Thinking About Non-Roe
S E E D E D C O N T E N T
Based on the commentary so far, I’m not convinced anyone has a firm grasp on the consequences that would follow should the Supreme Court use the Dobbs case to overrule Roe v. Wade . This is not meant as a criticism, only to point out the likelihood that there could be many unexpected effects. Perhaps it is inherently difficult to think through the implications of changing a longstanding legal reality on which so many millions of people have relied for so long. (I’ll note I’m happy to learn about scholarship which has already made the points I detail below).
Certainly some consequences are easy to anticipate. It is clearer now than it was, say, 20 years ago which states will continue to allow abortions under something like the Roe - Casey framework and which will not. At the same time, no one regardless of their views should think that the fact that multiple states will ban most abortions returns us to a pre- Roe reality. That 1960s reality is gone. The future will be quite different, just as the structure of politics today is different.
Two implications occur to me that I have not seen mentioned.
[Updated with a new link after the jump]
One is whether the exceptions written into laws banning abortion will actually be effective with respect to pregnant women whose lives are in danger. You might think the answer is obviously yes, but the worrisome case of Savita Halappanavar in Ireland is to the contrary. Her case suggests that there might well be a dangerous disconnect between how doctors and prosecutors understand such exceptions. In particular, if there is uncertainty about whether doctors will be prosecuted in a situation in which the patient might live, doctors will likely not proceed. Could doctors obtain in advance the equivalent of nonprosecution agreements? This does not seem likely, as it could make prosecutors complicit in situations where the abortion takes place but it turns out that the mother would have lived. Pro-life organizations will be ever-watchful of these cases. But if doctors adopt a de facto policy of no abortions at all, even in a situation where there is a high probability of death or injury, the result may well be tragic deaths like Halappanavar’s.
The second is the implications for the regulation of pregnancy nationwide which connects in turn to the legal status of women generally. That may seem a false start – getting rid of Roe is about abortion, right? But overruling Roe opens a door to state regulation of the entire course of pregnancy. This is because a non- Roe universe zeroes out the fundamental right of bodily integrity for pregnant women (people) under the substantive due process doctrine. The deferential rational basis test becomes the default standard – although, again, only during pregnancy. Suddenly pregnant women are vulnerable to state regulation in a way that has never been the case since Roe was decided. And motivated by their success in overturning Roe, some in the pro-life movement may well feel that this is a power that should be exercised.
Nevertheless, I think it’s unlikely that state will enact general codes of regulation applicable to all women during pregnancy. There would be too much political resistance. But to understand the potential here more fully, consider the legal situation of women who received state assistance of some kind (like Medicaid) in states like Mississippi and Louisiana that will ban nearly all abortions in the wake of Roe being overruled. States could condition receipt of further assistance on compliance with a code of pregnancy regulation. Such a code could require notice to the state when women discover they are pregnant, attendance at educational programs designed to convince them they should not leave the state to seek abortions, helpful information about what healthcare they should receive, and so on. But whatever the usefulness of the information and services pregnant women receive, it is hard to avoid the conclusion that pregnancy transforms them into second-class citizens. They are subject to special regulations that others are not. Subject only to the rational basis test, states can subject them to all manner of paternalistic legislation.
Furthermore, even if this regulation is confined to women receiving state assistance, it may well have implications for the citizenship status of all women. Scholars like Linda Kerber have shown how during the draft when women were not allowed to serve in the military, this fact was cited against them as evidence that women were not citizens in the full sense. A non- Roe universe creates the same reality by underwriting the legitimacy of selective regulation of pregnant women. By allowing states to regulate the entire course of pregnancy as they see fit, it establishes the principle that women can be treated unequally once they become pregnant. Second-class citizenship, that is, in literal terms. Once this legal principle is established, can it be confined to the states that ban abortions? And even if it can, shouldn’t we all be concerned if a vast area of the country is willing to subordinate the rights of women?
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So, who wants to be a second-class citizen? Any volunteers?
With unintended consequences, the list will get longer and longer.
I doubt anyone who supports overturning Roe truly understands, or cares, about the potential implications. Some seem too tunnel visioned on a fetus to see anything else. Thanks for the article. I'm thinking of writing a "pro-abortion" article this weekend, time permitting. I may borrow some of the points made.
Here is what I believe you're trying to say;
"It cannot be maintained that technical* progress is in itself either good or bad. In the evolution of (technique) contradictory elements are always connected. Let us consider these under the following four rubrics.
1- All technical* progress extracts a price.
2- When technique* evolves, it does so by solving a certain number of problems, and by raising others.
3- Pernicious effects are inseparable from favorable effects.
4- Every technique* implies unforeseeable effects.
* The technological order or the technological society
THE THECHNOLOGICAL ORDER- Jacques Ellul
IMO just change the words technical/technique to choice(s)
Then you would be wrong.
Please explain.
It will be when I get around to writing the article.
Thank you.
I am sure it will be well written and logical
It is. Here is a link to the article .
In the run up to what they decide, there is a LOT of speculation going on and arguments based upon that speculation...
Whereas the situation the day before and the day after will not be that much different at all... None of this is going to take place overnight...
And whatever they do it will not cut off women from any medical services they need...
It's about fixing the law... but when it comes to fixing things that people see as great victories, there is usually a lot of angst....
I'll be glad when it is all over...
I wouldn't be so sure about that.
Link in the article: Overturning Roe Will Make Miscarriage Care Worse
Well Steve, it's an opinion, one of many, and speculative at best... just like all the walla walling going on around here...
Because no one really KNOWS what they are going to decide and what effect it will have...
No, we don't. However, I don't believe that that should keep us from contemplating certain effects from possible decisions.
The way you put it sounds like we should just wait and see what happens later rather than attempting to be ready for any possible decision.
Seriously.
So much melodramatic hysteria. Good grief.
Yea, let's all sit back & not voice our opinions and show support for pro-choice groups so the country can end up like Mississippi. It is too late for those women. One clinic left & that one is close to shutting down - WHY? because pro-choice in that state did not stand up in time & now they are reaping what they failed to sow. As for me I will stand up & be heard regardless of what you or any other women haters & women in the kitchen asses say. Hysteria - THAT"S right - because it is OUR lives NOT yours.
If your opinions are irrational and hysterical....like "2nd class citizens" or some other bullshit....then yeah, that's probably for the best. You're not helping the cause.
Have you been to Mississippi? When was the last time?
"Stand up"?? How? By bitching on an obscure internet forum? Or maybe posting hyper-emotional memes on Facebook? Well..... don't change the world too much too fast.
Fascinating idea. So explain why men would give a shit?
You have no clue what I do for the cause and I am not going to attempt to explain any of it to you because you truly do not care to know.
Would you put up with being told you had to donate part of your body to save someone else - not asked, but demanded. Somehow I doubt it.
As I said in the first paragraph - you have no clue what I do for women's rights & causes. BTW I don't have any social media pages - NT is the only forum I visit, so your bullshit about FB memes belong to you & your ilk - cause that is how YOU rant & rave.
And frankly real men will stand behind women having the right to one's own body, because next time they may be after yours. As far as you - I don't give a shit if you give a shit or not.
As fro Mississippi - I know more than you think & I could ask you when was the last time you had an unwanted pregnancy? See how stupid some questions are?
I'd be fascinated to know.
You're really equating childbirth with donating a kidney?
And pretending childbirth is somehow forced? Do you think so little of women as to believe they don't understand how babies are made? Or are you just having a Handmaid's Tale moment?
Do cite me ranting or raving. That is...if you can stop worrying about forcible organ transplants for a minute. (I seriously laughed out loud. Thanks.)
I hate to burst your bubble here, but men will say all sorts of things to keep women happy. That goes for the anti-abortion crowd, as well, BTW.
Interesting you should say that. I'm guessing it still hasn't occurred to you that you expect men to care deeply about and defend your "reproductive rights" without ever considering the fact that we have none of our own.
I don't expect you to. But you clearly care enough about what men as a group think to get angry about it, and you don't appear to have even attempted to see it from our perspective.
Yeah....about Mississippi.....there has only been one abortion clinic in the state since 2004. It seems white liberal activism only cares about white liberals.
Not as stupid as you may think. There is a man involved in every one of these unwanted pregnancies, which everyone remembers quickly enough when it comes time to pay the bills. What about them?
How is calling a spade a spade irrational or hysterical Jack?
Why pose irrelevant questions?
That's presumptions and insulting Jack.
There are times when the world NEEDS to be changed a lot and right quick. Many of the recent precedent setting rulings by the SCOTUS did just that and not all for the good.
Oh please DO cite the laws that deny males reproductive rights. I'll wait.
Right after you itemize those rights.
Really Jack?
YOU made the assertion; YOU itemize the rights. That's how this shit works.
Or you can just tell the truth and admit your comment was bullshit. I won't hold my breath.
Oh how hilarious. I literally laughed out loud. Thanks for that one.
OK fine. There are none. Which is what I said before. So your itemized list looks like this:
And now you're arguing against yourself. Well done.
And we're back here again.
You're doing that bullshit where you desperately want to fight but have zero interest in doing the work required to make any kind of rational statement, so you raise any one of a dozen moronic objections like some 12 year old who ends it all with "so there".
I would encourage you to say something intelligent that you've actually put some intellectual effort and maybe even research into...but to borrow a phrase...."I won't hold my breath".
Now, as you clearly don't need me to help you chase your own tail, I'm going to take Mark Twain's advice.
I'd laugh if your comment wasn't so sadly obtuse.
If you are a citizen of the United States of America, you have rights Jack.
You said that you had NONE.
Which of the rights, enumerated in the Constitution, are you [men] being denied.
Please confine your reply to a rational and intelligent statement.
Silence ensues, just as I expected...
Well, if Roe is just simply gone...................One thing for sure, at least here in the US, no woman will have the right or power to tell a man to, "Take his seed and shove it."
Why wouldn't they?
I think it would hurt the Republican Party
I also think improved birth control would rapidly come about as would an improved abortion pill
Many GOPERS wish to outlaw both. Barrett, Alito and maybe Kavanaugh. Not to mention many GOP state legislatures are moving in that direction.
Trumpublicans are always bitching about how bad society is. Then they go and do things to make it even worse. If they were really serious about ridding the world of abortion, how about working to create a society in which abortion is not needed?
They say they want a more godly society, then go about creating laws based on the old testament.
I've said this before and I suppose I will have to continue to say this to my end:
Prohibition never stopped a thing, it only punishes a thing.
'godly society'. ? ? Nah. Just cash in the cubby holes behind the toilets in the ( MEGA/MAGA churches ).
I get the feeling your SCOTUS is determined to put American women where they think they belong....
What's next?
And if American women are going to allow this subjugation to happen without starting a revolution, I sure will be so much luckier that I married a Chinese woman rather than an American one.
Your first mistake is to assume American women are not behind all this.
LOL. Three NT women agreed with me. I don't see any agreeing with your comment..
And I'm sure those three women on the board speak for all women across America...
I'm sure that those women who didn't agree with Jack_Tx's comment DON'T speak for all women in America, but then I'm not trying my damnest to harass anyone.
" 68 percent of all women do not support overturning Roe vs. Wade . Roe vs. Wade was a U.S. Supreme Court case which established women's constitutional right to have an abortion."
So those three women are clearly in agreement with the vast majority of women in the US.
The vast majority aren't.
Who said anything about majority? That's not how it works.
I'm reading these comments and scratching my head at how ...in 2021.... I have to explain the difference between popular opinion and political influence.
Am I also going to need to explain how women don't need to hold an actual office to control what it does?
Sure. Since you doubled down and went from stating that women were 'behind it' to women 'control' it. I'd love to hear that argument Jack.
Because if women controlled the Congress, I posit that the VAWA would NOT have been allowed to expire. That happened even though 25% of the Senate was female at the time.
I’m concerned about the grounds that would support overturning Roe/Casey.
Initially, Roe was largely about the right to privacy the Court found in Griswold v Connecticut. Will today’s Court say that there is no right to privacy? That would devastate American society in all sorts of ways.
Council for Mississippi argued that this was a Tenth Amendment issue and the states should manage abortion. The Court can say this, but will it also undo the declaration (made multiple times in the Row opinion) that a woman has a right to end her own pregnancy? Based on what new information? And if so, then it may be that no exceptions will apply, even though something like 80%+ of the American people favor exceptions for rape, incest or the life of the mother.
Would they overturn the viability standard set in Casey that is based on 9 centuries of common law? If so, then we logically could set the time limit on abortion to 5 minutes past conception.
Viability has only been the standard since 1992. Roe didn't establish a viability standard and neither did the "common law" (whose actual history is much more complicated than the simple version that was dishonestly crammed into Roe). Even under the most abortion friendly interpretation of "quickening" it criminalized abortion weeks or months before viability. I've never seen viability referenced in a common law abortion case.
Viability is just an arbitrary point of the development process. There no historical basis for it, and certainly wasn't consisted relevant when the 14th Amendment was passed, the supposed source of the Constitutional right.
Common Law and the Criminalization of Abortion
Abortion was not always a crime. During the eighteenth and early nineteenth centuries, abortion of early pregnancy was legal under common law. [ 22 ] Abortions were illegal only after "quickening," the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy).
Common Law and the Criminalization of Abortion
I would suggest you read the following:
Why the 14th Amendment Does Not Prohibit Abortion The argument made by Finnis, George, Hammer and others, that abortion is unconstitutional is not supported by text or history.
Exactly what I said. Quickening is not viability. Viability was never the standard at common law. Viability was the arbitrary dividing line chosen by the Court in 1992.
I would suggest you read what I wrote again. I did not claim the 14h Amendment prohibits abortion.
I didn’t say it was the exact same thing - just that it was based on it. The point is there was an arguable basis for the standard.
The current American standard is (I’m pretty sure) about the most liberal in the world. Most countries that allow abortion set a limit somewhere between 10 and 15 weeks. I think it could easily be argued that the 15 week standard is closer to that quickening precedent and therefore would have some basis in the law. On the other hand, something like quickening is perhaps more subjective than something like viability.
I don’t know what the right answer is, but I care how we get there. The worst thing would be to make it totally arbitrary.
I was pointing out they are two distinct waypoints of human development. The Supreme Court chose viability instead of the quickening standard, which would have prohibited abortions at least a month before a viability standard.
he worst thing would be to make it totally arbitrary
It already is totally arbitrary as moving the supposed cut off point from "quickening" to viability demonstrates. Any point of development is arbitrary, whether it's heartbeat or brain activity, movement, viability, or when the baby leaves the hospital as Senator Boxer believes.
Really though, none of those are entirely arbitrary. They are all at least reasons to settle on a certain deadline. It all depends on when you think the developing embryo/fetus/whatever is a person with value and rights worthy of defense from the government. I don’t honestly know how to make that determination.
Just making it 15 weeks without a reason at all strikes me as genuinely arbitrary.
Viability is a scientifically derived time frame utilized by the court. There was nothing arbitrary about it. The initial Roe decision utilized the trimester framework, which seemed more arbitrary.
I don't think you know what arbitrary means. The Court could just as easily have used any other standard. There nothing in the Constitution that points to "viability" as the legal standard,. The Court could have used as any other "scientifically derived "(LOL) time frame with just as much legal justification. As the shift from the common law to Roe to Casey conclusively demonstrates, it's just judges exercising their personal opinion as to what the standard should be. Pretending its anything more than that is just an attempt to hide form reality and give yourself false comfort. It's just lawyers making choices based on their personal beliefs
The court used two standards. The trimester framework was the first standard. In a subsequent case, it wisely used the scientific standard of viability.
The court used two standards. The trimester framework was the first standard. In a subsequent case, it wisely used the scientific standard of viability.
No shit. And it could add a third. It could just as easily choose one of the waypoints I listed above, or decide that since the there is no right to an abortion to be found in the Constitution it will go back to the position it held for almost 200 years and decide there is no Constitutional standard for abortion regulation.
As I said, and will repeat, viability has only been the legal standard since 1992.
Mere speculation.
Yes, and? What's your point? Viability is a reasonable standard and has remained relatively unchanged since.
Therein lies the rub. Those countries came to a consensus and set a country wide standard. The vast majority of them allow abortion after 10-15 for various reasons.
Overturning Roe would cause women in the US to be treated differently depending on which state they are standing in.
As far as I know, there has not been a case that specifically goes to amending the viability standards in Casey. The attacks all have an ultimate goal of criminalizing abortion in all cases.
Actually, you can take that one step further - if they can POTENTIALLY be pregnant. If there is the slightest chance they are pregnant drinking, smoking, even enjoying a piece of pie should be avoided. So any fertile woman that has sex should not be allowed to drink, smoke, overeat or many other "dangerous" activities that may cause harm to the "baby".
Second class is not right - steerage is more like it.
A point about rights of a Citizen I have not seen raised is; a fetus is not a citizen
dogs aren’t citizens either. No one disputes the state can protect them from slaughter
I have not seen laws about protecting dog fetus.
Years ago I took one of my Dobermans to vet because she seemed sick, vet said you dog is pregnant, do you want her to have puppies?