1359 Comments

Interesting how those of the lefty persuasion suddenly know what a woman is now.

Expand full comment

No they don’t..... birthing people get abortions 🙄. And bodily autonomy ends where big pharma profits begin

Expand full comment

Just as privacy ends when technocrat profits begin.

Expand full comment

That’s what this leak is and the insanity around it it really about. If your read what Thomas and Gorsuch have written about “privacy,” especially their dissents in the Carpenter case, it is clear that the view the Tech Oligarchy’s entire business model as flying in the face of Property Rights.

Expand full comment

Are they still a "birthing person" if they abort? "Aborting person?"

Expand full comment

I’m not sure....... maybe anyone who has an abortion is automatically identified as a “man” because, per leftist ideology (though not actual reality), to be a “man” is to not want children and to only want casual sex with no “consequences” (aka little humans). That would also mean if an abortion fails, or someone who rejects wanting to be an actual mom ends up having a baby anyway, the left can claim that “men can give birth.” 🤦‍♀️💩😩😂.

Expand full comment

How dare you, NCmom?

Don't you know Florida has a law against elder abuse? Many years ago I was able to give birth. But now that I am an elderly man, I can no longer become pregnant🤰 😥😩

Expand full comment

+10 internets for this post! :)

Expand full comment

Agreed, I couldn't help but laugh when reading it.

Expand full comment

We always did. We recognize that women have the inalienable right to control their own lives that includes the right to abortion without any state interference until the fetus' brain develops the capacity for mind. Until then, the fetus is but an object and so the woman has the absolute right to end her pregnancy.

Expand full comment

There are some who might point out a certain 32-year old, Democrat Congresswoman whose brain has not yet developed the capacity for mind...

Expand full comment

Maturity usually comes with age, however it is not guaranteed. Some people can be mature adults at 14, others can live to be 94 and still be lacking in maturity. What frightens me is that I'm roughly 4 years older than the individual in question...and even 4 years ago, I was more mature, and I am not superhuman in any way.

Expand full comment

Conservatives are the problem.

Expand full comment

Yeah, those damn conservatives, always wanting to conserve human life.

Expand full comment

No, they're not, they just want to control women's sexuality, force them to suffer the consequences of having sex. They do not support full support of single mothers and their kids. Conservatives are not good people.

Expand full comment

Wait now, actions have consequences? Who would have known?

Expand full comment

Well there goes that assumption of good faith arguments.

Expand full comment

Generalize much, so all conservatives adhere to your stereotype of them. Every single conservative is a bad person. And let me guess, every liberal is a great person. Nice argument. I’d say, your opinion on abortion is just that your opinion. Others may have differing opinions. I’d also venture a guess that your a decent person. I happen to be 100% against all abortion, and think myself a decent person. You see me as a bogeyman, I see you as person that believes killing an unborn baby as birth control should be ok, which to me is insane, but I respect your right to that poorly thought out opinion.

Expand full comment

The Neo-Marxist uber-leftist of the Biden regime are the worst people on the planet at the present moment.

And certainly ant-constitutional in every instance.

They have effectively eliminated the southern border, allowing millions of illegal aliens to flood into the nation. They have destroyed the economy where no prices for essential goods and services have doubled from the time they took office. They are playing nuclear chicken with Russia, and nuclear war is now more likely than anytime since the Cuban Missile Crisis.

Anyone who still supports the Biden regime at this point is a moron or a psychopathic maniac.

\\][//

Expand full comment

Nope. They want women to face The adult responsibilities AFTER the women were irresponsible sexually.

Women and only women decide who shoots baby batter inside them raw dog style.

Ok, but face your adult responsibilities women.

Expand full comment

How old are you, M. Biss?

Expand full comment

None of this is true.

Expand full comment

Yeah, conservatives should just be aborted, post-partem.

Expand full comment

Until they are born. Then, you are on your own.)))) Typical example of conservatives not wanting to take responsibility for the results of their actions. lol

Expand full comment

Speaking of cute writing, did you forget to start four parentheticals?

But you are correct! Only Neo-liberals (read Statists) want more citizens (read slaves) dependent on State teat. Nothing controls the hoi polloi like utter dependence (I suppose fiat currency falling like manna might compete).

Expand full comment

Yeah, starting a War in Iraq and Afghanistan in order to conserve human life.

Expand full comment

You are describing the warmongering neo-cons and neo-liberals.

Remember that Democrats demanded another war vote just before Election Day 2002 so Dems could vote for it.

Expand full comment

I stand corrected. Conservatives don't always act to conserve human life, but not even close to all conservatives were for those wars, even at the time. The neos fooled us, didn't they.

Expand full comment

Hmm...A MrsS just hearted (thank you!) my post.

Honey, that you?

Expand full comment

and I think Conservatives are the solution. Damn good thing we are not having this debate on Twitter (at least for the next few months) or you would never know that.

Expand full comment

lol

Yeah, and it's an old debate that's always just getting started.

Expand full comment

Conservatives don't believe in inherent rights, so they are THE problem here.

Expand full comment

You are being obtuse. Of course conservatives believe in inherent rights. THAT's one of the things they want to conserve and save from State usurpation.

Expand full comment

Here you go again with your political-zealotry. There is no difference between you and someone who demands that abortion can NEVER be performed under ANY circumstance.

Expand full comment

In a way, you are right. Conservatives are the problem liberals need to overcome in their drive towards tyranny. I guess it depends on your goal. If the goal is freedom and liberty, conservatives are the solution. If your goal is tyranny and oppression, conservatives are the problem.

Expand full comment

Acting to protect rights is not tyranny.

Expand full comment

Liberals don't protect rights. There are now generations of inner city minorities who are proof of that. Liberals just want complete power. Today's "liberals" would consider JFK a raging right wing nut-job.

Expand full comment

"I guess it depends on your goal. If the goal is freedom and liberty, conservatives are the solution"

Conservatives are illiberal by definition, they believe in inherited rights, not inherent rights. They oppose liberalism that argues that rights are inherent.

Expand full comment

By definition? You mean "by my definition". Be honest Jeff (or is it really you Matt?).

Expand full comment

Damn conservatives always wanting people to face their adult responsibilities AFTER acting irresponsibly sexually...

Expand full comment

That's it. The price of freedom is responsibility. Abortion, especially multiple abortions, is nothing different from con men repeatedly declaring bankruptcy to avoid responsibility for their actions. The biggest problem about abortion though is that the man is not punished as it takes two to make a baby.

Expand full comment

The only relevant issue here is that women are beings and have THE inalienable right to control their own lives, they are not slaves to men or the state. Their unenumerated rights are protected by the Ninth Amendment: https://www.law.cornell.edu/constitution-conan/amendment-9/ninth-amendment-historical-background.

Expand full comment

I may have an alternate view. I think abortion is an equal protection violation.

A man CAN be forced to pay for support regardless of his desire to be involved with the child (as awful as that sounds).

A woman CAN NOT be forced to have a child that the father wants.

In either case the father has zero control. Meanwhile a woman can’t not be forced to do anything.

Expand full comment

No, conservatives merely want women to suffer the consequences of having sex. The problem of an unwanted pregnancy is solved by aborting the nonsentient fetus.

Expand full comment

Lol no, that’s not necessary when one isn’t irresponsible sexually.

Adult choices, adult consequences.

What you describe are child like avoidance of sexual irresponsibility.

Expand full comment

Jeff Biss, can you actually look at an ultra sound at say, 20 twenty weeks, and still claim that a fetus is "but an object"?

Expand full comment

I think there's a few things with which the vast majority agree: 1) there's no easy dividing line; 2) the older the fetus the more protection it deserves. Therefore, a democratic concensus can be found (once the Court gets out of the way) which appropriately balances competing duties.

The binary rhetoric of "rights" is at the root of this impasse.

Expand full comment

I think the "vast majority" all agree that abortion is undesirable but sometimes necessary.

So what? The question is "Can the US force humans to give birth?" And I'd bet that a lot more people would say "hell, no" if they had wombs (and sex).

Expand full comment

I would go a step further and say "... but sometimes undesirable" and I would agree with that sentiment too. Kids are expensive pests.

But, once you're burdened with kids (wherever we might draw that line, and whoever we might blame for that burden) "can the US force you to raise a child?" Yes, yes it can. Not only are you not allowed to kill your kids (or sell them into slavery), unless you find some willing dupe to adopt them, you're also required to pay for their necessities. It's almost a form of slavery - but one we all seem to agree is entirely appropriate.

I don't see why any of that should be different because the kid may still be on the other side of a vagina.

Expand full comment

The ruination of my home state is now complete. In Colorado one may now argue that leaving one’s newborn in the snow to die is legal.

Expand full comment

I happen to have a uterus, have used it three times to produce humans, and I’m all aboard for stopping elective abortion.

Expand full comment

Which in no way detracts from my point.

Wait! You favor non-elective abortion???

Expand full comment

And in the very few necessary cases, most people wouldn’t even call it abortion.

Abortion is an elective surgery. Nothing more.

Needing surgery for a real medical reason isn’t an abortion.

Expand full comment

Wordsmithing isn't ethics.

Expand full comment

The Mississippi law that the court is ruling on strikes the right balance.

It gives the woman 15 weeks to decide if she wants to terminate her pregnancy or not. After 15 weeks, she can still terminate the pregnancy if it endangers her health or they find something wrong with the fetus (e.g. Down Syndrome). That's a fair compromise.

It's not unreasonable to ask women to make up their mind and decide if they want to have the baby or not by the 15th week of pregnancy. Any woman who is sexually active should have already given some thought to what she would do in the event of an unintended pregnancy.

Expand full comment

If fairness and balance was on the menu today your probably right.

Expand full comment

"I like rights!! I like rights", I must say. Rights are not the problem. Rights are a recognition of common humanity,

Expand full comment

I like rights too. I just don't like the binary rhetoric that often accompanies their assertion. A "right" is a variable, not a solution.

Expand full comment

It is silly to suggest a developed fetus is without mind. If it has a heartbeat it is thinking things like "I am sure happy here in my mommy's ocean" -- well not in so many words, but yes. I don't think it expects betrayal.

Expand full comment

No, a heart beat means nothing, only brain development does.

Expand full comment

Your argument makes no sense. First of all, without the growth of the fetus, brain development wouldn't happen, secondly, a child born with a genetic disorder that impedes brain development would (according to your assertion) not be human.

Expand full comment

There is a point in development when the brain supports mind, before that, it does not. It's a simple fact.

Expand full comment

What controls heartbeat?

Expand full comment

The autonomic nervous system. It works independently of the "mind". Heart cells beat on their own and synchronize when they touch.

Expand full comment

Brain is developed at 8 weeks. Now what?

Expand full comment

Not enough to support consciousness, experience, etc.

Expand full comment

Somehow that seems more like projection than mental telepathy (which also does not exist).

Expand full comment

How dare you say that. You are erasing me as a person!! I need to be SEEN!!

;-)

Of course it's projection. So is: "I think the "vast majority" all agree that abortion is undesirable but sometimes necessary." Which just happens to be the first thing of yours I saw.

We understand each other through projection. We empathize (and hate) through projection. So we do it a lot. All of us. (projection!).

Expand full comment

No. Telling you what I think is not projection because I'm telling you I thought it.

You have naked assertions abuot what a fetus must be thinking. That is clearly projection. Unless you, Internet stranger, have the wackiest keyboard setup I can imagine.

Expand full comment

It's silly to claim that a blastula without a mind has a mind.

Expand full comment

Not Jeff Bliss, but yes. That, again, is why people are arguing. If we all agreed, we wouldn't be here commenting on this.

We'd be commenting somewhere else because someone else on the Internet was wrong.

Expand full comment

This is why such laws should be up to each state. Let the people in each state vote for what they desire. Will some people be left in the wrong states? The answer is yes. However for taxes, cost of living, overregulation and a myriad of other things, people are already left living in the wrong states. Such is the price of freedom.

Expand full comment

"This is why such laws should be up to each state. "

No. The fact is that we need a federal standard to protect rights. Only beings have rights, objects do not and without a clear demarcation using brain development, that determines whether the fetus has the capacity for mind, certain states will infringe on the rights of women or fail to protect sentient fetuses. That is the issue.

Expand full comment

Would a live birth without "sufficient" brain development (think of people born with only a brain stem for example) be subject to killing?

We need to decide if human life has value. To many it doesn't and never has. This is the real question that we should be honest about. Right now we allow the freedom to be stupid and ride around on motorcycles for example. Many die this way, but we allow it. Should we? You might say that person made a choice, but can a 1 year old baby make a choice? Does it's life have value? How about a 1 week old baby?

We make choices all the time. Some very foolish.

Expand full comment

Unfortunately, the rights enumerated here were never voted on by the republic. Surely, a pro-abortion rights amendment to the Constitution is doable, especially, as many on the left seem to argue, more people want it than don't want it...

Expand full comment

There is no right in question to protect. Show me in writing where there is a right to abortion. Show me, if not, you have no argument. You may wish for a such a right to exist, but wishing does not make something so.

Expand full comment

Jim Crow really worked out well for us, too . . .

If we frame this (properly, I think) in terms of fundamental human rights, there should not be states that are exempt.

Expand full comment

Jim Crow was allowed to form as a result of the failures of Johnson and the end to Reconstruction. The court upheld it decades later largely by putting blinders on in order to say that the services and treatment were separate but equal when they were separate, but anything but equal. That cannot be compared to abortion in any way.

Expand full comment

Jim Crow was the "Settled Law" of the land for quite a while till it was overturned because the Justices finally relied on first principles.

Expand full comment

Drew, I'm not arguing, I'm trying to engage you on the level of moral reasoning. Yes, before the emergence of ultra sound technology, perhaps it was understandable to see the fetus as "but an object." But not now, at least not to me, and I can't understand how anyone can in good conscience feel otherwise.

Could you expand on why fetal imagery does not impact your views on abortion?

Expand full comment

What I find ironic is that some countries, primarily in Europe, have granted 'personhood' to Great Apes, yet continue to insist that a fetus is not a person.

Expand full comment

Stephen Sanford, your observation epitomizes the morally and intellectually confused state of the modern Leftist mind.

Expand full comment

If I grab a sea turtle egg or two just laid in a nest I’ll go to prison for killing an endangered species.

If I want a hole drilled in my baby’s head and her brains vacuumed out during labor, that’s perfectly okay because she isn’t a “person.”

Libs use “person”the same way they use “gender.” It means whatever they want it to mean at the moment with no thought allowed.

Expand full comment

Perhaps because unlike a fetus, these animals are post-birth alive. Might that explain it, whether or not you agree with those unnamed countries.

The correct parallel for your argument would surely be those countries ban abortion for female apes but permit it in humans - something that no country asserts.

Expand full comment

How many months into pregnancy do you support the right to an abortion?

Expand full comment

The problem with people like Jeff, aside from their zealotry in their political-religious faith, is that they have no issue with eugenics. Hitler's "eliminate the undesirables, the unproductive mouths to feed" is fine by them. Race based, gender based, mental capacity based abortions are all fine because of the dehumanization and sense of moral superiority which is used to quash any sense of doubt. It's the ultimate irony, as they walk in the footsteps of the Nazis.

Expand full comment

Today, abortions take many more female than male lives, and many more minority lives than their fraction of the population. Here is a news item from 2020 in which the UN states that 140 million women are missing, mostly due to sex-selective abortion.

https://abcnews.go.com/US/wireStory/140-million-females-missing-due-son-preference-71547237

Expand full comment

Yep. Just look at China where the percentage of males vs females is especially skewed. This is what happens when people succumb to madness.

Expand full comment

How can you look at an ultrasound at six weeks and claim that it is human?

Expand full comment

The brain starts developing at 6-8 weeks. At 3 months it makes up half the baby's weight. The baby starts moving at six to eight weeks.

Expand full comment

So you support abortion up until 6-8 weeks?

Expand full comment

I think abortion is a loss at any time.

But, in this time of everyone telling each other what to do with our bodies, I am hesitant to tell women what to do. I want to control my body (against the covid vaccine, for example) so I am not going to micromanage women beyond the kind of limits we have now. Furthermore, we live in a world in which life is not held sacred in so many other ways. I'm not going to draw a line that costs women when so much life is already not respected. It isn't fair to give them the check.

But it disrespects life to denigrate the fetus and make believe it is nothing. Abortion is a grave act. I would hope facing this would encourage women to find another way and for everyone to make the decision to have the baby as easy as possible for the woman, and really support her and her child if they are in tough circumstances. Don't give the woman the choice of murderer or welfare queen.

Expand full comment

and the brain is not sufficiently developed to support mind until much later.

Expand full comment

I thought your original comment about projection was useful if only to highlight that we don't know what goes on in another's mind. We don't directly know what others are thinking or how their minds work. We project from how we see our minds work.

Nobody has direct access to a fetal mind but external imaging shows similar activity to a baby's. Which makes sense. Why wouldn't mind development be a continuous process? Fetuses as young as six weeks respond to stimulus. They have an immense brain at 3 months. It is convenient to think of them as inert when you want to kill them. But parents that don't want to kill them play them music and talk to them and react to their movements as if they had minds.

Expand full comment

20 weeks? See 12.

Expand full comment

Agreed, my statement holds for 12 weeks if not earlier. I guess I wanted to gauge how little shame the "pro-choice" crowd has when it comes to this issue. Turns out, virtually none.

Expand full comment

According to neuroscientists, the brain and nervous system are not sufficiently developed until much later, probably near or soon after 20 weeks.

Expand full comment

The capacity for consciousness differentiates object from being. Therefore, the question is whether the brain is developed enough, if it is, then it is a being and deserves protection and if not, then it is an object incapable of experience. The universal consideration should be that and at the federal level.

Expand full comment

"The capacity for consciousness differentiates object from being"

If true, there are going to be a whole lot of people who are going to get un-plugged from life support systems.

Expand full comment

The law has been there for a long time. Brain dead people are recognized as such.

Expand full comment

What of people who have severe Downs Syndrome or Dementia? Are they no longer 'people'?

Expand full comment

"Unconscious" does not mean "brain-dead"

Expand full comment

You’re definition would mean you can kill someone during surgery. The capacity to pull the plug only applies if the person is determined to be incapable of recovering. The expectation is for babies brains to develop in pregnancy. I have no issue with aborting an already dead fetus. The issue is all the living growing ones.

Expand full comment

A developing brain is not drain dead

Expand full comment

I am one of many who believes humans have a soul, from the moment of conception.

Expand full comment

Wouldn't that definition exclude from "being": people in comas, the severely mentally handicapped, patients under general anaesthetic, people who are knocked out or passed out drunk, etc.

And doesn't your definition include many animals?

Expand full comment

No. The issue is brain condition. Is the brain intact or not, damaged or not. For example the law already recognizes this, survivors can pull the plug only in certain circumstances.

And yes, my definition applies to animals who are beings.

Expand full comment

Yes - the circumstance is unable to recover. Certain death (or near so). None of us would be here if that were the typical outcome if pregnancy

Expand full comment

This is the problem with humankind and I suspect what will lead to its demise. We are a controlling species with very little humbleness. You think we know consciousness? Science has been unable to locate consciousness because it is non-local. We get glimmers of what consciousness is, but it remains elusive for a reason.

Expand full comment

One of the greatest problems with virtually any kind of understanding is a lack of humility. Far too often, men and women, in their pursuit of knowledge, abandon wisdom and in the process, succumb to arrogance, willful ignorance and pride. It makes me think of a famous quote from physics: "I'd rather have questions I can't answer than answers I can't question."

Expand full comment

We do know that we are conscious and so can safely say that all nonhuman animals with brains are too. Our brains are us.

Expand full comment

How dare you bring science into this??? 😉

Expand full comment

Capacity for consciousness. Define it. You are arguing for euthanasia of many elderly people. Be careful.

Expand full comment

LOL! Think about it more.

Expand full comment

If a navel goes ungazed, does it make a thought?

We can't all agree on your claim. If we could, it would be a solved problem.

Expand full comment

LOL! I already know that many don't, but that won't stop me from making it.

Expand full comment

The fundamental characteristic of a fetus (and the zygote before it) is that it is in the process of development. To objectify it by conceptually freezing it in a moment of time is both a scientific and moral distortion. This fundamental truth is implicit in the very word "abortion" - preventing the origin (further development and birth) of a human. Even in physics, one cannot properly understand a dynamical system by considering only its static nature at a moment in time.

It is typical of the liberal viewpoint to ascribe moral rights even to inanimate objects, as when those in the Rights of Nature movement ascribe rights to the land, water, and air. They likewise ascribe moral rights to future generations, whose bodies are mere potentialities, someday to coalesce from unknowable collections of molecules present in the land, water, and atmosphere; and they attribute moral responsibility for the welfare of those future humans to those living today. But once the coalescence has been definitively set in motion by the act of conception, the assignment of moral value is put on hold. Does this not seem contradictory?

The argument that a fetus that is not yet viable has no rights, and that the mother therefore has absolute dominion over it, is a form of "might makes right". It simply ignores the question of what moral responsibility the mother and father have toward the developing human. It also stands in contradiction to the typical liberal belief that we have a moral responsibility to support those who depend on us - the poor, the homeless, refugees, the physically and mentally infirm.

I have always found the standard arguments in favor of unrestricted abortion to be similar to right-wing arguments denying any moral responsibility toward the weak and the needy, and the arguments that assert the dominion of the powerful over those who cannot defend themselves.

Expand full comment

"But once the coalescence has been definitively set in motion by the act of conception, the assignment of moral value is put on hold. Does this not seem contradictory?"

Yes. It is the central contradiction of the so-called "pro-choice" movement.

Expand full comment

I can understand your position. Personally I would never have an abortion, and never did. It was not based on religious principals, but I do feel I have a responsibility to a developing baby who is dependent on me for it's very life.

Expand full comment

I cannot disagree more with your final sentiment concerning "right-wing" (conservative? libertarian? anarchic?) "dominion." (Do caring individuals have "dominion" over those they choose to care for? I could go on, but it would destroy my point.)

But, wow!! What a perfectly written rebuttal. My only point is I wouldn't change a word. Thank you, M. Mitchell.

Expand full comment

Until the fetus' brain develops the capacity for mind, it is an object.

Expand full comment

You can repeat that till the cows come home, but it won't make it any more sensible. A (human) fetus is a developing human. It is obviously fundamentally different from a static object such as chair. The very purpose of abortion is to terminate the developmental process, not merely to eliminate a static object. Calling a fetus an "object" is just a way to avoid facing and discussing these obvious truths. If you want to persuade others of your viewpoint, you should at least try to approach the subject with scientific integrity.

Expand full comment

Until the fetus develops the capacity for mind it is human but not a being and the woman has the absolute right to abort it if she wants to. It's an inalienable right not up to you, it's up to her.

Expand full comment

Jeff Bliss: You don't appear to engage in reasoned discussion - you just ignore what others write and keep repeating the same dictum over and over, without addressing any of the arguments opposing your point of view. There's no point in trying to discuss an issue with someone who isn't interested in having a rational discussion.

Expand full comment

Excellent assessment John. A child can't walk when it's born because the synaptic connections in the cortex of the brain have not been made, and I wonder if he thinks he can implement his logic if the legs off a child are removed at birth?

Expand full comment

LOL! You obviously refuse to understand. Mind defines being, no mind, no being, only an object with no capacity for experience, feeling etc.

Expand full comment

What exactly do you mean by a mind? Do you consider animals to have "minds?" I hardly would define a developing embryo that will evolve into a baby, a human being as an object no matter one's views about abortion.

Expand full comment

Mind = experience, feelings, etc. Yes animals are beings because they have mind. Until the embryo develops sufficiently to feel, it is an object. The woman feels and so is a being and has absolute control over her life.

Expand full comment

Not all animals have a "mind" sponges don't, and what about all those plants, trees, and wild flowers in a forest, the life forms that give us oxygen to breathe and soak up that carbon dioxide that is warming up our planet and endangering all forms of life? Mindless, without feelings, but of great value, so not just objects.

Expand full comment

Old Jewish law: a fetus is not viable until it graduates from medical school or law school.

Expand full comment

There are a ton of fetus's then.

Edit: I'm a fetus then, maybe I can live to be 1,000-2,000 years old at this rate!

Expand full comment

Classic. A propos tiger mom circles, also.

Expand full comment

That is a joke right, and it's funny.

Expand full comment

“until the fetus' brain develops the capacity for mind”

I say the only humans who meet your criteria are those who can accurately complete a triple integral.

Prove me wrong.

Expand full comment

Is the proper response to hiss like a snake?

SSS

Expand full comment

🤣

Expand full comment

"The fetus is but an object"...a matter of opinion the Court seems postured to kick back to the democratic/legislative process for resolution. You can still hold that belief, now you just have to do the hard work of convincing your fellow Americans if you want the law to reflect your position.

Which is what the left is afraid of, because polling shows that vast majority of Americans are not so dismissive of an unborn child.

And no right is absolute, even the enumerated rights in the Bill of Rights are not absolute. Even Constitutionally enumerated and protected rights are subject to reasonable restriction. Anyone who talks about an absolute right is a person not looking to be taken seriously.

Expand full comment

Objects do not have mind, beings do. Beings have rights, objects do not.

Expand full comment

So endangered species eggs don't have rights? You better tell the government about this.

Expand full comment

"Anyone who talks about an absolute right is a person not looking to be taken seriously."

I think you understate a not-well-known issue with absolutists: most are confidence men (I would use human here, but it just doesn't sound right).

Btw, excellent post; wouldn't change a word.

Expand full comment

"until the fetus' brain develops the capacity for mind"

This is your (and maybe half the population's) determination. It's also mine. But it has *nowhere near* a consensus. The problem is thorny ... but it must be solved, and must be solved properly.

But you're not solving it -- you're dictating it. Why do I say this? Because, from our earlier conversations, it's clear to me you don't actually believe in democracy. (You're too intelligent to not understand what democracy requires, unless you're in severe denial.)

You believe in some other moral ordering and therefore type of governance ... I dunno, "analytic-intellectocracy", I suppose.

Expand full comment

"But you're not solving it -- you're dictating it."

Being objective as to what differentiates object from being and arguing that that be the gauge of when a woman's right to control her own life is not dictating. Arguing, as conservatives do, that she has no such right and must be forced to have a child is.

Expand full comment

There is no such thing as objectivity. Full stop.

That applies both to values AND "facts", because, inside one's mind, there are no facts -- there are only human-derived things, like perceptions, beliefs, logic, etc. It's embedded in the nature of human beings, who are ALL limited and imperfect, and unavoidable so.

Once we start perceiving and respecting this, everything else about politics will start to make a hell of a lot more sense. As it is today, half the country believes the other half is stupid, evil, and or insane. This shit's gotta stop. We need to cut the idiotic hubris and adopt humility again, or we're going up in a mushroom cloud. And, it sure looks like that might be very soon.

I'm fully aware this is (currently) the opinion of only a tiny number people, and here on GG, maybe only me. But after we go through a trial by fire during these years, and if we come out the other side, I'm confident it'll begin to dawn on the majority.

Expand full comment

It is an objective fact that a nonsentient fetus has no capacity for mind.

Expand full comment

It's an objective fact that there is no right to abortion. It is also an objective fact that you belong to an edge of a fringe, fanatical movement and as such, agitate against anyone who disagrees with even a hint of it. No amount of whining will change either of those things. They just make you look as block-headed as a Jihadist.

Expand full comment

Curious. Is it ok to kill a newborn puppy or cat before it’s eyes are open?

Expand full comment

LOL! Read what I've written EVERY time. A nonsenitent fetus has no mind by definition. The point of demarcation is the development of mind. Got it?

Expand full comment

So one can kill for gender, mental development and so forth? One can make Hitler's 'eliminate the undesirables' a reality? If so, that is a world devoid of anything but social Darwinism and as such, an evil place.

Expand full comment

LOL! You do not comprehend what you read if that is what you think.

Expand full comment

Let me be more precise. Your argument is a philosophical rather than a biological one. Obviously the unborn have minds…they just aren’t yet mature. And in your worldview only minds who are able to reason etc constitute life. But that is PHILOSOPHY NOT BIOLOGY. If you were brain dead, would you be a human? Of course. If your brain was that of an infant, would you be worth saving even as an adult? Yes. Do you see how you are arguing quality of life vs biological life? If the fetus is not a life why abort it? I will tell you why: because IT WILL ABSOLUTELY MATURE TO FULL DEVELOPMENT.( And that is an inconvenient reality for some people.) WHY? Because it has the programming in its DNA to do so. Abortion merely prevents full development because it ends a life on the path to full development. The fetus is not a clump of cells (fact) or an appendage (fact)or a parasite riding on a woman (fact). It is a life and that is just a biological fact that is uncontroverted in every medical text you can get your hands on. I suggest you find one.

But apart from the biological argument …there is absolutely no argument that roe v Wade was not wrongly decided and that’s where the discussion must begin after all. Why? Because without this decision, the 60 million babies that were aborted likely would be alive today. And before someone jumps in to say that they would have occurred albeit illegally …that is not what the evidence reveals. This is absolutely not why roe came to be…no evidence. Ive read the stats. No….in fact, roe and doe MORALIZED abortion. The stats revealed that after roe abortions increased steadily to this day.

And for the many of us who value black lives and welcome debate on both sides of the aisle… do you realize that the population of blacks (percentage wise) would be about double had planned parenthood not planted all those clinics in the poorest and most ethnic neighborhoods. What a tragedy.

There’s no LOL here with all due respect.

Expand full comment

"Your argument is a philosophical"

LOL! That conservatives are illiberal by definition and do not accept inherent rights such as the fact that women have the inalienable, inherent right to control their own lives that includes ending an unwanted pregnancy without any state interference until the fetus becomes a being, at sentiency is THE point. Until the fetus develops mind it is a mere object, as are all cells and organs in a woman's body that the state has no control over.

Conservatives are the enemy, you have no rights in their mind because there are none referenced in the constitution! The Ninth Amendment protects unenumerated rights: https://www.law.cornell.edu/constitution-conan/amendment-9/ninth-amendment-historical-background

Expand full comment

This is what we call in the legal biz: nonresponsive. There’s nothing here to get sadly.

Expand full comment

It seems to be a combination of trolling and being blinded by both ego and political-religious zealotry.

Expand full comment

Are you asking me, or Jeff Biss? Anyway, I think it's safe to assume a newborn puppy or cat certainly has an (animal) "capacity for mind", to use Jeff Biss' words, and I hope even Jeff would not think it OK to kill. On the other hand, he thinks lower-class white males should die off, so that doesn't seem to bode well for his opinions of animal rights.

Expand full comment

"...until the fetus' brain develops the capacity for mind."

Well, that clears up THAT mystery!

Expand full comment

What do you think about a man's ability to control his own life? If you believe that is an inalienable right, you must conclude that a father-in-waiting can terminate their connection with a pregnancy without legal or financial implications.

While you may call abortion an "absolute right", our Constitution does not. Through some wild intellectual contortions, the Roe v Wade decision found a right in the Constitution that is not there: privacy. Maybe it should be, but it's not. Then, in an even more twisted contortion, they found a right to an abortion under a right to privacy. (Oddly, those same folks who champion abortion under the "right" to privacy discard that "right" to privacy when the COVID vaccine is the topic.)

The Constitution is also very clear that anything not specifically identified as under the purview of the Federal government belongs to the states.

So, IMO, the Roe v Wade decision has two huge flaws. It is in inferred right that is based on another inferred right (kind of like the game of "electricity" you played as a child), and it takes under Federal purview something the Constitution clearly states belongs with the States.

Again, oddly enough, the same people who champion a double-inferred right AND ignoring the 10th amendment, also oppose a specifically enumerated right that is clearly assigned to the Federal government: the right to self defense.

Expand full comment

The complete lack of fathers in this whole debate is indicative of serious issues that no one wants addressed.

Expand full comment

That is an ENORMOUS problem. I truly believe that if we could return to the level of fatherhood this country had 50 years ago, we would be in a much, much better state.

Expand full comment

The woman has absolute control over her life and body. Men have no say. The only considerations are a) the woman and (b) the fetus, whether it has the capacity for consciousness or not.

Expand full comment

And a woman should have no say over a man's life. If he doesn't want to support the child, he shouldn't have to. Period. End of story.

Expand full comment

Yes, he can discuss it with her, if he wants to.

Expand full comment

"We recognize that women have the inalienable right to control their own lives that includes the right to abortion without any state interference until the fetus' brain develops the capacity for mind."--Jeff Biss

Who the fuck is "We" in your assertion here? When a fetus has a viable heart beat is the standard. The concept of "mind" is so debatable, that centuries of philosophical haggling has come to no firm consensus.

\\][//

Expand full comment

I believe Jeff considers himself a member of some sort of more-equal-than-others aristocracy, and thus uses the royal "we" to disseminate the party line from that aristocracy. He has made it explicitly clear to me that he does not consider lower-class right-wing white males to be have same sort of human value as he.

Expand full comment

lol at royal "we"!

Well, he might be right, even if he is only middle class (perhaps an aristocrat wanna-be?).

Expand full comment

Oh, he may well be an "upper"[-middle]-class person. My complaint here is that thinks that provides *moral* superiority, not merely functional advantages. Certainly an attitude that, in a democracy worthy of the name, one would want to keep well under wraps.

Expand full comment

Yes, one would hope.

Hey, that means you were also trying to help him do so!

Expand full comment

Re: the leak:

It's TRUE insurrection, whether it came from the right or the left.

Expand full comment

No, it's giving the people information that they need, to know that conservatives do not believe in rights.

Expand full comment

Ahh, so in your world, all leaks are equal but some are more equal than others. If you fail comprehend something being wrong if the shoe is on the other foot, you have lost all rationality.

Expand full comment

Then how do you explain why the left will force Covid mRNA vaccines down women’s throats, but when it comes to abortion, it’s anything goes?

It is such a glaring contradiction to many of us, yet the Left just ignores it and pretends it doesn’t exist. It makes you guys hypocrites.

Expand full comment

First, Covid-19 is a health issue and affects all people, not just women. Second, everyone has the right to not get infected by another person. Third, we have had vaccination mandates for children to go to school, to be able to work, such as nurses, to travel, etc.

Expand full comment

Jeff -

Counterargument: doesn't the unborn child have a right to exist?

As for Covid, there is nothing in the constitution that says that anyone "has the right to not get infected by another person." Even the Federal mandates that weren't struck down were limited only to those mandates which were tied to federal spending (ex: medicare). So what were you saying? :).

Expand full comment

"s for Covid, there is nothing in the constitution that says that anyone "has the right to not get infected by another person."

BINGO! The GOP can argue that NO rights exist that are not listed! NONE! That is my point!

https://www.law.cornell.edu/constitution-conan/amendment-9/ninth-amendment-historical-background

Expand full comment

"Counterargument: doesn't the unborn child have a right to exist?"

That IS what I've been arguing from the very start! A child is a being, it has mind! Reread EVERY post that I've written and you should see that.

Expand full comment

The concept of MIND has been a contentious idea throughout history. When is the mind truly conscious? Children are not considered "consenting adults" until various ages in various states because their minds haven't matured to the point of making adult decisions. Do these children have viable minds?

You cannot use the vague concept - "having a mind" as the point at which a fetus is human. The best stage would be havin a viable heartbeat, if you are going to choose any stage. BUT; All fetuses are potential human beings, and murdering them is criminal homicide.

Expand full comment

As I pointed out in a reply to Jeff Bliss, orthodox liberals' worldview regarding abortion is inconsistent with their worldview on various other issues, such as climate change. One of the main arguments that climate change poses a grave danger is that it will lead to changes that will adversely affect future generations. Needless to say, the individuals of future generations have neither brains nor minds, nor even bodies, as they do not yet even exist. Yet in the orthodox liberal worldview, we have a moral responsibility toward those non-existent beings but none at all toward an identifiable being that has started on the distinct path to becoming a human.

I recognize that the decision to have an abortion can be morally and emotionally fraught, but it seems clear to me that the real motivation of those with a (loud) public voice supporting unrestricted abortion is purely selfish - to disown any moral responsibility toward the life they create.

As a side note, I do believe that climate change is dangerous, though I consider the gravest threat to be the existence of nuclear weapons, but that's another topic.

Expand full comment

Me: looking in the constitution for the right to an Inalienable right to an abortion.

Also me: wondering why the moment of bodily control isn’t when a woman decides to let a man shoot baby batter in her raw?

How many formats of cheap birth control exist?

31?

33?

desiring the ability to avoid adult responsibilities after not exercising your human sexual agency at the moment it was needed, but not being able to gain the legislative majorities needed to do so.

This is the actual policy being reversed.

Men passed the laws that forced irresponsible men to pay for their children.

When will women get majority support (women are more than 50% of the population) for laws to be passed that force women to face their adult responsibilities after being irresponsible sexually?

Expand full comment

You would wonder about that. The only relevant issue is the woman, her rights and that of a fetus that has developed enough for consciousness.

Expand full comment

Incorrect again! You are remarkably consistent in this...

Expand full comment

I'm correct.

Expand full comment

No, you’re consistent

Expand full comment

You must have been banned for excellent writing.

Expand full comment

As do men and other-gendered individuals. Well, except under the law. We should probably fix the law.

Expand full comment

Other gendered isn’t a thing. If you have a Y chromosome and are human you are a boy or man. If you don’t you are a girl or woman. “Feelings” have nothing to do with it..

Expand full comment

You inherit a Y chromosome from your father and an X chromosome from your mother and that makes you a male. A female inherits an X chromosome from her father and women only produce X chromosomes. Your biological sex is determined by the male, not the female.

Expand full comment

I didn’t claim otherwise........ I pointed out a human with a Y chromosome is a male/ man/ boy. A human lacking a Y chromosome is a female/ mother/ woman. A humans either do have a Y chromosome making them a make, or they don’t making them a female. There aren’t any other options. I never said anything about which parent the sex chromosomes are inherited from determining that sex.

Expand full comment

I just wanted to point out that a male has both an X and Y chromosome and the sex of the child is determined by the father. I was a biology teacher, so what do you expect?

Expand full comment

You forget, one has Men and Women....and children with adult bodies trying to make the rest of the world live in their fantasies.

I am not talking about people who have hormone and sexual reassignment surgery, but people who think they can declare they are a gender beyond a man or woman, or people who think they can change genders on a whim. That is no different than me proclaiming myself "The infallible Earthly Emperor" and expecting people to pay homage as if I were.

Expand full comment

Whoa there. I didn't say anything about stopping our treatment of children as property. The original version of the ERA was supposed to do that!

Expand full comment

Who is "We" Biss? Women have no inalienable right to murder their unborn children.

Homicide is illegal throughout the civilized world. It is way past time that American law becomes civilized again.

\\][//

Expand full comment

"The right to choose is a woman’s right and a woman’s right alone. Every woman in Canada has a right to a safe and legal abortion," Prime Minister Justin Trudeau tweeted Tuesday.

Boy, HE must know what a woman is!

Expand full comment

Wow, he honors their rights on abortion, but what if they disagree with him about Covid mandates?

Expand full comment

Interesting that this came out now, and three of the judges were elected by Trump, and the other 2 by baby and papa Bush. I wonder who leaked it, and if it was political motivated to swing votes to the democrats and undermine any influence Trump would have in affecting upcoming elections.

Expand full comment

If that is the case, it's working. I was going to vote Republican in November to stem the tide of woke ideology. Now you couldn't pay me enough to even think it...

Expand full comment

Why, if I understand you correctly you were going to vote Republican, but now no?

Expand full comment

What a woman is now she has always been, biologically speaking. Nothing has changed in that regard.

Expand full comment

Nah, they all became biologists.

Expand full comment

Did you not get the memo? According to the left men can conceive.

Expand full comment

They're nothing if not zealous in their supplication to ideology.

Expand full comment

Yeah, and consistency is for hobgoblins, not righteous zealots (or is it the zealously righteous) and their (opportunistically malleable) ideology.

Expand full comment

The best way to show what a good little soldier you are is by unblinkingly and unquestioningly accepting double standards. Thinking for yourself is so bourgeoise.

Expand full comment

It's nice to read what an actual civil rights lawyer has to say about civil right rulings.

Expand full comment

Glenn is wrong, the Supreme Court has argued that there are no federal protections against majoritarian rule as it has refused to protect a woman's inalienable right to control her own life that includes abortion without state interference until the fetus' brain develops the capacity for mind at which point it becomes a being and has rights. Prior to that the fetus is a mere object.

Glenn is arguing that this opinion protects the individual women from the "tyranny of the majority" when it does not. The SCOTUS has the obligation to clarify at what point the fetus becomes a being and has rights to clarify how far state laws can go, but this does no such thing and so leaves it open for full infringement.

Expand full comment

By issuing Roe, the Court made law. It is not the role of the Court to make law, only to review and EXISTING law to see if it runs afoul of the Constitution. I do not like the opinion but it is still correct. Now mobilize and vote for reps who will follow your views on abortion.

Expand full comment

No, RvW restricted states from enacting laws that infringe on the rights of women.

Expand full comment

Nonsense. Had it done that, it would have simply struck down a law in a state. It did not do so. Rather it created a framework (of law) on the question. That's not judicial review but judicial policy making.

Expand full comment

Nonsense. Rights are national, not up to the individual states and RvW acknowledged that.

Expand full comment

The Constitution is silent on it so it's only a 'right' in your politics. The pretzel logic used in Roe was laughable and even Ginsberg admitted that. The legal reasoning is solid and the states should decide at the legislative level.

Expand full comment

No. Some rights were reserved to the federal government. All other rights stayed with the States. I recommend a Constitutional law class

Expand full comment

No rights aren't national. Some are, others are not.

Expand full comment

Try rereading Glenn's article.....this time apply a new lens. The lens should be one that's perfectly clear, not yellowed.

Expand full comment

Glenn is correct in that there is nothing in the US constitution that has any hint of a connection to reproduction and or it's termination. What is not granted to the government by the US constitution is the realm of the states.

The whole rational for Roe is garbage. In many ways, it is akin to Dred Scott and Plessy regarding first that people of African ancestry were never considered citizens and upholding 'separate but 'equal''. In all cases, the court was clasping at straws to justify it's rulings.

Expand full comment

He didn’t say what you think he said.

Expand full comment

Glenn is wrong as it is an unenumerated right, just as all the others not referenced in the constitution, such as the right of self defense.

Expand full comment

The right of self-defense was one with which we were endowed by our Creator, which the Declaration of Indepence referred to as "life."

Expand full comment

But unenumerated rights can only be codified by states. Of course, the Constitution could be amended to make abortion rights "enumerated."

Expand full comment

No, they can only be recognized and accounted for. Abortion is an inalienable right as it has to do with a woman's right to control her own life until the fetus becomes a being, at sentiency.

Expand full comment

But it is at odds with what most, even on the Left, would classify as a higher right, the right to life.

Your first sentence is odd. I think you need a course in the U.S. Constitution. If you want to go it alone, I suggest struggling through the Federalist and the Anti-Federalist Papers.

Expand full comment

10th Amendment, in other words. Careful: right wingers use that one, too. But a broad interpretation is probably the best - as long as the Court is honest, a probably-futile demand.

Expand full comment

I'm not worried. That abortion is an unenumerated right is obvious to all but religious zealots, conservatives. There is a limit though and that is mind, being, personhood. It's not complicated at all.

Expand full comment

In your own statement you reveal that you are exactly that which you say you oppose--a zealot. You are sure beyond faith that your interpretation of things are correct that you dismiss everyone who disagrees with you as a right-wing religious zealot when you have the same zealotry as those who seek to ban ALL abortions for all reasons.

Expand full comment

"obvious to all"

LOL. I'm Leftist, but I'm not THAT "Leftist".

Expand full comment

Well it would definitely be self-defense if a woman needed to terminate her pregnancy because her mental health and physical health was in danger. So what the actual fuck

Expand full comment

Only the most self centered human I can imagine would cry self defense at the human being she conceived, usually by free will.

Little wonder so many men see women as illogical emotionally unstable liabilities.

Expand full comment

Or is that the 9th? Sorry, I'd have to go look.

Expand full comment

I agree Glenn's argument is confusing, in fact I was prepared to call him out on it as well. But consider this passage:

>>The only way Roe can be defended is through an explicit appeal to the virtues of the anti-democratic and anti-majoritarian principles enshrined in the Constitution: namely, that because the Constitution guarantees the right to have an abortion (though a more generalized right of privacy), then majorities are stripped of the power to enact laws restricting it.

This is exactly right. RvW was "anti-democratic" in the sense that it overruled the ability of legislators to enact rules reflecting the will of voters. In the same sense, the Bill of Rights is anti-democratic because, for example, it bars legislators from making a rule restricting the exercise of religion--even if the majority wants such a rule.

So here's the problem: while the Constitution clearly prohibits laws restricting the exercise of religion, there is no clear Constitutional prohibition against laws restricting abortion. When RvW was decided, the Court basically said that a right of privacy was implied by the Bill of Rights. That argument was also made in Virginia v. Loving which struck down laws prohibiting interracial marriage. The RvW Court took that principle of implied privacy rights and extended it to a woman's right to obtain abortion.

The legal argument against RvW has always been there is no such implied right of privacy in the Constitution. (Personally, I would love to see rights of privacy enshrined in the Constitution. The problem is "privacy" as a Constitutionally protected right is really hard to define.) Of course, state legislatures are free to make laws protecting abortion rights--and many states do have such laws. For that matter, the US legislature could as well, if there was enough popular support for it.

Expand full comment

"So here's the problem: while the Constitution clearly prohibits laws restricting the exercise of religion, there is no clear Constitutional prohibition against laws restricting abortion."

That argument was precisely why James Madison initially chose not to include a Bill of Rights, that the state had been granted no power to infringe on rights and a BoR could be used to argue that certain rights did not exist. However, others argued that not having BoR would provide that very argument, that no rights existed and so James Madison added the BoR with the Ninth Amendment to protect all unenumerated rights, such as the right to abortion or teh right of self defense, also NOT referenced in the constitution.

Expand full comment

Is this an argument that we have an infinite amount of rights under the 9th Amendment? If not, what's your definition of "unenumerated rights"?

Does the 9th Amendment mean I have a right to fly an airplane without a license?

Expand full comment

Not an infinite number, but a lot. You could argue that you do have a right to fly without a license, it would be something for you to develop an argument for. That's what the courts are actually for, determining such things.

Expand full comment

But on what basis would the right to privacy be accepted but the right to fly without a license be rejected?

This is exactly the issue with reasoning from the 9th amendment. There is no limiting principle that would control the argument. And thus, we all have infinite rights, both affirmative and negative and the government can do nothing.

On reflection, maybe the 9th amendment is a great thing ;0

Expand full comment

There are certainly attorneys preparing 9th Amendment challenges to abortion laws right this very moment. I guess we'll see...

Expand full comment

"This is exactly right. RvW was "anti-democratic" in the sense that it overruled the ability of legislators to enact rules reflecting the will of voters."

Then Jim Crow was acceptable, which it wasn't, because like RvW, it ignored the rights of those that the majority didn't value, wanted to control. The "tyranny of the majority" is a democratic threat that using "inalienable rights" obviates. Legislators have no authority to enact laws that infringe on an individual right without very good reason and for very strict circumstances.

Expand full comment

The Court's job is to protect rights granted by the Constitution.

The Jim Crow laws violated the Constitution's Equal Protection clause, so they were correctly struck down by the Court. Which Constitutionally-protected right is violated by an anti-abortion law?

Expand full comment

The right to abortion is an unenumerated right protected by the Ninth Amendment, the government was not granted the authority to control women.

Expand full comment

So why aren't you a Supreme Court Justice? Laughable that you think you can interpret the Constitution better than a Justice.

Expand full comment

It violates freedom of religion and the right of self-defense..

Expand full comment

I always thought that whole Moloch worship thing was just a meme. Do you actually consider abortion to be a holy sacrament?

Expand full comment

An abortion is a religious practice?

Self defense would only apply if the life of the mother were at risk

Expand full comment

"The Court's job is to protect rights granted by the Constitution."

No, it's to protect all rights, enumerated and unenumerated.

Expand full comment

So what is the limiting principle on unenumerated rights?

Expand full comment

If a right is not stated, it does not exist.

Expand full comment

You post an awful lot for someone who frankly lacks the intellectual equipment to follow the argument. Talk less, read more.

Expand full comment

I know what I'm talking about.

Expand full comment

You’re too dumb to know what you know.

Expand full comment

"The legal argument against RvW has always been there is no such implied right of privacy in the Constitution."

That is a big problem, no one has the right to murder in private. However, it is protected by the Ninth Amendment as a woman's right to control her own life is. There is also no government authority to control women and so this unenumerated right exists absolutely until the fetus becomes a being, at which point it has rights.

Expand full comment

The government has the authority to control many things for women and for men.

However and more substantively...

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Nowhere does it say what those rights are. It simply says they are not all enumerated. It also does not say anywhere that a state may not abridge those rights.

The logical implication of your argument is that I possess an affirmative right to housing. After all, the Constitution doesn't enumerate that right but it also doesn't say the government has authority to control whether I have housing.

Using the 9th amendment to reason is pretty much nonsensical...particularly when compared with the 10th...which is much more clearly worded and still largely ignored.

Expand full comment

"Nowhere does it say what those rights are."

Bingo! That is what Madison intended, to protect all unenumerated rights. You got it. Otherwise, there is no right to vote, to self defense, to watch whatever show you want to, to read whatever book you want, etc. There are a lot of things that you consider your right to do that are not enumerated, so the Ninth!

Expand full comment

Bizarre argument. Any right not protected by the Constitution, even if one recognised by hundreds of years of common law, may be extinguished legislatively.

My reading of the point of the Ninth is that justices, when balancing competing rights, may not consider an unenumerated right to be of less importance than one articulated in the Constitution, or to consider it to have been extinguished if it is not referenced in the Constitution.

Thus the right to bear arms may not be considered more important than any common law right to self-defence, where they come into conflict.

Expand full comment

Maybe you should worry less about regulated rights and worry more about unregulated hormones.

Expand full comment

Women also have the right to have sex. We have to stop conservatives from infringing on any rights.

Expand full comment

You've mentioned the 9th Amendment a few times, as granting women the right to have abortions.

Can you cite any examples of a court using the 9th Amendment to affirm the existence of an unenumerated right? My understanding is courts have seldom if ever relied on the 9th Amendment.

Expand full comment

There aren't any because most jurist ignored it for many of the reasons you can see in these posts. For example, Bork considered it an "ink blot" as did Scalia. However, James Madison wrote it explicitly to protect all unenumerated rights because he worried that having enumerated rights would allow conservatives to claim that the Bill of Rights identified all valid rights, as Alito is doing and as Scalia did. However, Madison argued that the constitution enumerated government powers and none of those allowed the government to infringe on rights without due cause and through a democratic process.

The Ninth Amendment has been treated as the ugly step child.

Expand full comment

The late Charles Black wrote an interesting article many years ago lamenting the disuse of the 9th amendment. It’s hard to find online but on its way to making a different point it chronicles the courts’ centuries of ignoring the amendment.

Expand full comment

And that is why in my opinion we need to find that next SCOTUS case involving Hippocraticr Oath/ doctor/patient relationship and brings this issue into focus and strike it decidedly!!!

Expand full comment

That ox was thoroughly gored over the past two years.

Expand full comment

We need to eliminate all conservatives from all courts.

Expand full comment

We need to eliminate all progressives from all courts.

Am I playing the "Let's Make Stupid Statements" game correctly? I defer to your judgement since I'm new to this.

Expand full comment

Progressives aren't advocating infringing on inalienable rights, conservatives are.

Expand full comment

Who is in favor of censorship? It isn't conservatives.

Expand full comment

Good luck with the civil war that causes. You really do not get out of your bubble much, clearly.

How would just eliminate about half the country from participating in the process and not expect that you have destroyed any obligation to the social contract and thus nullified the entire reason we go to the ballot box to work out our differences.

Expand full comment

We've been in a civil war. Conservatives are a big problem and have been running the country infringing on rights since the start.

Expand full comment

If we were in a civil war, you wouldn't last a month, and that's being generous. Look at Syria, the loudest voices in that civil war have low life expectancies, as it is in all civil wars.

Expand full comment

It will never happen. The court works best when it’s balanced. None of institutions are balances anymore though. Look at the 4th estate. Look at how “the majority” reacted to fuckery that was Covid. I see how “the majority” often gets it wrong and alienates the minority. And Ginsberg thought RvW was wrong from a constitutional decision.

Expand full comment

Conservatives do NOT believe in inherent rights, they reject them absolutely. They have no business on any court.

Expand full comment

People do not have to believe in things that do not exist.

Expand full comment

This reminds me of the bad airport burrito we had a month ago and what happened to the bathroom tile afterwards.

Expand full comment

"This by-now-reflexive discourse about the Supreme Court ignores its core function."

Thank you. Now, let's examine why the "party of the people" Democrats never pushed to codify abortion rules in 49 years, eight** of them with an executive + both-legislative-houses trifecta.

EDITS:

**Possibly nine, if you include the current president, House, and split Senate.

Note also that Democrat attempts to codify abortion would have also addressed the opposition, by engaging them, and leading -- eventually -- to a properly-derived, democratic-republic result.

We're all part of a show, people! One that treats addressing our interests (and even solving our desperate needs) as completely secondary and optional.

Expand full comment

I still need the left to explain how they care about “bodily autonomy,” but ONLY when it relates to a medical procedure that, when “successful,” results in another human being’s death 100% of the time. Why does “bodily autonomy” not matter when it comes to injecting people with experimental big pharma shots that don’t protect anyone from getting any disease, have a terrible short term side effect profile, and unknowable long term implications.

Expand full comment

I've said it before, but "My body, my choice" encompasses exactly ONE issue for these people. They're all too happy to lock you up for smoking the wrong plant.

Expand full comment

Great comment!

Expand full comment

I smoke the 'wrong' plant most days.

Fortunately Assistant VP, Canada Division, Justin Trudeau, was allowed to legalise it as part of his election bid. So it's all good.

Expand full comment

I'm sure there's another 'wrong' plant out there they'll still arrest you for. :)

Expand full comment

I will see if I can find one!

Going out for some fiddleheads this weekend.

Those are still legal, (and delicious).

For now.

Expand full comment

Opium.

Expand full comment

There is a certain species of poppy...

Expand full comment

Please don't use obscene word's; the sock puppet would be good enough.

Expand full comment

LOL! Liberals, Democrats, want the "war on drugs" ended: https://thehill.com/news/house/3256370-house-approves-bill-legalizing-marijuana/

Expand full comment

The PEOPLE do for sure. The politicians not so much. That's why they drag their feet even after the people force legalization through referendum. IIRC only one state has legalized through the legislature.

That's why you get stories like this:

https://www.nbcnews.com/news/us-news/california-s-cannabis-black-market-has-eclipsed-its-legal-one-n1053856

Although marijuana has been legal in California for nearly two years, black market weed is still a booming business in the state.

Illegal sellers outnumber legal and regulated businesses almost 3-to-1, according to a startling analysis of California cannabis sellers released this month. Some critics blame the website Weedmaps for letting thousands of rogue stores advertise.

But cannabis regulators are cracking down. This week, they put publications, including Weedmaps, that advertise unlicensed marijuana businesses on notice that doing so is against state law.

---------------------

If they were interested in ending the war on drugs they would actually end the war on drugs instead of shifting it.

Expand full comment

"The PEOPLE do for sure. The politicians not so much."

Pay attention, the House Democrats voted for LEGALIZATION!

Expand full comment

I am paying attention. Paying attention to all the states that Democrats control dragging their feet on actually ending the war on drugs, which is much much different than legalization.

https://newjerseymonitor.com/briefs/legal-weed-sales-stalled-as-regulators-say-they-await-proof-of-municipal-buy-in/

When voters opted to legalize marijuana in New Jersey in November 2020, insiders expected the pot-loving public would be able to buy recreational weed right around now.

But at the monthly meeting of the state Cannabis Regulatory Commission Thursday, the man overseeing the industry’s creation in New Jersey said the state is still far from commercial sales of marijuana.

---------

Proper legislation to end the war on MJ would be easy: "All federal laws involving cannabis are hereby null and void."

Unsurprisingly, what politicians care much more about controlling the industry than actually ending the war on drugs.

Expand full comment

OK then, how about vaccine mandates then?

Expand full comment

How about them? The vaccines worked, they were proven safe and effective and could have saved a lot of anti-vaxxers the trouble of Covid-19.

Expand full comment

I hope you are being sarcastic, as they were far from the 95% effective in granting immunity that they were sold as, not to mention all of the breakthrough infections, declining efficiency with the passage of time, and a lack of knowledge of long-term adverse effects because there hasn't been time to figure out what such effects would be.

That the CDC refuses to release the information about the vaccines for people under 60 shows me that there is a lot more garbage out there being sold as truth. I say this as someone who got both shots and a booster....but who will not get another until both the CDC releases it's data and that the data can be verified by third parties without conflicts of interest. I also stand firmly against anyone under 18 being vaccinated.

Edit: The point was missed on you Jeff, 'my body my choice' applies to the use of vaccines as well. The mandates violate that.

Expand full comment

The premise is that "my body my choice" only means abortion (to leftists). But it's objective meaning is broader and would auger against mandates. The question is not "do they work and are they safe?" The question is "how well do they work, how safe are they, and does that justify a radical infringement of bodily autonomy?" I think not.

Expand full comment

As much as I appreciate your rapid and glib reply, I was asking in the context of "My Body, My Choice".

Expand full comment

You'll find some of use lefties (not the liberals) favor bodily autonomy for both of those things and more. It also means a right to be high and to Kevorkian-like death with dignity, for examples.

We probably ought have a Constitutional amendment. There are a wide spectrum of groups that favor a right to bodily autonomy.

Expand full comment

None of the lefties that favor bodily autonomy in a real sense have any power. They’ve either left the Democrat party or get completely ignored by the actual policy makers.

I’m fine with the right to be high, but also punishment for bad behavior like 💩💩 on the streets or committing crimes. I also believe it should be against the law for someone to kill themselves (though it’s devastatingly sad), but getting help is off the table except in extreme cases with lethal diseases.

Expand full comment

None of us had any power in the first place. No oligarch backing.

I don't think anyone would claim pooping on the streets is a form of bodily autonomy. My right to swing my fist ends at your nose and all.

But yes, some things are currently crimes that should not be. Would not be if we had a Constitutional right to bodily autonomy. Like being high (and soon smoking). Like assisted suicide. Like trans rights in some places. Like control of one's own womb, apparently soon.

Expand full comment

I would like answers to this question as well.

Expand full comment

Until the fetus' brain develops the capacity for mind, it is a mere object, it may be human but it is not a being, while the woman is a being and so has absolute discretion over it. She has absolute bodily autonomy until the fetus itself becomes a being, when its brain supports mind.

Expand full comment

But we can't agree on when that is, can we? That's the whole point of the argument. One could even argue that since we're shaped by our environments, and a natal human is only exposed to the host womb . . .

Expand full comment

Yes we can, for example the following research:

https://www.nature.com/articles/pr200950

https://www.researchgate.net/publication/351648826_Magnetoencephalographic_Signatures_of_Conscious_Processing_Before_Birth

The anti-abortion side has no interest in protecting a woman's right to control her own life, it is concerned only with forcing women to suffer the consequences of having sex, of not living in accordance with how they see god's will. The issue of fetal consciousness has never been a topic of discussion, only "life begins at conception", which is wrong, it already exists as the egg and sperm are alive, or that a heartbeat exists, which indicates nothing as a lone heart cell will beat.

Expand full comment

You forget that there is a third group which supports things such as the morning after pill, abortion for cases of rape and incest (requiring charges be filed to prevent abuse) and if giving birth causes great bodily harm and or death to the mother or child.

As with almost every debate, there are more than two sides, and usually, though not exclusively, the less rigid side ends up being the correct one, or the one closest to correct.

Expand full comment

The only issue here is that women have the inalienable right to control their own lives. Government has no authority over them if it has none over men.

Expand full comment

There's pro-lifers, pro-choicers, and the other 3/4 of humanity who think it's more complicated - and messy.

Expand full comment

It's simple, it's a rights issue, as I've laid out.

Expand full comment

No it does not exist as an egg and a sperm. You can be convinced of any hogwash!!! It’s takes the egg and sperm joining to create a unique human being, with unique DNA.

Human beings don’t develop through the life stages without conception.

No one is saying to criminalize destruction of simple living cells or we’d all be in jail for stepping on ants. The complexity comes in when you start justifying taking another human life. Conception is the start of a unique human being.

Expand full comment

"Conception is the start of a unique human being."

Until it develops the capacity for mind it is human but not a being.

Expand full comment

Unfortunately (or fortunately?) we don't make ethical decisions based on science.

I believe bodily autonomy is a human right. One of many not protected in the US. So I'm on your side here.

I'm just saying that's not convincing enough for enough people.

Expand full comment

This is one case in which science is necessary because we have two beings at risk and each have rights. Therefore, the differentiation between object and being is the detail that provides the woman the inalienable right of abortion that ends when the fetus becomes a being. It is the only rational point that makes sense, whether certain people can accept it or not.

Expand full comment

So if you are under for an operation, since your mind isn’t working, killing you is cool? What about a new born? How do you determine exactly when “capacity for mind” occurs.

It is scientific fact that a unique human life is created at conception. The rest of what you babble is simple deflection.

Based on your own statement you think moms should be able to kill baby even after birth, that’s sick.

Expand full comment

Do you have to try that hard?

Under for an operation - depends on whether I'd shown myself to be a functioning human before and whether I'd be able to after.

Newborn - honestly, people don't remember what happened to then before sometime during their toddler years. Why not put the cutoff there?

Capacity for mind - there's the thing. There are too many different things to measure and we can't even get consensus on what matters. (As if consensus is justice, amirite?)

That's not a "scientific fact." It's a single claim. Which, again, is the problem. There are different claims.

Sick. Yes. It would be toward the edges of the bell curve, psychologically. But normal is really down to definitions of what "baby" is and when.

Expand full comment

LOL! The differentiation between object and being is the capacity for mind. Uniqueness means nothing, only whether the fetus has the capacity for mind or not, can it experience or not.

Expand full comment

Yes. I'd sure like to know why they have a bill sitting in a Senate committee as we speak that they could pass TOMORROW with their supermajority.

Also I'd like to know why during Obama's first term they did nothing.

They're the party of war, paranoid Russophobia propagandists printing money for the same gangs that spent a trillion nation-building in Afghanistan -just like the Republicans.

They're the party of passing legislation to fuck over the borrowers in loans -just like the Republicans.

They've been attempting to and getting away with censoring anyone who doesn't say the official lines -worse than the evangelicals of the 1980s, so far.

Expand full comment

I agree 100%. They NEVER made the only valid argument that until the fetus develops mind, it just doesn't matter and 95% of abortions are performed by week 15, well before consciousness, and late term are not elective, they are performed because the woman's life is at stake, viable fetuses are delivered via c-section.

Expand full comment

'Health' of a woman is determined in certain states to be 'Financial or Psychological health" - response to "woman's life is at stake". This term has been so incorrectly understood as to how it is applied. Curious how that changes peoples minds.

Expand full comment

I use the term "at stake" as my nurse friends do, that her life is at stake.

Expand full comment

Life is at stake is very much open to interpretation. It could be I don't want to deal with adoption if the child is born.

Expand full comment

I work with obstetric nurses who told me that abortions are performed when the mother's life is at stake from the pregnancy and from vaginal birth. If the fetus is well formed it is delivered via c-section. They have never experienced a woman at that stage ever electively abort, they all want the baby.

Expand full comment

All of your positions are based on the 'fetus develops mind' argument. Can you articulate any kind of scientific or even cultural majority position on what that is exactly?

Expand full comment

Women have the right to live their lives as they wish and that includes whether they want children or not.

Expand full comment

I agree. Those that do not want children have total freedom to use contraception, and/or insist that their male partners use contraception, and/or not have p-in-v sex. They do not have the right to engage in irresponsible behavior without consequence, any more than they have the right to drive drunk and kill someone and not go to jail.

I am not an anti-abortion absolutist, I believe that we have to allow for some wiggle-room, if only to mitigate the horrors of back-alley abortions of the past. But we have to be honest about what we are talking about: killing unborn babies. All of these justifications involving brain development or heartbeat are just sophistry in an attempt to sidestep the moral implications of the reality of the situation.

First, admit that abortion is what it is: termination of human life. Then provide a logical argument why this should be allowed, if you can. I cannot.

The simple fact is, abortion violates the rights of the fetus; outlawing it violates the rights of the woman. It is an intractable problem forced upon us by biological reality, and the best we can do is try to figure out some compromise that minimizes the harm one way or the other.

Expand full comment

"All of these justifications involving brain development or heartbeat are just sophistry in an attempt to sidestep the moral implications of the reality of the situation."

Heartbeat means nothing as a single heart cell will beat on its own. Mind is the differentiating factor.

Expand full comment

"The simple fact is, abortion violates the rights of the fetus"

Only beings have rights and so this is true only when the fetus has the capacity for mind. Otherwise it is a object. That the brain must be sufficiently developed to have mind is a biological reality.

Expand full comment

"Those that do not want children have total freedom to use contraception, and/or insist that their male partners use contraception, and/or not have p-in-v sex"

LOL! Women have the inalienable right to run their own lives and end unwanted pregnancies without any state interference until the fetus becomes a being, at sentiency. The state nor you have any interest in controlling women, telling them what to do. Until the fetus is a being, has the capacity for mind, it is an object under complete control of the woman. Women have the inalienable right to have consensual sex.

Expand full comment

Nice way of continuing to avoid answering questions you know you cannot.

Expand full comment

Why bother to pass a law when you can legislate it? I hate to say it, and I may be wrong, but that appears to be what it all boils down to.

Expand full comment

"Why bother to pass a law when you can legislate it? "

Well, "passing a law" = "legislating" (whatever). Or, what do mean here?

Expand full comment

My apologizes. I meant to say "Why bother to pass a law when you can have the courts do it for you?"

Expand full comment

The right to abortion is protected by the Ninth Amendment, as is the right to self defense that is also not referenced in the constitution and Roe v Wade confirmed it. Therefore, there is no need to codify it.

Expand full comment

Then the right to refuse vaccination and or other medication is also protected for the same reasons.

Expand full comment

Could be. However, there is the issue of public safety.

The problem with the entire pandemic was that nobody in authority or the general public seemed to have any competency with regards to virology or immunology. The entire episode was a fucking mess. I listened to Vincent Racaniello's This Week in Virology podcasts (at microbe.tv/twiv) and so heard valid information whereas most people got theirs from the MSM, which also didn't understand what they were presenting to their audience.

IMO, we wouldn't have had such a cluster fuck if qualified people were in positions of authority and gave the public accurate information and the public was better educated.

Expand full comment

"The problem with the entire pandemic was that ..."

... beyond the first few weeks of actual *emergency* management by the executive branch, a plan by the legislatures should have been put in place to handle it. But, just as with AUMF, they're now in place just for show and for their own graft. So now, dictators continue to run it, two years in.

We see the same sh*tshow regarding dysfunctional management in the abortion problem, by -- of all places -- the Supreme Court, now thankfully being unwound. The cowards in the legislatures dare not do their jobs.

Expand full comment

Abortion is an inalienable right until the fetus becomes a being.

Expand full comment

Oh, and how is "beinghood" (legal personhood, I believe you mean) determined? Where does that process belong?

Expand full comment

"The right to abortion is protected by the Ninth Amendment"

i.e. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

I see what you mean... It's not as if people might have differing opinions of what those rights actually include. Beyond actual emergency cases, these ought to be resolved through legislatures and/or constitutional amendments.

Expand full comment

I don't consider the anti-abortion arguments valid at all. They are based on religious doctrine, they want to impose their religious values on society. They have no authority over women and that includes forcing them to remain pregnant.

Expand full comment

There are many pro-lifers that hold no religious opinions...

Expand full comment

Belief in an *unassailable* value of (say) "a functioning brain" is, itself, religious doctrine. *Your* religious doctrine. Because anything that is deemed incontestable is, almost by definition, a religious tenet. In contrast, democracy never makes any such claims -- it only claims one person, one vote.

Expand full comment

Exactly. Jeff is so confident in his position, has such unwavering faith in his belief and feels such a need to impose it on the rest of the country that he is the very thing he claims to disdain--a religious zealot. He, by everything he has said on this article, follows a fringe interpretation of an aspect of the constitution with extreme political-religious fervor.

Expand full comment

It's not belief, my position is based on evidence and reality. A being has mind and an object has none.

Expand full comment

""a functioning brain" is, itself, religious doctrine"

No, it's not, it's based on evidence not belief.

Expand full comment

Only *beliefs* are, or can be, based on evidence. Truths cannot. Truths remain forever "out there", completely unavailable for ownership.

This includes beliefs in Darwin's voluminous evidence arguments plus the last century and a half of many others after it, just as it does the beliefs in the almost, or fully, nonexistent evidence (to you and me) in Genesis. Because it is ALL belief.

Expand full comment

Please point me to a case on the federal right to self defense that overrides state law.

Expand full comment

That has nothing to do with the fact that the 2nd Amendment says nothing about an individual's right to self defense, only of the security of a free state.

Expand full comment

And the second amendment doesn't guarantee the right to self defense. Nobody has ever made that argument.

So we'll agree that you have no case law that says the "federal right to self defense" (which doesn't actually exist anyway) overrides state law as you are proposing for abortion.

Expand full comment

"Nobody has ever made that argument."

Scalia did in Heller v DC, he made it up, like he said should not be done. However, that inalienable right is protected by the Ninth Amendment and is national.

Expand full comment

Uh no he didn't. He said you could own a firearm for the purposes of self defense, not that self defense is a right.

Expand full comment

Thank Glenn, as always, a common sense (plug for Bari) explanation of the facts regarding this controversy.

We have a faction of the country that has abandoned any interest in staying within the lanes, not just ethically, but legally, in order to achieve their ends. They have strong allies in media and the permanent government who amplifies their messages and distorts the percentage of the country that believes in their causes. The midterms can't come soon enough, nor can the '24 elections.

Expand full comment

You nailed it.

https://simulationcommander.substack.com/p/everything-is-an-attack-on-democracy

Though the vaccine mandates were the most egregious example, nearly all covid rules were made via executive fiat and use of emergency powers. Governors and mayors found a lackey in a lab coat to stand behind so they could pass the buck and be held blameless for the chaos that followed. “Just following guidelines” became the borg-like ‘get out of jail free’ chant of government officials. But nobody voted for Anthony Fauci or anybody working under him. We have no mechanism to hold these bureaucrats responsible - and holding officials responsible is the foundation of the Republic.

And it’s no surprise these unelected bureaucrats declare that unelected bureaucrats should have unlimited power. These bureaucrats also say people who disagree are really attacking science, and should be banned from public discourse due to their ‘dangerous misinformation’.

But there’s never been any evidence that airplanes and other public transportation systems were a major transmission vector. Nearly the entire country is totally done with covid restrictions, and the idea that a super small minority of travelers could somehow kickstart another wave by removing their masks is insane. Yet Fauci just casually asserts it, knowing CNN’s Washington Generals-level reporter will let the claim skip right on by.

Expand full comment

Oh I think there is more than one faction that has abandoned staying in the lanes...

Expand full comment

Well said. It's also worth noting the reason that the original Roe decision was so flawed. The Court tried to invent a right which was and is nowhere in the Constitution. That was legislating from the bench, just as was Robert's contortionist ruling on Obamacare.

Expand full comment

Quite a funny Substack moniker!lol

Expand full comment

That which the court gives, the court can take away.

Also, after the rantings of the left demanding vaccine mandates, I find myself unmoved at this point by their bodily autonomy arguments. They seem only to like killing babies as they scream and yell endlessly about “bodily autonomy” for a procedure that, when successful, kills another human being 100% of the time, but simultaneously want a 19-year old college kid banned from society and “higher education” for failing to get THREE experimental injections the kid doesn’t need, that protects no one from anything, and despite a terrible short term side effect profile combined with unknowable long term repercussions. The left clarified for me they just really hate babies (and kids - note our public school system controlled by the activist left that openly advocated child sterilization and genital mutilation).

As a matter of personal preference, I support early choice (up until 10-12 weeks). I place bodily autonomy above the right to life of another. However, recognizing it is another human life taken in abortion, I would restrict it once the mother knows, or should know, she is pregnant and can thus make the decision on carrying any child. After that point it’s about the child’s body, not the mom’s, and killing an innocent baby for real or perceived imperfections is too close to outright eugenics for my moral compass. I’m also not swayed by needing “more time” to decide. We have seconds on the interstate everyday to make decisions, which left unmade, can result in death. Lots of indecisive squirrels end up dead in the road. Just because a decision is hard does not give one extended periods of time to make it.

If I have to choose between no abortion and supporting the killing fully developed babies (about 6,000-8,000 a year after 20 weeks, and 97% for convenience, not severe fetal abnormality, according to planned parenthood’s own research), I’ll choose the side innocent babies. An unwanted pregnancy may feel insurmountable, but only death is actually so.

Expand full comment

I once served on an arbitration panel that involved a seedy inner city abortion clinic. Regardless of your views on abortion, I can tell you that it is a grisly process and - at least in this case - run by people you wouldn’t let walk your dog.

Expand full comment

💔 it’s absolutely cruel. When I was younger I had no clue, but learned. Seeing my oldest in a high degree monitor at 12 weeks I was literally speechless because it hit home just what abortion is, and I knew how it was accomplished.

Expand full comment

High definition

Expand full comment

"An unwanted pregnancy may feel insurmountable, but only death is actually so." Exquisitely stated!

Expand full comment

The story is not this. The story is of the leak... or the fact that what has been leaked is fabricated by the Democrats to help them stop the destruction coming in November.

The story is the culture war and we should have had it by now and working to identify and neutralize those terrible people graduating from Yale then infesting our institutions of law.

Expand full comment

That would be a great second piece!

Expand full comment

First off, excellent piece.

Second, one minor quibble.

> Such laws can never be validly enacted.

Not entirely true. Such laws can be validly enacted via Constitutional Amendment. Our system does not protect against the tyranny of the 80% or 90%. It protects against the tyranny of the 51% or 52%. If 80% or 90% of the country supported a law, an Amendment would be rather easy to pull off.

Nearly 50 years Roe existed as a precedent and no attempt was made to formalize it in the Constitution as is proper.

Again, minor quibble. Excellent article, as always. I continue to be proud to subscribe to your efforts here.

Expand full comment

My first response to gun control advocates is, “where’s your Constitutional amendment?”

Of course there never is one because they know they’d fail miserably if they tried.

Same for abortion.

Expand full comment

On the other hand, the right would almost certainly also fail it tried to pass an Amendment to ban abortion completely.

And yet more than a few Republicans are talking about passing legislation in Congress at the national level that would aim to do precisely that, based in part on senatorial over-representation of rural states.

Expand full comment

I really don't think even Republicans as a group support such a national law. Yammering in public isn't the same as a recorded vote. We are all not in agreement about such laws.

Expand full comment

Our system protects our rights against even extreme majorities of 90% if these majorities are transient and/or localized, as they often are. Just because the passions of the mob favor something today does not mean they will continue to do so through the lengthy, plodding process of getting a new amendment added to the Constitution.

Expand full comment

Good point but I think Glenn would respond "laws" are not the same as Constitutuonal "rights." The former are passed by Congress the latter added to the Constitution through the Constitutional process. They are completely different mechanisms. And it's not clear to me that this process wouldn't protect the minority against even an "80 or 90 percent" majority unless that majority was spread evenly throughout the country demographically, otherwise certain pockets of the electorate could create sufficient electoral opposition to defeat the Amendment through the approval process (i.e., 3/4 of the States).

Expand full comment

This entire episode is the fault of cowardly legislators that want the court to make decisions that properly belong to the legislature. It's much easier to rail against the supreme court and raise funds than actually going on the record and voting yes or no on a law. Going on the record in a vote might upset voters and that is one thing politicians want to avoid at all costs. Much better to blame the court.

Expand full comment

Same with many other areas of governance. For example, Marijuana laws. Those states legalizing it are in violation of federal law. Because of this, operators can't process credit card transactions, get bank loans, or many other common business practices. The closest we've had are President's refusing to enforce the federal laws - violating their oath of office. Immigration is another cowardly legislator problem. I don't know which was the last administration to actually enforce those laws, as written. Lawmakers have babbled for decades about "comprehensive" reform. Both sides can then complain and campaign on it without ever trying to solve the problem. The list of these issues goes on and on.

Expand full comment

It’s nice to read at least one person who has a clear understanding of words, the Constitution, our actual history vs manufactured history, and can explain his points in a clear and concise way. Thank you, Glenn!

Expand full comment

THIS IS JOURNALISM. I have no clue how you feel Glenn about abortion and frankly it doesn’t matter to me. What I read here is clear and precise presentation of both sides and more importantly the reasoning behind the historical thought process on lawmaking. Thank you for being one of the few real journalists left.

Expand full comment

But Greenwald's views on abortion do more or less come through between the lines: not particularly concerned about fetal rights (with possibly some exceptions), not in favor of having a pro-choice judicial ruling that comes close to being as sweeping as Roe v. Wade, not emotionally invested in the pro-choice side, and having some motivation to pick apart arguments of typical pro-choice advocates. I don't know if he would be more emotionally invested in the pro-choice side if people he is very close to would be negatively affected by an abortion ban in (parts of) the US; it might be hard to answer that because perhaps he wouldn't be the same person then.

Expand full comment

Don’t know.

Expand full comment

If you like, you can check what Greenwald said about abortion on Callin a couple days ago -- there's even a transcript available if you click on it. The Callin link is here: https://www.callin.com/episode/roe-v-wade-and-scotus-back-on-the-news-ZUUQoTcqYQ

I think it's reasonably close to what I said Greewald's views were (although I was careful to say "more or less" because I didn't know exactly).

Expand full comment

If you mean he’s not a ranting hormonal Democrat with no emotional control, I’d say you’re right. He’s simply explaining the law and how it works and feelings don’t enter into it.

Expand full comment

Ha. Your view that "feelings don't enter into it" is the wrong way to interpret Greenwald. I like Greenwald (with some reservations) and I would agree with W Jones that he's more principled than most journalists. But his principled stands don't negate the fact that emotions have a big effect on what he supports and how he supports it. He has emotional control of himself more on some matters than on others. He has some integrity and intelligence, but that is not the only reason why he wrote in a way that struck many readers as highly even-handed. The other reason why he sounded dispassionate is because, as I indicated, abortion is an issue where he's not all that strongly drawn to the ethical case either pro or con. Between the lines of his article, you can see the usual Greenwald emotions, and although they don't harmonize well with the classic pro-life position or the classic pro-choice position, they are there and have a big effect on what he's saying. It may even be a flaw in him that he doesn't feel very strongly about either ethical side of the abortion issue.

I was going to congratulate you for not spending much time on the Internet, since anyone who's spent time online ought to know that being "ranting" and "hormonal" are traits of Republicans no less than of Democrats. But I think it's more likely that you have spent time online and are just too blinkered to learn anything from it. So, I guess I should end this discussion.

Expand full comment

I really didn’t read all that. Sorry. You wouldn’t get far in law school.

Expand full comment

As I said, you can't read either. No use in talking further.

Expand full comment

At best, you seem to be projecting. You certainly don’t appear to engaging with the arguments in Glenn’s article, or even, really, the substance of W Jones’ post.

Expand full comment

My post didn't need to address W Jones's post as a whole, nor Greenwald's arguments. (Though I will take the opportunity now to say that W Jones is largely right and that many of the arguments in Greenwald's article are good. )

What I did say, however, was that even though W Jones had no idea of Greenwald's view on abortion, I can pick up a rough idea of what that view is. Whether you believe I'm right or not is up to you. But I can back up my position by issuing this challenge: if Greenwald believes I'm largely wrong in stating his view on abortion, he can say so. I'll just leave it there for now.

Expand full comment

Fair enough.

Expand full comment

If you like, you can check what Greenwald said about abortion on Callin a couple days ago -- there's even a transcript available if you click on it. The Callin link is here: https://www.callin.com/episode/roe-v-wade-and-scotus-back-on-the-news-ZUUQoTcqYQ

I think it's reasonably close to what I said Greewald's views were (although I was careful to say "more or less" and "a rough idea" because I didn't know exactly).

Expand full comment

To be honest right now I'm tired, and had a very busy day. I had a hard time reading this article. What do you think Greenwald's view on abortion is. If you're tired forget it. Haven't seen you around for a while and hope everything is well.

Expand full comment

Thanks for asking, I'm reasonably well, and it's good to hear from you too. I still do read Greenwald but will not be commenting as regularly as I did in Greenwald's first year here. Keeping a balance in life, for me, requires not posting online too much. I appreciate your note, especially since you and I have disagreed earlier, and I have a vague sense that some of the things I said to you at times may have been too negative.

As for Greenwald and abortion: further up in this thread, I said most of what I have to say on that, which isn't much. Briefly, I think he's more or less in the middle on abortion and doesn't want judges to be the main deciders. I don't think he has the kind of strong sense of a fetus's right to life that some people have. Similarly, he's not like those who come to the abortion debate with big worries about women and girls being too sexually autonomous. But on the other hand, he doesn't particularly see abortion rights as a big part of freedom, or see abortion as a marker of women's rights in general. Neither the potential harm done to fetuses by abortion, nor the potential harm done to women in general by an abortion ban, excite a passionate interest in him. I expect he has some ethical views on abortion topics per se, but those ethical views aren't in themselves important enough to him to motivate him to write. The fact that he wrote today's article is more because he wants to oppose some kinds of cultural dominance or semi-dominance, and not so much because he cares about abortion per se. All this is just my impression, and Greenwald certainly doesn't say any of this explicitly in the article.

Expand full comment

I haven't seen you post in a while. To be honest, 3 hours at the dentist and I'm kind of out of it. I know Greenwald addresses, or writes on issues only if he feels he is qualified to do so, well it's what he said to me. It was a bit confusing to me when I read it, but not sure why. This is an issue which is difficult for me, since my mother who lost her father when she was less then a year old, and had 4 siblings all under the age of 10, which at that time meant all were raised in an orphanage. Seems my grandmother remarried 5 years after her husband's death and the story goes she opted for an abortion when she became pregnant in her first year of marriage, perhaps she was more focused on getting her children out of the orphanage. Well, she died, as did the 3 baby girl's she was carrying. The decision a woman makes to have an abortion can get to be a very complicated one. My mother was very anti-abortion based on her mother's story, but not based on religious beliefs. I wouldn't, couldn't, but each woman must deal with this issue and I think the majority don't make the decision lightly. I do think there should be time limits, even 4 months is a bit much if it's not do to a medical issue. I do think if a woman does have an abortion she should have the best of medical care.

P.S. Show up more often. Also I was wondering if the leak was politically motivated, and used this as the issue to rally the democrats in the upcoming elections. Three of those judges were picked by Trump and 2 by papa and baby Bush.

Expand full comment

Lol no.

Expand full comment

I'm afraid the blather, which Glenn rightly calls out as absurd, about overturning Roe being an attack on democracy just confirms my view that when Democrats say "democracy" they do not mean rule by the δῆμος, they mean rule by Democrats.

Expand full comment

Or, maybe, rule by δαίμονες.

Expand full comment

great to see a bit of Greek in here 😂

Expand full comment

"It's all Greek to me"--Julius Caesar

Both the Greek in your post, and the way that the DNC can claim that legal dictates that override democracy is democracy.

Edit: How so many in the DNC and legacy press can be so contradictory and keep a strait face is nearly beyond comprehension.

Expand full comment

It’s absolutely the right decision. Contentious issues that are not enumerated in the constitution should be decided at the state level. Roe created an unenumerated constitutional right based on a tenuous link to privacy. It was always an untenable standard with a moving goalpost.

Expand full comment

“Seven unelected white men” isn’t accurate—Thurgood Marshall was on the Court at the time of the Roe decision.

Expand full comment

Thurgood Marshall was appointed by LBJ and his opinions were mostly liberal.

When Marshall retired in 1991, his successor was appointed by President George HW Bush, to be Clarence Thomas, who is a leading conservative and strict Constitutionalist. That Marshall was succeeded by Thomas was a bitter pill for Democrats and liberals.

Expand full comment

Why is it that so many of those with an urge to stereotype "the left" end up saying things like "Wasn't Marshall a conservative" as they jump into their stereotyping?

Expand full comment

In the immortal words of Fezzik "I don't think that word means what you think it means".

Expand full comment

My concerns are 1) that someone at the Supreme Court leaked a very private document; and 2) that news media such as Politico would even for a moment consider publishing it, given how damaging this is to the integrity of the Court.

Expand full comment

It should happen more often. The people should know more about consequential decisions by a branch of government.

Expand full comment

and in the meantime the justices named in the leak will be subjected to immense pressure BEFORE they make their final decision. Who thinks this is a good way to decide such an important issue?

Expand full comment

I see you dislike the idea of "pressure before they make their final decision". But a central reason why it is a crucial right to be able to "petition the Government for a redress" is that it promotes the people's ability to affect the final decision. The "pressure" you dislike is part of the inherent value of free speech, which is why the First Amendment strikingly endorses it in the passage I just quoted.

Expand full comment

That is just the heckler’s veto en made. We have laws and procedures for a reason. SCOTUS is deciding the constitutional aspects, not a matters popularity.

Expand full comment

What if it were a murder case and the public was clamoring for justice and to kill the alleged perp? LIke in the Old West, where they string him up?

Do you want murder cases judged on the facts of the case with perp presumed innocent till proven guilty? Or do you want "pressure" on the judge/justices as they make their decision?

Expand full comment

In my other comments I used words like "probably", "particularly", "more often". I didn't say always. In your example, the presumption of innocence is in danger of being overridden; but in this week's Supreme Court leak, nothing as important as the presumption of innocence is at risk from the leak. Don't have time to discuss this more, though.

Expand full comment

Right around half the House and Senate, I would guess. They would call it treason if it went the other way, though. The other side often sees things the same way, depending on the issue. Most of "we the people" are prodded along by one side or the other so we can fight amongst ourselves and leave them to their profiteering. Ugly system, but "we the people" always happily play along.

Expand full comment

But it is not the official position yet. It can and will be changed over the next several weeks. The people will know everything about the decision when it happens as the actual final documents will be published then.

Expand full comment

I guess we have a Nancy Pelosi type here: "We have to pass the bill so that you can find out what is in it".

You say in one of your comments that you don't want documents "leaked to the public before the decision is final". But particularly when the "final" decision is as important as it is here, the people need to have the right to hear about and respond to it before it becomes final. The Constitutional right to petition the government for a redress is weakened if people are blocked from knowing enough to petition BEFORE the decision becomes final. People like Pelosi and you don't like pesky peasants trying to petition for redress before government officials put into effect whatever they want. But if the peasants are kept from finding out, and draft documents can't be leaked or FOIAed, government officials have more scope to abuse the peasants. We need to focus more on giving the people what they need to exercise their First Amendment rights whether it's before the officials' decision or after.

Expand full comment

Your position makes sense in the context of legislation, but is ridiculous in the context of court decisions. Should we also have live cameras in jury deliberation rooms so that we the public can comment on the proceedings, and maybe dox the jurors if we don't like what we see?

Expand full comment

But jurors are there as an element of public participation. As ordinary members of the public, they shouldn't be doxed. Judges and poltiicians are different. Chief Justice Taney's conversations before issuing the Dred Scott decision should have been leaked.

Expand full comment

No, the principle applies equally to the Court. By design, SCOTUS is intended to be an anti-majoritarian institution not swayed by the passions of the mob. It may fall short of that ideal, but your proposal would destroy the ideal.

Expand full comment

Mob rule. Got it.

Expand full comment

Well then, why wasn't the draft of the decision on Obamacare leaked????

Speaking of Pelosi, why don't members of Congress know what is in the appropriations bills before they vote on them?

Members of the Supreme Court and their staff are not government employees, nor are members of the Congress and their staff.

Expand full comment

Things about Obamacare should also have been leaked, including probably draft opinions upholding it. Your statement about who's not a government employee is absurd and is at best a legal fiction.

Expand full comment

About as damaging as it was to the integrity of the Executive branch by the NYT's Pentagon Papers. Do you disagree with that action as well? What about Assange's reporting US military war crimes? It's called journalism. Even if it hurts your cause.

Expand full comment

The leak does not "hurt my cause". It hurts the integrity of the Supreme Court, to have a draft document leaked to the public before the decision is final.

It has no connection with the Pentagon Papers, etc. They were not releases of draft court documents. They released documents of the executive branch. There is no connection.

Expand full comment

So the activists have infiltrated the justices' chambers. That this occurred is proof that the Democrat extremists will stop at nothing --- there is no consequence not appropriate or not deserved --- in order to satisfy their impulses.

This is really all about November. And if a few buildings, the concept of the rule of law, and the American project itself get burned down in the process, so much the better.

Expand full comment

Sadly, not much of the rule of law remains to be incinerated at this point.

Expand full comment

Hurting the integrity of the Supreme Court may have been part of the actual motivation, although a subordinate part. It would be pretty trivial to justify packing a court with no perceived dignity and/or integrity. However, the primary motivation was a desparate attempt to stave off the impending colossal Demoncrap electoral losses in November.

Expand full comment

"Journalism is printing what someone else does not want printed. Everything else is public relations." - George Orwell (attr.)

Expand full comment

The difference is that the Pentagon Papers and Snowden/Assange were all reporting on knowing, willful abuses of power. In the case of the supreme court, there is no abuse of power occurring. It is not as though this is a leak of some dark money group corresponding with justices to vote a certain way. It's a leak of a draft ruling.

Expand full comment

It’s an attempt to interfere with a constitutionally mandated process. I was under the impression Democrats thought doing that was really really bad?

Expand full comment

"The difference is that the Pentagon Papers and Snowden/Assange were all reporting on knowing, willful abuses of power."

Doesn't matter. Pentagon Papers and Manning's info also involved legal violations. I'm sure this current leak is also a legal violation, which will of course be punished.

Journalism is another thing entirely. You cannot judge, prior to publication, whether the content of the leak is an abuse or power, or anything else about it. It's fair game.

Secrecy, at root, is anathema to democracy. Regular attacks on it should always be welcome as parts of our checks-and-balances on power. These attacks (specifically, the publishing of info, not the obtaining it) have often been respected by the courts.

Be like Greenwald -- don't let any partisan bias enter here.

Expand full comment

I am aware of the dangers of secrecy, however at the same time there is the danger of crazed elements putting pressure on the supreme court to rule in a way which pleases the most vocal faction out there. This causes any court case to devolve into issuing verdicts based on mob violence over the letter of the law.

Expand full comment

"putting pressure on the supreme court"

I think the leak is, at least as likely, the Court majority's -- or one of its swing voter's (who would this be?) -- own trial balloon. I don't think the Supreme Court is likely to "cave" unwillingly. They are well aware of the extreme importance of their independence from political pressure.

Expand full comment

Well, since the leak has occurred, protestors have shown up at the capitol (the same one which was barricaded for over a year) and there have been not so veiled threats issued to the supreme court to rule in the way of the mob. And not just by wingnuts but by elected representatives.

Expand full comment

I don't applaud Politico for publishing it, but evidently the leaker sent similar documents to CNN, and possibly other outlets. Once this was leaked, some media outlet was going to publish it, followed shortly by all of the rest of them. Surely you aren't naive enough to suppose that multiple competitors among our depraved media would have enough integrity to keep a lid on this, even if that was the most ethical reaction?

Expand full comment

The flaw in this article's reasoning is that legislatures do not represent the will of the majority since elections are manipulated. So the Constitution's intent that the Supreme Court should prevent a tyranny of the majority is no longer relevant. The draft court ruling isn't an affirmation of democracy - democracy has long been dead. Rather, it is a decision that the people who manipulate elections, and not the courts, should have the right to decide public policy. Whether this is a good idea is debatable, but the Constitution and the majority have nothing to do with it.

Expand full comment

So SCOTUS prevents the tyranny of the oligarchs who've bought Congress? I like that!

Now, has anyone purchased the SCOTUS? They are a certain form of elite, groomed for their seats. So, I'd say probably, at least indirectly. But are they bought by the same oligarchs?

Expand full comment

After Roberts' absurd Obamacare ruling, it's hard to believe he isn't compromised.

Expand full comment

DJT's 3 (three) appointments foiled the oli's!!!

Expand full comment

It's ineffective an corrupted but that my friend, is our democracy.

It'll be up to states now. That's how a republic works.

Expand full comment

Outstanding leap, second sentence from first!!

Expand full comment

Honestly, that probably the best argument in the stable.

Expand full comment