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The Future of the Supreme Court (Page 16)
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subego  (op)
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Dec 6, 2021, 12:02 PM
 
Originally Posted by Laminar View Post
I mean, it probably couldn't have gone lower, so...
I was pretty much tied at the bottom with fainting kid until he fainted.

We were both fat and “sensitive” (I was fatter). I was annoying, but he came off as actually weird. In hindsight? On the spectrum.
( Last edited by subego; Dec 6, 2021 at 12:17 PM. )
     
OreoCookie
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Dec 6, 2021, 08:04 PM
 
Originally Posted by subego View Post
Do you have data on this, or is it an assumption?
I think this is pretty obvious that this is supposed to scare most doctors into compliance and to err on the side of not providing abortions. Just look at the number of clinics providing abortions in those states: have they gone up or gone down?
Originally Posted by subego View Post
My own assumption is since we can find only two examples of death due to a refusal to abort in the entire first world in recent history, doctors have been willing to take the risk.
When did anyone here claim that “… we can find only two examples of death” or that “doctors have been willing to take the risk”? You are jumping to conclusions here. These were two recent prominent examples in first-world countries directly tied to changes in abortion law (Poland adopted a much stricter one while it led to the legalization of abortion in Ireland with broad public support). Do you want me to google for other examples? I could do that, but so could you. These were just examples that came to my mind while writing, because they were crystallization points for constitutional change in Ireland and the protests in Poland.
Originally Posted by subego View Post
This is currently illegal per Hellerstedt, but before that, access to abortion providers was defined by Casey as being within 150 miles.

This was Alito’s beef with the Hellerstedt decision. He argued the restrictions put in place by the Texas law would only place about 5% of the state outside of 150 miles from a provider, and as such, the law should be tailored to fix that rather than be entirely overturned.
I think you get lost in arbitrary details here. Many states are down to a few, sometimes a single provider of legal abortions. Other clinics had to close because of onerous restrictions that were not grounded in any medical reason.
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subego  (op)
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Dec 7, 2021, 03:24 PM
 
I’m still working up a reply, but I came across the ectopic pregnancy law. FWIW, it demands a reimplant “if applicable”. So it’s not really a demand to perform a procedure which doesn’t exist, but a demand to perform it once it does.

Edit: to be clear, I’m not claiming it’s a good law, just that it’s somewhat less batshit than it appears on the surface (i.e., the legislators who wrote it were likely aware it is currently impossible to reimplant an ectopic pregnancy, and the law doesn’t attempt to claim otherwise).
( Last edited by subego; Dec 7, 2021 at 03:47 PM. )
     
subego  (op)
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Dec 7, 2021, 09:58 PM
 
Originally Posted by OreoCookie View Post
When did anyone here claim that “… we can find only two examples of death” or that “doctors have been willing to take the risk”? You are jumping to conclusions here. These were two recent prominent examples in first-world countries directly tied to changes in abortion law (Poland adopted a much stricter one while it led to the legalization of abortion in Ireland with broad public support). Do you want me to google for other examples? I could do that, but so could you. These were just examples that came to my mind while writing, because they were crystallization points for constitutional change in Ireland and the protests in Poland.
I wasn’t saying anyone claimed it. I’m making the assumption death due to refusing an abortion makes the news, and since the Ireland example is almost a decade old (which I wouldn’t call recent), that it must not be happening that often. If it’s not happening that often, it means doctors aren’t afraid to give abortions when the life of the mother is at risk. If they were afraid, there’d be more deaths.

I Googled “death due to abortion refusal” and get the Ireland example, the Poland example, and we can add one from the Dominican Republic, which isn’t first world (I qualified my comment with “in the entire first world”).

Should I use a different search term?


Edit: legalization of abortion in Ireland was not due to a mother’s death IIUC.

Edit 2: missed one in El Salvador.
( Last edited by subego; Dec 7, 2021 at 10:23 PM. )
     
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Dec 7, 2021, 10:26 PM
 
Originally Posted by subego View Post
[…] and since the Ireland example is almost a decade old (which I wouldn’t call recent), that it must not be happening that often.
Why would you make that assumption? How many cases occur? How many of them end up in the news? Usually these stories are very tragic and the family often doesn't want any publicity.

And reality is more complicated than that. What about complications or death from illegal abortions? How many women or family will go to the press and e. g. admit they committed a crime? I think most men underestimate how traumatizing abortions can be, and not necessarily because of the procedure, but because they often have to make that decision alone. E. g. if you are in the EU (e. g. Poland or Ireland), you could go to another EU country for an abortion.
Originally Posted by subego View Post
I’m still working up a reply, but I came across the ectopic pregnancy law. FWIW, it demands a reimplant “if applicable”. So it’s not really a demand to perform a procedure which doesn’t exist, but a demand to perform it once it does.

Edit: to be clear, I’m not claiming it’s a good law, just that it’s somewhat less batshit than it appears on the surface (i.e., the legislators who wrote it were likely aware it is currently impossible to reimplant an ectopic pregnancy, and the law doesn’t attempt to claim otherwise).
If they are aware, why do they make it into a law? It is either just grandstanding that can cause a lot of suffering. (Like I said, ectopic pregnancies come with all sorts of risks, and even pro-life doctors's organizations recognize that this is one case where a pregnancy just isn't viable. If complications occur, it might have negative impact on a woman's fertility, if it is recognized too late, it could be life threatening.) I hadn't even considered that an abortion to be honest until I heard of such laws being proposed.

Lastly, I expect that similar laws will be proposed and perhaps enacted in other states, not least because a lot of Republican politics is more for show and less about substance.
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subego  (op)
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Dec 7, 2021, 10:42 PM
 
Originally Posted by OreoCookie View Post
If they are aware, why do they make it into a law?
So they don’t have to rewrite the law when it becomes feasible.

A 12 minute video is asking a lot of me (I really hate it as a medium for this kind of thing), but I’m totally willing to do legwork to find a text version of the argument. I should look for something along the lines of “ectopic re-implantation” and stuff like “strategy” and “diversion”?

PS You don't need to watch the video. It was just how I found out about the proposed law a few months ago (the video is two years old).
( Last edited by OreoCookie; Dec 7, 2021 at 11:21 PM. )
     
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Dec 7, 2021, 11:20 PM
 
Originally Posted by subego View Post
So they don’t have to rewrite the law when it becomes feasible.
Why would this would be necessary. If reimplantation of ectopic pregnancies were to become possible, it would be covered under existing statutes, wouldn't it?

The only reason as far as I can see is to make a political statement.
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subego  (op)
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Dec 7, 2021, 11:26 PM
 
Originally Posted by OreoCookie View Post
Why would you make that assumption? How many cases occur? How many of them end up in the news? Usually these stories are very tragic and the family often doesn't want any publicity.
The scenario we’re talking about is a doctor refusing treatment to a patient and they die.

Your claim is this happens often, but we just don’t hear about it?
     
subego  (op)
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Dec 7, 2021, 11:28 PM
 
I’m assuming you didn’t intend to edit my post.
     
subego  (op)
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Dec 7, 2021, 11:47 PM
 
Originally Posted by OreoCookie View Post
If reimplantation of ectopic pregnancies were to become possible, it would be covered under existing statutes, wouldn't it?
Legally speaking, that’s the whole point. There’s not a question now. It’s been set out explicitly. Whether it’s covered under existing statutes is open to interpretation, and this isn’t.

To be clear, it could also be a political statement. I think it’s fair to assume it is. It’s a fairly empty one. The parts of the bill which actually could be enforced in present day are more important, because IIUC it’s the old Ireland law, where doctors get life. Right now, the law is massively unconstitutional. Less so if Roe and Casey get flipped.

As an aside, this law is buried in a 700+ page bill, which is super-annoying. It also seemed to have passed unanimously in the Ohio House.
     
subego  (op)
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Dec 8, 2021, 12:10 AM
 
Originally Posted by OreoCookie View Post
What about complications or death from illegal abortions?
Under the Mississippi law, if there’s no health issue with the mother, and no severe fetal abnormality, the only reason someone would need to get an illegal abortion is if they wanted one after 15 weeks.

Isn’t this enough time to get a legal one?
     
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Dec 8, 2021, 01:49 AM
 
@subego
I'm having trouble following your train of thought, you seem to be jumping from topic to topic. That makes a substantive discussion quite difficult.
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subego  (op)
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Dec 8, 2021, 01:03 PM
 
I’ll narrow it down to one topic: how many women in the first world die due to being refused an abortion?

I noted the two you mentioned were the only ones I’d heard of.

You told me Google it, which I did, only those two show up.

This is somehow no longer good enough, and you claim it’s not showing up in Google because people keep their tragedies private.

I reply with:

Originally Posted by subego View Post
The scenario we’re talking about is a doctor refusing treatment to a patient and they die.

Your claim is this happens often, but we just don’t hear about it?
I would like you to answer this question. You claim this happens often, doctors killing their patient by refusing treatment, but we just don’t hear about it?
     
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Dec 8, 2021, 09:53 PM
 
Originally Posted by subego View Post
I’ll narrow it down to one topic: how many women in the first world die due to being refused an abortion?
I have the feeling that strays too far from the original topic. Further, I think it’ll lead to a discussion where the two of us would spend a lot of time speculating and googling. I think you will have a hard time finding hard data on this, because of e. g. privacy regulations like HIPAA, the abortions being performed in other jurisdictions and not having reliable statistics on illegal abortions.

All I can say is that all female Mexican friends I have had over the years have had a story about abortion. And one of the first things I was told when coming to Chile (priori to Chile legalizing some abortions) that I should make sure to use condoms, because otherwise I’d have to buy plane tickets to Argentina (where abortions were and are legal). (I found this quite weird, because I am not a guy who sleeps around, just not my personality.)
Originally Posted by subego View Post
I would like you to answer this question. You claim this happens often, doctors killing their patient by refusing treatment, but we just don’t hear about it?
First of all, I did not claim death happens very often, just that you should not infer any statistics from you not being able to find any other victims easily. Further, not all of this needs to lead to death. Having an abortion performed by a backalley doctor is quite traumatizing and very unsafe (my Mexican ex gf told me a story where she accompanied a friend who had an abortion performed). The impact is felt disproportionately by poorer people, because women with means can go to a place where they have a safe, legal abortion. Polish women can travel to the Netherlands or Germany, for example. Since I am decidedly middle class (and I’d assume you are, too), I don’t have much intersection with these people, and I wouldn’t want to speculate on how often that happens. In addition, we need to keep in mind that abortions and other terminations of pregnancies (e. g. ectopic pregnancies like my mom had or miscarriages) are not a topic that women open up very easily about — even amongst close friends. A substantial share of women have had a pregnancy terminated early for one reason or another (if you believe this page, 24 % of all women will experience that in their life times).

Given the title of the thread, I’d propose we get closer to the topic at hand, the current Supreme Court case and what it might mean for current precedent.
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subego  (op)
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Dec 9, 2021, 03:55 AM
 
All my avenues of inquiry relate to the topic at hand, which is the Mississippi law the under review by the Supreme Court.

This law allows an abortion for any reason up to 15 weeks.

Ectopic pregnancies aren’t relevant, because those are treated before 15 weeks.

Illegal abortions aren’t relevant, because this law allows for safe and legal abortions up to the point where it’s a bad idea to have an abortion without some medical reason.

What is relevant is whether the “health of the mother” clause and such gives doctors enough latitude they don’t end up injuring or killing their patients. Whether these clauses do will wholly depend on how they’re enforced. In the case of the Mississippi law, the enforcement body is the state medical board. If they can’t enforce it without killing pregnant women, the problem isn’t the law. Though I’m not familiar with the punishments, a whole slew of countries in Europe have “heath of the mother” clauses in law because they have a cutoff just like Mississippi, except it’s at 12 weeks. Are they killing pregnant women, too?

As abortion laws go, is it possible this one is actually somewhat reasonable?

This is in contrast to, say, the laws in Mexico, which lead to everything you mention.
     
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Dec 9, 2021, 06:59 AM
 
I think in the present context, most of the details of the Mississippi law are quite immaterial, because the law was designed to clearly and directly violate precedent (chiefly Roe vs. Wade and Casey). It was different from other laws that tried to push clinics that performed abortions out of business by layering on ever more rules and regulations, for instance. And that is also how it is argued before the Supreme Court.

I’m not trying to evade a discussion here, but I try to focus it on what I think matters.
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Dec 10, 2021, 12:06 PM
 
SCOTUS just ruled that the insane Texas abortion law can stand. They also ruled that abortion providers cannot sue those who target them using the citizen-vigilante mechanism of the law.
     
subego  (op)
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Dec 10, 2021, 03:13 PM
 
That makes it sound like they upheld the law, but FWIU, they just didn’t grant an injunction. The DoJ lawsuit is still in play.
     
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Dec 10, 2021, 09:16 PM
 
Originally Posted by subego View Post
That makes it sound like they upheld the law, but FWIU, they just didn’t grant an injunction. The DoJ lawsuit is still in play.
But also that is a conscious decision, just like e. g. the decision to take or decline to hear a particular case, and Supreme Court Judges are well aware of the implications. For example, you can read into SCOTUS’s decision to hear the Mississippi abortion law case: not hearing the case would have meant accepting the decision of the lower courts that it violates current precedent.

The same goes for the insane Texas law. (I don’t call it insane for what it says about abortion, but that it proposes a mechanism to abridge any constitutional right by seemingly putting it out of reach of the courts. I think it is rare for gun rights lobby groups to write an amicus brief in support of abortion providers.)
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subego  (op)
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Dec 11, 2021, 01:05 AM
 
This is the same case which had the emergency stay shadow docketed awhile back.

The same issue still applies. The law says judges can’t be sued to enjoin them from hearing non-existent cases. Grant this injunction, now the law says judges can be sued for it. Granting the injunction means taking responsibility for each and every negative unintended consequence caused by changing the law.

Are these negative unintended consequences too high a cost? Is that an easy question, or is it due more extensive consideration?
     
reader50
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Dec 11, 2021, 01:20 AM
 
As I understand it, the judges are not being sued. I thought court clerks were being sued (as a group), to be forbidden from processing the bounty-suits the statute allows.

Since no executive-branch official can enforce the statute, the enforcement was left to the courts. So if the court processes cannot be sued, then there is no one to legally oppose. While that is certainly the intention of the statute (and the Texas lawyer could not identify any proper person to sue), it is improper.

If this is allowed, then most any law can be redone in such a fashion. So that no one is answerable for it, and no one could be sued to oppose it. Citizen-bounty statutes could be passed for most anything imaginable. Traffic law enforcement perhaps.

But in fact, some government officials *are* enforcing it. The members of the judicial branch: clerks, marshals, judges. At least one of these groups must be sue-able, or we get laws that cannot be challenged. Shall we allow bounty suits of $1 million for a California stop (rolling stop) at stop signs?

The Constitution forbids cruel and unusual punishments that do not fit the crime. But so far as I'm aware, that is on government-meted punishment. I don't think there is such a limit on private lawsuits. Otherwise, all those ridiculous billion-dollar lawsuits would be clipped immediately.
     
subego  (op)
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Dec 11, 2021, 01:30 AM
 
The litigants sued everyone. Judges, clerks, an activist.

They all got thrown out except the medical board people. That’s how the case is still going forward.

AFAIK, the DoJ case is still moving forward, and they can sue the state.
     
subego  (op)
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Dec 11, 2021, 06:33 PM
 
To be clear, I’m not exactly thrilled with the idea the only challenger with unfettered grounds to sue is the DoJ. Would Barr or Sessions have sued?

However, I think we can take solace in that the conservatives on the Court have now twice declared their unwillingness to grant an injunction isn’t related to the constitutionality or lack thereof with the law itself. They’re either telegraphing they don’t approve, or they’re trolling.
     
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Dec 11, 2021, 07:23 PM
 
Even gun rights organizations are concerned. At least one, anyway.
The Firearms Policy Coalition (FPC), a national gun rights organization, filed an amicus brief with the Supreme Court supporting a cert petition for Whole Woman’s Health v. Jackson.
They have much the same concerns that I outlined above. Allowing this kind of "no one to sue" workaround can be used against other established rights.
FPC is interested in this case because the approach used by Texas to avoid pre-enforcement review of its restriction on abortion and its delegation of enforcement to private litigants could just as easily be used by other States to restrict First and Second Amendment rights or, indeed, virtually any settled or debated constitutional right. FPC takes no position on whether abortion should be protected by the Constitution but believes that the judicial review of restrictions on established constitutional rights, especially those protected under this Court’s cases, cannot be circumvented in the manner used by Texas.
Their brief (PDF) 676 KB
From Amicus’s perspective, if pre-enforcement review can be evaded in the context of abortion it can and will be evaded in the context of the right to keep and bear arms. While the political valences of those issues seem to be opposites, the structural circumstances are too similar to ignore. As with Roe and Casey, many States view Heller as wrongly decided. Those States, with the help of many circuit courts, have showed an ongoing refusal to accept the holding in Heller and a continuing creativity in seeking to circumvent any protections for, and to chill the exercise of, Second Amendment rights. It is hardly speculation to suggest that if Texas succeeds in its gambit here, New York, California, New Jersey, and others will not be far behind in adopting equally aggressive gambits to not merely chill but to freeze the right to keep and bear arms.
For the foregoing reasons, this Court should grant the petition for a writ of certiorari.
     
subego  (op)
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Dec 11, 2021, 09:20 PM
 
As everyone has noted, if the conservatives on the Court want to overturn Roe, there’s nothing stopping them. If Roe is overturned, Texas can just ban at-will abortions entirely.

If that’s their plan, how do they benefit by also allowing this current Texas law to stand?
     
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Dec 11, 2021, 10:59 PM
 
Originally Posted by subego View Post
If that’s their plan, how do they benefit by also allowing this current Texas law to stand?
You are right that SB8 would become moot, and would likely be quickly be replaced by other laws. But that doesn’t mean the legal question is moot, and the Supreme Court punting on it could have serious consequences regardless.

Even with Roe vs. Wade overturned, I still think this law is unconstitutional — not because of what it does, but because of its enforcement mechanism. The bit that reader quoted from the amicus brief hits the nail on the head: letting it stand would create a loophole that can be used by other legislatures to curb other constitutional freedoms without the possibility of review. What is worse is that these laws could be “enforced” in a manner not compatible with the constitution. Citizens could focus their attention on minorities and other people who they think “do not fit” into the community.
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subego  (op)
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Dec 11, 2021, 11:30 PM
 
Whether it’s constitutional is distinct from whether the legal framework exists to grant a stay.

If the conservatives on the Court think or want it to be constitutional, they can just say so. Why are they going out of their way to say they’re not doing it? Just so they can go “SIKE”, when it swings back around and they uphold the law?
     
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Dec 12, 2021, 12:01 AM
 
My growing suspicion is the conservatives are just unwilling to issue a ruling that supports abortion. Once they strike down abortion, they'll happily strike down laws like SB8. Striking it down now is favorable to abortions, so ... delay and avoid. Remand to lower courts. Can't issue a ruling that helps abortion providers.

Someone tell me I'm wrong. But this is the only interpretation that seems to fit.
     
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Dec 12, 2021, 03:44 AM
 
I have to agree with reader, it is a simple and cogent explanation.

Conservatives seem to have a complicated relationship with Supreme Court judges that have been appointed by Republican Presidents: when these judges decide “against them”, the judges get criticized harshly and the nomination process has gotten clamped down more and more. I can’t help but feel this must have an effect on judges. And abortion is probably the litmus test for conservative judges. It plus an outsized role in the nomination process.
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subego  (op)
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Dec 12, 2021, 09:39 AM
 
I’m super busy today, so I won’t be able to reply until later, but I wanted to correct what I said earlier about the DoJ lawsuit. I guess that was completely dismissed.

No details other than the cert was “improvidently granted”. It was 8-1 (Sotomayor dissenting), so I imagine it’s legit.
     
subego  (op)
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Dec 13, 2021, 10:21 AM
 
@reader,

This could be correct. If they intend to overturn Roe what’s the point of granting a stay with the Texas law?

If they don’t overturn Roe, then there’s the answer to whether they’re willing to render a decision helping abortion.


@Oreo,

My general feeling is Supreme Court Justices don’t give AF what anyone thinks of their decisions.
     
 
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