Thursday, July 25, 2013

Texas Abortion Statute Follows the Viability Doctrine

The media has been quite hysterical over the new abortion statute in Texas.  ABC News puts it this way:

Texas just passed one of the strictest abortion laws in the country.

The state's Senate adopted a bill close to midnight on Friday that bans abortions after 20 weeks and will force the closure of all but a handful of the clinics that perform them.

What the media has failed to report is that "one of the strictest abortions laws in the country" actually complies with Roe v. Wade.

Let's examine the argument that Texas "bans abortion after 20 weeks."  It's true, but a little misleading.  The Texas statute is counting weeks from conception.  Yet most doctors actually measure weeks of pregnancy from the last menstrual period.  See, for instance, this report from NPR.

"(W)hen we talk about a law that bans abortion at 20 weeks post-fertilization, we're really talking about a law that bans abortion at 22 weeks of pregnancy..." 

So when Texas outlaws abortions at 20 weeks (from conception) a doctor would say that Texas is outlawing abortions at 22 weeks (from LMP).  It's two different ways of measuring the exact same point in time.

Why is this important?  Because the record for a premature baby's survival is 22 weeks after LMP.  

In other words, the Texas statute is following Roe and Casey.  Texas is actually enforcing the viability doctrine!

Yet nobody in our media is applauding Texas for respecting Roe v. Wade.  Instead we are told how "extreme" it is for Texas to protect babies at 22 weeks after LMP, or when viability begins.

Of course, for political reasons, Rick Perry and other pro-lifers do not mention they are actually following the viability doctrine of Roe v. Wade.  And yet the 22-week point is clearly within the boundaries established by the Supreme Court.  So while it might be embarrassing politically for these pro-lifers to acknowledge they are following Roe and Casey, they have clearly crafted a statute that comports with existing case law. 

It seems to me the odds that this statute will be upheld by the judiciary is incredibly high.  


Saint Croix said...

Why has the media been so hysterical over an abortion statute that follows the viability doctrine of Roe and Casey?

I would hazard a guess that the media has no idea when viability takes place, and has no interest in protecting viable babies anyway.

The media is also oblivious to any risks to women from an abortion, and has no interest in learning about any dangers from the surgery.

What we are seeing here is a media that gets all its information from the billion dollar abortion industry. And so the reporting is hysterical because Planned Parenthood is hysterical. But are the abortion clinics hysterical because this statute is an attack on Roe v. Wade? No, they are hysterical because they will have to spend money to upgrade their health facilities.

The Texas statute is not a pro-life statute (unless enforcing Roe v. Wade is "pro-life"!) But since Republicans wrote it, and the abortion industry is up in arms about it, the brain-dead media reports it the way Planned Parenthood wants their press releases to read.

dc said...

You seem to be declaring ignorance on the part of the media.I don't buy it.The media elites just don't have a problem with late term abortions.The procedure is barbaric.These people are barbarians.

Saint Croix said...

You seem to be declaring ignorance on the part of the media.

Many of them are ignorant! Consider Conor Friedersdorf in the Atlantic. He had simply not heard about the Gosnell case. He had not read the grand jury report. When he read it, he was horrified. And so he did a story on it.

To have a moral awakening, you have to think. Which means you have to stop being prejudiced and biased and uninformed. You have to be open-minded.

Most of the media has not read the Carhart cases. Journalists are not lawyers working through the abortion issues in an intellectual way. They are making snap judgments in a hurry. And they (too often) rely on bias and prejudice.

Journalists think pro-lifers are religious and stupid. And of course pro-lifers are often (but not always) religious. But unlike the media, the most passionate pro-lifers have actually read the cases. My passionate belief that abortion is a homicide is informed by a close reading of our death statutes. The media has no intellectual foundation for their belief. That's why they rely so much on bias and non-thought.

Saint Croix said...

The barbaric charge is more interesting when thrown at the Supreme Court. Here are nine people who are extremely upset at the atrocities described in the Carhart opinions. Yet these lawyers, who spend months and months thinking about the issue, still can't seem to reason their way through it. Their emotional upset at the murders they are describing has not influenced their judicial opinion that these babies are sub-human property.

In the case of our judicial authorities, I believe their reasoning abilities are shut down because if abortion is a homicide, they are responsible for it.

To this day I can't tell if Justice Kennedy actually wrote his two opinions in the Carhart cases. It's entirely possible he just assigned his opinion to an outraged (and pro-life) clerk.

"Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms—everything but the head. The doctor kept the head right inside the uterus…

The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.

The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp…"

It doesn't seem to have occurred to Kennedy that his opinion in Casey is responsible for this homicide. Or maybe it has occurred to him and he can't bear to think about it.

Saint Croix said...

I think it's critical that we get one pro-lifer on the Supreme Court, who will fight hard for the baby's right-to-life. Such a person will challenge the Supreme Court's orthodoxy.

For instance, the Carhart cases should have been quite a challenge to the born/unborn and baby/fetus distinctions. These babies are halfway outside the birth canal! Is it a fetus or is it a baby?

Are babies people who are entitled to the equal protection of the laws?

These are primal and important questions. And the Supreme Court wants to ignore them!

The Supreme Court can only act this way because there are no pro-lifers on the Supreme Court. And by "pro-lifer" I mean there is nobody who thinks these babies are people who are entitled to the equal protection of the laws.

Scalia, for instance, is incredibly smart. And yet he is so upset by this issue that he cannot engage with it. His Carhart dissent compares the babies killed in abortion clinics with Dred Scott and Korematsu.

Yet Dred Scott is a person! Korematsu is a person! Are these babies people?

Scalia himself defines these babies as non-persons. How can he say one thing, while believing another?

Scalia has boxed in his emotions, and they are not influencing his thought. Presumably he thinks his job requires this. Yet this repression has made his thought and his opinion incoherent.

I attack Scalia's abortion jurisprudence here.

edutcher said...

the best way to beat the Lefties is use their own nonsense to do it.

This is a great example.

dc said...

I don't get Scalia either.I know he's a conservative catholic and thus accepts the Vaticans view that abortion is an"unspeakable crime".I think that Scalia's opinion is that the constitution has nothing to say about abortion one way or the other.This implies the the non personhood of the unborn baby.Why he would accept that view is beyond me.