Pants-of-dog wrote:So you agree that it makes no sense to use laws from that time since they were based on a completely different set of ideas about reproduction.
And yet Alito is doing just that.
It makes sense if you want to assess whether women had the right to seek an abortion (not necessarily funded by the government, of course) and to understand the evolution of the law.
Pants-of-dog wrote:Right.
Then why did Alito quote Hale instead of looking at the history?
I guess because Hale wrote about the history of common law, so he's a valid source on the matter.
Pants-of-dog wrote:And yet Alito is using laws that look at abortion after quickening and using them to apply for pregnancy at any point.
This is the bait and switch to which I referred earlier.
It's even worse than that. Alito claims abortion was not legal before quickening but that's clearly not what Blackstone says, plainly, in his book.
He uses some examples of cases where a type of felony-murder crime would justify charging a doctor who performed an abortion of a "child" who killed the woman for murder, but that's only because neither Hale nor Blackstone mention anything about quickening. Yet, both also said life begins only when the fetus is quick, so one could then wonder if their understanding of "child" includes non-quick fetuses or not. I think the most reasonable way to interpret their position is that it did not.
Then, regarding Roe v Wade's analysis of laws banning abortion passed by the states during the 19th century, Alito states:
Alito wrote:Roe featured a lengthy survey of history, but much of its discussion was irrelevant, and the Court made no effort to explain why it was included. For example, multiple paragraphs were devoted to an account of the views and practices of ancient civilizations where infanticide was widely accepted See Roe, 410 U.S., at 130–132(discussing ancient Greek and Roman practices).[48] When it came to the most important historical fact—how the States regulated abortion when the Fourteenth Amendment was adopted—the Court said almost nothing. It allowed that States had tightened their abortion laws "in the middle and late 19th century," id., at 139, but it implied that these laws might have been enacted, not to protect fetal life, but to further "a Victorian social concern" about "illicit sexual conduct," id., at 148.
But Roe v Wade did not actually imply that. From a fragment I quoted earlier:
Roe v Wade wrote:69
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.
70
It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously.42 The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.
71
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman.43 This was particularly true prior to the development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.
72
Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.44 Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal 'abortion mills' strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy,
73
The third reason is the State's interest-some phrase it in terms of duty-in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception.45 The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to life birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.
74
Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life.46 Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose.47 The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus.48 Proponents of this view point out that in many States, including Texas,49 by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.50 They claim that adoption of the 'quickening' distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.
75
It is with these interests, and the weight to be attached to them, that this case is concerned.
Clearly, Roe v Wade did not claim or even hint abortion was banned by the states because of Victorian customs. In fact, what it does imply is that states banned abortion to protect the mother's life.
Pants-of-dog wrote:Hey, if you want to also defend marital rape, we have a thread for that. It would be consistent with your position on women having less bodily autonomy than other people.
No, that's not my position at all. I never said that suddenly men should suddenly have more bodily autonomy if doing so would kill or seriously harm others. If you disagree go ahead and quote me on it.
I hope you will not now say "only women can get pregnant".
Pants-of-dog wrote:How are they irrelevant?
They have nothing to do with abortion or Hale's accuracy in describing 17th century English common law.
Point 2) does, but you haven't backed it up.
Pants-of-dog wrote:I did not bring it up. You did.
And as far as I can tell, you seem to have no reason for doing so.
You are the one who's claiming Hale was a misogynist, as if it had anything to do with abortion.
- By late
- By starman2003