Some Abortion Legal News

“To be clear, then,” Kavanaugh wrote in his concurring opinion, “the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process. Through that democratic process, the people and their representatives may decide to allow or limit abortion.”

A commentary by a Supreme Court reporter notes, however, that the matter is being decided by judges. She talks about a federal judge's apparent openness (even though as a former Scalia clerk notes, the argument is specious) to outlaw the widely used abortion drug mifepristone.  

The Dobbs dissent noted (again quoting the article):

“(T)he majority’s ruling today invites a host of questions about interstate conflicts,” they said. “Can a State bar women from traveling to another State to obtain an abortion? Can a State prohibit advertising out-of-state abortions or helping women get to out-of-state providers? Can a State interfere with the mailing of drugs used for medication abortions? The Constitution protects travel and speech and interstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming ‘interjurisdictional abortion wars.’”

The Vox author found an interesting federal appeals case from 1915, which said a "reasonable" application of the Comstock Act was to leave open advertising of abortions necessary for saving a woman's life.  We even have this letter cited:

Dr. T. Robinson Bours, 403-404 Merrill Bldg., Milwaukee, Wis. — My Dear Doctor: I am at a loss as to begin to tell you my troubles. I am about worried to death of the recent discovery of the condition of my only daughter. The dear girl has had the misfortune to repose to implicated confidence of a man who took advantage of her innocence and tried to ruin her, and now that she is in a family way the hound has deserted her. We are willing to make any sacrifice to preserve her good name and reputation. Will you take the girl and relieve her of her disgrace so she can once more face the world. How long would she have to remain there before it would be safe to’ move her? And what would the cost of the operation be, as well as all other charges? Please answer soon.

The doctor carefully responded that he would have to examine the girl first to see what medical procedure was appropriate.  The fact that the laws and constitutions in place provide a "life" or "health" exception to abortion bans is already arising in state litigation.  Kavanaugh might find this acceptable, but it still is not quite the same as "democracy" in its pure form.  

(I'm fine as a general rule to let states have wide discretion. I think the Supreme Court micromanages too much at times. But, there are basic national rights.  The right to choose an abortion is one such right.  Melissa Murray and Kate Shaw have an article pending on the dubious appeal to "democracy.")

One such life/health exception case arose in North Dakota, which also had some interesting material on "originalism" and so forth. The Supreme Court defined "health" broadly once upon a time (see the Roe v. Wade companion case, Doe v. Bolton), and it might be rightly said that the definition would cover basically all abortions likely to arise. This might bother some people but we follow that rule for a range of medical procedures.

The North Dakota decision is probably not applying the rules that broadly.  Nonetheless, as seen in a case just brought in Texas, it still does not cover merely trivial ground.  If something like 800K abortions occur a year, something like the ballpark I saw recently, many will involve people with special conditions that in some fashion can fall into that category.  

I caught an interesting bit in the ruling that underlines the "it's obviously abortion, you phony hypocrite" talk about the recent Duggar matter that should be carefully handled.  The opinion noted that among other things "abortion" is not an act to "remove a dead, unborn child who died as a result of a spontaneous miscarriage, an accidental trauma."  It sounds like from the coverage that Duggar's procedure involved the removal of an already dead fetus. The use of "unborn child" is notable too.  

The abortion drug decision is pending. 

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Vice President Kamala Harris was on Colbert this week. She was her usual cheery self at times.  She also included a statement supporting abortion rights.  She noted that some proposed laws had no exceptions for rape or incest.  She has regularly been the face of the Biden Administration on this issue, including this statement at a recent event:

Let them make that decision if they choose with their priest, with their pastor, with their rabbi, with whomever.  But the government should not be telling her what to do with her own body.

At times, you see reports of whispering that people have issues with how Harris is running the show.  I don't know if there is even a germ of truth in that.  I do know the Democrats have had a much better run with vice presidents even back in the 1950s.  I grant Ford (and his v.p.) were okay as was Bush.  

Still, a lot of tools from Nixon on.