May 17, 2019

Abortion Ban in Alabama

“Alabama’s governor signed a bill on Wednesday to ban nearly all abortionsin the state, even in cases of rape and incest.” Reuters

Last week, Georgia banned abortion after a ‘fetal heartbeat’ is detected at around six weeks. The Flip Side

See past issues

From the Left

The left worries about the consequences if the Supreme Court overturns abortion rights.

Showing just how far to the right the anti-abortion movement has pushed the ‘center’ of the abortion debate, it was the bill’s rape and incest exceptions, since removed, that dominated the conversation in the Alabama Senate. It seemed forgone that the state would ban abortions for a vast majority of the women there. Lawmakers supporting abortion rights were left arguing to preserve the rape and incest exceptions.”
Editorial Board, New York Times

“Many recent bills ban abortion after 6 weeks - before most women are even aware they are pregnant  — and Alabama’s law constitutes an outright ban at any stage. But women will always seek out a way to end an unwanted pregnancy  — the question is whether they can do so safely. In countries with extreme laws like those passed in Georgia, Ohio and now Alabama, women suffer and die. Georgia, for example, has the highest maternal mortality rate in the nation and you can expect those numbers to increase under a law that creates criminal suspicion around every miscarriage.”
Jon O’Brien, The Hill

One Alabama Doctor reflects on a recent case: “She was 22 weeks pregnant and had a condition called preeclampsia, which is when high blood pressure puts the health of the mother and baby at risk and can result in death. The only option in that situation was to immediately deliver. The patient understood the high stakes and instead decided to end her pregnancy. But it took time (which we did not have) to convince the hospital and other physicians that this was the correct course of action because of the already hostile climate for abortion…

“I fear what could happen to women in this situation if the [new] law and its criminal penalties go into effect.Physicians will hesitate in how to care for complex health situations… doctors like me will leave Alabama rather than stay and practice substandard medicine… Alabamans deserve better. We all do.”
Yashica Robinson, CNN

“Across the nation as a whole, just 17 percent of Americans say [Roe v. Wade] should be overturned entirely, and this reality is reflected at the state level: In 2008, voters in the solidly-Republican state of South Dakota overwhelmingly rejected a statewide ban on abortion — and repeated the feat two years later, even after exceptions for incest and rape were added to the proposed law. In 2011, Mississippi voters rejected a similar referendum by an even larger margin. Back in my home state of Kansas, the state Supreme Court last month ruled — shockingly — that the state constitution protects the right to an abortion.”
Joel Mathis, The Week

Counterpoint: “Depending on how you ask about abortion rights, Americans are either overwhelmingly in favor of them or they are split down the middle… A Pew Research Center poll from late last year found that 58% of Americans say abortion should be always or mostly legal, compared with 37% who say it should be always or mostly illegal. This mostly lines up with 2018 Gallup polling that discovered that 60% of Americans think first trimester abortions should generally be legal… [At the same time] when Gallup asked Americans about whether a first trimester abortion should be allowed for ‘any reason,’ support dropped from 60% to 45%…How the question is phrased definitely matters.”
Harry Enten, CNN

Some note that “both the Alabama and Georgia measures rely on the concept of ‘natural law’— unchanging moral principles that have supposedly existed since before the Constitution — to support the idea that a fetus is a person. But these kinds of arguments don’t have a record of judicial success. Natural law-based arguments for fetal personhood were pursued by anti-abortion scholars and jurists for much of the 1960s and 1970s to little avail… neither judges nor many other conservative lawyers, it seems, felt fully comfortable with recognizing rights not detailed in the text or history of the Constitution… Roe is likely to be reversed. But asking the court for too much too soon has backfired before, and it could well again.”
Mary Ziegler, New York Times

Others point out that “the supreme court has taken a relatively lax attitude toward respecting long-standing precedents, including overturning a 40-year-old precedent just this week. And if anti-abortion activists fail this time, they can always try again. If Ruth Bader Ginsburg, who is 86, decides to step down or if Trump wins a second term, all bets are off. The only thing that’s certain is that the future of Roe is uncertain at best.”
B Jessie Hill, The Guardian

From the Right

The right supports the goals behind the law, but worries that it may be counterproductive.

The right supports the goals behind the law, but worries that it may be counterproductive.

“Federal courts, following existing Supreme Court precedent, will certainly strike down the laws in Georgia and Alabama. But the Supreme Court should not continue to hold that state laws regulating abortion are unconstitutional, for the two simple reasons identified by Justice Scalia in his Casey dissent: (1) the Constitution says nothing about protecting a right to abortion and (2) American society had long permitted states to ban or otherwise regulate it…

“[However] the abolitionist zeal on display in Alabama in particular runs the risk of making the ultimate extinction of abortion less likely… Nationwide, more than 75 percent of Americans think abortion should be legal early in pregnancy when the pregnancy was the result of rape. Public opinion cannot be ignored in a democratic republic, and it would be a grave error to insist that no lives should be saved until all lives can be saved.”
The Editors, National Review

“The Alabama bill creates a situation that allows pro-abortion advocates to concentrate their pushback on the approximately 0.5 percent of procedures [involving rape and incest] rather than the 99.5 percent. In turn, pro-lifers, now accused of protecting slack-jawed incestuous child rapists, are impelled to make the most challenging arguments about the rarest cases rather than make the most convincing arguments about the most common [elective] ones… While incrementalism might not come naturally to conservatives, especially in this era, it’s worth remembering that, in the end, the way to win the fight is to convince Americans that abortion is morally repugnant.”
David Harsanyi, The Federalist

“Why would a red state pass a maximalist abortion bill, knowing how leery John Roberts has proved himself to be of overturning paradigm-shifting liberal initiatives? He had the votes to blow up ObamaCare in 2012 and he switched sides, seemingly fearing that a party-line vote in the Supreme Court would wreck what’s left of the Court’s institutional legitimacy as a neutral arbiter that stands above politics. Overturning Roe would be several orders of magnitude more earthshaking than overturning ObamaCare would have been… John Roberts is not going to risk the legacy of ‘The Roberts Court’ to save a bill like that. It’s ludicrous that any legislator in Alabama thinks he might.”
Allahpundit, Hot Air

“Grandstanding, such as the Alabama bill that would forbid rape victims from obtaining abortions at any point but its own authors admit will never go into effect, greatly harms the pro-life movement's chances of succeeding. Instead pro-life proponents ought to make two good faith concessions to demonstrate that the pro-life cause isn't about the control of women's bodies, but rather solely about the protection of the unborn…

“First is contraception deregulation. This includes making hormonal birth control available over the counter or directly from a pharmacist… Next, pro-life proponents should… divert [federal funding] from facilities providing abortions and double it to other Title X non-abortion-providing Title X facilities. Enacted under President Nixon, Title X is a family planning program. It provides services such as Pap smears and HPV vaccines that can prevent cancer, plus STI testing that can prevent infertility, HIV testing that can prevent death, and birth control that can, obviously, prevent pregnancy.”
Tiana Lowe, Washington Examiner

“A healthy pro-life community will step up and move beyond restrictions on abortion towards greater social and community support for mothers with nowhere to turn… Pro-lifers must be willing to fight for adoption reform across the states… We must also work to improve the social safety net to help women… We need to make it easier for mothers to get care they need. We need to make it easier for them to collect from deadbeat dads. Frankly, we also need to make it easier for deadbeat dads to find jobs to help pay for support.”
Erick Erickson, The Resurgent

“Alabamans believe by a 58% to 37% margin that abortion should be illegal in most or all cases, according to a 2014 Pew poll. That obviously isn’t just men. The most recent nationwide poll found majority support among both men and women for bills barring abortion after the baby’s heartbeat is detectable, with no statistically significant difference between the sexes’ views. The bill was drafted and introduced by Rep. Terri Collins, a female lawmaker. It was signed into law by Gov. Kay Ivey, a woman. It mirrors the policy preferences of most Alabama women.”
Editorial Board, Washington Examiner

A libertarian's take

“No legal case has done more than Roe to define how the left sees the Supreme Court: not as a somewhat boring final arbiter of words recorded in law books, but as the oracle that tells us what rights the Constitution ought to guarantee… That view of constitutional interpretation works precisely as long as you happen to agree with the judicial interpreters. When the other side of the political spectrum gets wise and starts stocking the courts with judges who share their opinions — Catastrophe! Ruination! Citizens United!...

“Which makes this a good time for the left to step back and ask whether it was ever a good idea to urge such sweeping powers on unelected judges. The benefit of going the judicial route is that you can occasionally achieve outcomes you could never obtain through legislatures… The problem with going the judicial route is that it short-circuits public debate and forces the opposition to take radical action — like, say, a decades-long project to fill the courts with right-leaning judges — to amend that ‘settled law.’”
Megan McArdle, Washington Post

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