Reply #82: in a nutshell

[iverglas]

The Court (Blackmun J.) stated that the state has an interest in "the potentiality of life", whatever that might be. It never gave any basis for that assertion. What it means, in the context, is that the state has an interest in an individual woman's pregnancy. What is the state's interest? Who knows?

The Court then stated that there was a point at which the state's interest in "the potentiality of life" became compelling. It never gave any basis for that assertion. What is compelling about that interest? Who knows?

Based on those bald assertions, the Court then authorized the state to interfere in women's decisions about their pregnancies.

Bullshit decision, I'd say.

I don't think gun militants would be putting up with bald assertions like that as the basis for banning handguns.

They like the analogy, so here they are. Women may get some abortions but not others, under Roe v Wade and subsequent laws, like "partial-birth abortion". Women should be satisfied. How about you can get some firearms but not others? Sound good, guys? Assault weapon ban, anyone? I think the two are distinguishable, and there are grounds for denying access to some firearms, and I can state those grounds. If the court thought some abortions were distinguishable from others, it should have stated its grounds.

The main thing is that the Court (and of course presumably the pro-choice parties) fixated on "privacy", when pregnancy brings women's more fundamental life, liberty and security of the person interests into play.

The Supreme Court of Canada did mutter similar things about state interests in pregnancy, similarly unelaborated, in R. v. Morgentaler. But it was focusing on the fundamental rights, and the right not to be deprived thereof except in accordance with the principles of fundamental justice (e.g. due process). And so it came to the correct conclusion that Canada's abortion law (requiring certification of medical necessity by a committee) violated those rights and principles, and it has been clear since that there is no imaginable law that would not. It just isn't possible to have a law that compels someone to do something against their will that involves serious risks to life and health, where the person has committed no wrong, and meet even due process standards.

If you look back at Roe v. Wade and Blackmun's assertions about the state's interest and the compelling nature of that interest, you'll see what I mean.

Had the real interests of the woman that are in issue -- life, etc. -- been balanced against whatever the state's interest in "the potentiality of life" might be, even if that interest had been made explicit, I don't think it's possible to find that the state's interest outweighs the woman's. There really aren't a lot of state interests that outweigh an individual's interest in their own life, and not being compelled to put it at risk against their will.