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Stalemate in the Abortion War


Irin Carmon’s overview is extremely useful. The real threat under the current Supreme Court configuration isn’t so much the “personhood amendments” that clearly contravene Casey and aren’t popular even in anti-choice outliers, but incremental innovations like “fetal pain” laws that keep expanding the state’s role and pushing the line where abortions are easily available back.    Of course, “fetal pain” laws that ban abortion after 18 weeks should also be unconstitutional under Casey, but it’s unlikely the current Court would agree.   As one eminent scholar is quoted,  “[t]he fetal pain thing is complete bullshit, but Kennedy has already proven that he doesn’t care what the evidence is.”   For those who don’t understand the reference, I note this classic quote from his embarrassing-on-every-level opinion in Carhart II:

Whether to have an abortion requires a difficult and painful moral decision.  While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.

I particularly like the way the piece emphasizes the fact that the rationale for “centrist” abortion regulations collapses on itself. On the one hand, abortion “centrists” like to focus on regulating late-term abortions, but on the other hand they favor all kinds of arbitrary regulations that make pre-viability abortions much harder to obtain. It’s a nice racket — if you don’t actually care about the reproductive rights of women.

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