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US Supreme Court gives back power to the people

The facts

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:

committed to making Mississippi the safest place in America for an unborn child, and this bill will help us achieve that goal“.

He added:

“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”.

Relevant law

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.”

Full story: https://sterlinglawqld.com/us-supreme-court-gives-back-power-to-the-people/

Zoe’s law and abortion

click for source

click for source

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?

Laters   Comrades

Abortion should be safe affordable, but most importantly rare

Abortion should be safe affordable, but most importantly rare

Truth and consequences in abortion

We all generally agree that life is precious and that killing another human being is one of the most heinous crimes that we can imagine. and when it comes to killing we scale our disgust on a basis of how well that killing can be justified. Thus we  think that killing someone who is threatening our lives is both justifiable and entirely acceptable whereas killing for pleasure or expedience is most abhorrent and we, as a species usually have social mechanisms to excuse the former and punish the latter. I jurisdictions that execute killers it is considered most humane to use drugs to carry out a sentence of death. There is a part of me that is very old school when it comes to capital punishment. Old school insofar as I think that some crimes are so terrible that the guilty deserve a terrible end rather than something that is painless and entirely sanitised.   There is also a part of me which  thinks that a similar principle should apply to abortion, that we should never allow it to be too easy, too sanitised and too easy to deny the reality of what is being done, it is the killing of another human being. Like the killing that I began with it can be justified under certain circumstances but we are lessened as creatures of virtue if we allow the conceit that what is being done is anything less than killing another human being.

Which brings me to the announcement yesterday that chemical methods of procuring an abortion are to be come more available as a method of killing the unborn:

click for source

I am reminded of one of the themes of Umberto Eco‘s book “The Name of the Rose” was essentially that just because we can do something should not mean that we should do so and when we make something like abortion too easy we make it too easy to pretend that the life of a person is being ended and by doing that we are all diminished. Make no mistake I am not one of those absolutists who thinks that all abortion is murder and that it should be prohibited by law. I am far too much of a realist to suggest that. But like the consideration of killing that I opened this piece with I do think that there is a variation in how we should consider the justifiability of abortion. That scale has at one end a procedure to save the life of a woman who would die if the pregnancy were to continue and at the other end an abortion that is done in response to a “failure” or a “failure to use” contraception. And in-between those situations there are lots of different scenarios where an abortion can be well justified. The thing is just like executions there are also good arguments for making the procedure as significant as the act of killing that it is even when it entirely justified by circumstances because at the very least then the woman who is ending that life will truly understand what it is that they are doing. Just being able to end a life by taking an a drug is just too easy and it make denying the humanity of the unborn far too easy as well.

With respect Comrades.

Going Public on Abortion

There are few issues that inspire as much ire as abortion and to be honest I find the way that both sides try to prosecute their positions rather interesting for example this effort from the USA takes the idea of using public shaming as a deterrent for abortion to a new level.

click for source

I take particular note of the fact that the billboard does not name the woman in question, which is fair enough but of course this does not mean that the woman’s family and friends will not know precisely who it refers to here. So the ethical question becomes to what extent does the father of a child ,who has been aborted killed at the request of its mother, have a right  to publicly protest at the killing?

Fathers have no standing in law when it comes to the decision to kill the unborn, I am in two minds about the virtues of this but one thing that I do believe is that no one should be prevented form trying to persuade others that an abortion is a bad idea. To this end I support any argument that reminds those women contemplating abortion that the act they desire is the killing of a human being (rather than “a bunch of cells” or any other euphemism )  and that a man has the right to make public his grief at the loss of his progeny.

Respect Comrades

(Unborn) Human Rights 101

There is a piece at the Punch by Tim Cannon which puts quite a good argument about the issue of abortion. Its good because it suggests that if you are a supporter of  of human rights then you should oppose abortion on the understanding that the unborn are human and therefore deserving as much protection as any other human being:

Dr Shettles is not alone in the medical world in concluding that a human life begins at conception. You might also try pioneering fetologist Sir Albert W Liley. Or geneticist Dr Jerome LeJeune. Keith L Moore? T W Saddler? William J Larsen? These people are experts in the field.

And I agree with them.

But hang on a minute. Can it be? Me – a certified medieval religious pro-life nutter – deferring to the authority of science? God forbid.

I’m particularly interested in Dr Shettles’ comment on humanitarianism. Human rights carry even more sway now that they did when Dr Shettles was penning his outrageous scientific prose.

And when it comes to human rights, I’m going to suggest that it’s the pro-choice view of the foetus that is outdated, not mine. Because to me, the plight of the unborn child is a human rights issue. By contrast, the pro-choice view takes us all the way back to the early 1800s, when slavery was still legal in the United States.

In our enlightened times the very notion that slavery could be legal, let alone widely accepted, seems utterly incomprehensible. But what enabled so many to persist in the abhorrent practice of slavery for so long, was simply that they didn’t think African American slaves were human beings. Beating a slave was like beating a dog – it wasn’t nice, but it wasn’t worth getting upset over.

The cruel subjugation of an entire racial minority was perpetuated not because of widespread malicious intent, but because of genuine indifference to the plight of beings genuinely thought not to be human.

‘What’s the big deal?’ says the slave trader, ‘it’s not like they’re people.’

Tim Cannon

How many times have we heard the “its only a bunch of cells ” argument from pro-abortionists?

While I can’t fault the logic of Tims argument I do tend to think that there are circumstances where abortion can be justified (as I have repeatedly argued ) to my mind this is one of those vexed issues where we have to try to reconcile the competing imperatives. There are no absolutes here but it seems obvious to me that the longer the gestation continues the stronger an anti-abortion argument becomes. The amusing thing is that Tim Cannon , who is a self confessed practising catholic, is arguing his case with out a single reference to the bible or any pronouncement form the pontiff. He is arguing from a scientific and ethical position that would do any atheist proud.

Of course as Tim  is writing for the Australian Family Association so I wonder how long it will be before we see our learned friend writes a reply under his AFL flag of convenience?

Anyway read the Punch piece, its worth the time.

Cheers Comrades


Many a true word spoken in jest

Our learned friend that defender of drunk drivers and petty criminals has written a very sarcastic gloating  post about the recent acquittal of Tegan Simone Leach, 20, and her partner, Sergie Brennan, 22. I am surprised that a man of the law like our learned friend  should be so sanguine about the result in this case because what it has done is set a precedent that may well allow the practice of medicine by anyone who buys a white coat and a stethoscope and calls themselves a doctor. Anyway lets go through his argument and see if it makes any sense.

Leftist scum, you know, the type who regularly get pregnant in bizarre Satanic rituals and then brutally murder the BABY whilst laughing about it, are celebrating a Queensland jury’s utter failure to lock up a young woman who took an abortion pill. Well, let them.

The point is not that this woman took an abortion pill, but the way that she got it , in fact I heard our deputy premier Paul Lucas  on the radio today and he made the point that there are ten thousand legal abortions a year in Queensland, but the fellow travellers of the left  would have you believe that there was some sort of necessity for this woman and her partner to go outside the law to kill her unborn child. She could have had a safe legal abortion without all of the fuss had she done the right thing and just convinced two doctors that it was necessary.

The important thing is that the law is still on the books. They haven’t succeeded in overturning THAT – all they’ve done is get a WEAK jury of BABY MURDER APOLOGISTS to get them off, probably part of their diabolical coven’s plan all along. Did anyone check the foreman of the jury to see if he was wearing a cross? He wasn’t! Clearly an agent of the dark one who goes home every night and ritually smears his face in the blood of infants, according to what I’m fairly certain non-Christians do of an evening.

Oh, what a terrifying imaginary world we live in.

As I said in the very short comment that I left to this post “there is many a true word spoken in jest” Our learned friend is amazingly keen on killing the defenceless he has on previous occasions tried to defend abortion by denying the humanity of the unborn insisting that they are “just a cluster of cells”. But more importantly what he is demonstrating here is his mistaken belief that those who are concerned about abortion do so because they are Christians. Many are  not in fact  believers in a God at all but we just think that there is something of value in the idea that we should not kill children because they are  an inconvenience.

Anyway the more they cheer about this monstrous result, the less pressure will be put on the weak politicians to make any kind of change. If we’re careful, the vast mass of stupid rational people who don’t agree with us will gradually fall back asleep and then we can pounce on the next stupid young woman who disagrees with us about when a collection of cells becomes a human being and make her life a living hell.

Which begs the question of just when our Learned Friend  thinks that an unborn child ceases to qualify for summary execution? But given the fact that ten thousand abortions are legally preformed in Queensland each year lets hope that the result of this trial will be a disincentive for any other stupid woman to go the DIY route after she has been careless about contraception.

And, ignoring the actual verdict, there was a lot for us to enjoy in that trial – the young couple shamed, their private life exposed (except for the black magic devil-worshipping stuff, which we assume a compliant secular media hid for them), their whole lives taken over for two years just because the woman felt she should have the right to decide what happens with her own body – idiot – well, it’s clear they suffered a lot. As even their defence barrister said, it was “a nightmare”.

But our Learned friend fails to point out that this was a nightmare entirely made by Tegan Simone Leach and her partner Sergie Brennan had they complied with the law here in Queensland then Tegan would have had her abortion quietly and privately just like the ten thousand other women do each year in Queensland but she had to try DIY and that is why she was charged and that is why she should have been convicted. We have a very good system that requires our medical practitioners, and those who dispense medical drugs to be qualified to do precisely that On this occasion the drugs were acquired and used by someone who wanted to kill her unborn child but this decision opens the door for others to import the drug for a more nefarious purpose  and what would our learned friend say about that?

Good. Let’s make sure it can happen again. And young women and doctors of Australia, you’re on notice – we’ll be doing everything we can to make sure it does.

No lets advise  all women who really believe that they need to have an abortion to visit their physician rather than follow the example of Tegan Leach,  who is the author of her own misery , in the first instance for being careless about contraception and in the second instance for thinking that DIY is a good idea when it comes to abortion.

Our learned friend makes the most basic mistake here, he thinks that the trial was about someone who acted out of necessity when it is not at all difficult for a woman to get an abortion here in Queensland. Well if he can’t get that detail right what does it say about the rest of his argument?

Cheers Comrades


Due process and abortion

One of the revelations of modernity is that we now know precisely how to avoid an unwanted pregnancy and the means to do so is so widely available that it is ubiquitous. No I am not just talking about abstinence here, although it is the most effective method of all it does not really do the job when individuals give into the mating imperative that so dives our lives. While I am personally no great fan of condoms there is no doubting that they are easy and effective at more than just keeping the population at a desirable level. There is however no moral virtue in seeing abortion as just another form of contraception. As I have said before Abortion should be safe available and rare which puts me at odds with authors like Melissa McEwan from the Guardian who clearly thinks that it should also be easy to choose as well.

Utah already requires parental notification and consent for minors seeking abortions, mandates a 24-hour waiting period to terminate a pregnancy, subjects women seeking abortions to state-directed counselling which overtly discourages abortion, and allows public funding for terminations only in cases of rape, incest, fetal abnormality, or threat to the women’s life or physical health. (Don’t think you can get away with claiming your psychological health is at risk, ladies! Everyone knows that women would just lie about that to get an abortion because there’s nothing conceivably traumatising about being forced to carry a pregnancy you don’t want to term.)

As of 2005, according to the Guttmacher Institute, 93% of Utah counties had no abortion provider, leaving 25% of women in the state to travel at least 50 miles, and 8% to travel more than 100 miles, to get an abortion. There were six abortion providers in the whole of the state in 2005, and currently the state has only one licensed abortion clinic.

Utah has become, like many other states, a frontline in the war against legal abortion. Yes, Roe is still in place, but anti-abortion activists are battling to render it an impotent and largely symbolic statute, hollowed out by state legislation that chips away at abortion rights with “partial-birth abortion bans” and “parental consent laws” and mandatory (ostensible) disincentives like “look at your foetus on an ultrasound”.

The Democrats, and the leftwing activists who try to use the spectre of a world without Roe to coerce progressive feminists into line during every election, tend to regard legal abortion like an on-off switch, but it doesn’t work that way. Legal abortion is only worth as much as the number of women who have reasonable and affordable and unencumbered access to it, and that number is dwindling: the National Abortion Federation reports that 88% of counties in the US have no identifiable abortion provider – a figure that rises to 97% in non-metropolitan areas.

That’s not merely an inconvenience – between travel expenses and time off work, especially when a 24-hour waiting period necessitates at least two days of one’s time, the cost of securing an abortion can become an undue burden. It can put legal abortion out of a woman’s reach.

Melissa McEwan

As I see it from a moral perspective any abortion carries with it a conflict between the competing rights of both the mother and the unborn child. While I believe that abortion should be available I don’t think that there is any valid reason for it to be as easy as buying a pair of shoes or a load of groceries. This is literally a life and death situation and not something from which any woman contemplating an abortion should be allowed to cruise through without having to face the total consequences of the action she is seeking. Thus I think that it is actually important that the humanity of the unborn should be acknowledged and that there is a moral good to be found in that humanity being considered before the abortion is carried out. The conceit that all we are dealing with is “just a bunch of cells” or that someone is not even a “human being ” until they are born is a most horrible and dehumanizing one that I find most offensive. After all in those places where capital punishment is used we insist that there should  be sufficient avenues of appeal so that there is no miscarriage of justice, don’t we owe the unborn just as many chances to avoid summary execution? If in the end that death can be justified well then at least we will know that the gravity of the act has been acknowledged by due process.
Cheers Comrades

Time limits

NHS doctors are refusing to carry out late abortions, forcing hospitals to contract them out to private clinics and charities.

Growing moral objections mean three-quarters of the 7,000 terminations performed after 17 weeks of pregnancy each year are outside the Health Service.

The revelation comes as MPs prepare to vote on maintaining the 24-week upper limit for “social” abortions in the biggest Parliamentary battle on the issue for two decades.

Experts say late abortions are still provided by the NHS for foetal abnormalities but most of those approved on “social” grounds are referred outside.

Consultant gynaecologist Vincent Argent said there was “marked reluctance” among NHS staff to carry them out.

He said: “This isn’t the result of childish squeamishness, these are healthcare professionals trained in with any sort of medical situation. But late abortions conflict with everything doctors and nurses are trained to do – preserve life.”

The Daily Mail

As the debate about a limit on late term abortions continues in the UK little pieces of the picture emerge and It seems that the doctors and nurses in the NHS do have some ethics (which must really upset the Feminazis)  and they are voting with their scalpels and speculums not to perform late term abortions in the public hospitals. I totally agree with their position that “social” abortions at such a late stage in gestation are morally indefensible and I take particular note of the various limits placed on abortion in other European countries  as per the table above .

Until next time Comrades

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