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The Scars That Keep On Giving And Taking

by: caliberal

Mon Jan 22, 2007 at 10:27:26 AM PST



( - promoted by 5hearts)

This is a picture of a young girl not yet 18.  It's a picture of a 17-year-old at odds with her own sexuality.  She had seen the violence sex can bring, she had persevered and learned to dream once again, the dreams of a teenager who mistakenly believed that she had the right to chart her own course in life, a mistake that would bring with it tragic consequences.  The year was 1966, the young girl in the picture is me. 

Because today is the 34th anniversary of the passage of Roe v. Wade and because I believe stories are one of the strongest statements we can make, and because they touch the heart and help to change the world, I decided to post a very personal diary, one that was written and posted on MY Left Wing nearly a year ago.

Bush named January 21, 2007 the Sanctity of Human Life Day.

Sanctity of Human Life Day

National Sanctity of Human Life Day serves as a reminder that we must value human life in all forms, not just those considered healthy, wanted, or convenient. Together, we can work toward a day when the dignity and humanity of every person is respected.

Every person is to be respected unless you're a woman or young girl pregnant without the access to or the means to pay for an abortion.  Every person is to be respected unless you're a woman or young girl trapped in an unwanted pregnancy who doesn't follow the 'rules' laid out by the Bush administration in how you conduct yourself while  pregnant. 

For all those who don't yet understand what it's like to be forced into motherhood, I offer this as a example.  For those who have been there, we've walked side by side in our fight to gain and keep dominion over our own bodies.  For those who fight with us, thank you. 


caliberal :: The Scars That Keep On Giving And Taking

The Scars That Keep On Giving And Taking

I'm tired because I couldn't sleep last night.  I  kept waking up and staring at my scars which were barely visible in the light of the lamp on the nightstand next to my bed.  I kept the light on because I couldn't bear to be in the dark again.

As I watched the Olympics last night I couldn't concentrate.  My eyes invariably went back, time and again, to the scars.

I remember so clearly what the doctor said to me when I woke up in the hospital.  He told me the scars would never go away, that when I looked at them they would remind me how close I had come to the end of my life.

He was wrong, when I look at the scars it never crosses my mind how close I had come to death.  When I look at the scars I'm reminded of the end of my childhood dreams.  I'm reminded of how many things ended in those days and months.  I'm reminded of the terror I felt, the horror of not being in charge, the outrage felt by others shaping my future.

There were many deaths in those days and months that led up to the scarring of my body and spirit.  There was the death of childhood aspirations.  There was the death of adolescence.  There was the death of a higher education.  There was the death of marrying for love.  There was the death of a certain naivete, of innocence and of personal ownership, there was most especially the death of freedom.

When I look at the scars on my wrist I see the utter desperation and the loss of dreams suffered from being forced into something I never wanted nor had any knowledge of.  Motherhood hit me like a trainwreck that shattered my hopes and dreams.  Forced motherhood left me bereft.  Forced motherhood left me despondent and it left me wanting, wanting the life I would have had if I had had a choice.

I entered my senior year of high school with high expectations.  I was a young girl who was born an enthusiasts of life.  I was born with a sparkle and an exuberance that was clear to all who came near.  I was born with a lust for life, a pure unadulterated joy for each new day.  I applied to several universities and private colleges in my senior year.  I was accepted to most but when news of my acceptance came from Lewis and Clark I was ecstatic.  I would go to college and in the summer I would intern at the Shakespearean Festival in Ashland.  I was charmed by the life I was stepping into.  I would be truly free for the first time.

I was two weeks late before I realized I hadn't started my period that first month.  There was in me a dread as I marked off each new day without any of the usual signs of my period.  The second month came and went.  The dread turned into terror.  There was morning sickness but there was also a sick feeling inside because I knew what was on the horizon.  I knew there were no choices for me, I knew my life as I had known it was over.  I also knew I had no business or desire to be a mother.  I started on a downward spiral in those days that would take many years to climb out of.  I was the shadow that lived behind my shadow.  The effervescence was dead, gone, buried under the quicksand that became my new life.

My son was still a toddler when I went into the kitchen  and used the knife to cut the arteries in my wrist that left the scars I've been staring at the past couple of days.  The scars that don't remind me of how close I came, the scars that remind me every single day of the gut wrenching and terrifying reality when women and young girls don't own our bodies.  The scars speak to me of those horrible days after I realized I was pregnant.  The scars scream to me of battles lost before they had even been waged.  The scars are the voice of a kind of violence against women and young girls.  The kind of violence that hides behind women not having a choice.

I was afraid to be in the dark last night because the scars reminded me of when I came home from the hospital after I slit my wrist.  The movie, "I Never Promised You A Rose Garden" kept appearing in my head.  I was that girl, my greatest fear was that I would end up in a state run mental hospital because I was so far down in that deep, black, dark hole.  I couldn't imagine a day being lived without that ever present fear.  I didn't belong where I was, I belonged in a mental institution and when I was found out I would spend the rest of my life there.  The doors would shut and they would be locked.  The windows would be barred just as the windows in my soul were.

I had to sleep with my mother that first year because I was so afraid of the dark.  The same darkness I couldn't stand to be in last night.  The same darkness my scars lived in, the darkness we live in when we are no longer free.

Those very same scars make me weep for all the women and young girls who will be made to give birth when they're not ready to have a child.  Those very scars will be seen on the wrists of women who can see no other way.  Those are the visible scars, the scars on our hearts and souls are there for a lifetime also.

This is the land of the free except if you're a woman or a young girl.  This is a democracy except if you're a woman or a young girl.  This is a country that prides itself on justice except what's just for a woman or young girl.  There is a Declaration of Independence except if you are a woman or a young girl.  There is liberty except if you are a woman or a young girl.

For those who doubt if this is all true, rest assured, we have the scars to prove it.

I weep today for all those young girls who will be in a land of darkness with no light at the end of the long, narrow tunnel until they find a new sense of freedom that can only come with time and a new found resolve to live life once again.  It takes courage to get beyond the abyss.  It also takes a tremendous amount of patience and love, above all else love, from others and the love we need to give to ourselves. 


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Roe v. Wade, a day that is bittersweet (10.89 / 18)
Today is a day to celebrate Roe v. Wade and the fact that women were given dominion over our own bodies.  It's also a day to never, ever forget how the 'undue burden' spoken of in Roe has been corroded in so many ways.

It's past time in letting our leadership know just how enraged and disappointed we are in them, that they never, ever have a word to say about this war against women.

Stories help remind us, they help us to never forget.  Stories put a face to the pain that is suffered each and everyday in this country and around the world because women's reproductive rights have been so compromised.

So tip a glass to the passage of one of the most profound days women have had in the history of this country, and continue to fight the good fight because so much has been lost along the way. 

I will not die an unlived life. Fuck em, I will not live in fear, I will live out loud and on the record.  

Domestic Violence Hotline 1-800-799-SAFE (7233) 1-800-787-3224 (TTY)  


Everybody has a story or so to tell. Thanks for posting yours, cali. (10.33 / 3)
That was a hard, tough road for you to hoe, especially as a young girl at such a vulnerable age.  Sorry you had to go through so much, and yet glad that you soldiered on and worked your way up and out of it.  Stories like yours are just one of the many reasons that it 's absolutely imperative  that abortion be kept legal, with restrictions on abortion rights,  and reproductive rights be kept intact.

Btw--enjoyed looking at the picture of you as a young gir.  A very attractive girl/lady. 

Also, calli, while there are a number of things, including abortion rights, on which we agree, there are things on which we've got slight differences on--I respect you for holding  yourself to certain standards, having a sense of who you are, and for the exuberance and caring attitude that still radiates from you throughout  the years.

Ahhhh....Life goes on.


[ Parent ]
What a beautiful comment miki, thank you n/t (11.00 / 1)


I will not die an unlived life. Fuck em, I will not live in fear, I will live out loud and on the record.  

Domestic Violence Hotline 1-800-799-SAFE (7233) 1-800-787-3224 (TTY)  


[ Parent ]
Hi again, cali. You're welcome. (8.00 / 2)
Glad to give encouragement and support.

Ahhhh....Life goes on.

[ Parent ]
cali -- your story (9.75 / 4)
is one that I "knew" when I made my choice, but as you have heard me say before, I do not know how I would have reacted had I felt that I did not have one....

Thanks for sharing this again.

Never miss a good chance to shut up.
~~T e x a s B i x B e n d e r, from "Don't Squat with Yer Spurs On"


PS cali, did you know that (10.60 / 5)
I was born in 1966?

I don't know why I bring that up necessarily, just noticed that it had added an even more poignant connectedness to me when I read it...just wondered if you knew.

I will never forget the road of broken glass that women before me have had to tread, especially not today, when many seem determined to litter that road with even more painful obstacles. You are brave, so brave, cali, and my respect for you knows no bounds.

Never miss a good chance to shut up.
~~T e x a s B i x B e n d e r, from "Don't Squat with Yer Spurs On"


[ Parent ]
Fiver, you have touched my heart, thank you (8.67 / 3)
I didn't know or perhaps knew but had forgotten, you were born in 1966.  It gives a beautiful poignancy to this diary and to the women who were bringing children into this world because they were wanted and how opposite the truth is for those whose pregnancies led to devastation because we had no choice.

Thank you isn't enough but thank you I do, for your kind words but also for reminding me of the year of your birth, it really adds so much beauty, it chokes me up to view both sides.  You are loved and in my heart.

I will not die an unlived life. Fuck em, I will not live in fear, I will live out loud and on the record.  

Domestic Violence Hotline 1-800-799-SAFE (7233) 1-800-787-3224 (TTY)  


[ Parent ]
it is always enough, cali, thank *you* (6.50 / 2)
It is my honor to touch your heart, as you do so often mine.

I have often wondered at the "wantedness" of my birth. My parents were married three years before I was born -- they were both graduate students, my mother finished her masters, dad went on to Ph.D.-land and was of the mind that her job was to take care of the kids (I have a sister by them, 4 years my younger).

They divorced when I was seven and it never something I have straight out asked my mom if she would have aborted me if she could have, (an unfair and horrible question, in a way, though I guess I could answer my eldest if he asked with a negative) it occurs to me that I do not know (never have asked) if she did abort before me...she has a miscarriage of twins when I was 11 and she was very broken up about that, even though she wasn't married at the time -- I always got the feeling that she felt robbed in many ways by her circumstances...

The "options" presented to the women of your generation were so "trap-laden", not really options. My mom was a single mother with 2 kids throughout the 70s, and having been one myself in the late 90s, I always looked the obstacles in my way relative to what she went through -- and went through she did, straight through -- mine wasn't a perfect childhood (but whose is?), but we were not left wanting of much, as far as the real necessities were concerned, and her courage, your courage, are always a wonder to me.

yikes -- a bit abbly this afternoon, aren't I?
;)

Never miss a good chance to shut up.
~~T e x a s B i x B e n d e r, from "Don't Squat with Yer Spurs On"


[ Parent ]
er, that would be "Babbly" not "abbly" n/t (0.00 / 0)


Never miss a good chance to shut up.
~~T e x a s B i x B e n d e r, from "Don't Squat with Yer Spurs On"


[ Parent ]
no text (10.00 / 6)


"When the power of love overcomes the love of power the world will know peace." ~Jimi Hendrix

Thank you Cali... (10.00 / 5)
You are the voice of every girl, every woman, every female that demands control over our own bodies.

No one could say it better.  Tears, my friend, tears.

Happy Roe vs Wade day.  And may next year bring a "no restrictions of any kind day" along with it.


for caliberal (10.60 / 5)


"...psychopaths have little difficulty infiltrating the domains of...politics, law enforcement, (and) government." Dr. Robert Hare

Stories like yours tell us (6.25 / 4)
why women need and deserve control over their reproductive choices. 

Still, like most attorneys, I feel a certain ambivalence towards Roe.  There are a lot of criticisms to be made of the decision.  One of the most intriguing was made by Ruth Bader Ginsburg.  She believes that the decision overreached by invalidating all abortion restrictions, not just the Texas law at issue, and thereby crushed, in its infancy, a growing democratic movement towards full abortion rights that Ginsburg believes would have led to a consensus preventing the bitter debate we find ourselves in today. 

I immediately thought of Ginsburg's criticism when I read your story, because your story, set in 1966, pre-dates this movement. 

In 1967, Colorado became the first state to partially legalize abortion. This led to enactment of similar partial legalization (rape, incest, health) in California, Oregon, and North Carolina. And, then, in 1970, New York allowed abortions up to the 24th week of pregnancy on demand.  Other states soon followed suit.  Few people recall that the first landmark abortion case in the Supreme Court in the 1970s upheld a D.C. law allowing unrestricted abortion. By the time Roe was up before the S.Ct., the pro-choice movement was making huge strides throughout the country.

Would this movement have led to abortion on demand nationwide?  Ginsburg seems to think it would have done a better job of obtaining this ultimate end than Roe.  And perhaps you agree given your criticism of how abortion jurisprudence has turned out. I think that Ginsburg's thesis is thought-provoking, debateable, and ultimately irrelevant.  Sometimes societal attitudes are changed more rapidly when the Court is ahead of social movements instead of behind them, but, whether or not this is the case, because the Supreme Court issued Roe when it did, Ginsburg's alternate past will never come to fruition. 

The abortion debate will only be resolved by the Supreme Court.  And the Supreme Court will only resolve that debate when the right to obtain abortion is grounded upon Constitutional reasoning that can be embraced by conservative and liberal legal scholars. 

In my opinion, O'Connor's attempt to ground abortion rights on the 14th Amendment deserves more respect than you give her.  She succeeded in converting not only Anthony Kennedy to her cause, thereby preserving the abortion right and setting the stage for Lawrence, but also has given rise to a perspective on abortion jurisprudence which more conservative legal scholars can embrace. 

The future challenge for pro-choice attorneys is to justify abortion rights from an originalist perspective.  Prof. Jack Balkin, one a leading proponent of the "living Constitution," recently followed O'Connor's lead and is doing just that.  Other influential legal scholars, Randy Barnett notably, are duly impressed.  I find hope in these developments.


Thank you for the reasoned response cd (6.00 / 2)
Thank you cd for the thought provoking response, they are points well taken. 

It will be interesting to see how Kennedy comes down on the late term abortion ban, hideously, IMO, referred to as the 'partial birth abortion' ban.  It is said it will be decided on by early summer. 

We'll get a chance to see what direction this Supreme Court will take on a woman's right to choose.
 

I will not die an unlived life. Fuck em, I will not live in fear, I will live out loud and on the record.  

Domestic Violence Hotline 1-800-799-SAFE (7233) 1-800-787-3224 (TTY)  


[ Parent ]
According to at least some seasonsed S.Ct. (6.00 / 1)
watchers, based on the argument, they expect Kennedy to vote to invalidate the Partial Birth Abortion Ban Act -- a surprise.

I read the argument, and it is a strange debate to say the least.  While I agree with you that the Act has a politically motivated title, it does not ban "late term abortion."  Instead, it bans a particular technique, and the debate over the Act revolves around whether banning that technique has any practical effect.  If alternative techniques are found to be medically available such that the health of the woman is not jeopardized, then the Act will likely survive Constitutional muster.  The case does not so much present a Constitutional issues, as a factual issue regarding medical techniques.  Again, a strange case for the S.Ct.

I predict that however the Court comes down on this issue, the resulting decision will likely be very narrowly drafted and provide little insight on the broader issues.  But, that's just a guess.



[ Parent ]
Dilation and Extraction (6.00 / 1)
It always seemed that banning the abortion procedure of dilation and extraction was an ingenious ploy by anti-choice advocates.  It went to a particular procedure and was not overtly tied to the viability of the fetus.  Depending on how a D&X ban is defined, it could apply to some second trimester abortions.....Thus, validating the ban on the D&X procedure would undermine the point of viability reasoning of Casey and Roe, and set the precedent for banning even pre-viability abortions.....

[ Parent ]
The press accounts of the oral arguments (0.00 / 0)
on the late term abortion ban indicated that Kennedy this last time around was concerned that the ban was too sweeping.....IIRC

He may have changed his position on late term abortion; his position on abortion has evolved.....

It had been conventional wisdom that Kennedy would once again vote to uphold the federal late term abortion statute along with newcomers Alito and Roberts.  A different result would be a big boost to reproductive choice and a big blow to pro life groups....Perhaps such groups would then turn (finally) to other methods, aside from criminalization, to get their point of view across.


[ Parent ]
Reproductive freedom (7.67 / 3)
is such a fundamental freedom that leaving it to a patchwork quilt of conflicting state decisions seems inherently flawed. 

The "Originalist" fad is expedient to conservative goals of outlawing abortion and other conservative social engineering.  It is seen as an interim, politically palatable step--a step that could seduce a Giuliani, for example. Social Conservatives do not really want to "leave it to the states," and in fact have not done so as shown by the federal partial birth abortion legislation.

Roe is not really the "legislating from the the bench" so decried. It is in line with the Common Law principles that have taken hundreds of years to develope--Yes, courts can create new law, and that is indeed how most of our law has developed.

I know many abortion-rights advocates do not like the genesis of Roe but say that it is simply too late now to change it--a Stare Decisis argument.  Count me not in that group.  I think the Court was exercising its inherent powers to protect a woman's liberty in deciding Roe in the first place.  Much like Benjamin Cardozo's creation of modern tort law in our country.


[ Parent ]
The problem with your approach to the Constitution (0.00 / 0)
is that it makes Constitutional law nothing more than "majority rule."  NO Constitutional scholar accepts the proposition that the S.Ct. is free to create new Constitutional provisions or disregard existing ones.  Nor does the S.Ct. have any "inherent powers." Instead, the Constitution grants and limits the powers of the Judiciary just as it does the Executive and Legislative branches.  The path of "inherent powers" is that pushed the "unitary Executive" fans, and that way leads to a complete breakdown of S.Ct. legitimacy and ultimately tyranny.

Originalism is not a fad.  It is a mode of interpretation long used.  Nor is it monolithic in its meaning - it is an umbrella term.  The originalism of Balkin ("original meaning and principles" and Barnett ("original meaning" is not the originalism of Thomas ("original intent") or Scalia ("original understanding"). 

Many liberals DO think Roe was poorly reasoned.  But, many liberals also think that a better reasoning can be supported. 

Prof. Balkin argues that the 14th Amendment supports the conclusion that the Constitution protects two complimentary rights:  The first is a woman's right not to be forced by the state to bear children at risk to her life or health. The second is a woman's right to decide whether or not to become a mother and assume the obligations of parenthood. When a woman becomes pregnant, the first right is the right to protect her bodily integrity- her life and her health. The second right is a right against state-enforced compulsory motherhood; it is the right of a woman -- as opposed to the state -- to decide whether she will take on the life-altering set of responsibilities that come with being a parent.

His analysis, based on a species of originalism, is both persuasive and potentially paradigm shifting.  It offers a way out of the abortion of wars.  Again, I find this kind of reasoning hopeful. 

In your views, I see only a S.Ct. that shifts with the political winds.  Majority rules. 


[ Parent ]
Majority Rules (11.00 / 2)
That critique can be applied to any Supreme Court analysis or decision.....It is always just a matter of votes, after all--Brennan's rule of five. 

We live in a democratic country--what a super majority in this country wants long enough, strongly enough and consistently enough, it will get.  It is comforting to think that the Supreme Court hands down rulings that will last forevever, that represent some type of eternal reasoning.  Not really.  It acts as a brake on mob rule, an anchor against the temporary tempests of popular expression.  But if the wind is strong enough, it will rip a ship from its moorings....The Court can also lead popular will, as you point out--but can't do so by too much....

Constitutional Conventions, Amendments, new appointments to the Supreme Court.  Change will occur to represent popular will..... 

By "inherent authority," I did not mean to state that the Court had an inherent charge to protect liberty without any textual support in the Constitution.....Your "Equal Protection" argument is just using differnt prong of the Fourteenth Amemendment than my Substative Due Process protection for "life, liberty and property."  (Too bad Substantive Due Process is on the outs with new scholars today--my word, I heard Roberts say Substantive Due Process was settled law during his confirmation hearings, and you new guys want to toss that out too.  If it ain't broke, don't fix it.)  I agree with Justice Douglas--one need not find the exact words in the Bill of Rights on abortion to protect reproductive choice; such a right is "inherent" in the Bill of Rights....

By agreeing with the conservatives that Roe was wrongly decided, you in effect pour fuel on the fire of those who say that Roe (Griswold, actually, but that led to Roe) was an "emanation" from the "penumbras" of Douglas's senile mind.  To go your route, you have to throw over-the-side the four decades of cases upholding a personal right of privacy in the sexual context.  That would most definitely undermine the Supreme Court's credibility--the very thing you are trying to bolster.

Just majority rules?  Well, Cardozo's rulings have stood close to a century now. 

No need to worry about getting the anti-choice people on board with a constitutional right to reproductive freedom.  Why bother?  Those who support choice are winning this fight--both in the courts and with the people of this country.  If popular will turns, the court's decisions will act as an "anchor."  Your approach is in effect to invalidate Roe and start over.

If you can create an additional rationale to uphold Roe that will win over social conservatives, great.  But don't ruin the Griswold/Roe/Casey/Lawrence framework we do have by saying the original decision was wrong.

But it would be interesting to read about this "originalist" support for abortion rights....Do you have a cite or two for this?


[ Parent ]
Many disagreements. (0.00 / 0)
The Supreme Court can and does issue decisions which are so persuasive in their reasoning and moral force that they become unassailable, even when the political winds change.  I think you display far too much cynicism in believing that the Constitution is without import and that legal reasoning is ultimately all outcome oriented.  I believe that principled arguments often win the day.  Developing new rationales for the outcome in Roe is an inherently beneficial task.  Liberal goals can only be aided by the development of modes of Constitutional interpretation which undercut and co-opt the conservative appeal of originalism. 

Your "Equal Protection" argument is just using different prong of the Fourteenth Amemendment than my Substative Due Process protection for "life, liberty and property."
 

Balkin founds his argument on both the Equal Protection Clause and the Privileges and Immunities Clause of the 14th Amendment.  Barnett tosses in the 9th Amendment.  By taking the tacts they do, they reach a result that is arguably more principled than that reached by an SDP analysis.  You seem to think this is a bad thing, I'm not sure why.

By agreeing with the conservatives that Roe was wrongly decided, you in effect pour fuel on the fire of those who say that Roe (Griswold, actually, but that led to Roe) was an "emanation" from the "penumbras" of Douglas's senile mind.

I do NOT agree with the conservatives that Roe was wrongly decided.  Instead, I think the opinion was poorly reasoned, although it reached the right result.  My opinion, in any event, in no way "aids and comforts" the conservative enemy because far too many guiding lights of the liberal legal establishment, Tribe and Sunstein come immediately to mind, have already voiced critical opinions of Roe.

As to Griswold, it too reached the right result.  But, I believe Goldberg (9th Amendment) wrote the best opinion.

To go your route, you have to throw over-the-side the four decades of cases upholding a personal right of privacy in the sexual context.  That would most definitely undermine the Supreme Court's credibility--the very thing you are trying to bolster.

Roe was thrown over the side in Casey.  Casey and Lawrence effectively articulate a "liberty rationale" for personal autonomy.  And, no, I don't think that undermines the S.Ct.'s legitimacy.  The outcome remains the same, but the rationale is strengthened. 


[ Parent ]
Roe v. Casey (0.00 / 0)
Casey only threw over the side the three trimseter approach of Roe.  Roe held that the government could regulate second trimeseter abortions to make sure they were done safely--Casey did away with that.  Casey said the key point was fetal viability; otherwise, the reasoning remained the same.  That is not much of a difference.....

Tribe, big fish that he is in liberal circles, need not criticize Roe.....

If one concludes Roe reached the right result under the constitution, it would seem quite an academic exercise to restructure a different rationale for the same result--and I never found the privacy rationale unsupportable....

Conservatives will never be won over by liberal reasoning--they are only persuaded by repeated defeat.  They feel humiliated by defeat and they can't stand that, so they adapt and repudiate their prior positions that brought on defeat--conservatives must always be "winners."  If we defeat them again on choice, they will gradually adopt choice--just as they gave up fighting civil rights.  If you say Roe was correctly decided but the underlying rationale was erroneous, conservatives will run with the concession and ignore the rest of your formulation.

As to my cynicism and the legal system, mine is well-earned....The race is won by the swift and the strong, not the meek and true.  I say that as someone who has been a partner in an international law firm and worked in big and mega firms for close to 20 years.


[ Parent ]
P.S. (5.00 / 1)
The reason why liberal scholars are embracing originalist positions that protect abortion is because we are one vote away from losing Roe.  And both Ginsburg and Stevens are in frail health.

Here's a cite to Balkin's paper:

http://papers.ssrn.c...

The abstract states:

This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse "original meaning" with "original expected application."

Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of "text and principle." This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.

The article applies this method to the most contentious constitutional issue of our generation - the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.

The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.

 


[ Parent ]
Griswold (0.00 / 0)
I have yet to closely read the cited article, but I do have a problem with Griswold--how does access to contraception rest on an equal protection basis?--perhaps the article will explain.

I have never been a big fan of the equal protection rationale to protect basic liberty rights--it tends to debase the right and makes it sound contingent on merely treating everyone alike--what if everyone's rights are taken away??

But perhaps all is answered in the article...

The right of privacy is just another way of saying a right of personal sexual liberty.


[ Parent ]
Maybe it's "equal protection" because (11.00 / 1)
at the time when these cases were being decided, there were coin-machine condom dispensers in lots of the men's public johns all over the country (coyly labeled "For Prevention of Disease") and yet, some states still had laws on the books making the distribution of birth control methods to either sex, but especially to women, illegal? And teaching birth control methods to women had been historically prosecuted as a pornography charge.

I don't remember the details from the time, but those would be my guess.

But examination of the available data leads only to the conclusion that the biggest beneficiary of the Bush Presidency is Warren Harding. (Steve Mirsky, "Antigravity", SciAm 10/05)
Lex clavatoris designati rescindenda est. (Latin for All Occasions)


[ Parent ]
S'more (10.00 / 2)
Unless you're a disabled child or a disabled veteran.

Unless you're in the Gulf States.

Unless you're a peace activist being beaten by "police" without names or tags.

Unless you are gay.

Unless you are homeless or one of the millions of working poor.

Unless you are a family without health insurance.

"When the power of love overcomes the love of power the world will know peace." ~Jimi Hendrix


paging mirriam, beep, please? (9.00 / 1)
I have been wondering about this for a long time, but am compelled by the discussion above between cityduck and MKS to ask a medical doctor what other abortion procedures (if any) are available besides dialation and extraction -- now I know names are just that, names, and that often (see: Partial Birth Abortion, for example) names are given that obscure and distort, but how could an abortion be performed without those two things happening?

Dialation, necessary, no? Unless we are doing abortion by c-section? Extraction, well, um, yeah, right? That's the whole point. I am at a loss as to why *any* medical procedure having to do with reproduction or not-reproduction, no matter what it is called, should be legislated beyond informed consent.

Ack. Got off on a tangent -- the questions for med. docs is:

what other options are there? And why the bruhaha over the name?

Never miss a good chance to shut up.
~~T e x a s B i x B e n d e r, from "Don't Squat with Yer Spurs On"


The Court of Appeal's answer. (5.00 / 1)
The Act concerns D&X.  The Act is notable because it bans this one procedure pre-viability.  But, there are other procedures.  As explained by the Court of Appeal:

There are three primary methods of late-term abortions: medical induction; dilation and evacuation (D&E); and dilation and extraction (D&X).

In a medical induction, formerly the most common method of second-trimester abortion, a physician uses medication to induce premature labor. Stenberg, 530 U.S. at 924.

In a D&E, now the most common procedure, the physician causes dilation of the woman's cervix and then "the physician reaches into the woman's uterus with an instrument, grasps an extremity of the fetus, and pulls." Women's Med. Prof'l Corp.
v. Taft, 353 F.3d 436, 439 (6th Cir. 2003). "When the fetus lodges in the cervix, the traction between the grasping instrument and the cervix causes dismemberment and eventual death, although death may occur prior to dismemberment." Id. This process is repeated until the entire fetus has been removed.

D&X and a process called intact D&E are what are "now widely known as partial birth abortion." Id. In these procedures, the fetus is removed "intact" in a single pass. If the fetus presents head first, the physician collapses the skull of the fetus and then removes the "intact" fetus. Stenberg, 530 U.S. at 927. This is what is
known as an intact D&E. If the fetus presents feet first, the physician "pulls the fetal
body through the cervix, collapses the skull, and extracts the fetus through the cervix." Id. This is the D&X procedure. "Despite the technical differences" between an intact D&E and a D&X, they are "sufficiently similar for us to use the terms interchangeably." Id. at 928.

The S.Ct. may have viewed the techniques slightly differently.


[ Parent ]
D & C for early term abortions (6.00 / 1)
is the most common procedure....Dilation and curetage.....

It is performed routinely after miscarriages to ensure no tissue remains that can beccome infected.

"Curetage" iirc means in effect to scrape.....

Let's see how good a grade I get on my explanation from Dr. Mirrim.....


[ Parent ]
D & C, D & E, hysterotomy (7.00 / 3)
Not bad, guys. Sorry to weigh in on this late...I've had a nasty headache all day.

D & C: dilatation and curettage. The cervix is pushed open and the contents scraped or (these days) suctioned out. (This is also used as a diagnostic procedure, for instance, in someone having bleeding after menopause.) This is the commonest procedure (RU-487 and misoprostol is "medical", not a procedure), and is also used for incomplete or threatened miscarriages. It's only useful in first trimester.

D & E: dilatation and extraction. This is used for many second trimester terminations. Again, the cervix is dilated and the fetus extracted. Suffice it to say that the fetus is larger, and is removed in pieces.

Induction of labor: this is still used, especially for terminations done because of congenital defects, where you really want to be able to see the problems intact...and the parents want to see that they made the right choice.

Intact D & E: enough has been written about this under the non-medical name of "partial birth abortion". IFAIK, it's mostly used when an induction has problems, especially when the fetus's head gets trapped in the cervix as it delivers. Also AFAIK, most terminations completed by "intact" D & E are "genetic": that is, for congenital anomalies.

Hysterotomy: This is the technical term for a termination done in the same fashion as a C-section. However, because of the early stage of pregnancy, the incision made in the uterus has to be a so-called "classical" incision, which opens the uterus top to bottom, not the better-healing low transverse incision. Any subsequent pregnancies must be delivered by C-section, and this incision has a much higher risk of rupturing before delivery, with catastrophic results for mother and fetus. Add to that the usual risks of major abdominal surgery, and much higher risks of infection and bleeding to the point of needing transfusion, and you can see why it's almost never the "procedure of choice".

Frankly, the reasons there's a "brouhaha" over the name "partial birth abortion" are these:

First, nohow, no way is it medically defined terminology...which means the Right can define it to be anything they damn well please, and some of their interpretations of it can easily be expanded to include first-trimester procedures.

Second, it's been presented to the public by the anti-abortion activists as an extremely common form of abortion (it isn't).

Third, it's been presented as a method commonly used for "abortion on demand" practically up to term. I don't know of any state in which "abortion" is permitted after 24 weeks---and we still have limited ability to keep alive any baby born that early; they just don't have the lung tissue to breathe effectively. Roe v. Wade established the trimester framework for regulating abortion as valid, and despite some muttering from the Right---most of which doesn't know what the hell they're talking about---it's still medically a valid concept. Most states don't allow termination of pregnancy after 20 or 22 weeks (although they usually ignore a termination done for congenital defects just past the cut-off), and most abortion activists and providers I know are appalled that the Right paints them as "wanting" abortions past the point of reasonable survival (or viability).

No, I will not turn this into a diary!

But examination of the available data leads only to the conclusion that the biggest beneficiary of the Bush Presidency is Warren Harding. (Steve Mirsky, "Antigravity", SciAm 10/05)
Lex clavatoris designati rescindenda est. (Latin for All Occasions)


[ Parent ]
thanks for posting this here again (10.33 / 3)
cali

-pyrrho-

Remember Rose: A Song for Choice (7.00 / 3)
Here's a link to a song by Sandy Rapp.  It's the story of Rosie Jimenez.  In this version of the song, one of the voices is Bella Abzug.

It's so fitting to listen to this song on the anniversary of Roe v. Wade.  For all those who came before and for those who came after, it's our song, those who believe women must have a choice.

Remember Rose

I will not die an unlived life. Fuck em, I will not live in fear, I will live out loud and on the record.  

Domestic Violence Hotline 1-800-799-SAFE (7233) 1-800-787-3224 (TTY)  


I want to add this because we FUCKING deserve it (8.67 / 3)
Thank every heavenly body, no matter what and who you believe in, thank them all for the women of this country and the world.

I will not die an unlived life. Fuck em, I will not live in fear, I will live out loud and on the record.  

Domestic Violence Hotline 1-800-799-SAFE (7233) 1-800-787-3224 (TTY)  


[ Parent ]
The name Rosie Jiminez sounds famiiar. (6.00 / 1)
btw, out of curiosity, is this the woman who died in a hotel room because of an infection due to  a botched illegal abortion?  Just curious, because I've seen a photograph of her in each edition of the excellent text Women:  Our Bodies, Ourselves, which, btw, if you're at all familiar with that book, is an excellent book.  I've read at least 3 editions of Women: Our Bodies, Ourselves, including the early edition of this great book that came out in the early 1970's.  There's also a newer edition of Women:  Our Bodies, Ourselves: edition for the 21st Century out, which I've also obtained for myself.  It contains much useful information about reproductive rights, and many other things

Ahhhh....Life goes on.

[ Parent ]
You're thinking of Gerri Santoro (0.00 / 0)
You're thinking of Gerri Santoro miki. 

Here's a link where you can find more information on Geraldine Santoro and some other women and young girls who have died as the result of illegal and unsafe abortions. 

Women who died from illegal and unsafe abortions

You're so right about Our Bodies, Ourselves.  It was incredibly powerful for young women when it first came out, we learned so much and we also connected to our own sexuality in ways we hadn't before it was published. 

The combination of marching for Roe v. Wade, the ERA and reading books like The Feminine Mystique, along with Our Bodies, Ourselves, empowered many of us beyond measure.


I will not die an unlived life. Fuck em, I will not live in fear, I will live out loud and on the record.  

Domestic Violence Hotline 1-800-799-SAFE (7233) 1-800-787-3224 (TTY)  


[ Parent ]
Thanks, cali, for the informative link and the name correction. (9.00 / 1)
Sorry about the mix-up with names on my part.  Thanks again for correcting me on that, and for posting the informative link.  As informative as the link you posted for me and everyone here on MLW is, it's also downright scary--scary to think that there are people running our government and among the general populace who want to take away abortion rights, hence turning the country back to a darker age, when illegal abortions were the only way that people could go in order to obtain abortions.  I seriously wonder how many of the anti-choice people among us would change their minds, or at least modify their viewpoint on abortion some if they saw that link?  I'm wondering and I'm curious about that, because, in addition to being useful information, it's downright scary, which is what an awful lot of people out there need to shake them up some.

Ahhhh....Life goes on.

[ Parent ]
Miki, you have such a beautiful heart (10.00 / 1)
Miki, you have such a beautiful heart on this issue. 

You're so right, it is scary, especially when you look into the face of a young girl like Becky Bell whose life was taken from her at 17.  Scary and heartbreaking.

Thank you for your comments on this thread miki, they have meant a lot to me.

I will not die an unlived life. Fuck em, I will not live in fear, I will live out loud and on the record.  

Domestic Violence Hotline 1-800-799-SAFE (7233) 1-800-787-3224 (TTY)  


[ Parent ]
Miki, dear (8.67 / 3)
"The" woman who died because of a botched illegal abortion? Or just the woman in that picture?

You know as well as I do: we'll never know how many women died from illegal abortions. If the doctors who certified their deaths were at all sympathetic, the cause of death was hidden and didn't make it to the death certificate accurately...because it would have been a horrible stigma for the family.

And so many did die, not least because they didn't dare get medical help in time...because to do so, they would have had to admit to committing a crime, or be investigated and possibly charged with one.

That right there would be justification for safe legal abortion, even if I didn't agree with keeping the government the hell out of my personal life: because making abortion illegal requires that a woman waive her Fifth Amendment right not to incriminate herself if she needs care for complications.

But examination of the available data leads only to the conclusion that the biggest beneficiary of the Bush Presidency is Warren Harding. (Steve Mirsky, "Antigravity", SciAm 10/05)
Lex clavatoris designati rescindenda est. (Latin for All Occasions)


[ Parent ]
Mirrim--I recently saw the link posted here on this thread about the women who died from illegal abortions, (9.00 / 1)
and, although I was aware of the fact that there were many women than one who did die of botched illegal abortions, the link reinforced my awareness of it.  I didn't stop to consider the point about doctors wanting to falsify the causes of death in these women, due, at least in part, to the fear of bringing shame and stigma to their families.  Sorry about that, mirrim.  It was an oversight on my part. 

Ahhhh....Life goes on.

[ Parent ]
My dear, beautiful cali (10.67 / 3)
I have no words right now.  I'm rendered speechless in the first and in the second, I'm just about to go anyway.

I need to collect my thoughts first.  I'll  e-mail them to you.

The dogmas of the quiet past are inadequate to the stormy present...As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country.


Oh Raybin, my dear, priceless friend (10.00 / 1)
You have so touched my heart, in ways I can't put into words right now, you know them anyway, just like you know so much of my heart and spirit. 

I look forward to your email more than words can say, also.  You are loved, my dear dear friend, you are loved. 

I will not die an unlived life. Fuck em, I will not live in fear, I will live out loud and on the record.  

Domestic Violence Hotline 1-800-799-SAFE (7233) 1-800-787-3224 (TTY)  


[ Parent ]
The skunk has entered the party (2.33 / 3)
I hate abortions. The thought of an abortion makes my skin crawl.  The "need" for an abortion I cannot understand.  But, I also believe that every person should have access to whatever medical care is agreed upon by a patient and their doctor. I also believe that the care given should be affordable and private.  When did the act of sexual intercourse become a reproductive right?  And how does not taking a fetus to term fit into that definition?  The issue of abortion troubles me greatly.  Peace

Self-incrimination (Fifth Amendment), imhotep (9.50 / 4)
As I noted above: making abortion illegal vastly increases the probability of dangerous and life-threatening complications. In order to receive medical care for those complications, a woman has to incriminate herself and admit to obtaining an illegal procedure. I also have problems with making ER doctors in essence law enforcement personnel again...since in the days when abortion was illegal, they were generally required to report any suspicions of that particular "illegal procedure".

Last I looked, the Fifth Amendment hadn't been revoked. Yet.

But examination of the available data leads only to the conclusion that the biggest beneficiary of the Bush Presidency is Warren Harding. (Steve Mirsky, "Antigravity", SciAm 10/05)
Lex clavatoris designati rescindenda est. (Latin for All Occasions)


[ Parent ]
How do you look in handcuffs? (6.00 / 2)
How about a trip to the grand jury?

They say only the doctors will be prosecuted....Cold comfort, eh?

This criminalization stuff is just looney tunes.....


[ Parent ]
Sure as hell could happen n/t (2.00 / 1)


But examination of the available data leads only to the conclusion that the biggest beneficiary of the Bush Presidency is Warren Harding. (Steve Mirsky, "Antigravity", SciAm 10/05)
Lex clavatoris designati rescindenda est. (Latin for All Occasions)


[ Parent ]
so, every time you have had sex (8.67 / 3)
you took "a fetus to term"?  I'm thinking not. Your attitude troubles me greatly.

Never miss a good chance to shut up.
~~T e x a s B i x B e n d e r, from "Don't Squat with Yer Spurs On"


[ Parent ]
No, it would make his PARTNERS (7.00 / 1)
"extraordinarily fertile".

It only takes one of those millions of sperm in the right place at the right (wrong) time, and most guys produce millions a day. There's only one---or a few---eggs a month.

:-D

But examination of the available data leads only to the conclusion that the biggest beneficiary of the Bush Presidency is Warren Harding. (Steve Mirsky, "Antigravity", SciAm 10/05)
Lex clavatoris designati rescindenda est. (Latin for All Occasions)


[ Parent ]
I'm just taking him at his word (0.00 / 0)
He says he's taken a fetus to term every time he's had sex.  If so, that would make him both extraordinarily fertile and medically miraculous.

ProgressiveHistorians: History For Our Future

[ Parent ]
"Troubling," it is. n/t (0.00 / 0)


[ Parent ]
Well, you could have used different language (0.00 / 0)
here--given the context....

One's "troubles" should not be the basis of putting other people in jail......

Beam and mote, and all....Mind your own business, in the vernacular. 


[ Parent ]
Thank You! (11.00 / 2)
Caliberal:
Your story is so important.

Your sharing openly the despair and aloneness you felt and what you went through illuminates for me the reality of a world without the right to choose.
It is a fitting remembrance for this day's meaning.

Just as certainly Bush's declaration of this day is an obscenity.

Thou art god
Bob


Cali the tears flow (10.50 / 2)
Dear Caliberal …

Oh my gosh. I have no words. I cannot begin to imagine what you went through.

A relative of mine, your age exactly, had an abortion when they were not legal. I was introduced to her husband on the telephone period. He called to say my relation was fine. However, after the fact, they discovered the doctor was a "butcher."

I was a young teen at the time. I knew then that legalization was necessary. Safety and sanitary conditions are more sane than not. Women have had abortions for centuries. That is not likely to end.

Cali what courage you have.

I know that when I was an embryo an abortion was scheduled. Deciding to have and love a child when that was not the plan … there is soooooo much pain and soooooo much devotion. Giving birth to an unwanted child is another kind of trauma. The emotions evoked, it is all a challenge.

I thank you so much for sharing. The tears flow.



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