality.
The ALP feminista girls club does not do so well once its myths and legends are exposed to the cold hard light of truth but who is surprised? They are fighting a desperate rear guard defence of a party that not only faces defeat but near obliteration at the next federal election so clearly they are trying their darnedest to ensure that they make truth the first casualty of the battle to retain the Lodge but the truth is not as easy to kill as they had hoped.
- Abbott has long-held views on IVF, says Australian Attorney-General Roxon (craighill.net)
- Abbott will be judged on abortion, IVF (news.com.au)
- TurnLeft agrees ‘Abbott progressive on women’s issues’: here is proof (turnleft2013.wordpress.com)
- Feminist fertility blogs? (bluemilk.wordpress.com)
- Female foeticide, gender equality to be part of school curriculum (thehindu.com)
In the comments of this post Miglo was curious about my reaction to his critique of Tony Abbott’s position on a grab bag of social issues well I wrote out a long comment answering each point in turn only to have it disappear into the either when I tried to use it as a comment to a re-blog here at the Sandpit So this is “take two” and hopefully this one will not disappear…
So without further adieu I will go through the points in turn
Same-sex marriage: Mr Abbott has said marriage is between a man and a woman not just to fulfil their own personal happiness ”but because we have obligations to the children that come with families”.
I see no reason to fault Abbott on this position as marriage is much more about the children that it is about social affirmation for homosexuality
Mr Abbott said he felt “threatened” by homosexuality on Sunday night’s program, a comment that has angered the gay and lesbian community and something he tried to back track from during an interview on the ABC last night.
“There is no doubt that it (homosexuality) challenges, if you like, orthodox notions of the right order of things” Mr Abbott told Lateline.
At the risk of being howled down as a homophobe I tend to think that homosexuality is against the natural order of things and it serves no biological purpose (given the simple fact that such pairings must be sterile) that said I am a realist who thinks that what consenting adults do in private is entirely their own business and the law and society should not penalise them for their choice of partner(s).
Abortion: Christians aren’t required to right every wrong in the political arena, but they can help change the nation’s culture, suggests Tony Abbott DESPITE the debt that political institutions owe to the West’s Christian heritage, there is the constant claim that Christians in politics are confused about the separation of church and state. There’s also a tendency among Christians in the community to think that Christians in politics have to sell out their principles in order to survive. Christian politicians are often warding off simultaneous accusations that they are zealots or fakes. Indeed, the public caricature of a Christian politician is hypocrite or wuss, in denial about the ruthlessness and expediency necessary to wield power, or too sanctimonious to be effective. Take the challenge of abortion. The problem with the Australian practice of abortion is that an objectively grave matter has been reduced to a question of the mother’s convenience.
Abortion is the classic example of competing moral imperatives and the simple fact is that those competing imperatives each have different levels of validity depending upon the stage of gestation. Thus very early on its easier to argue that a women’s bodily integrity and autonomy should give her unfettered rights to terminate an unborn child the longer that the gestation endures the greater the argument for the protection of the unborn from arbitrary execution becomes. Anyone who does not realise this is essentially a sociopath who is ruled by a dark and vicious feminist ideology.
Boat people: Tony Abbott yesterday claimed boatpeople were acting in an un-Christian manner.
Given the fact atht most of these mendicants are not in fact Christian then what is contentious about this observation
Euthanasia: Legalising euthanasia in Australia would put elderly people at risk of being “bumped off”, federal Health Minister Tony Abbott has warned, after an Australian man travelled to Switzerland to legally end his life.
Killing oneself is not rocket science and you really don’t need much more than simple things that are common around the house, nor is suicide actually a crime. But there are lots of downsides to making it easy for doctors to assist. In extreme circumstances if there is a legal cost to “helping” some one end their lives then it is a small sacrifice that should be paid to prevent malicious pressure on the unwell.
The needy: “We can’t abolish poverty because poverty in part is a function of individual behaviour”.
Contrary to leftist ideology the reality is precisely as Tony Abbott observes here some people just can not be saved from themselves no matter how much money you throw at their problems.
Women’s rights: Tony Abbott warns women against sex before marriage. And how about this brain fart: “I think it would be folly to expect that women will ever dominate or even approach equal representation in a large number of areas simply because their aptitudes, abilities and interests are different for physiological reasons”.
Is promiscuity really such a good thing for anyone in society? The left seem to believe that sexual intercourse is something akin to a contact sport that is little different to any other amateur sport. However this ignores its true purpose which is to propagate the species and to provide the glue that cement the pair bonds that are foundational to raising subsequent generations. As for the difference in aptitudes of men and women in different roles and professions only a fool denies that there are differences but the other side of that coin is to have a society that allows and appreciates those who want to step outside the usual gender expectations.
Recognition of Indigenous culture: ‘Western civilisation came to this country in 1788 and I’m proud of that . . . Aboriginal people have much to celebrate in this country’s British Heritage’.
Compare and contrast the sort of colonial experience that this country benefits from with the sort of colonial experience under different European colonial regimes and its clear that we would be a lesser nation under the French, the Dutch, Spanish or the Portuguese. So Abbott is spot on here.
Climate change: As a climate denier, Tony Abbott is most famous for his statement that climate science is “absolute crap“. However, that’s just the tip of the iceberg – he actually has a long history of denying climate change science. “The fact that we have had if anything cooling global temperatures over the last decade, not withstanding continued dramatic increases of carbon dioxide emissions, suggests the role of CO2 is not nearly as clear as the climate catastrophists suggest.”
Does it matter what the man personally believes about the AGW proposition? I think not when it comes down to it. However if his scepticism about the millenarian cult of “climate change” leads this country to a more nuanced policy setting that eschews useless lip-service to AGW as a front for social engineering then the nation can only benefit. If AGW theory is correct which is the greater sin? To agree with the liturgy and preform pious acts of contrition that have no effect on the problem (like Gillard’s Carbon tax ) and cost our economy a Motza Or to disagree with the theory but to act in a prudent manner to improve the environment?
Technology: “There is no way on God’s earth that we need to be spending $50 billion plus of borrowed money on what is going to turn out to be a telecommunications white elephant – school halls on steroids.”
We would all love to have a Lamborghini or a Rolls Royce in the garage but when it comes down to it most of us would be happy with a Nissan or a Ford. lets consider just what people actually want out of the Internet rather than getting carried away by the dreams of the technophiles and the latte sippers
Foreign investment: Tony Abbott made headlines recently when during a visit to China, he declared that “it would rarely be in Australia’s national interest to allow a foreign government or its agencies to control an Australian business”.
In other words: foreign direct investment by such entities would not be welcome.
How is it a bad thing to be concerned that a totalitarian state owned corporations may not have Australian’s interests at heart when they try to buy the farm here?
Divorce: Liberal Party frontbencher Tony Abbott wants laws toughened up to make divorce harder. The opposition families and Aboriginal affairs spokesman has called for a return to the fault-based system of divorce discarded in 1975, which was replaced by a “no-fault” system. Mr Abbott’s plan, outlined in his soon-to-be released book Battlelines, would see a grounds for divorce reintroduced, including adultery, cruelty, habitual drunkenness and imprisonment.
It would be similar to the defunct Matrimonial Causes Act.
There is a great deal to recommend in our “no fault” divorce system but its not perfect and there are times when a judgement of fault would aid justice in adjudicating some of the issues associated with the dissolution of a marriage, its property and children that make divorce tough and the experience of our system shows it could do with some review and reconsideration at the very least.
So there you go Migs I have gone through your points and shown that none of them are the black marks that you seem to think they are, all are quite reasonable positions to take and most reasonable people will be able to see that.
“It’s school holidays. What are you going to do? Leave the kids by themselves?”
Proving the point I made to Chris Berg from the right-wing ‘think tank’ IPA that places like Albury are “cities” too, where life and the people are not a lot different to their “smarter” capital city counterparts, comes news of the wonderful deeds of a group of Alburyites known as – wait for it – the Helpers of God’s Precious Infants (hereafter referred to as the ‘HOGs’).
For some time now, the HOGs have been holding weekly protests outside Albury’s abortion clinic under the guise of prayer vigils. Funny, I didn’t know that waving placards, approaching young women with pamphlets and … training a camera on them (!!) were the type of things you usually engage in while praying. Some might call that harassment. Well, thankfully, a lot of people from Albury have, proving again (Chris) that folks are not so dumb where I come from.
But I reckon the HOGs have gone too far with their latest trick of dragging their kids into the fray:
Children brought to abortion vigil
A BORDER anti-abortion group has defended the presence of children and babies at weekly protests outside Albury’s abortion clinic, saying the young people who take part in the prayer vigil understand “that’s where they kill the babies”.
About 10 school-aged children and an infant were among the the Helpers of God’s Precious Infants group yesterday as they prayed opposite the Englehardt Street clinic, their numbers greater than usual because of the school holidays.
Spokesman Phil Murphy said he was not concerned about exposing the children to the regular abuse directed at the group from passing cars.
“If things get out of hand I would take the children away (and) that hasn’t happened in Albury yet,” Mr Murphy said.
“The life of the child that dies in that clinic is worth standing out in the cold and copping abuse from passing drivers.”
Mr Murphy said his children prayed at the clinic of their own free will and were not being traumatised.
“They’ re not happy about it, but they’re not distressed by it,” Mr Murphy said.
“I’m not dragging them down there.
“It’s the kids that want to do it. They feel like there are not enough people standing up for the rights of these unborn babies.”
The Lavington resident, who offers counselling and pro-life pamphlets to patients of the clinic, rejected suggestions the children were there to make women feel guilty about having an abortion.
“It’s school holidays. What are you going to do? Leave the kids by themselves?” Mr Murphy said.
Regardless of your views on abortion (and my view is that it’s no friggin’ business of mine or anyone else’s to tell women what to do with their bodies – and certainly not in this manner), I reckon it’s pretty darn obvious that Mr Murphy et al are dragging their young and impressionable children into this as a means of putting further pressure on those entering the clinic.
And I wonder what impact it might have on a young kid to make them stand outside the clinic (which is actually a converted house) and tell them “that’s where they kill the babies”? They may not appear “traumatised” or “distressed” by it – not yet – but doesn’t this teach the kids to hate?
Look, Phil, if you’re really stuck for ideas on where to take your kids during the school holidays, well, the snowfields are not that far away from Albury. There’s plenty of snow right now and entry to Mt Buffalo is free. You could even pick up a Maccas on the way. Kids like doing stuff like that.
I think the HOGs need a bit of help with their public relations – maybe they should try asking Chris @ the IPA to write something about how “backwoods” people in Albury “kill babies” as another reason for not relocating.