If I recall correctly - and I am happy to admit I'm wrong - the big issue before the 1967 Act was getting over the hurdle of abortion contravening the terms of the Offences Against the Person Act (1861).
I think the route taken - though I can't seem to find it - is that the 1967 did not legalize Abortion but gave immunity to medical practitioners who were involved in it. maybe someone knows more?
Yes, the Offences Against The Person Act is still in place in England (and Wales?). Abortion is legalised *in specific circumstances* but not decriminalised - abortion is still legally a crime in England. I don't know to what extent abortions outside of the specific allowed circumstances are prosecuted though.
It would be vanishingly unlikely for such laws to make it through Parliament. Having a Parliamentary system protects us a great deal. Given that Westminster managed to fully decriminalise abortion in Northern Ireland (not just legalise it) suggests that aside from a few dinosaurs, abortion rights are robustly defended by the majority of MPs.
This is a good point. I don't think it's about having a parliamentary system so much as it is about having rights codified into law by parliament rather than inferred from the Constitution by the courts.
I don't know to what extent abortions outside of the specific allowed circumstances are prosecuted though.
Almost all abortions in the UK are carried out because of the risk of continuing pregnancy causing harm to the mental or physical health of the mother. I think last time I looked, there was a roughly even split between these two lawful reasons for an abortion.
AIUI, basically all doctors agree that both statements are true by construction: forcing someone who doesn't want to be pregnant to continue their pregnancy always causes both an increased physical health risk due to pregnancy complications, and an increased mental health risk due to being forced to carry a baby you don't want, as compared to having an abortion. So which box gets ticked on the form doesn't mean all that much.
So basically all doctors agree that all abortions before 24 weeks fall in to one of these two legally permitted categories, so there are no abortions outside the "specific allowed circumstances".
It would be vanishingly unlikely for such laws to make it through Parliament. Having a Parliamentary system protects us a great deal. Given that Westminster managed to fully decriminalise abortion in Northern Ireland (not just legalise it) suggests that aside from a few dinosaurs, abortion rights are robustly defended by the majority of MPs.
This is a good point. I don't think it's about having a parliamentary system so much as it is about having rights codified into law by parliament rather than inferred from the Constitution by the courts.
I don't know to what extent abortions outside of the specific allowed circumstances are prosecuted though.
Almost all abortions in the UK are carried out because of the risk of continuing pregnancy causing harm to the mental or physical health of the mother. I think last time I looked, there was a roughly even split between these two lawful reasons for an abortion.
AIUI, basically all doctors agree that both statements are true by construction: forcing someone who doesn't want to be pregnant to continue their pregnancy always causes both an increased physical health risk due to pregnancy complications, and an increased mental health risk due to being forced to carry a baby you don't want, as compared to having an abortion. So which box gets ticked on the form doesn't mean all that much.
So basically all doctors agree that all abortions before 24 weeks fall in to one of these two legally permitted categories, so there are no abortions outside the "specific allowed circumstances".
People buying drugs on the internet and self-inducing the abortion without medical prescription may fall outside the law.
It would be vanishingly unlikely for such laws to make it through Parliament. Having a Parliamentary system protects us a great deal. Given that Westminster managed to fully decriminalise abortion in Northern Ireland (not just legalise it) suggests that aside from a few dinosaurs, abortion rights are robustly defended by the majority of MPs.
This is a good point. I don't think it's about having a parliamentary system so much as it is about having rights codified into law by parliament rather than inferred from the Constitution by the courts.
I don't know to what extent abortions outside of the specific allowed circumstances are prosecuted though.
Almost all abortions in the UK are carried out because of the risk of continuing pregnancy causing harm to the mental or physical health of the mother. I think last time I looked, there was a roughly even split between these two lawful reasons for an abortion.
AIUI, basically all doctors agree that both statements are true by construction: forcing someone who doesn't want to be pregnant to continue their pregnancy always causes both an increased physical health risk due to pregnancy complications, and an increased mental health risk due to being forced to carry a baby you don't want, as compared to having an abortion. So which box gets ticked on the form doesn't mean all that much.
So basically all doctors agree that all abortions before 24 weeks fall in to one of these two legally permitted categories, so there are no abortions outside the "specific allowed circumstances".
Useful information. The situation regarding abortion in the UK by no means as clear-cut as I thought.
People buying drugs on the internet and self-inducing the abortion without medical prescription may fall outside the law.
True. It's worth pointing out that in England and Wales, it's now also possible to have a consultation, and be prescribed "abortion pills" over the phone; the pills will be mailed to you in plain packaging.
Since SCOTUS has returned the decision to the States, if your state has an abortion law, contact the state ACLU chapter. Many of them are already filing lawsuits that will go to your State Supreme Court. The state ACLU for Arizona filed a suit challenging the personhood of a fetus. Common Law has always said personhood does not begin until birth.
Since SCOTUS has returned the decision to the States, if your state has an abortion law, contact the state ACLU chapter. Many of them are already filing lawsuits that will go to your State Supreme Court. The state ACLU for Arizona filed a suit challenging the personhood of a fetus. Common Law has always said personhood does not begin until birth.
You don't need to consider a foetus a legal person in order to ban abortion. Perhaps there's something about the AZ law in particular that makes that relevant, but in general, SCOTUS just ruled that there's no constitutional right to abortion, which means that a state supreme court can't turn around and say "oh yes, there is!"
State legislatures are where you need to pursue this - get your state to enshrine legal abortions in state law. You might not get a perfect law passed - surveys tend to suggest that Americans support abortion in cases of rape and incest, and fairly early in pregnancy (when most abortions actually happen) but support for abortions drops off when the foetus is more like a viable baby (when very few abortions happen). But if you can get something passed that allows abortions up to 16 weeks, or 14 weeks, then you've covered a lot of the necessary ground. It doesn't mean you're done, but it's better to get something passable through your state, and then work on more exceptions than to go for perfection and get nothing.
Since SCOTUS has returned the decision to the States, if your state has an abortion law, contact the state ACLU chapter. Many of them are already filing lawsuits that will go to your State Supreme Court. The state ACLU for Arizona filed a suit challenging the personhood of a fetus. Common Law has always said personhood does not begin until birth.
You don't need to consider a foetus a legal person in order to ban abortion. Perhaps there's something about the AZ law in particular that makes that relevant, but in general, SCOTUS just ruled that there's no constitutional right to abortion, which means that a state supreme court can't turn around and say "oh yes, there is!"
SCOTUS ruled that the United States Constitution doesn’t provide a right to abortion. Litigation in state courts would concern whether there is a right to abortion under a state constitution. State constitutions can go beyond the federal constitution in recognizing rights. If the highest appellate court in a state says that state’s constitution does in fact provide a right to abortion, SCOTUS has no ability to say “oh no it doesn’t.”
Of course, if the right isn’t explicitly set forth in that state’s constitution, there would be the risk that future members of that state’s highest court could rule overturn the decision.
Since SCOTUS has returned the decision to the States, if your state has an abortion law, contact the state ACLU chapter. Many of them are already filing lawsuits that will go to your State Supreme Court. The state ACLU for Arizona filed a suit challenging the personhood of a fetus. Common Law has always said personhood does not begin until birth.
You don't need to consider a foetus a legal person in order to ban abortion. Perhaps there's something about the AZ law in particular that makes that relevant, but in general, SCOTUS just ruled that there's no constitutional right to abortion, which means that a state supreme court can't turn around and say "oh yes, there is!"
SCOTUS ruled that the United States Constitution doesn’t provide a right to abortion. Litigation in state courts would concern whether there is a right to abortion under a state constitution.
True - and I suppose there's nothing stopping a state supreme court from coming to the opposite ruling to the current SCOTUS in the case where the state constitution contains identical language to the federal constitution.
You don't need to consider a foetus a legal person in order to ban abortion. Perhaps there's something about the AZ law in particular that makes that relevant, but in general, SCOTUS just ruled that there's no constitutional right to abortion, which means that a state supreme court can't turn around and say "oh yes, there is!"
SCOTUS ruled that the United States Constitution doesn’t provide a right to abortion. Litigation in state courts would concern whether there is a right to abortion under a state constitution. State constitutions can go beyond the federal constitution in recognizing rights. If the highest appellate court in a state says that state’s constitution does in fact provide a right to abortion, SCOTUS has no ability to say “oh no it doesn’t.”
SCOTUS ruled that the United States Constitution doesn’t provide a right to abortion. Litigation in state courts would concern whether there is a right to abortion under a state constitution. State constitutions can go beyond the federal constitution in recognizing rights. If the highest appellate court in a state says that state’s constitution does in fact provide a right to abortion, SCOTUS has no ability to say “oh no it doesn’t.”
Yes, the ACLU here in Kentucky has just filed suit to block both our trigger law, which already went into effect, and another ban previously struck down under Roe and now reactivated, on the grounds that the commonwealth's constitution protects the rights to privacy and self-determination. I dunno. I glanced over the sections of our constitution that the ACLU named in their lawsuit and the words "privacy" and "self-determination" don't appear - I assume it was one of those situations (like Griswold at the federal level) where case law later established a right to privacy that isn't explicitly laid out in the text. So not as straightforward as the Montana law.
In any case, I doubt that our courts in their current condition would ever discover a right to abortion in our constitution, even if it was written on the first page "Kentuckians may have an abortion" in neon letters by Abe Lincoln himself 😒
Yes, the ACLU here in Kentucky has just filed suit to block both our trigger law, which already went into effect, and another ban previously struck down under Roe and now reactivated, on the grounds that the commonwealth's constitution protects the rights to privacy and self-determination. I dunno. I glanced over the sections of our constitution that the ACLU named in their lawsuit and the words "privacy" and "self-determination" don't appear - I assume it was one of those situations (like Griswold at the federal level) where case law later established a right to privacy that isn't explicitly laid out in the text.
Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.
For those who are confused about what privacy has to do with abortion, it's a legal term of art meaning something controlled by private individuals as opposed to a public (i.e. government) concern. This is different than the vernacular usage of the term as a synonym of "secrecy". In this case privacy includes (but is not limited to) decisions about a person's own medical care.
You don't need to consider a foetus a legal person in order to ban abortion. Perhaps there's something about the AZ law in particular that makes that relevant, but in general, SCOTUS just ruled that there's no constitutional right to abortion, which means that a state supreme court can't turn around and say "oh yes, there is!"
SCOTUS ruled that the United States Constitution doesn’t provide a right to abortion. Litigation in state courts would concern whether there is a right to abortion under a state constitution. State constitutions can go beyond the federal constitution in recognizing rights. If the highest appellate court in a state says that state’s constitution does in fact provide a right to abortion, SCOTUS has no ability to say “oh no it doesn’t.”
Then there’s the case of Kansas. In 2019, the Kansas Supreme Court ruled that the Kansas Constitution guarantees the right to abortion. As I understand it, the court’s 6-1 (I think) decision was based on §1 of the Kansas Constitution’s Bill of Rights, which says: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” (The constitution of my state has similar language, and I suspect the same is true of many other states.)
On August 2 of this year, Kansans will vote on a constitutional amendment to overturn this ruling by the Kansas Supreme Court by amending the constitution to explicitly state that the right to an abortion is not a constitutional guarantee. It will be interesting to see how that plays out.
On August 2 of this year, Kansans will vote on a constitutional amendment to overturn this ruling by the Kansas Supreme Court by amending the constitution to explicitly state that the right to an abortion is not a constitutional guarantee. It will be interesting to see how that plays out.
Interesting indeed. It's one thing to pass a ban you know the federal judiciary will prevent from ever going into effect, it's quite another to pass a ban you know will immediately start effecting people's lives.
Brett Kavanaugh at the time of the hearings into his appointment to SCOTUS
"Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences,”
Brett Kavanaugh at the time of the hearings into his appointment to SCOTUS
"Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences,”
ACB made similar statements.
Everyone - and I mean everyone - knew they were lying even as they spoke the words. Republicans really don't care if you point out their hypocrisy, as long as they win.
On August 2 of this year, Kansans will vote on a constitutional amendment to overturn this ruling by the Kansas Supreme Court by amending the constitution to explicitly state that the right to an abortion is not a constitutional guarantee. It will be interesting to see how that plays out.
I would be shocked if it didn't pass - since it's not a presidential election year, turnout will be limited to people who are super-engaged in politics, and in Kentucky that mostly means conservative Christians.
Brett Kavanaugh at the time of the hearings into his appointment to SCOTUS
"Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences,”
ACB made similar statements.
None of those statements are false, in the most literal sense. Republican judicial nominees learned that they could make re-assuring mouth noises when talking about Roe and Senators Collins and Murkowski could pretend to be reassured.
Brett Kavanaugh at the time of the hearings into his appointment to SCOTUS
"Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences,”
ACB made similar statements.
Everyone - and I mean everyone - knew they were lying even as they spoke the words. Republicans really don't care if you point out their hypocrisy, as long as they win.
You must remember that for the GOP hypocrisy isn't a sin, but a sacrament.
The overturning of Roe v Wade not only eliminates the right of choice in some states, it will impact OB/GYN practices in those states. Medical schools in those states have already started to illuminate OB/GYN courses which will mean doctors will be unable to handle emergency medical needs in that category. One physician said it is already hard enough to find nurses who are willing to help. She told of an instance were a woman came into the emergency bleeding from a miscarriage. She could have done a simple D&C in three minutes, but it took an hour to locate a nurse who was willing to administer the anesthesia.
Everyone - and I mean everyone - knew they were lying even as they spoke the words. Republicans really don't care if you point out their hypocrisy, as long as they win.
You must remember that for the GOP hypocrisy isn't a sin, but a sacrament.
As an East Pondian observer I take that for granted but the stunning thing for me was that Dem Senators took those blatant evasions as assurances.
The Democratic Party has a strong roll-over-and-die gene which is one of the chief reasons the GOP has grown so powerful despite having the smaller numbers.
As an East Pondian observer I take that for granted but the stunning thing for me was that Dem Senators took those blatant evasions as assurances.
I think by "Dem Senators" you mean "Joe Manchin". Amy Coney Barrett was confirmed with zero votes from Democrats. Brett Kavanaugh had the support only of Joe Manchin from among the Democrats. Neil Gorsuch had Manchin's vote as well as the votes of Democrats Heidi Heitkamp (ND) and Joe Donnelly (IN). Of those three, only Manchin is still in the Senate. Murc's law strikes again!
Back in December I mentioned that overturning Roe would likely have knock-on effects in women's medical treatment in areas far beyond pregnancy. How's it looking two and a half weeks after Dobbs was handed down?
In the days following the Supreme Court’s decision to overturn Roe v. Wade, a Louisiana doctor prescribed a medication called Cytotec to make the insertion of an IUD, the most effective form of birth control, less painful.
The medication has several uses and is often prescribed for stomach ulcers. It’s also the brand name for misoprostol, the second part of a two-drug cocktail used to terminate a pregnancy.
Walgreens called the physician, Dr. Alexandra Weiss Band, to ask if the prescription was for an abortion, according to an affidavit filed July 5 in a New Orleans Civil District Court case challenging Louisiana’s trigger law. When she told them it was for an IUD insertion, the pharmacist refused to give out the medication anyway.
And, of course, dealing with problem pregnancies is even more complicated.
Dr. Cecilia Gambala, an assistant professor of obstetrics and gynecology at Tulane University School of Medicine, said Friday she is worried she’ll start seeing more transfers from hospitals who don’t want to treat women whose pregnancies are no longer viable because they are afraid of legal repercussions.
Already, she’s seen a patient who was 16 weeks pregnant with a ruptured membrane sent from a rural hospital in North Louisiana. A ruptured membrane occurs in up to 10% of pregnancies, often causing premature labor.
But at 16 weeks, a fetus cannot survive. A ruptured membrane drains the amniotic fluid surrounding the fetus, meaning the lungs can’t develop. The situation can turn dangerous for the mother, often resulting in life-threatening infection.
The rural hospital wasn’t comfortable performing the typical treatment, which may include surgical abortion. In this situation, the fetus often still has a heartbeat, but is not developed enough to live outside of the womb.
For some physicians, that’s enough to make the call that the mother’s life is in danger and the fetus will not survive, allowing an exception in Louisiana’s ban. But some doctors won’t want to get involved, said Gambala.
“If another hospital doesn’t feel comfortable, we can’t force them,” said Gambala.
This time, the patient was stable enough to make the trip down to south Louisiana. Gambala hopes the same won’t happen if the patient is septic and needs immediate medical attention.
Don't worry, though. Anti-abortion politicians have a completely unworkable solution for this problem!
When physicians told lawmakers it would be hard to find two OB-GYNs in rural areas to sign off on a necessary abortion for “medically futile” reasons, lawmakers said they could use an internist. To Avegno, that demonstrated how little legislators understand about the practice of medicine.
“There is no internist in the state of Louisiana that would ever, ever put their name on a document that says this baby is medically futile, because they’re not trained in fetal-maternal medicine,” said Avegno. “So we’re going to have to learn to be very, very clear.”
Six days after the Supreme Court struck down the right to abortion, lupus patient Becky Schwarz got an unexpected message from her rheumatologist.
“This is a notice to let you know that we are pausing all prescriptions and subsequent refills of methotrexate,” the message read. “This decision has been made in response to the reversal of Roe vs. Wade.”
Schwarz was stunned. Methotrexate is a cheap, common drug prescribed to millions of Americans. Like her, many have rheumatic illnesses. Others take it to treat inflammatory bowel disease, psoriasis or cancer.
Yet few are aware that it is used off-label to end ectopic pregnancies, or that it could be restricted by doctors or pharmacists even in states like Virginia that do not ban abortion.
The reasons are numerous, and muddy.
In Texas, dispensing methotrexate to someone who uses it to induce a miscarriage after 49 days of gestation is a felony; that makes pharmacists hesitant to fill such prescriptions for almost anyone with a uterus. A new total ban on abortion in Tennessee will effectively criminalize any medication that could disrupt pregnancy past the point of fertilization, with strict exceptions for a patient who will otherwise die. And in Virginia, confusion over rules about who is permitted to prescribe drugs “qualified as abortifacients” may be blocking access to the medication.
“That’s what was shocking to me,” said Schwarz, a 27-year-old who lives in Tysons Corner, Va. “In a state where I thought I was relatively protected regardless of what the Supreme Court decided, I found out I wasn’t.”
So even if you live in a state where abortion is still legal, Dobbs makes it impossible to get necessary medication if it might possibly be used in abortion, even if that's not what you need to use it for.
It's behind a paywall and I don't know the full details but I believe one of the women used misoprostol when she was 28 weeks.
A reminder that even in the UK abortion hasn't been completely decriminalised.
It's behind a paywall and I don't know the full details but I believe one of the women used misoprostol when she was 28 weeks.
A reminder that even in the UK abortion hasn't been completely decriminalised.
Yeah - I saw that. It looks like one of the women (and perhaps the other one too) obtained mifepristone and misoprostol via the BPAS mail service after a phone consultation. The phone consultation is supposed to ensure that you are not more than 10 weeks pregnant. The article I read made no suggestions about whether the woman was mistaken about the circumstances surrounding her pregnancy, or lied about it.
Police in England and Wales have recorded 67 cases of procuring an illegal abortion in the last decade. Many of those will have been women who have bought pills on the internet. There have been a small number of cases where women who have lost babies naturally have been investigated for procuring an illegal abortion.
It's behind a paywall and I don't know the full details but I believe one of the women used misoprostol when she was 28 weeks.
A reminder that even in the UK abortion hasn't been completely decriminalised.
Except in Northern Ireland, where decriminalisation was part of the legislation change. I hope that Roe vs Wade will lead to further decriminalisation in the rest of the UK - does anyone know if churches in England/Wales/Scotland have spoken about this?
Kansas is voting in favor abortion rights today and it's not even close: 62 percent to 37, with 86 percent of the vote counted. Please let this be a harbinger of things to come.
Kansas is voting in favor abortion rights today and it's not even close: 62 percent to 37, with 86 percent of the vote counted. Please let this be a harbinger of things to come.
I think the final tally was a little lower, fifty-eight point something. Which is odd, because all night, "No" never dipped below 60, except for a huge plunge for a few minutes, which was attributed to a mistaken count in one county.
Kansas is voting in favor abortion rights today and it's not even close: 62 percent to 37, with 86 percent of the vote counted. Please let this be a harbinger of things to come.
I think the final tally was a little lower, fifty-eight point something. Which is odd, because all night, "No" never dipped below 60, except for a huge plunge for a few minutes, which was attributed to a mistaken count in one county.
"No" scored about 15 points better than Biden did at the last presidential election, basically uniformly across all counties. If you want to describe that as a measure of moderate support for abortion amongst Kansas republicans, you're probably not wrong.
AIUI, current Kansas law permits abortion before 22 weeks gestational age, but requires an ultrasound beforehand. After 22 weeks, abortion is restricted to cases where the pregnant parent's life is in significant danger from continuing the pregnancy.
The Kansas Supreme Court has ruled against some abortion restrictions passed by the legislature, but one should only view this as a temporary victory - the Kansas Supreme Court is presumably just as vulnerable to bench-fixing actions by the Republican state government as the US Supreme Court was.
Anti-abortion people are going to continue trying to chip away at abortion rights - passing regulation after regulation to make abortion harder and more expensive to access. There are currently four locations that offer abortions in Kansas, and they're in Kansas City and Wichita, where most of the people live. If you're in a rural part of the state, you have a long journey...
The Kansas Supreme Court has ruled against some abortion restrictions passed by the legislature, but one should only view this as a temporary victory - the Kansas Supreme Court is presumably just as vulnerable to bench-fixing actions by the Republican state government as the US Supreme Court was.
The Kansas Supreme Court ruled against those restrictions based on the premise that the right to abortion is protected in the state constitution. Hence the need to resort to a referendum to amend the state constitution rather than impose restrictions via legislation.
Whenever abortion rights have been put up for public referendum, the public vote has been in favor of choice. Democrats will do well if they make this an issue. Fact is, based on the Kansas referendum, commentators are now saying the Democrats could just retain the House,
The main reason why Republicans have controlled state legislatures is due to gerrymandering. Democratic communities/neighborhoods are effectively split up among several districts, thus diluting the vote. For instance, my community is heavily Democratic but even at the county level our community is split up among five Republican leaning voting districts. Therefore our community does not have much influence beyond city wide elections.
The Kansas Supreme Court has ruled against some abortion restrictions passed by the legislature, but one should only view this as a temporary victory - the Kansas Supreme Court is presumably just as vulnerable to bench-fixing actions by the Republican state government as the US Supreme Court was.
The Kansas Supreme Court ruled against those restrictions based on the premise that the right to abortion is protected in the state constitution. Hence the need to resort to a referendum to amend the state constitution rather than impose restrictions via legislation.
Right - but SCOTUS ruled that abortion was protected in the US constitution in Roe, and then changed its mind once the bench had been stuffed with anti-abortion appointees. I see no reason why the Kansas Supreme Court doesn't have the same vulnerability to bench-fixing.
And with regard to legislation, Kansas does have some restrictions that are more restrictive than Roe. The Kansas court's ruling isn't as general as Roe, so I don't think there's any reason to believe that all possible further restrictions that legislators pass would be ruled unconstitutional by the Kansas court. It's certainly possible that the court would find scope for "reasonable common-sense regulations" or however the proponents of such legislation would paint it.
The Kansas Supreme Court has ruled against some abortion restrictions passed by the legislature, but one should only view this as a temporary victory - the Kansas Supreme Court is presumably just as vulnerable to bench-fixing actions by the Republican state government as the US Supreme Court was.
The Kansas Supreme Court ruled against those restrictions based on the premise that the right to abortion is protected in the state constitution. Hence the need to resort to a referendum to amend the state constitution rather than impose restrictions via legislation.
Right - but SCOTUS ruled that abortion was protected in the US constitution in Roe, and then changed its mind once the bench had been stuffed with anti-abortion appointees. I see no reason why the Kansas Supreme Court doesn't have the same vulnerability to bench-fixing.
Well, in the case of the SCOTUS and Dobbs, all the judges did was hand the issues back to the states, which the anti-choicers assumed would mean more restrictive laws. But then Kansas, as a newly-empowered state, decided via referendum not to restrict abortion.
So, what sort of ruling could Kansas courts bring down to overturn yesterday's ballot? Abortion rights continue to be enshrined right in the state constitution itself. I think they'd have to find a way to nullify the referendum, but I'm not sure how they'd do that.
The Kansas Supreme Court has ruled against some abortion restrictions passed by the legislature, but one should only view this as a temporary victory - the Kansas Supreme Court is presumably just as vulnerable to bench-fixing actions by the Republican state government as the US Supreme Court was.
The Kansas Supreme Court ruled against those restrictions based on the premise that the right to abortion is protected in the state constitution. Hence the need to resort to a referendum to amend the state constitution rather than impose restrictions via legislation.
Right - but SCOTUS ruled that abortion was protected in the US constitution in Roe, and then changed its mind once the bench had been stuffed with anti-abortion appointees. I see no reason why the Kansas Supreme Court doesn't have the same vulnerability to bench-fixing.
Well, in the case of the SCOTUS and Dobbs, all the judges did was hand the issues back to the states, which the anti-choicers assumed would mean more restrictive laws. But then Kansas, as a newly-empowered state, decided via referendum not to restrict abortion.
So, what sort of ruling could Kansas courts bring down to overturn yesterday's ballot? Abortion rights continue to be enshrined right in the state constitution itself. I think they'd have to find a way to nullify the referendum, but I'm not sure how they'd do that.
I think there’s some misunderstanding. Abortion rights are not “enshrined” in the Kansas Constitution, per se. The Kansas Supreme Court’s decision that there is a state constitutional right to abortion was based on §1 of the Kansas Constitution’s Bill of Rights, which says: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” The court held that language encompasses the right to abortion. What @Leorning Cniht is saying is that a future Kansas Supreme Court could overrule that holding.
The referendum yesterday was on whether to put language in the state constitution explicitly stating that the state constitution does not guarantee a right to abortion. The amendment was intended to essentially overrule the state supreme court’s decision. Because the amendment failed, the current status is that abortion is constitutionally guaranteed in Kansas because the Kansas Supreme Court has interpreted the Kansas Constitution to include an implicit, not explicit, right to abortion.
Ah, thanks for the correction. Yes, I suppose Republican politicians could pack the courts in favour of overturning the earlier ruling. Not sure if that would be politicallty advisable at this point.
The Kansas Supreme Court has ruled against some abortion restrictions passed by the legislature, but one should only view this as a temporary victory - the Kansas Supreme Court is presumably just as vulnerable to bench-fixing actions by the Republican state government as the US Supreme Court was.
The Kansas Supreme Court ruled against those restrictions based on the premise that the right to abortion is protected in the state constitution. Hence the need to resort to a referendum to amend the state constitution rather than impose restrictions via legislation.
Right - but SCOTUS ruled that abortion was protected in the US constitution in Roe, and then changed its mind once the bench had been stuffed with anti-abortion appointees. I see no reason why the Kansas Supreme Court doesn't have the same vulnerability to bench-fixing.
Well, in the case of the SCOTUS and Dobbs, all the judges did was hand the issues back to the states, which the anti-choicers assumed would mean more restrictive laws. But then Kansas, as a newly-empowered state, decided via referendum not to restrict abortion.
So, what sort of ruling could Kansas courts bring down to overturn yesterday's ballot? Abortion rights continue to be enshrined right in the state constitution itself. I think they'd have to find a way to nullify the referendum, but I'm not sure how they'd do that.
Abortion is not explicitly mentioned in the Kansas constitution. The ruling of the Kansas Supreme Court in 2019 is almost identical to the US Supreme Court ruling in Roe - it found that the right of a woman to make decisions about her own body was among the fundamental rights that everyone has, and that the state may only override those rights if it has a compelling interest and a narrowly-tailored law to achieve that.
In Dobbs, SCOTUS reversed Roe, and said that the US Constitution does not guarantee access to abortion, and so there is no longer a federal imperative to override each state's law. It did this because SCOTUS has been deliberately stuffed with anti-abortion judges by Republicans.
Currently, the situation in Kansas is that the state supreme court has ruled, based on very similar logic to Roe, that there is in general a right to abortion. And so the Kansas court struck down laws that would have banned D&C in Kansas. But this is an almost identical framework to Roe. There is nothing to stop some anti-abortion judges being appointed to the Kansas supreme court, followed by a re-evaluation similar to Dobbs, which could decide that, actually, the Kansas constitution doesn't contain a right to abortion either, that Hodes & Nauser was wrongly decided, and so the question of the legality of abortion in Kansas would fall back to the legislature.
Ah, thanks for the correction. Yes, I suppose Republican politicians could pack the courts in favour of overturning the earlier ruling. Not sure if that would be politicallty advisable at this point.
Packing the Kansas Supreme Court is difficult, but not impossible, for politicians to accomplish. Candidates for the Kansas Supreme Court are selected by a board of lawyers, not the legislature. The governor then gets to pick an appointment from the list of six to eight candidates selected by the Nomination Commission. After that they're subject to occasional retention elections (the electorate gets to vote on whether or not the Justice continues in office for another six years). If voted out, they're replaced by the Nomination Commission process. Interestingly six of the seven Justices on Kansas' Supreme Court are up for retention elections this year.
The current governor of Kansas is Democrat Laura Kelly, who appointed three of the current Justices. She has just won her party's nomination to seek another term in this fall's general election. Her Republican opponent will be current Kansas Attorney General Derek Schmidt, a strong proponent in favor of the recently defeated abortion referendum. Most political predictors rate this race as a "tossup", though this rating is highly speculative since no one knew for sure who the candidates would be until yesterday.
For those who are wondering, the Kansas Supreme Court case that ruled the right to abortion was protected under the Kansas constitution is Hodes & Nauser v. Schmidt, and yes, the Schmidt in that case is 2022 Republican gubernatorial candidate Derek Schmidt.
Thanks for the info on KSC appointments. Yeah, sounds like it would be a bit of a dog's breakfast manipulating THAT system to try and get the results you want.
I also think that, at this point, a politician who announced his plans to get court-decisions that broadly negated the expressed will of a referendum might face a bit of a backlash. (Unless he manages to make that intention fly under the radar, eg. "Hey, I'm just gonna appoint some judges with a particular reading of the law, I have NO IDEA how they'll vote on any given issue! Now, let's talk about the economy...")
(Unless he manages to make that intention fly under the radar, eg. "Hey, I'm just gonna appoint some judges with a particular reading of the law, I have NO IDEA how they'll vote on any given issue! Now, let's talk about the economy...")
Kinda like how all the hard-right judges on SCOTUS said that Roe was settled law, until they said that it wasn't?
Thanks for the info on KSC appointments. Yeah, sounds like it would be a bit of a dog's breakfast manipulating THAT system to try and get the results you want.
It could be done, but it would probably require the kind of multi-decade program similar to the one used in the conservative capture of the U.S. Supreme Court. Start with a Federalist Society-type organization that recruits promising young conservative lawyers in law school and make sure they get important clerkships. Eventually a lot of these clerks become judges, putting themselves in the pool for Kansas Supreme Court consideration. You have also presumably used your Federalist Society-type organization to boost conservative membership in the Kansas bar, so that your loyalists are over-represented among the lawyers voting for members of the Nominating Commission. Your loyalists and will have a greater degree of internal organization than other factions of the legal profession and will vote en bloc for your choice of Commissioners. From there it's a simple matter of waiting for a sympathetic governor to be elected and then filling vacancies as they occur. It requires the kind of long-game thinking typically associated with generational fortunes but, as the Federalist Society demonstrates, that thinking exists and has plenty of resources behind it.
Under usual circumstances, the justices for the Supreme Court of the United States were recommended by a committee of the American Bar Association. The president goes from that list. However, in Trump's case, he drew from the American Center for Law and Justice association--a very conservative fringe group of lawyers for his nominations.
(Unless he manages to make that intention fly under the radar, eg. "Hey, I'm just gonna appoint some judges with a particular reading of the law, I have NO IDEA how they'll vote on any given issue! Now, let's talk about the economy...")
Kinda like how all the hard-right judges on SCOTUS said that Roe was settled law, until they said that it wasn't?
The difference being that the SCOTUS judges can't be voted out, even if they clearly engaged in deception(albeit probably falling short of outright lying) in their hearings.
As in my example, I was thinking more of a strategy where you just de-emphasize the whole issue in public discussion, while simultaneously doing exactly what one particular faction of your coalition wants: "Sure, I appointed Justice Mayell Swyne to the court, but there's room for all sorts of viewpoints in our party, and anyway, that was two years ago, and I think the voters right now are more interested in hearing about all the jobs we're gonna create by deregulating the birdseed industry."
The latter is a beloved GOP standby, but might be a little more difficult to pull off if memories of an abortion referendum that went pro-choice are fresh in the public's mind.
Comments
I think the route taken - though I can't seem to find it - is that the 1967 did not legalize Abortion but gave immunity to medical practitioners who were involved in it. maybe someone knows more?
This is a good point. I don't think it's about having a parliamentary system so much as it is about having rights codified into law by parliament rather than inferred from the Constitution by the courts.
Almost all abortions in the UK are carried out because of the risk of continuing pregnancy causing harm to the mental or physical health of the mother. I think last time I looked, there was a roughly even split between these two lawful reasons for an abortion.
AIUI, basically all doctors agree that both statements are true by construction: forcing someone who doesn't want to be pregnant to continue their pregnancy always causes both an increased physical health risk due to pregnancy complications, and an increased mental health risk due to being forced to carry a baby you don't want, as compared to having an abortion. So which box gets ticked on the form doesn't mean all that much.
So basically all doctors agree that all abortions before 24 weeks fall in to one of these two legally permitted categories, so there are no abortions outside the "specific allowed circumstances".
People buying drugs on the internet and self-inducing the abortion without medical prescription may fall outside the law.
Doesn't really apply to Brave New World. Unless large numbers of non-white people are living lives of daily sex and drug orgies.
Useful information. The situation regarding abortion in the UK by no means as clear-cut as I thought.
True. It's worth pointing out that in England and Wales, it's now also possible to have a consultation, and be prescribed "abortion pills" over the phone; the pills will be mailed to you in plain packaging.
For example, https://www.bpas.org/abortion-care/abortion-treatments/the-abortion-pill/remote-treatment/
You don't need to consider a foetus a legal person in order to ban abortion. Perhaps there's something about the AZ law in particular that makes that relevant, but in general, SCOTUS just ruled that there's no constitutional right to abortion, which means that a state supreme court can't turn around and say "oh yes, there is!"
State legislatures are where you need to pursue this - get your state to enshrine legal abortions in state law. You might not get a perfect law passed - surveys tend to suggest that Americans support abortion in cases of rape and incest, and fairly early in pregnancy (when most abortions actually happen) but support for abortions drops off when the foetus is more like a viable baby (when very few abortions happen). But if you can get something passed that allows abortions up to 16 weeks, or 14 weeks, then you've covered a lot of the necessary ground. It doesn't mean you're done, but it's better to get something passable through your state, and then work on more exceptions than to go for perfection and get nothing.
Of course, if the right isn’t explicitly set forth in that state’s constitution, there would be the risk that future members of that state’s highest court could rule overturn the decision.
True - and I suppose there's nothing stopping a state supreme court from coming to the opposite ruling to the current SCOTUS in the case where the state constitution contains identical language to the federal constitution.
For example, Montana explicitly enshrined privacy rights in its state constitution, which could have implications as all its immediate neighbors start banning legal abortions.
Yes, the ACLU here in Kentucky has just filed suit to block both our trigger law, which already went into effect, and another ban previously struck down under Roe and now reactivated, on the grounds that the commonwealth's constitution protects the rights to privacy and self-determination. I dunno. I glanced over the sections of our constitution that the ACLU named in their lawsuit and the words "privacy" and "self-determination" don't appear - I assume it was one of those situations (like Griswold at the federal level) where case law later established a right to privacy that isn't explicitly laid out in the text. So not as straightforward as the Montana law.
In any case, I doubt that our courts in their current condition would ever discover a right to abortion in our constitution, even if it was written on the first page "Kentuckians may have an abortion" in neon letters by Abe Lincoln himself 😒
The Montana state constitution is pretty straightforward (Art. II, Part II, § 10):
For those who are confused about what privacy has to do with abortion, it's a legal term of art meaning something controlled by private individuals as opposed to a public (i.e. government) concern. This is different than the vernacular usage of the term as a synonym of "secrecy". In this case privacy includes (but is not limited to) decisions about a person's own medical care.
On August 2 of this year, Kansans will vote on a constitutional amendment to overturn this ruling by the Kansas Supreme Court by amending the constitution to explicitly state that the right to an abortion is not a constitutional guarantee. It will be interesting to see how that plays out.
Interesting indeed. It's one thing to pass a ban you know the federal judiciary will prevent from ever going into effect, it's quite another to pass a ban you know will immediately start effecting people's lives.
"Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences,”
ACB made similar statements.
Everyone - and I mean everyone - knew they were lying even as they spoke the words. Republicans really don't care if you point out their hypocrisy, as long as they win.
We have almost the same amendment on our ballot in November. It's worded slightly differently.
I would be shocked if it didn't pass - since it's not a presidential election year, turnout will be limited to people who are super-engaged in politics, and in Kentucky that mostly means conservative Christians.
None of those statements are false, in the most literal sense. Republican judicial nominees learned that they could make re-assuring mouth noises when talking about Roe and Senators Collins and Murkowski could pretend to be reassured.
You must remember that for the GOP hypocrisy isn't a sin, but a sacrament.
As an East Pondian observer I take that for granted but the stunning thing for me was that Dem Senators took those blatant evasions as assurances.
I think by "Dem Senators" you mean "Joe Manchin". Amy Coney Barrett was confirmed with zero votes from Democrats. Brett Kavanaugh had the support only of Joe Manchin from among the Democrats. Neil Gorsuch had Manchin's vote as well as the votes of Democrats Heidi Heitkamp (ND) and Joe Donnelly (IN). Of those three, only Manchin is still in the Senate. Murc's law strikes again!
I don't know how effective those approaches would have been.
Example 1:
Given the typical rhetoric of those in favor of criminalizing abortion it's hard not to conclude they see making contraceptive use more painful as a feature, not a bug.
And, of course, dealing with problem pregnancies is even more complicated.
Don't worry, though. Anti-abortion politicians have a completely unworkable solution for this problem!
And of course the fallout from Dobbs goes far beyond reproductive medicine.
So even if you live in a state where abortion is still legal, Dobbs makes it impossible to get necessary medication if it might possibly be used in abortion, even if that's not what you need to use it for.
https://www.thetimes.co.uk/article/british-women-taken-to-court-over-abortions-6qgr0grn9
It's behind a paywall and I don't know the full details but I believe one of the women used misoprostol when she was 28 weeks.
A reminder that even in the UK abortion hasn't been completely decriminalised.
Yeah - I saw that. It looks like one of the women (and perhaps the other one too) obtained mifepristone and misoprostol via the BPAS mail service after a phone consultation. The phone consultation is supposed to ensure that you are not more than 10 weeks pregnant. The article I read made no suggestions about whether the woman was mistaken about the circumstances surrounding her pregnancy, or lied about it.
Police in England and Wales have recorded 67 cases of procuring an illegal abortion in the last decade. Many of those will have been women who have bought pills on the internet. There have been a small number of cases where women who have lost babies naturally have been investigated for procuring an illegal abortion.
Except in Northern Ireland, where decriminalisation was part of the legislation change. I hope that Roe vs Wade will lead to further decriminalisation in the rest of the UK - does anyone know if churches in England/Wales/Scotland have spoken about this?
Cue the obligatory Wizard of Oz reference.
I think the final tally was a little lower, fifty-eight point something. Which is odd, because all night, "No" never dipped below 60, except for a huge plunge for a few minutes, which was attributed to a mistaken count in one county.
"No" scored about 15 points better than Biden did at the last presidential election, basically uniformly across all counties. If you want to describe that as a measure of moderate support for abortion amongst Kansas republicans, you're probably not wrong.
AIUI, current Kansas law permits abortion before 22 weeks gestational age, but requires an ultrasound beforehand. After 22 weeks, abortion is restricted to cases where the pregnant parent's life is in significant danger from continuing the pregnancy.
The Kansas Supreme Court has ruled against some abortion restrictions passed by the legislature, but one should only view this as a temporary victory - the Kansas Supreme Court is presumably just as vulnerable to bench-fixing actions by the Republican state government as the US Supreme Court was.
Anti-abortion people are going to continue trying to chip away at abortion rights - passing regulation after regulation to make abortion harder and more expensive to access. There are currently four locations that offer abortions in Kansas, and they're in Kansas City and Wichita, where most of the people live. If you're in a rural part of the state, you have a long journey...
The Kansas Supreme Court ruled against those restrictions based on the premise that the right to abortion is protected in the state constitution. Hence the need to resort to a referendum to amend the state constitution rather than impose restrictions via legislation.
The main reason why Republicans have controlled state legislatures is due to gerrymandering. Democratic communities/neighborhoods are effectively split up among several districts, thus diluting the vote. For instance, my community is heavily Democratic but even at the county level our community is split up among five Republican leaning voting districts. Therefore our community does not have much influence beyond city wide elections.
Right - but SCOTUS ruled that abortion was protected in the US constitution in Roe, and then changed its mind once the bench had been stuffed with anti-abortion appointees. I see no reason why the Kansas Supreme Court doesn't have the same vulnerability to bench-fixing.
And with regard to legislation, Kansas does have some restrictions that are more restrictive than Roe. The Kansas court's ruling isn't as general as Roe, so I don't think there's any reason to believe that all possible further restrictions that legislators pass would be ruled unconstitutional by the Kansas court. It's certainly possible that the court would find scope for "reasonable common-sense regulations" or however the proponents of such legislation would paint it.
Well, in the case of the SCOTUS and Dobbs, all the judges did was hand the issues back to the states, which the anti-choicers assumed would mean more restrictive laws. But then Kansas, as a newly-empowered state, decided via referendum not to restrict abortion.
So, what sort of ruling could Kansas courts bring down to overturn yesterday's ballot? Abortion rights continue to be enshrined right in the state constitution itself. I think they'd have to find a way to nullify the referendum, but I'm not sure how they'd do that.
The referendum yesterday was on whether to put language in the state constitution explicitly stating that the state constitution does not guarantee a right to abortion. The amendment was intended to essentially overrule the state supreme court’s decision. Because the amendment failed, the current status is that abortion is constitutionally guaranteed in Kansas because the Kansas Supreme Court has interpreted the Kansas Constitution to include an implicit, not explicit, right to abortion.
Ah, thanks for the correction. Yes, I suppose Republican politicians could pack the courts in favour of overturning the earlier ruling. Not sure if that would be politicallty advisable at this point.
Abortion is not explicitly mentioned in the Kansas constitution. The ruling of the Kansas Supreme Court in 2019 is almost identical to the US Supreme Court ruling in Roe - it found that the right of a woman to make decisions about her own body was among the fundamental rights that everyone has, and that the state may only override those rights if it has a compelling interest and a narrowly-tailored law to achieve that.
In Dobbs, SCOTUS reversed Roe, and said that the US Constitution does not guarantee access to abortion, and so there is no longer a federal imperative to override each state's law. It did this because SCOTUS has been deliberately stuffed with anti-abortion judges by Republicans.
Currently, the situation in Kansas is that the state supreme court has ruled, based on very similar logic to Roe, that there is in general a right to abortion. And so the Kansas court struck down laws that would have banned D&C in Kansas. But this is an almost identical framework to Roe. There is nothing to stop some anti-abortion judges being appointed to the Kansas supreme court, followed by a re-evaluation similar to Dobbs, which could decide that, actually, the Kansas constitution doesn't contain a right to abortion either, that Hodes & Nauser was wrongly decided, and so the question of the legality of abortion in Kansas would fall back to the legislature.
Packing the Kansas Supreme Court is difficult, but not impossible, for politicians to accomplish. Candidates for the Kansas Supreme Court are selected by a board of lawyers, not the legislature. The governor then gets to pick an appointment from the list of six to eight candidates selected by the Nomination Commission. After that they're subject to occasional retention elections (the electorate gets to vote on whether or not the Justice continues in office for another six years). If voted out, they're replaced by the Nomination Commission process. Interestingly six of the seven Justices on Kansas' Supreme Court are up for retention elections this year.
The current governor of Kansas is Democrat Laura Kelly, who appointed three of the current Justices. She has just won her party's nomination to seek another term in this fall's general election. Her Republican opponent will be current Kansas Attorney General Derek Schmidt, a strong proponent in favor of the recently defeated abortion referendum. Most political predictors rate this race as a "tossup", though this rating is highly speculative since no one knew for sure who the candidates would be until yesterday.
Thanks for the info on KSC appointments. Yeah, sounds like it would be a bit of a dog's breakfast manipulating THAT system to try and get the results you want.
I also think that, at this point, a politician who announced his plans to get court-decisions that broadly negated the expressed will of a referendum might face a bit of a backlash. (Unless he manages to make that intention fly under the radar, eg. "Hey, I'm just gonna appoint some judges with a particular reading of the law, I have NO IDEA how they'll vote on any given issue! Now, let's talk about the economy...")
Kinda like how all the hard-right judges on SCOTUS said that Roe was settled law, until they said that it wasn't?
It could be done, but it would probably require the kind of multi-decade program similar to the one used in the conservative capture of the U.S. Supreme Court. Start with a Federalist Society-type organization that recruits promising young conservative lawyers in law school and make sure they get important clerkships. Eventually a lot of these clerks become judges, putting themselves in the pool for Kansas Supreme Court consideration. You have also presumably used your Federalist Society-type organization to boost conservative membership in the Kansas bar, so that your loyalists are over-represented among the lawyers voting for members of the Nominating Commission. Your loyalists and will have a greater degree of internal organization than other factions of the legal profession and will vote en bloc for your choice of Commissioners. From there it's a simple matter of waiting for a sympathetic governor to be elected and then filling vacancies as they occur. It requires the kind of long-game thinking typically associated with generational fortunes but, as the Federalist Society demonstrates, that thinking exists and has plenty of resources behind it.
The difference being that the SCOTUS judges can't be voted out, even if they clearly engaged in deception(albeit probably falling short of outright lying) in their hearings.
As in my example, I was thinking more of a strategy where you just de-emphasize the whole issue in public discussion, while simultaneously doing exactly what one particular faction of your coalition wants: "Sure, I appointed Justice Mayell Swyne to the court, but there's room for all sorts of viewpoints in our party, and anyway, that was two years ago, and I think the voters right now are more interested in hearing about all the jobs we're gonna create by deregulating the birdseed industry."
The latter is a beloved GOP standby, but might be a little more difficult to pull off if memories of an abortion referendum that went pro-choice are fresh in the public's mind.