Rachel Maddow had Dahlia Lithwick on to talk about the Republican war against women, the Virginia bill in particular, referencing the Texas ultrasound law and failed challenge on free speech grounds (forced script). She noted that the physicians were the focus of that challenge, reflecting my sentiment that these things should be challenged on various grounds, not just abortion rights directly.
But, what about the non-abortion liberty ground of the transvaginal invasion? Anti-abortion 5th Cir. judge? Things might be different in another circuit. As I said at some point, Casey not only opened the way for more regulations by loosing the standard of review, but more chance of split votes in the lower courts. O'Connor friendly balancing tests do that sort of thing. She was off the Court when they decided the second "partial birth" abortion case, the first one a state law struck down 5-4 in part because of the lack of a "health" exception. Kennedy dissented. Alito, who dissented as an appellate judge regarding the one provision in Casey (spousal notification) that was struck down, switched things 5-4 the other way.
As with Judge Jones' anti-abortion vote in the Fifth Circuit (I linked her desire years back to actually bring back the actual Roe case), this underlines how the membership of the courts matter. This is a major reason why the Republicans are doing so much, even when the ultimate vote is ridiculously not close, to delay nominations. More neutral matters such as many more federal judges taking senior status doesn't help with the vacancies. As DL noted, Kennedy's opinion did not trust women, opening the way up to these ultrasound laws. The opinion notes:
The irony here is that (as the dissent notes but DL did not) full disclosure was not the path chosen there. The case was not one debating the need to supply a biased informed consent script. It was about a particular procedure, which during the oral arguments of one of the cases it was noted choices regarding it had a moral significance to the woman, different women having different beliefs. No, the path chosen was to remove the choice, according to health experts the most safe for certain patients, away from them. This mentality only furthers the idea that you cannot trust women, so force them to have ultrasounds, even those that require putting probes into their vaginas. The latter is one better than the script challenged unsuccessfully in Texas, but the mentality leaves us open to it.
Rachel raised the question of how this was "small government," but come on. Let's be serious. These are conservatives. We know this; let's not pretend to be surprised. Conservatives, yes even to some extend the anti-abortion, gay rights etc. Ron Paul (big libertarian thinks Lawrence v. Texas is wrongly decided) are all for government intrusion into personal moral choices when it is for our own good. There are some Republicans, though more and more the best place to find them is in the state legislatures, who understand the folly of this path. That though some balance might be warranted (one I might disagree with but respect), bottom line, some things are private. As Justice Stevens noted in his concurring opinion in Casey, dissenting on even the more limited opening there (waiting period/mandatory biased counseling) the state "must respect the individual's freedom to make such judgments."
Economic trauma should not be an opening for this sort of thing.
But, what about the non-abortion liberty ground of the transvaginal invasion? Anti-abortion 5th Cir. judge? Things might be different in another circuit. As I said at some point, Casey not only opened the way for more regulations by loosing the standard of review, but more chance of split votes in the lower courts. O'Connor friendly balancing tests do that sort of thing. She was off the Court when they decided the second "partial birth" abortion case, the first one a state law struck down 5-4 in part because of the lack of a "health" exception. Kennedy dissented. Alito, who dissented as an appellate judge regarding the one provision in Casey (spousal notification) that was struck down, switched things 5-4 the other way.
As with Judge Jones' anti-abortion vote in the Fifth Circuit (I linked her desire years back to actually bring back the actual Roe case), this underlines how the membership of the courts matter. This is a major reason why the Republicans are doing so much, even when the ultimate vote is ridiculously not close, to delay nominations. More neutral matters such as many more federal judges taking senior status doesn't help with the vacancies. As DL noted, Kennedy's opinion did not trust women, opening the way up to these ultrasound laws. The opinion notes:
Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g., Nat. Abortion Federation, 330 F. Supp. 2d, at 466, n. 22 (“Most of [the plaintiffs’] experts acknowledged that they do not describe to their patients what [the D&E and intact D&E] procedures entail in clear and precise terms”); see also id., at 479. It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State.The interesting thing is that this "decision so fraught with emotional consequence" does not seem to warrant full disclosure in respect to the problems of having a child and raising one without full knowledge of all the risks and responsibilities. We also do not require people before getting married to get marital counseling or listen to the numbers regarding divorce rates. When various other key moments, including involving health and life, is involved, we do not force, against the will of the participants, them to have "clear and precise" knowledge of the intimate details of what will occur. This is not just a matter of availability and full disclosure, but selective disclosure and freedom of choice.
The irony here is that (as the dissent notes but DL did not) full disclosure was not the path chosen there. The case was not one debating the need to supply a biased informed consent script. It was about a particular procedure, which during the oral arguments of one of the cases it was noted choices regarding it had a moral significance to the woman, different women having different beliefs. No, the path chosen was to remove the choice, according to health experts the most safe for certain patients, away from them. This mentality only furthers the idea that you cannot trust women, so force them to have ultrasounds, even those that require putting probes into their vaginas. The latter is one better than the script challenged unsuccessfully in Texas, but the mentality leaves us open to it.
Rachel raised the question of how this was "small government," but come on. Let's be serious. These are conservatives. We know this; let's not pretend to be surprised. Conservatives, yes even to some extend the anti-abortion, gay rights etc. Ron Paul (big libertarian thinks Lawrence v. Texas is wrongly decided) are all for government intrusion into personal moral choices when it is for our own good. There are some Republicans, though more and more the best place to find them is in the state legislatures, who understand the folly of this path. That though some balance might be warranted (one I might disagree with but respect), bottom line, some things are private. As Justice Stevens noted in his concurring opinion in Casey, dissenting on even the more limited opening there (waiting period/mandatory biased counseling) the state "must respect the individual's freedom to make such judgments."
Economic trauma should not be an opening for this sort of thing.