In the Wake of Dobbs

For whatever reason, PoT has not, in the eight years of its existence, focused much on abortion or related issues. But we’ve run a few relevant posts, all written by yours truly. Most, I suppose, nibble at the edges of relatively peripheral issues; few are directly relevant to the recent overturning of Roe vs. Wade through Dobbs vs. Jackson. Still, for whatever it’s worth, I thought I’d dig a few out of the vaults. 

In 2015, in the wake of the mass shooting at an abortion clinic in Colorado Springs, I wrote a pair of posts on whether opponents of abortion were logically or morally obliged to engage in vigilante violence in order to oppose abortion. Jason Brennan had argued that they were; I argued that they weren’t.

Brennan had argued that if one regards abortion as murder, one ought to respond to real-time abortions as though they were real-time murders. Since violence is justified as a response to a real-time murder, violence would be justified in response to any given real-time abortion. So shootings like Colorado Springs were ex hypothesi justified on anti-abortionist grounds to stop abortions. (I say “ex hypothesi” because Brennan wasn’t literally justifying the shooting; he was arguing that those committed to the anti-abortion cause were committed to engaging in anti-abortion violence.) 

I disputed the claim that, all things considered, violence is always justified as a response to any given real-time murder. A vigilante response to murder may in some contexts end up being counter-productive and imprudent, especially if one has a non-violent or less violent legal strategy in hand for dealing with those murders. The anti-abortion movement has always had such a strategy, and was not, in any case, committed to a consequentialist form of “abortion minimization.” So vigilante violence did not, contrary to Brennan, follow directly from their ethical commitments.

Though I don’t agree with Dobbs (I’m pro-choice on abortion), I take my argument against Brennan to have been vindicated by Dobbs. What Dobbs shows is that the anti-abortion movement has always had a coherent legal strategy for undermining abortion, one that obviated the need for (indeed, was probably undermined by) resort to vigilante violence. But read the “exchange” for yourself, and decide who was right. Here’s part 1 of my post, and here’s part 2. There’s a link to Brennan’s original post within part 1 of mine.

In 2018, the conservative writer Kevin Williamson was denied a journalistic gig at The Atlantic after suggesting that abortion providers and patients be treated as murderers, and be given capital punishment by hanging.

The debate over Williamson’s comments was taking place at a time when the Israeli military was engaged in the wanton slaughter of Palestinians at the Israel-Gaza border. Conservatives defended Williamson, so I wondered what their reaction would have been if defenders of Palestine had taken a similar line with respect to Israeli soldiers. If it’s permissible to hang abortion providers and abortion patients as murderers, why not hang Israeli soldiers on the same grounds? If Williamson’s views on the treatment of abortion providers and abortion patients were within the bounds of respectability, why not analogous views on the treatment of Israeli soldiers? They sound like rhetorical questions, but aren’t.

It’s relevant that the editor of The Atlantic, Jeffrey Goldberg, was at one time an Israeli soldier–a guard at Ketziot military prison camp.No one in the current climate of American opinion would dream of denying Jeffrey Goldberg a journalistic gig on that basis, and obviously, no one has. But it’s a question whether we should be so complacent.  

In March 2020, I wrote a post responding to an anonymous writer, Catiline, on the subject of abortion in cases of rape. This was very much an in-house discussion between two pro-choicers sharing basic normative commitments, and my aim was less to discuss abortion or rape per se than to clarify issues regarding the voluntary assumption of risk. Make of it what you will

And here are some photos of an anti-Dobbs rally I attended last night in New Brunswick, New Jersey, sponsored by Planned Parenthood and the local chapter of the ACLU. The women in white coats were abortion providers, and as you’ll see, a scuffle broke out near the end of the rally when an anti-abortion activist grabbed the mic and refused to give it back to the organizers. A wholesome event, by my lights, but again, make of it what you will. You’ll see me in the last photo, brandishing a sign that says “Abortion Is Health Care.” I take that pretty literally: when I worked in the OR at Hunterdon Medical Center last year, I helped perform a few abortions. I’ll write about that here when I get a chance.  

 

9 thoughts on “In the Wake of Dobbs

  1. I may as well point out that Dobbs, by overturning Roe and Casey, has declared merely that abortion is not a right protected by the US Constitution. In itself it hasn’t made abortion a crime anywhere; it says only that the several states may do so, if they are so inclined. Tedious to say it, I know, but so many in the pro-abortion movement don’t seem to understand the distinction.

    Also, there has been for decades a consensus among legal scholars that the reasoning in Roe was completely specious (which is why the anti-abortion movement attacked the decision on those grounds.) Those who defended the result were reduced to the argument that even if abortion wasn’t protected, it ought to be, so Roe just had to be preserved despite its faults. So on the narrow question before the Supreme Court, Dobbs has simply followed the consensus of the relevant experts. What the law ought to be is not the courts’ business, and never was.

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    • I understand the distinction you’re drawing. I don’t think anything I’ve written indicates otherwise. That said, I think your comment misses the forest for the trees.

      Regardless of which side one is on in the abortion debate, fundamental rights are at stake. If you believe that the fetus is a full-fledged member of the moral community with a right to life, then abortion is an unjustified form of homicide. But if you don’t believe that, then forcing a woman to bring an unwanted pregnancy to term is involuntary servitude. While the policing of murder is ordinarily a state-level function, if states selectively permitted the murder of a certain class of persons, there would be a strong legal (not just moral) case to be made that the laws permitting such murders were unconstitutional. From the other direction, involuntary servitude is obviously unconstitutional. So if states impose it, it’s obvious that a constitutional issue arises. Either way, you have the makings of a federal case over a constitutional right.

      So there’s no escaping the fact that abortion, like slavery, rises to the level of a constitutional issue requiring a uniform legal standard across the land, not a patchwork quilt of mutually incompatible legal standards driven by the red herring of federalism. We can’t let states or “the people” decide whether some people are to be murdered any more than whether they can be put to forced labor despite not having committed a crime. So it misses the point to say that Dobbs “has declared merely that abortion is not a right protected by the US Constitution.” One uses the word “merely” for a small matter, but this isn’t a small matter. And I would say that the Court is any case wrong to think that abortion is not a right protected by the US Constitution.

      “In itself it hasn’t made abortion a crime anywhere; it says only that the several states may do so, if they are so inclined.” I guess it’s tedious to respond that that’s a distinction without a difference. Courts do not in general make things crimes, but in this case, the permission the Court gave on June 24th to make abortion a crime led predictably and non-accidentally to its widespread criminalization on June 25th. In many places, abortion is now a crime: scheduled medical procedures are now being canceled in much greater numbers than any incidents of “cancellation” by left-wing woke mobs. So the Court has given new meaning to “cancel culture,” the very meaning, I’ve argued, that the phrase ought actually to have–a culture addicted to the cancellation of previously scheduled events, something that happens in health care with greater consequences than happens virtually anywhere else.

      As for the consensus that regards Roe as badly reasoned, I’m generally not impressed by blank appeals to expert opinion. A few months ago, the “experts” were telling us that the Russo-Ukrainian war was going very badly for the Russians. Now they’ve changed their tune. A few weeks ago, some of the same experts were bragging about the “unprecedented” nature of the sanctions imposed on Russia, and what those sanctions would do to bring the Russians to their knees. Now they’re re-thinking matters, and stamping their feet at the misbehavior of the Indians, Chinese, and Africans who have wrecked their predictions. A few months ago, we were told very authoritatively that US troops would not be sent to Ukraine. Now we’re being told that, well, a few Special Forces are there, but nowhere near the front lines. Etc.

      Years ago, medical experts used to say that herpes simplex virus 2 could not be spread asymptomatically. When they discovered that it could, they did an abrupt about-face. Think of how many “experts” waltz into courtrooms everyday, in both criminal and civil trials, testifying against other “experts” who flatly contradict them. I could go on.

      The same general point applies to “experts” in constitutional law. I went to Notre Dame for grad school, and used to sit in on classes in the law school. I’ll just say, with Socrates, that “expertise” is an elusive, elastic concept. (Though I didn’t know her, I overlapped with Amy Coney Barrett.)

      I’ve read Roe. I don’t regard it as much better or worse reasoned than a great many other Supreme Court decisions. I don’t regard its flaws as sufficient to justify overturning it, any more than the flaws of Miranda or Brown vs Board of Education or Terry vs Ohio are sufficient to overturn them. A decision can have flaws but still protect a fundamental right, and create a strong reliance interest in the protection of that right. In cases like that, I would say that legal precedent should be observed. That’s what I’d say about Roe.

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      • I didn’t actually want to start an argument over the morality of abortion … but I don’t think I can let this stand. The argument that pregnancy is involuntary servitude is bunk. Pregnancy is a natural and expected consequence of sex; contraception reduces its likelihood, but only not having sex can prevent it altogether.

        Consider an analogy. Let’s suppose that a country passed a law that anyone who’s young and healthy could have their names added to a list, in exchange for a substantial sum of money, and that once a month a thousand names were drawn from the list at random, and everyone whose name was drawn was enlisted in the army for three years, with the other names discarded. (Let’s also suppose that the law in question is publicly known, so the enlisted can’t claim ignorance.) Would those who were enlisted in that way be in involuntary servitude? Clearly not; they took the money voluntarily, knowing they might be called to serve as a result. Who wills the act, wills its consequences, when those can easily be foreseen.

        Similarly, slavery is a constitutional issue because the 13th Amendment expressly forbids it. Prior to the Civil War it was not; each state had the right to decide whether it was permitted in its own territory. And if the 14th Amendment were sufficient to outlaw slavery, there would be no reason to include the 13th as well. So we can’t say that the right not to be murdered is protected by the US Constitution; a SC decision making abortion a crime everywhere in the US would be just as wrong, legally, as Roe was, for exactly the same reason.

        As for the point that the Justices knew when they ruled that many states would immediately restrict abortion: that’s exactly the sort of thing the Supreme Court, as an institution, is not supposed to consider when it hears a case. If the results of applying the law as written are unjust, responsibility for correcting the law lies with the people, not with the Court.

        While the reasoning in Brown vs Board of Education is almost as bad as Roe‘s, nobody could really suppose that the segregated schools it outlawed were just to their black students. But I would argue that Brown set a bad precedent, because the palatability of its result allowed the shoddiness of its logic to pass. The Warren and Burger Courts came to think that as long as the results of their decisions were in agreement with elite opinion, it didn’t matter how they got to those results – and that’s why Roe was decided as it was.

        Finally, have you read Dobbs? Alito addresses the proper role of legal precedent in a SC opinion, along with the flaws of Roe and Casey, in the majority opinion – as he ought to, since it was overturning them.

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        • Let me just deal with the involuntary servitude issue. Your analogy ignores the disjunctive nature of the formulation I used. This is what I said:

          Regardless of which side one is on in the abortion debate, fundamental rights are at stake. If you believe that the fetus is a full-fledged member of the moral community with a right to life, then abortion is an unjustified form of homicide. But if you don’t believe that, then forcing a woman to bring an unwanted pregnancy to term is involuntary servitude.

          The second disjunct says: suppose that you do not regard the zygote/embryo/fetus as being a full-fledged member of the moral community. In that case, killing it is no offense. If so, forcing someone to bring it to term is involuntary servitude, and the “expected consequence” argument you’ve given is utterly beside the point.

          If I take an action, I am responsible for the consequences, but that principle only applies against a backdrop of permissible means for dealing with the consequences. If the zygote/embryo/fetus has no moral standing, then killing it is permissible. But then it makes no sense to say that a person who engages in abortion has failed to take responsibility for her actions. Ex hypothesi, having an abortion is a permissible means of doing so. If under those assumptions, one of the perfectly legitimate means of dealing with the consequences of one’s actions is coercively removed, then the action that now becomes compulsory is forced. Its being forced is a direct consequence of the coercive deprivation of a permissible means of dealing with the consequences of the agent’s action.

          An example should make this clear: Suppose a law is passed outlawing the administration of an epidural during labor and delivery. Suppose it is known ahead of time that this law exists. Now suppose that there are four women:

          Anne knowingly gets pregnant.
          Beth uses birth control, but accidentally gets pregnant.
          Cathy, an adult, is raped and gets pregnant.
          Danielle, a child, is the victim of incest and gets pregnant.

          Now all four go into labor. All four request an epidural. All four are denied. All four suffer intense pain. Danielle dies.

          Are all four tortured? I would say “yes.” Danielle, in fact, was tortured to death. Does it matter that Anne knowingly went into the situation, whereas Danielle did not? No. Does it matter that Cathy is an adult and Danielle a child? No. Does it matter that Beth could have foreseen that birth control sometimes fails, whereas Danielle could not have foreseen that she would be in the situation she ended up in? No. Since the deprivation of access to the epidural is illegitimate, it doesn’t matter whether a woman enters the illegitimate situation knowingly or unknowingly. Each woman is coerced in every case where the law has application, and each is tortured in every case where she is denied the epidural on request because of the law.

          A right not to be tortured, I would say, is an unenumerated, basic right within the scope of the Ninth Amendment. So this anti-epidural law would rise to constitutional status, and ought to be struck down as unconstitutional.

          I think the application to abortion should be clear. If the zygote/embryo/fetus has no moral standing, then killing it is permissible. If so, abortion is among the permissible means of dealing with unwanted pregnancy. In this context, forcing someone to go forward with labor and delivery really is involuntary servitude. I didn’t, by the way, make up case (4). It’s an actual case. The facts are not entirely clear, but are within the realm of possibility.

          https://www.washingtonpost.com/politics/2022/07/09/one-source-story-about-10-year-old-an-abortion-goes-viral/

          Even if the details of the case are wrong, it’s clear that a young child around the age of 11 or 12 could get pregnant under the relevant circumstances.

          In general, even apart from the issue of pregnancy and abortion, I would say that one is not responsible for every expected consequence of one’s actions. But we don’t even need to deal with that to see the problem in your argument as stated.

          You’re assuming the truth of the other disjunct, that the embryo/zygote/fetus has moral standing. But that misses the point of what I wrote. If the preceding disjunct is true, then abortion is a form of homicide and becomes a constitutional issue for entirely different reasons. The constitutional argument you make echoes Stephen Douglass’s arguments to Lincoln-Douglass debates. Suffice it to say that I agree with Lincoln, and would add that if we have any unenumerated rights, the right not to be killed or enslaved are among them. Since the Ninth Amendment protects unenumerated rights, I assume it protects both of those. And the Ninth Amendment predates the 13th and 14th Amendments.

          To respond directly to your analogy: I agree that in the military service case you describe, the military service would not be involuntary, but that’s because you have the option of taking the offer or leaving it. You’re not being deprived of some otherwise permissible course of action that you had prior to the offer. So the analogy is not analogous to the case at hand.

          I happen to agree that Brown, like Roe, is a flawed decision. But it gets enough right, and creates a strong enough reliance interest in actual rights, to be permitted to stand.

          As for the point that the Justices knew when they ruled that many states would immediately restrict abortion: that’s exactly the sort of thing the Supreme Court, as an institution, is not supposed to consider when it hears a case. If the results of applying the law as written are unjust, responsibility for correcting the law lies with the people, not with the Court.

          I don’t agree with any of that. The Court has a responsibility to deal with the chaos and misery that its decision might create. Even if I accepted that “responsibility for correcting the law lies with the people,” if a decision creates a series of medical emergencies which “the people” cannot correct in medically relevant time, the Court has a responsibility to deal with the harms it’s creating. No Court can legitimately divest itself of responsibility of the immediate consequences of its decisions in the way you suggest, and in practice, ordinary courts tend not to.

          I haven’t read all the way through Dobbs, but I have read what Alito had to say about reliance interests and found it extremely unconvincing. On that issue, I agree with this argument by Ilya Somin:

          https://reason.com/volokh/2022/06/25/dobbs-abortion-and-stare-decisis/

          Since I haven’t read the whole decision, I don’t know whether or not the decision deals with this issue, but I’d be interested to know how or whether it does. If abortion is now to become a criminal offense, law enforcement will have to be permitted more or less to invade the health care system in search of illicit abortions. The primary means of access will be via personal medical data. HIPAA allows for a law enforcement exception for accessing this data, but the standards for allowing exceptions for this purpose are very, very unclear. How does probable cause work in cases where miscarriages are essentially indistinguishable from abortions? You would think that clear standards of probable cause would differentiate between the two cases, but how are they do so? What is the difference between miscarriage and probable cause of an illicit abortion?

          If no such distinction is made and operationalized, then arrest warrants will have to be issued in many, many cases of miscarriage misidentified as abortions–with semi-catastrophic consequences both for health care and law enforcement. Is that a permissible consequence of Dobbs? Is it merely something that will be passed to the states to solve in the fullness of time, after the catastrophes start to loom larger and larger in the public consciousness? How can it, since constitutional criminal procedure is a federal matter? A morally and legally responsible Court would have something to say about this crucial issue. I wonder if ours does.

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          • My argument is effective against radgeek’s position, at least, since he admits the moral standing of a fetus but claimed pregnancy is involuntary servitude anyway. That makes it worth saying, even if you can escape it by stripping the fetus of rights.

            But does that really work? Let’s take cases where no other person can possibly be involved. Suppose a girl uses razor blades to cut herself on a regular basis, claiming a psychological benefit to doing so. Suppose also that she’s careful to sterilize the blades and bandage herself properly, to avoid infection. Is she behaving morally? Or, suppose a man who regularly eats heavy meals, then induces vomiting to disgorge most of the food, so that he can enjoy the food’s taste without growing fat. Is his conduct moral?

            Most people would say no for both, but the reasons are a bit hard to state. In my view, the issue in both cases is that the person is deliberately abusing a part of their bodies, turning it to purposes antithetical to its proper function – pain nerves are there to help one avoid injury, and the mouth and stomach exist to enable digestion. (You may have seen this before, as the “perverted faculty” argument.) Now this also applies to abortion – a pregnant woman became so by sexual activity (and in the typical case, did so voluntarily.) The natural function of sex is to cause pregnancy; thus to have sex and abort the resulting fetus is wrong of the same kind as eating a meal for the taste and then vomiting to remove it from the stomach – even supposing that the fetus has no rights of its own.

            The constitutional argument you make echoes Stephen Douglass’s arguments to Lincoln-Douglass debates. Suffice it to say that I agree with Lincoln, and would add that if we have any unenumerated rights, the right not to be killed or enslaved are among them.

            The reply to this is that Lincoln’s arguments in his debates with Douglas were not legal, but moral. He did not say that the Constitution implicitly forbade slavery, but that the Declaration did so – and the Declaration was not law. When Douglas charged him with being an abolitionist, Lincoln denied it; had he supposed that slavery was forbidden by the Ninth Amendment, Lincoln could not have disclaimed an intention to end slavery where it existed, as he actually did.

            And Lincoln’s main argument in the Freeport debate was that Dred Scott would lead to slavery becoming legal in every state, making a mockery of Douglas’s “popular sovereignty” position. (Douglas’s reply to that was so unconvincing that it sank his presidential ambitions, and split the Democratic Party.) As Dred Scott‘s reasoning bears a remarkably strong resemblance to Roe‘s, that debate shows the unwisdom of claiming the Constitution requires something it doesn’t really say. Douglas’s position might have worked, if Justice Taney hadn’t spoken.

            I don’t agree with any of that. The Court has a responsibility to deal with the chaos and misery that its decision might create.

            No, this is a basic application of the separation of powers principle. It’s a judge’s positive duty to set aside his own moral judgement of the case before him, and rule according to the judgement of the legislature. That’s why he has the power to compel testimony, even from people who haven’t agreed to obey his decisions – it’s the difference between a judge and an arbitrator. “Fiat justitia ruat caelum” is a principle of English law, that American law inherited, and that’s exactly what it means.

            It is, of course, part of a criminal jury’s duty to consider whether a law is just when rendering a verdict, and not to convict if the law a defendant broke is unjust. But that isn’t relevant to an appellate court, which doesn’t have a jury and doesn’t consider the facts of cases. And not even a trial by jury is supposed to consider any consequences other than those to the parties in the case. A judge who decides cases according to his own beliefs of what will happen as a result to uninvolved parties makes the law unpredictable, shifting in response to the judge’s imagination; and that itself generates chaos and misery, in a way that is the judge’s responsibility, as just following the law is not.

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          • Irfan Khawaja: Since I haven’t read the whole decision, I don’t know whether or not the decision deals with this issue, but I’d be interested to know how or whether it does. If abortion is now to become a criminal offense, law enforcement will have to be permitted more or less to invade the health care system in search of illicit abortions. The primary means of access will be via personal medical data. HIPAA allows for a law enforcement exception for accessing this data, but the standards for allowing exceptions for this purpose are very, very unclear. How does probable cause work in cases where miscarriages are essentially indistinguishable from abortions? You would think that clear standards of probable cause would differentiate between the two cases, but how are they do so? What is the difference between miscarriage and probable cause of an illicit abortion?

            The short answer to the question about the contents of the opinion is: No, the decision does not attempt to deal with this issue (or any issues around due process constraints for state authorities investigating or prosecuting allegations of an illegal abortion).

            Alito’s majority opinion does not raise or engage with questions about the practicalities of prosecution at all, that I can recall — his opinion is nearly identical in content to the leaked early draft, except for new sections responding to objections from the dissent and from Roberts’s concurrence-in-judgment/dissent-in-doctrine, which are focused mainly on defending his stare decisis analysis and trashing Roberts’s proposed replacement for the “undue burden” test.

            The dissent does raise some questions about legal problems likely to arise around enforcement and prosecution (on p. 35, p. 182 of the PDF blob, para. starting “Anyone concerned about workability should consider…” and following para. on interstate conflicts). Alito doesn’t respond to any of this (in general, his responses to the dissent are pretty high-handed and calculated to minimize diversions from the line of argument he wants to pursue).

            Kavanaugh does briefly but significantly weigh in with his own view on the questions about interstate conflicts, specifically, in his concurrence (p. 10, p. 133 of PDF blob, “For example, may a
            State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no…”). But these are about substantive questions likely to come before the court rather than about due process questions; nobody mentions HIPAA or probable cause or evidentiary questions in general. There is a discussion of natural miscarriage, but it deals entirely with the effects of bans on procedures for treating an incomplete miscarriage, rather than with the question of how cops or prosecutors might suss out the difference between spontaneous miscarriages and induced abortions.

            So:

            Irfan Khawaja: Is that a permissible consequence of Dobbs?

            As far as I know the case is silent on that, and the question would have to work its way through federal courts in order to see whether or not the courts would permit it, or whether they would draw some due process lines against over-ambitious cops and prosecutors.

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      • So, I think the Dobbs decision is wrong in principle and dangerous in its near-certain effects. I agree with you that abortion is an inalienable right and that prohibiting it is wrong for precisely the same reason as other forms of involuntary servitude (enslavement, peonage, military conscription, etc.) (I actually would insist on a more extremist line than what you propose here, which is that this is the case even if “the fetus is a full-fledged member of the moral community with a right to life,” because I deny — for the usual Judith Jarvis Thomson sorts of reasons — that a right to life entails a duty for another to continue a pregnancy.)
        I also think that federal intervention to suspend state abortion laws was both justifiable and desirable while it lasted, and I think the loss of it is a grave degradation of the American political order.

        That said, I’m a bit puzzled by this line:

        Irfan: But if you don’t believe that, then forcing a woman to bring an unwanted pregnancy to term is involuntary servitude. […] So there’s no escaping the fact that abortion, like slavery, rises to the level of a constitutional issue requiring a uniform legal standard across the land, not a patchwork quilt of mutually incompatible legal standards driven by the red herring of federalism. …

        Do you think that whether or not a federalist patchwork of abortion laws successfully constitutes (1) “forcing a woman to bring an unwanted pregnancy to term” and therefore amounts to (2) “involuntary servitude” depends on any real-world considerations about the the effective accessibility of abortion services in other patches of the quilt? Consider two cases:

        (BORDER TOWN): Missouri now has a very bad and extremely restrictive abortion law. If you live in St. Louis, there are clinics over the river in Granite City, IL (where there are fairly permissive abortion laws); if you live in Kansas City, MO there are clinics over the state line in Kansas City, KS (where there are somewhat permissive abortion laws).

        (MIDDLE OF NOWHERE): Texas now has a whole set of monstrously, theatrically awful restrictive abortion laws. If you live in Falfurrias, Texas, the nearest clinic providing abortion services used to be in McAllen, about 75 miles away and a relatively easy 1 hr drive; more recently, you could also get counseling over telemedicine and then get abortion pills shipped to you in the mail, without even leaving the house. Now the nearest clinic performing abortions is in Las Cruces, NM, which is about 760 miles away, or a ten hour drive through hundreds of miles of the Rio Grande Valley and the West Texas desert, which is either about 1,000% more inaccessible or almost-infinitely more inaccessible, depending on your baseline.

        Speaking for myself, I think in both of these cases, the state abortion law is still tyrannical, vicious and damaging. They all ought to be repealed, and I was happier when the Supreme Court of the United States was doing that. But it does seem like the gravity of the situation, and hence (among other things) the political case for a “uniform legal standard across the land” as against a federalist “patchwork” is a lot stronger in MIDDLE OF NOWHERE than it is in BORDER TOWN. Right?

        If the “patchwork” were to become even patchier than it is, then state abortion laws — while still vicious, tyrannical and stupid — would correspondingly become more like Sunday liquor laws, or dry-county laws (both of which are still vicious, tyrannical and stupid, and ought to be repealed) than they are like slavery or the draft. The problem with the patchwork is a problem on the order of involuntary servitude specifically insofar as de facto limits on access effectively succeed in forcibly stopping abortions. If they don’t do that, then state abortion laws (despite their best efforts) don’t succeed in imposing involuntary servitude. But which one turns out to be the case is an empirical matter not just a question of legal or constitutional theory, and something highly sensitive to real world factors and amenable to change based on grassroots efforts in civil society, economic factors, technology, etc. etc. etc.

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  2. My immediate reaction (written immediately before I started driving around downtown to find a protest, and found one near the state capitol): GT 2022-06-24: Laws Off Bodies.

    Yellowhammer Fund provided aid and comfort to women seeking abortions in Alabama before the state’s heartbeat bill / 6-week ban was re-activated on Friday afternoon. They are still operating and they have now shifted to providing emergency support and funding travel assistance and procedure costs for patients to travel to out-of-state clinics. Their expenses have increased manyfold as a result; folks can make an emergency donation or set up a recurring contribution here.

    All the other abortion funds in the South, and in most of the Midwest, are in a very similar predicament. Most are still operating, although many Texas funds, specifically, are currently paused while they consult with lawyers about how to deal with Texas’s catastrophically, fractally awful SB 8 law.

    The National Network of Abortion Funds accepts donations (which are passed through very efficiently to local funds) and coordinates for local abortion funds throughout the country.

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    • Update on Yellowhammer Fund: Since I mentioned it just the other day — as of today (29 June 2022), Yellowhammer Fund just sent out an email statement to their supporters stating (emphasis mine): “We have made the deeply difficult decision to temporarily pause our services for the safety and security of our clients, our supporters, and our staff. During this time we will consult legal experts to reassess how best to continue doing our work in the immediate future.” That’s all I know for now; I don’t see the statement yet on their website but it updates may be coming soon.

      Strictly shooting from the hip based on past familiarity with Yellowhammer and with no inside knowledge, I think it’s pretty likely that they will make an effort to come back soon providing aid, but with “legal experts” and consultations in the mix, together with chaotic politics, it’s hard to guess at a likely timetable. In the meantime, NNAF is still doing good work on a nationwide scale and has many links to local funds that are continuing in operation.

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