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October 30, 2005

Poem of the Night

Foreshadowing Halloween....
(author unknown, as far as I can piece together, but made famous by the Dowland lutesong, which is certainly worth hearing):

Flow my tears, fall from your springs,
Exiled for ever let me mourn
Where night's black bird her sad infamy sings,
There let me live forlorn.

Down vain lights, shine you no more;
No nights are dark enough for those
That in despair their lost fortunes deplore;
Light doth but shame disclose.

Never may my woes be relieved
Since pity is fled,
And tears and sighs and groans my weary days
Of all joys have deprived.

From the highest spire of contentment
My fortune is thrown,
And fear and grief and pain for my deserts
Are my hopes, since hope is gone.

Hark you shadows that in darkness dwell,
Learn to contemn light.
Happy, happy they that in hell
Feel not the world's despite.


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After Roe, What?

Matthew Yglesias ruminates about what the actual facts of abortion would be if Roe were overturned and (U.S.) Supreme Court regulation of abortion were dramatically reduced or elminated. This sort of scenario is thrown a lot both by those who wonder if Roe is the glue that holds the conservative coalition together and those who favor increasing restrictions on abortion at the state level, and many more.

I rarely hear a lot of concrete thinking about how this is supposed to play out, as a legal matter. First, let's suppose that all federal rules on abortion regulation-- from the Supreme Court and from Congress-- disappear. Some states already have regulations of abortion that will take effect when this happens and others will pass them soon after.

Given the strong feelings both sides of this issue have, things are not likely to stop here even at the state level. People in states that restrict abortion will try to travel to other states to get abortions. Some people in those states may try to help the poor, the young, and others with trouble managing the trip.

Anti-abortion states will have several possible legal tools. First, they could criminalize travelling across state lines with the purpose of aborting one's fetus. Second, they could exercise state long-arm jurisdiction to make it a crime under, say, Kansas law to abort a fetus conceived in Kansas, or belonging to a Kansas citizen, etc., no matter what state one is in.

Both of these tactics face some constitutional challenges, but not necessarily insurmountable ones. State long-arm jurisdiction is restricted by the due process clause, and there appears to be some sort of federal constitutional right to travel, but nobody is quite sure what it means. Federal law makes it a crime to transport certain people across state lines for immoral purposes, and a state would be forbidden from enacting similar legislation only if it violates commerce-clause or related principles (since the right to travel presumably extends against the federal government just as much as the state).

What then? Basically, these constitutional questions would almost surely end up back in the U.S. Supreme Court, where old precendents and unclear standards would once more have to be sorted out. And if they had to be sorted out without reference to any sort of "abortion is special" jurisprudence, it isn't clear how they would come down.

In some states, presumably life would begin, by law, at conception or some other prenatal period. Right now, many states have child custody laws that allow judges or state officials to put children into protective custody if there is reason to believe that the parents will mistreat the child in some manner.

Presumably some life-at-conception states could try to extend protective-child-custody rules to cover fetuses too. So, for example, a woman who became pregnant but seemed likely to get an abortion might receive a court order putting her fetus in protective legal custody (though obviously not physical custody) until it was born. In fact, a state might well simply put all fetuses in protective legal custody, making it a crime for anybody to leave the state with their fetus without the permission of the court. This might in turn face constitutional challenge both under the 1970s due process irrebutable-presumption cases and under the Pierce constitutional-right-of-parents cases, but again, the results are unclear.

The end result, jurisprudentially, is likely to be a mess of interstate conflict as these and other jurisdicitonal and conflict of laws questions come to the forefront. Some sort of federal solution would be demanded by all sides, so federal legislation or constitutional amendment would be pretty much inevitable. Think "The Fugitive Slave Clause".

Now I don't know what this federal regulation would look like, but it seems like those who think we should or will "return abortion to the states" ought to be a little more concrete about what that means. Would there be federal rights to travel? To raise one's children free of some state interference? To individualized determinations on the merits of fetus-custody questions? What would interstate jurisdiction look like? And so on.

[Many of these thoughts and ruminations are drawn from a lot of emails, conversations, and readings too numerous to cite or even remember.]

UPDATE: Two more thoughts occur to me. First, as several commenters point out, serious enforcement of the kinds of interstate rules mentioned above will require search regimes that arguably raise 4th Amendment issues. Current doctrine gives deference to searches when there is a great moral harm at stake and also to searches near international borders. If anti-abortion states search people at the border to see if they're pregnant would they be entitled to border-search deference? Would the Supreme Court recognize deterring abortion as the sort of compelling state interest entitled to deference?

Second, I take it that in this world, absent federal legislation to the contrary, a state could make it a violation of medical ethics for a doctor to perform an abortion, and therefore withhold medical licenses from anybody who have ever performed an abortion. There are probably other was in a post-Roe world that states could fight the supply-side battle. At the most basic level I suppose a state could forbid the teaching of abortion in all public and private medical schools, and perhaps require, as a condition of attending any medical school in the state, that one sign a binding contract never to perform an abortion.

Comments are open.


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Daylight Saving Time

The Energy Policy Act of 2005 doesn't take effect until 2007, so in an hour or so it will be time to change our clocks back for daylight saving time. (This would wreak havoc on Crescat's timestamping if it weren't so confused already.)

Daylight Saving Time, like the regulation of chimney sweeps and the legalization of marrying one's deceased wife's sister, was incredibly controversial when it was adopted in England. Ernest Sackville Turner, a relentless promoter of progress complains in The Road to Ruin that it was "such a simple idea that men could not grasp it. ... How (asked the objectors) could an entire civilized nation delude itself into getting up an hour earlier?" Turner seems to realize that what is really going on is a focal point effect, although he lacks the vocabulary to call it that. Anyway, here is another excerpt:

Much of the opposition-- it may be said, the honest opposition-- came from farmers. But even on the theme that cows could not be milked an hour earlier than usual, and that it was wrong to expect a milkman to get up in the dark the whole year round, a good deal of nonsense was talked. There were discussions in Parliament as to whether the cow was, or was not, an accommodating animal. Advancing the clock, said the opposition, would mean that townsmen would no longer get fresh milk; but most townsmen usually got the previous day's milk as it was. Then there was the argument that harvesting could not being until the dew as off the grass. A farmer, it was complained, would have to pay his men to be idle for an hour. To the argument that they could adjust their own working day to the needs of Nature, the farmers replied that it was unfair to cut off rural workers from the social life of other men.


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Transmission Redeemed

The story that began of transmission failures and successes and Mishawaka has now reached its end. My beleaguered Volvo was delivered to New Haven today by a very nice and very competent man from Safeway Auto Transport (via Federal Express).


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