Kansas Supreme Court Rules State Constitution Protects Right To Abortion

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102

I think as long as the child is treated as a human being (at 31 weeks it would have a good chance of survival if not for the conditions you’re describing) and the medical staff does what it would do with a baby who had just been born with the same conditions. I get that these are extremely difficult decisions, and I don’t have a problem giving a lot of that decision making to the parents and doctors. I would just want them to treat them as human beings. I’m not saying that’s currently not happening, I just want to clarify that I know there is a lot of gray area here and a lot of “choose between two difficult options” going on.

That is true. Certainly that’s what I have a problem with. There have been a few miscarriages and stilbirths in my family and I knew a young couple that had a child with microcephaly. It’s just so difficult and tragic and I really feel for those parents.

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103

This is uncommon, but most would perform the abortion, or direct her to a provider that would perform the abortion. It is uncommon, but not precisely rare. It happens all the time.

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104

Gosnell is in prison, where he belongs. Evidently, the laws worked. If the laws worked, then presumably we do not need any new laws.

I mean, I get the argument – what if Gosnell had done bad stuff, but not quite bad enough to get himself a life sentence? But that’s a rather endless road of speculation. It would be like saying that since Ted Bundy faked a disability in order to lure women to their kidnapping, rape, and murder, we should make it illegal to fake a disability on the side of the road in an attempt to attract attention from women. I mean, yes, that’s probably a bad thing, and anyone doing it is up to no good, but making that specific thing a crime is a rabbit trail.

There are unfortunately many cases in which women face the choice between prematurely terminating an unhealthy pregnancy and risking serious and even permanent injury. In every such situation, the woman has the right to make the choice for herself, based on her physician’s recommendation, without any state interference. If you can write a law that wouldn’t ever impede this right, let me know. I haven’t seen one.

Unfortunately, it’s not always that easy. If you have a situation where the fertility, health, or even life of the mother is endangered, then the procedure that is safest for the mother may not be “humane” for the nonviable infant. It is sad, I get it. But pregnancy is extraordinarily complex and very dangerous. There are quite a lot of situations where you simply cannot have it both ways.

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105

I think the point is that laws, actually, did not work. He carried on for decades. Do you know of any comparable case where this happened?

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The point is, murder of healthy children in the birth canal does happen legally, and Gosnell just happened to get caught, not for that, but because he botched it, delivering babies alive and then murdering them.

I guess as a society we must be pretty inarticulate.

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I can understand that, my concern is there is a difference between “we had to make a difficult choice between the life of one person and the life of another” and “there is only one person here to think about, the other thing wasn’t a person”.

I have a much bigger problem with the cases (usually significantly earlier than what we were just talking about) when it’s a boyfriend pressuring his girlfriend into it because it doesn’t want to do with the responsibilities of a kid. Or the mom who tells her daughter she has to get an abortion because she’s about to go to college. I would like to see a higher level of consideration for the developing human in those cases. Again, I know that also comes with a lot of work that needs to be done on the societal pressures (poverty, inequality, etc.) but I wish it was a both/and, not an either/or.

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Don’t you think it is a responsibility of every parent to make sure that their children are on birth control as soon as they are of the appropriate age? Wouldn’t that reduce the need for abortion significantly? (Which it already has as Teen pregnancy and abortions are way down.)

And how can you preach abstinence if you believe that a virgin got pregnant?

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109

With Gosnell, the laws worked in the sense that he was ultimately put behind bars, but they failed in the sense that their enforcement was too-long delayed. The abominable conditions at his “clinic” should have shut him down ages earlier but local authorities consistently failed to inspect and failed to act on tips and complaints. There was a huge, systemic failure.

That sort of failure is symptomatic of the widespread inefficiencies and failings in medical oversight across the country, particularly in dealing with obstetric care. The United States has a maternal mortality rate dramatically higher than any other developed nation. To all appearances, we simply do not prioritize the health of women. Gosnell was an extreme case of this.

As numerous experts (including experienced abortion providers) testified, there was nothing remotely routine or common about the practices Gosnell used.

Hurrrrr

That’s the problem. It’s not one or the other. Pregnancy is qualitatively different than any other situation; we don’t have any good analogy. There’s literally no other situation in which we have to face these kinds of complications and challenges and dilemmas. There are no good answers.

Christians, and evangelicals in particular, are uncomfortable with the idea of there being no good answers, because it seems like issues of life and personhood ought to have simple answers. I suspect this is one of the reasons why the dialogue can be so challenging. There’s an urge to have a simple, definite answer, and so “conception” becomes the only fine line drawn.

But that’s not how we practice. We view a miscarriage at 20 weeks as more tragic than a miscarriage at 6 weeks, and we view a term stillbirth as more tragic than a 20-week miscarriage. Almost all pro-life activists agree that an ectopic pregnancy justifies abortion, even though there are documented cases of ectopic pregnancies being successful…yet they balk when the chances of survival are higher or the gestational age is later. No one would deny a woman chemotherapy on the grounds that it would kill an embryo if she happens to get pregnant, and yet countries like the Dominican Republic would stop a woman from getting chemo after she is confirmed pregnant (this resulted in the death of both fetus and the mother, 16-year-old Rosaura Hernandez, in 2012).

As much as we would like to have simple answers, the application in real-life situations is always on a sliding scale. We don’t treat it like a binary situation; we treat pregnancy as a potential person, increasing in estimation right up until birth.

We have demonized sexuality and therefore insist that “our” kids are too “good” to engage in premarital sex, and therefore have no need for birth control.

And then we wonder why religious communities have so many abortions.

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110

I think this is good insight.

I have seen enough to know it’s not easy or black-and-white much of the time. I was in charge giving pain medication to my mother-in-law when she was doing home hospice care at the end of a fight with cancer. I watched her die as I struggled to figure out how to best alleviate her pain. To this day I wonder if I could have done something different, to help her more. My grandfather had a DNR and while undergoing treatment for lymphoma got flesh-eating bacteria in his leg. He approved being intubated for the surgery to remove the affected tissue, but the family had to decide whether to remove support after it did not look like he was going to recover. Nobody anticipated having to interpret his DNR wishes when he was already intubated. That was the week I defended my PhD dissertation.

But to me, the tough medical decisions are a bit different than the “because I don’t want to have a kid” type scenarios. However, I guess I’m open to the possibility that there is no good legal way to separate those and that perhaps the decades old political battles over abortion are not the best approach. Maybe it’s a bit like the opioid epidemic. We can’t exactly just ban pain meds, but we can have a multi-pronged approach to lowering abuse by educating the public, providing more oversight on doctors, limiting access, and dealing with the societal conditions that promote substance abuse.

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I just wanted to say, we’ve managed to go 110 posts on one of the most politically charged and polarizing topics and it has not (yet) descended into the gutter. Thanks @David_MacMillan, @Patrick, @Mercer, and others for the valuable conversation, I truly appreciate your voices in the conversation even when we disagree. Thanks @swamidass for letting it happen.

At this point I’m pretty much played out. It’s the end of finals today, I’ve had a cold all this week, and this topic is emotionally draining. I will probably not post more unless there are specific questions.

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Wonderful! Now we can talk about ordination of women, LGBT rights, universalism and biblical values of socialism! :stuck_out_tongue_winking_eye:

Note: that was tongue in cheek.

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113

Yeah, I think that’s about right.

Suppose you have diagnoses of anencephaly and placenta brevia at 14 weeks. Low chance of fetal survival to birth, zero chance of surviving more than a few hours past birth. Mother confined to bedrest. At this point, most would agree that the mother should be allowed to choose an abortion. However, the couple decides that they will instead wait and see, hoping for a miracle and at least the chance to hold their infant, even if he will never see, hear, or feel anything. This, too, should be a choice they are allowed to make.

But then, at 29 weeks, the husband acts out violently toward the couple’s 4-year-old daughter and is arrested. The mother, still on bedrest, files for separation. CPS plans to put their daughter into foster care since the mother is unable to care for her. The mother is overwhelmed and asks for an abortion since she cannot handle caring for her daughter AND dealing with an anencephalic pregnancy without her husband. Since the fetus is much larger, the safest option is dilation & extraction.

So here’s a situation where the choice to end the pregnancy is NOT medical, but is prompted by external events…and yet we would certainly have been fine with ending the pregnancy for medical reasons earlier in gestation. Is this an elective abortion? It’s hard to say. That’s where the pro-choice advocates would come in and say, “Look, third-trimester abortions are extremely rare. If a woman finds herself in a situation where she is contemplating abortion in the third trimester, we should probably assume that she is in a really, really difficult situation and doesn’t feel like she has any other choice. This is the LAST place where we would want the government to come in and set up a series of requirements for her to jump through.”

I don’t like where that argument leads, but I definitely understand the argument.

A very analogous situation (although not materially). It is a problem with no easy answer.

I, for one, am pleasantly surprised!

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@David_MacMillan’s examples clearly show how difficult and complex it is to legislate on this topic. Real life situations have a way of changing what is the best course of action going forward to minimize harm to all involved. And when we find ourselves in that situation, it is very hard to reason out the best way forward with empathy, kindness, and understanding. Further complicating our decisions is changes in medical technology and economic consideration like insurance coverage as well as changes in societies moral, ethics and values.

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115

It would be, to be legal and moral, every person. thats the whole point. The fetus/child is likewise such a person. Further humans have a inaleinable right to life. These other things are only after the great rights are established. In fact they are not actual rights but man created rights. otherwise whence do they come?
it is up to a vote. the whole roe vs wade decision was a vote.
Either god or the people decide these things. there is no other authority.
even the claim abortion rights come from the comnstitution which was from humans creating claimed such rights.
No way around it morally or intellectually.
if abortion kills a kid then its constitutionally illegal based on being morally illegal from gods laws. natural rights remember!
therefore abortion being claimed from a constition must mean same constitution is saying the kid has no inaleinablr right to life OR REALLY there is no kid.
saying there is no kid as a part of the constitution must be the only hope for roe being right.
Obviously its absurd that hundreds of years ago the founders who made the constitution PUT inot it the settled fact the fetus was not and could not be said to be a kid.
roe was not just wrong but stupid. like evolutionism.

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This is a misunderstanding. In fact i think roe vs wade was done after a state court allowed restrictions on abortion. in fact desegregation laws in schools were done by the supreme court to trump state courts.
you can’t get around this.
roe vs Wade was dome to establish abortion rights. states can’t stop Roe by state supreme courts.
likewise the supreme court can stop state courts.

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As usual, you are not only wrong, but fractally wrong.

Texas outlawed all abortions. Attorneys for Norma McCorvey sued Henry Wade, the District Attorney of Dallas County, using the pseudonym Jane Roe, in U.S. District Court over the constitutionality of Texas’s law. It was, from the start, state law vs the Constitution, in federal court.

The US District Court, following earlier precedent from SCOTUS in Griswold, declared the law unconstitutional but refused to grant any injunction against Wade to stop the law’s enforcement. Thus both Roe and Wade appealed, and SCOTUS agreed to review. Had the US District Court granted the requested injunction, only Wade would have appealed, and the case would be now known as Wade v. Roe (the case retains the same styling on appeal if both plaintiff and defendant appeal, but flips if the defendant is the sole appellant).

There was never any state court involved in Roe. A private citizen sued in federal court to stop a state law, and the federal district court was appealed to its superior court, SCOTUS. SCOTUS affirmed the federal court’s ruling that the state law was unconstitutional, but went further and set standards for any laws respecting abortion, with the effect of striking down numerous anti-abortion laws across the country.

“Desegregation laws in schools” were not “done by the supreme court” to “trump state courts”. The supreme court doesn’t pass laws. That is nonsense. Brown v. Board of Education was, almost identically to Roe, a suit brought in US Federal District Court against a state law. As would be the case later in Roe, the federal District Court did not grant the relief desired, and so the plaintiff appealed to SCOTUS. There was no state court involved whatsoever. Four years later, Cooper v. Aaron established that SCOTUS rulings on Constitutionality nullify any state laws or state action intended to evade them.

To the salient point: SCOTUS will not hear an appeal from Hodes v Schmidt, both because SCOTUS is not the court of certiorari for the Supreme Court of Kansas, and because SCOTUS is utterly disinterested in the interpretation of the constitution of Kansas, which was the basis of this ruling. A state Supreme Court does not enter rulings based on the federal Constitution and the federal courts do not enter rulings based on state constitutions.

Your wrongness has reached peak fractality. I have descended into the depths of your wrongness and found more wrong with even the wrongest levels of your wrongness.

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118

I agree with this. I think merits less partisan and deeper consideration how that systemic failure took place so it can be fixed.

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That is more of a law enforcement (police, county prosecutor, health examiner) responsibility.

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Fractually or factually i’m still not wrong.
The details of this are irrelevant . They change nothing of the point
I said the constitution of the US trumps all state laws.
Whether the inalienable right to life oR the right to abortion/by way of privacy IT is agreed the US constitution trumps all.
if this was not true then each state could ban abortion in its constitution and the US one would be irrelevant. all pro lifers would have to do is target the states.
if this was so it would be that way for all laws.an absurdity.
The state constitutions can echo the US constitution but not revoke it.
Therefore if the US constitution says there is a right to life and the state legislature says the fetus is a kid then the judges in the state must obey.
So I say take em to court.
If the state of Kansas here was the origin for a right to abortion then Roe was not .
Overturning roe would allow legislatures to ban abortion. A state constitution would just be done away with like roe.
A state constitution might echo a right to liberity but it can’t revoke this right given by the uS constitution.
Your trying to say it could.
Think more carefully here. somebody is wrong.
This might indeed be like evolutionism. A curve in reasoning.
its impossible Kansas courts are the origin for right to abortion. So they are not the boss. The US supreme court is. otherwise kansas could use its supreme court to ban abortion. pro lifers wish this was true but NO Roe would prevail.
its roe that only matters. this court ruling for abortion rights is illegal.
unless it just echos but then why bother.

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Note that @Robert_Byers is from Canada.

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