Post #5791 Rant of the Day "Biden's Abortion Executive Order Public Statement"

 I have a remarkable tolerance for opposing points of view. I've been active on Twitter since 2013 and the vast majority of active Twitter users are partisan (Dem) leftists. I don't have to look far to find people who vehemently disagree with me on nearly every political issue. I still don't suffer fools gladly; I'm sure I don't win many followers with blunt reply tweets, although I've managed to stay out of Twitter jail for a while.

The truth is I'm fairly used to people disagreeing with me; two of my closest adult friends are pro-aborts, and my political opinions don't influence many in my circle of friends and relatives. I've been used to holding my tongue; as I've tweeted, during my 5 years as a professor, I never dared to express, in a pervasively "progressive" academia, my pro-liberty conservative views; as a tenure-track professor, I was flirting with career suicide.

Abortion is not my favorite subject to write about, and I think this is the fourth post I've written on the subject since Dobbs. It's like I've been sucked into a Roe/Dobbs vortex, each time thinking I've had my say. I'm not using this blog as a pro-life forum, to engage in the polemics of abortion as a moral evil. Make no mistake; I am unambiguously pro-life and unapologetic. I've not hidden my position here or on social media. But in this blog, I'm looking at issues through political principle, not moral lens.

I have tolerantly listened to full speeches from Democrats; I knew I was going to disagree sharply with Biden; I'm not sure what it was: his repetitious, predicable rhetoric, his in-your-face attacks on the Supreme Court (I'm still seething at Obama's SOTU attack over Citizens United; it's not so much a difference of opinion, but a political attack on a separate branch of government, undermining its credibility in our constitutional system, in this case, the sheer chutzpah of creating an executive order on abortion right after SCOTUS ruled there was no such constitutional right), his judgmental, condescending tone, his hypocrisy as a fellow Catholic (abortion was not practiced in Israel during the life of Christ; but it was elsewhere in the Roman Empire; the Church Fathers condemned the practice in one of the earliest writings, the Didache), or whatever: I finally got fed up and turned off the TV. I had had my fill of his disingenuous rubbish.

I want to address some of the points without unduly repeating what I wrote in earlier posts. It's almost arbitrary where to start.

First, Biden seemed to want to argue with Alito's majority opinion. He takes exception with Alito pointing out that early America had restrictions on abortions derived from English common law , especially on the quickening (roughly speaking, when the mother first feels the baby, roughly 16 to 20 weeks, about halfway to full term/delivery). It's not really clear where Biden is going with his argument here: Alito is referencing historical fact. in this timeline,abortion was illegal in all states. Biden seems to be quibbling about legality of abortion before the quickening. I'll simply point out here, in context, that the Catholic Church has ALWAYS opposed abortion at any point of pregnancy; some theologians did embrace Aristotle's notion of ensoulment occurring at the quickening and being especially heinous after ensoulment. The pro-abort notion that pre-quickening abortion was broadly accepted is in dispute:

Moreover, many authorities asserted that even a pre-quickening abortion was “unlawful” and that, as a result, an abortionist was guilty of murder if the woman died from the attempt. The Solicitor General suggests that history supports an abortion right because of the common law’s failure to criminalize abortion before quickening, but the insistence on quickening was not universal, see Mills v. Commonwealth, 13 Pa. 631, 633; State v. Slagle, 83 N. C. 630, 632, and regardless, the fact that many States in the late 18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked the authority to do so.

  Moreover:

The earliest English legal authorities, Bracton (writing c. 1256) and the anonymous author of Fleta (1290), held that abortion was homicide (the killing of a human being). A few centuries later, the most respected English legal authorities, who influenced the American Founders and American law, Sir Edward Coke (1552–1634) and Sir William Blackstone (1723–1780), affirmed the criminality of abortion from the time that medical practitioners could determine that a woman was pregnant with a living child...Numerous common-law prosecutions against abortionists formed the backdrop to Lord Ellenborough’s Law of 1803, the first English prohibition of abortion by statute. Among other things, the 1803 law strengthened the prohibition of abortion by increasing the crime of pre-quickening abortion to a felony; post-quickening abortion was punished even more severely...In the 19th century many American states strengthened the law against abortion by eliminating the quickening distinction and extending the prohibition throughout pregnancy, and by increasing the penalties.

Again, in the context of American regulation:

Every other state enacted abortion legislation during the nineteenth century (except Kentucky, which did so in 1910). Despite differences from state to state, a basic pattern emerged, which largely mirrored the innovations in New York...Abortion at any stage of gestation usually was made a criminal offense. Since most abortions take place in early pregnancy, this represented a drastic change in the law which previously had been understood to permit abortion before quickening. Some states continued to require proof of quickening; in some, as in New York, whether the abortion took place before or after quickening determined the level of punishment. But most rejected the quickening distinction and established the same penalty for all abortions.

A key point is you cannot argue abortion was protected by the US Constitution. The police power and health regulation have been assumed by the states under the principles of federalism, i.e,, the Tenth Amendment.

 

Let's also point out that the Roe decision went past the quickening criterion to the viability criterion , around the end of the second trimester. And even if we go by the quickening criterion, we know the preborn child moves before the mother detects it, and the baby's basic body is recognizable by the 12th week; not only are all organs in place, her heart is beating, she can suck her thumb and wiggle her toes. 

Next, there's Biden trying desperately trying to make it an issue for the midterms. The motivation is clear; among other things, some stats show up to one quarter of American women have had an abortion during the Roe era. There are dubious polls arguing popular support for abortion, although after 5 decades of the Roe era nearly half of Americans identify as pro-life; generally speaking; most Americans reject abortion on demand, effectively the Roe decision. The tacit assumption is women have a vested interest in validating the purported right to abort. But this idea that the Congress can codify abortion (never mind the kerfuffle over the filibuster) is absurdly unconstitutional in concept. The idea that leftists can trump state laws, as recently reaffirmed by SCOTUS, simply by passing legislation codifying Roe is fantasy. As I've pointed out else there's no constitutional basis for the legislation. In my judgment, leftists would need to pass a pro-abort amendment with a super-majority in both chambers of Congress and then have a super-majority of states approve it, which I don't think is remotely possible.

 

On related grounds, Biden argues that he will protect against the codification of pro-life restrictions against abortion. I don't think this is constitutional for pretty much the same reasons mentioned above. With only one pro-life Democrat in Congress, this isn't remotely feasible.

There was discussion of freedom to travel (e.g., from an abortion-restrictive to abortion-enabled state) and direct access of FDA-approved abortifacients via, USPS. I agree freedom of movement is a constitutionally protected right, and if I'm not mistaken, Justice Kavanaugh reaffirmed this in his concurring opinion. While I personally oppose abortifacients, I think an argument can be made the federal government has the commerce power to protect a free market, including transactions from a licensed out-of-state pharmacy.

Then there was Biden's slippery slope argument, over "privacy" based decisions protecting interracial marriage, contraception, and gay marriage. First of all, the majority opinion explicitly rejected this claim. This was mostly a controversy over Clarence Thomas' rejection of the substantive due process doctrine. And Thomas was not arguing reversing these decisions, but deciding them on different grounds like equal protection.

Finally, somehow I knew the manipulative politician in Biden  would raise this case which has been widely discussed on Twitter: a purported 10-year-old Ohio rape victim was impregnated and couldn't get an abortion there. I have referenced the incident in a few tweets. We don't know the specifics, but apparently an Indianapolis abortionist claimed that he did the procedure. I also tweeted out the procedure is available in the neighboring state of Pennsylvania and several Northeast states and Illinois. I remind readers less than 1.5%  of abortions involve the exceptions of rape and incest. I recommend pro-life legislators pragmatically resort to persuasion than the law to deal with these issues, in addition to the health/life of the mother.