S019 v Lincoln

[Attorney General & PPT Dwarven Dragon]

Honorable Justices, I intend to publish an amicus brief in favor of upholding the law, but for sake of fairness I will (with your permission) delay such publication until after the Petitioner has had a chance to post their brief.

[Attorney General & PPT Dwarven Dragon]

Amicus Brief in favor of upholding the Law

Honorable Justices,

Petitioner has challenged the "Lincoln Pain-Capable Abortion Prohibition and Born Alive Survivor Protection Act" as unconstitutional based on the Precedent of Politics Fan vs The South, and the RL precedent Roe vs Wade. Both of these reasons are very flawed.

Let's start with Politics Fan vs The South. While it's true that the precedent states, based on its finding of a right to privacy:

a general right to abortion access does exist.

It states in the very next section:

Rights, however, are not absolute – the stereotypical example being that “free speech does not mean you can shout ‘fire’ in a crowded theatre”. In the same, limits to privacy rights in general as well as abortion access in particular are not unlimited.

Thus, the Government is given the power to legislate against abortion provided there is still a general right to abortion access, and such general right need not be absolute. The legislation at issue does indeed maintain a right to abortion access - abortion is allowed for any reason throughout the first 20 weeks of pregnancy. This is a 5 month period during which the woman is free to choose an abortion. As the precedent explicitly allows for the right to be limited, the government is perfectly within its rights to substantially eliminate late term abortion - provided it still allows notable access to the procedure - as it does do in this law by allowing abortion for any reason during the first 5 months.

The petitioner cites this section of the precedent in refutation:

The state has the authority to place reasonable restrictions on abortion access when there is an important and legitimate government purpose for doing so

However, this does not help their argument. Petitioner seems to look only to Maternal Health when searching for such a purpose, however such outlook is too narrow. Nowhere in the precedent does the court state that such governmental purpose be related to Maternal Health, they simply state that some legitimate government purpose needs to exist.

Here, the purposes are clear:

- The ban on most late term abortions serves the interest of protection of the fetus. This is a valid governmental interest because it is a potential life, and thus a potential contribution to society, that the government is within their rights to want to protect. A fetus at 20 weeks:

- Can feel pain during the procedure. Even if the Government does not value the life of the fetus in and of itself, it may at least value being humane towards said fetus in interest of simple human decency. Simply put it is not humane to employ a painful procedure on a helpless fetus.  (See https://lozierinstitute.org/fact-sheet-science-of-fetal-pain/)

- May be viable outside the womb. Viability outside the womb suggests that the fetus enjoys some level of personal autonomy, right to life, and a right to privacy of its own, because it does not necessarily need a uterus to inhabit to survive and is beginning to sustain itself. Therefore, the government is protecting these rights of the fetus in implementing the 20 week ban, and it is surely a legitimate governmental interest to want to protect the constitutional rights of its citizens.

--- While it may be rare for a fetus to survive outside the womb at 20 weeks, and definitely requires the assistance of an incubator, it is not unheard of. Further, with each successive week, the chance of survival increases, and even if only a 1% chance of survival exists, that is still a potential life that a  government can see value and interest in protecting.

--- Further, given the bill uses the language "commencement of pregnancy" to set the restriction, the logical interpretation of the restriction is not 20 weeks from the last menstrual period (a definition of gestational age sometimes used in the medical field), but instead 20 weeks from, well the actual pregnancy starting, which would be implantation into the womb, or about 22 weeks from the last menstrual period. Considering this, the science is clear - these fetuses are viable and worthy of government interest & protection:

We spoke with the main authors of the study, Matthew Rysavy and Dr. Edward Bell of University of Iowa. They collected data for nearly 5,000 infants born between 22 and 27 weeks of gestation (using LMP method) and did not have abnormalities at birth. These babies are extremely pre-term, as full term is considered at 39 to 40 weeks, according to ACOG guidelines.

Researchers found that 22 percent of the babies born at 22 weeks received active treatment, and hospitals varied in their whether and how they gave treatment to babies born between 22 and 27 weeks. There were 78 babies born at 22 weeks who received aggressive treatment. Among them, 18 of them survived (23 percent) to toddler age. Seven (9 percent) of them did not have severe or moderate impairment by the time they were toddlers.

https://www.washingtonpost.com/news/fact-checker/wp/2015/05/26/setting-the-record-straight-on-measuring-fetal-age-and-the-20-week-abortion/

(if blocked by paywall, incognito mode on a cellular browser should help)

So, as you can see, protection of the potential life offered by these fetuses, is a real and honest contribution to society and therefore a legitimate governmental interest under the precedent.

---

Even given that, the petitioner would still argue that at least this part of the law serves no governmental interest:

The law in question includes the following provision: "The Punishment for performing or facilitating an abortion outside of the circumstances prescribed in (a) shall be a prison sentence of at least 6 months, but no more than 3 years, for the doctor, nurse, or other medical practitioner(s) performing or facilitating the illegal abortion. However, nothing within this section shall be construed to allow any punishment of the woman receiving the illegal abortion, nor shall this section permit punishment of anyone employed by the abortion facility as a receptionist, technical assistant, janitor, or any similar position provided they are not present in the room where the abortion is occurring while it is occurring."

However, this also falls under protecting the right proved above - by instituting punishment on those who infringe the right, the government is deterring such infringement and thus fulfilling its interest of upholding the rights of life, humane treatment, and autonomy of the fetuses at issue.

Therefore, the bill is fully constitutional under the provisions of Politics Fan vs The South.

---

Petitioner also cites the RL Precedent Roe vs. Wade. Petitioner argues that this precedent applies given in Politics Fan vs The South:

The court also noted in this case that real life precedent does apply due to the principle of common law

However this is a horrible misreading of Politics Fan vs The South. A full reading of the relevant section is:

Again, the intention of our Constitution’s authors is clear: inclusion of identical language means our own judiciary can look to its real-world United States counterpart for guidance. This does not mean real-world precedent applies to our nation in any meaningful way, of course, but it is a natural element of common law judicial systems that we can look to other common law systems for guidance whenever no controlling precedent exists.

The Court's intent is clear - nowhere did the court state that Roe vs Wade directly applies to Atlasia, in fact it stated the very opposite. It only stated that it looked to that type of RL precedent for guidance in forming its own precedent. Only the precedent of the Atlasian Court itself matters, not the RL precedent, therefore the entire section of Petitioner's argument regarding Roe vs. Wade is invalid, as that was only advisory text, and the only actual precedent for the court to draw from here is Politics Fan vs The South, under which the bill at issue is completely permissible.

Even if the court were to hold that the RL precedent is binding, Petitioner is actually citing the wrong case. While "Abolish Roe vs Wade" is the political rallying cry of the pro life movement, the more actual operating and more recent precedent is Planned Parenthood vs Casey. That precedent disposes of the trimester framework employed by Roe that petitioner alleges the bill fails to meet. Instead the Precedent imposes an analysis of whether there is an undue burden on the woman on obtaining an abortion of a non-viable fetus. The bill at issue does not impose an undue burden. The woman is more than welcome to obtain an abortion during the first 5 months of pregnancy. That is lots of time to choose and obtain an abortion. After that point, as shown above, it is not the case that the fetus is known to be non-viable, and even then, the government goes above and beyond to still provide access to the woman if her life or physical health is in danger.  Thus to suggest that the bill imposes an undue burden is patently ridiculous, therefore, the bill is also constitutional under Planned Parenthood vs Casey in the event that is somehow applicable to Atlasia.

(See https://en.wikipedia.org/wiki/Planned_Parenthood_v._Casey)
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Petitioner may counter all of the above by pointing to a governmental interest in "protecting the woman from the distress of delivering a potentially non-viable fetus". This may be a legitimate interest. However, so is the protection of the life and rights of the fetus, which may in fact be a viable life. The government need not choose the woman over the fetus, it may protect whichever interest it chooses. Here, the government has chosen the interests of the fetus.

-------------------

Petitioner also points to various sections of the Atlasian Constitution, and an equal protection application to Lincoln, and suggests that constitutionally, a right to elective abortion clearly exists. This brief agrees - such a right does exist. The bill at issue protects such right by allowing access to it during the 5 months of pregnancy. As Politics Fan vs The South states, rights are not absolute. To restrict such right does not mean that such right cannot also be intact. If any restriction invalidated the very existence of a right, then every gun law in Atlasia would have to be struck down, and I know the petitioner does not hold that position. The bill at issue protects the right to an abortion, with sensible and bipartisan limits. It is perfectly constitutional, and with the 60 day implementation period it employed, satisfies any due process concerns.

Finally, the remainder of the bill, regarding born-alive protections, should be upheld solely because the petitioner made no direct argument against that portion of the bill, and the interest of preserving a life is quite obvious there.

---

For all these reasons, the Court should declare the entirety of the bill at issue to be constitutional.

I'm happy to answer any questions from the court.

[Attorney General & PPT Dwarven Dragon]

An "important and legitimate" interest is a governmental desire to perform an action for a clear, rational, and concrete reason, such as upholding a constitutional obligation or furthering the welfare and advancement of society. This is a rational basis test, commonly used in the RL Supreme Court. Since neither fetuses nor "women wanting to have late-term abortions" (it's important to note that we aren't dealing with all women in this case, just the small subset wanting to have late-term abortions) are a protected or suspect class, this is the correct level of scrutiny to apply.

The obligations of a government can be found in the constitution that it works under, and ours says:

Section 5.
No person shall be deprived of life, liberty, or property without due process of law.

Notice the first right mentioned in there: "life". By preventing most post potential viability abortions in the bill at issue, the government is performing its obligation to protect a life - that of the potentially viable fetus. Therefore this clearly falls within the definition of interest I gave above.

Of course, one can point to the word "person" and say we must first define that. Well our constitution doesn't directly do so, but it does give a hint about what it means by that term:

Section 1.
All persons born or naturalized in the Republic of Atlasia, and subject to the jurisdiction thereof, are citizens of the Republic of Atlasia and of the Region in which they reside, and shall in all cases be afforded equal protection under the law.

This section says that all persons become citizens by being born or naturalized in Atlasia. So clearly, one is not an atlasian citizen before birth. That is, the transformation implied by birth is person ---> citizen, not x ---> person. Therefore, it would follow that one must become a person at some point before birth. This section doesn't tell us when precisely that point is, but it does make clear that at least some fetuses must be persons, and thus subject to the protections of section 5, as one must be a person to become a citizen at birth.

To explore further, let's go to the dictionary definition of person. Per Oxford:

"a human being regarded as an individual."

So, what is a human?

Encyclopedia Britannica (accessed via Britannica.com) tells us:

"a culture-bearing primate classified in the genus Homo, especially the species H. sapiens."

Well, this is very clear. It's not some mystery what species a given fetus is - it is simple science that it is the same as that of its parents - homo sapiens. Therefore a fetus is clearly a human, and since we've defined that, we can say it is a person - which our constitution clearly hints at as noted above. Thus, fetuses are subject to the protections of life under section 5. It is a clear, compelling governmental interest and obligation to protect the lives of fetuses, thus placing the bill at issue in compliance with Politics Fan v The South.

Further, by protecting life, the government is protecting the ability of that life to have a positive impact on and advance society, so this complies with both examples specified in my definition of interest above.

One may ask, why protect a woman's right to have an abortion at all then - well, first off, before viability, whether you have a life is very nebulous, as it could not possibly be maintained outside of the womb. Secondly, the very next part of section 5 refers to "Liberty" - such as the liberty of the woman to have some level of privacy over her decisions. Thus, the government can find an obligation in both protecting the life of the fetus and protecting the woman's right to privacy. And in this bill, the government has, in a moment of great wisdom, sought to fulfill both of these obligations to the extent possible, by allowing abortion during part of pregnancy (protects the liberty of the woman) and restricting it during the rest (protects the life of the fetus). As Politics Fan vs The South said rights can be limited to serve governmental interests, the government is free to employ this balanced approach to ensure it gives at least some level of attention to as many interests as possible, which include the constitutional obligations detailed here.

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The interest served by the carve-out for life and physical health also comes from the governmental obligation to protect life. These are circumstances where it would not be possible for the government to protect both the life of the fetus and the mother, so it has chosen to provide society the option to choose which life to protect if protecting both is impossible. If the government was to explicitly ban abortions in these cases, or explicitly mandate them, one could argue it is neglecting one life to protect another - but in this bill, it uses its ability to limit rights to deploy the decision to society, thus employing all possible joint protection of life in these cases.

Some real life cases under this exception could be ectopic pregnancies or certain rare conditions like pre-eclampsia, HELLP syndrome, and placenta previa, where early delivery could be necessary to save the life or preserve basic physical health (a necessary condition to preserve life) of the mother. Whether these procedures are technically abortions is sometimes a topic of debate because there is not always intent to kill the fetus in these procedures. However, it's not necessary for the government to answer that question in this case. It can simply allow for such procedures, under the justification noted above, via the carve-out in the law it has passed.

(see more: https://healthfeedback.org/claimreview/lila-rose-claim-that-abortion-is-never-medically-necessary-is-inaccurate-it-is-necessary-in-certain-cases-to-preserve-mothers-life-young-america-foundation/)

mental health, by definition, is simply an impaired condition of the mind. While it's theoretically possible for this to result in death, it never provides the instant attention requirement possessed by dire physical health issues, therefore it would not follow that a dire procedure like late-term abortion would be required.

[Attorney General & PPT Dwarven Dragon]

mental health, by definition, is simply an impaired condition of the mind. While it's theoretically possible for this to result in death, it never provides the instant attention requirement possessed by dire physical health issues, therefore it would not follow that a dire procedure like late-term abortion would be required.

Do you believe that the actions of "the mind" arise from anything but a physical origin (i.e., neurons in their brain)? If not, what important and legitimate interest is served by splitting mental health from physical health? If a mental health crisis would never lead to "instant attention" in a way that "dire physical health issues" would, why is it necessary to write those circumstances out of the law?

True, mental health conditions have a nominally physical origin, but they are incapable of causing immediate dire situations requiring an abortion. However, the state should still separate and specifically exclude mental health to pursue its interest of protecting the constitutional right to life enjoyed by the fetus:

It is necessary to write those circumstances out of the law so that the situation where an abortion doctor abuses the word "health" to justify any reason for a late-term abortion is prevented. A general health exception may seem sympathetic in theory, but in practice it has been extended to justify almost any reason at all for a late term abortion, in blatant disregard for the right to life of the potentially viable fetus. The state is simply adapting to the reality that many providers will stretch terms to let the woman have a very late elective abortion, which is what the state is trying to prevent, thus it limits the exception to limit the extent to which terms may be stretched.

(see more: https://www.newsweek.com/abortion-what-health-exemption-really-means-91645)

----
Response to the latest post by Petitioner:

I would counter, what type of government are we if we can't honor the basic right to life protections found in the Atlasian Constitution, which via equal protection apply to Lincoln? Petitioner seems to think either:

A: The fetus is not a person - but this is ridiculous as it is in contradiction of the very defintion of Person and how our constitution uses the term, or

B: The state must always choose the woman when her life and that of the fetus are in conflict - but nowhere is this stated in Politics Fan vs The South or in the RL Planned Parenthood v Casey should that apply. The state is free to use its powers to limit rights to create a balanced approach in which it can make efforts to protect both the rights of the fetus and the rights of the woman, as it has done in this law. Again, the construct employed lets the state try to fulfill all of its obligations as much as possible, without completely neglecting anyone. Contrary to what petitioner may believe, the state does have empathy for the woman - hence why it protects her right to an abortion for the first five months after fertilization. It simply limits late-term procedures because it also has empathy for the fetus, which is just as much of a person, especially when viable, as the woman is.

---

With respect to the desired exceptions issued by the Petitioner, I note that the Petitioner was a member of the Lincoln Council when this bill was being debated, and he did not offer any amendments covering any of these situations. I might have even supported some of them which would have allowed them to pass. But Petitioner did not offer any of them, and it is not the job of the Court to cover for the Petitioner's legislative failures. Further, Petitioner seems to forget he is in a court of law and is offering these exceptions from a political or empathetic standpoint. It is not the job of the Court to make law. If Petitioner wishes to add a series of exceptions to the law, I suggest he have a member of the Lincoln GC sponsor a bill for him to do just that.

From a constitutional perspective, the legislature is not obligated to employ any of the exceptions noted by the Petitioner:

-They were raising children alone
-were depressed or using illicit substances
-had trouble deciding and then had access problems
-or were young and experiencing their first pregnancy.

The poor life choices of the woman do not negate the right to life enjoyed by the fetus. The liberties of the woman are protected because she has a full five months to obtain the abortion she seeks. She is more than welcome to obtain an abortion for any of the reasons above during said period.

were in conflict with a male partner or experiencing domestic violence

I would be happy to support a rape exception if one had been offered, but again the Petitioner never offered that amendment and it is not the job of the Court to compensate for his legislative failures. The state is not constitutionally obligated to pursue an abortion as part of its protection of the life or liberties of the woman. It can address the fact that she was raped or abused by aggressively prosecuting the rapist or abuser, and by assisting the woman with any request for child support or use of the adoption process. The act of rape, while horrible, does not negate the right to life enjoyed by the potentially viable fetus, and the state can easily address the situation without destroying any life. If the Petitioner believes the region needs more funding to support adoption, or better health care support for children, etc. - I would ask that he write up a bill and have someone sponsor it for him. I may even sponsor it myself. But this Court is not the right place for that debate.

Again, I urge the Court to fully uphold the bill at issue as being in compliance with Politics Fan v. The South

[Attorney General & PPT Dwarven Dragon]

Questions for both the respondent and the friend of the court presently arguing in support of the respondent:

Do you believe a fetus can possess legal personhood? The amicus brief repeatedly insists that an unborn fetus is a person with a right to life and the respondent's brief implies the same. If a fetus is not a person, then what precisely do you mean when you appear to be referring to it as such? If a fetus is a person, how exactly do you you expect the court to apply such an unprecedented change to such a basic and foundational legal concept?

Note this question is not at all rhetorical - personhood has a very specific legal definition, and it grants an individual extensive rights and privileges. If a fetus is considered to be a human life, is it not therefore entitled to the human rights guaranteed by our constitution? For example, would it not be unconstitutional to arrest a pregnant mother, because to do so would require illegally detaining her unborn child? I'm sure I do not need to remind you that our constitution grants all persons the right to due process and equal protection under the law.

If you argue that a fetus can possess a right to life, then how could this law possibly be considered narrowly tailored? Contrariwise, if this is not what you're arguing, I would genuinely appreciate if you could explicitly state what precisely is the legitimate government purpose behind these abortion restrictions, and furthermore explain how this law is narrowly tailored to achieve those ends.

1. Yes, a fetus, or at the very least a viable fetus (as it can maintain its life on its own), can possess legal personhood. I would argue that this is not really a foundational new concept. While this court may not have recongized this before (I am not going to make a definite statement because I joined the game well after its original creation), I would argue the concept was always there, right there in our constitution. Again, I will quote the relevant section:

Section 1.
All persons born or naturalized in the Republic of Atlasia, and subject to the jurisdiction thereof, are citizens of the Republic of Atlasia and of the Region in which they reside, and shall in all cases be afforded equal protection under the law.

look at the bold: "all persons born are citizens". Not "all fetuses born are persons and thus citizens" or even "all humans born are persons and thus citizens", but simply "all persons born are citizens". It is illogical to presume anything other than the status of person originating at some point before one is a citizen. If one is not a person before birth, then how can one become a citizen at birth, when only persons can become citizens at birth? Again, the section does not provide for fetuses or humans becoming citizens at birth, but only persons. If one does not have the status of person established at some point before birth, then their birth does not result in becoming a citizen. Of course, we have never had a controversy over whether one's birth makes them a citizen in Atlasia - all born in Atlasia successfully become citizens at birth, and this is not controversial at all. Thus, we all acknowledge at some level that these are Persons being born - just as Section 1 Dictates. Again, the phrasing is "all persons born", not "all who are persons at birth" - indicating that one's becoming a person happens before they are born, and thus, fetuses have to be persons at some point before birth.

The Court should apply the 'change' by issuing rulings that recognize that the rights the constitution guarantees to "Persons" apply before and after birth, while the rights of "citizens" apply after birth only. In Section 5, where I find the governmental interest in setting this abortion restriction, it states:

Section 5.
No person shall be deprived of life, liberty, or property without due process of law.

The term "person" is used, so an implication of both before and after birth is set here.

With respect to a "legal definition", I would argue that it is unnecessary for the court to go there. The constitution clearly implies that at least some fetuses are persons in section 1, and there is nothing in section 5 to indicate the meaning is any different there, so we should presume the document is internally consistent and carry over the words and implications of section 1. Further, as explained above, a dictionary/encyclopedia based definition of person leads to the same conclusion. Only what is actually stated in the constitution is binding, not some "legal definition", and I believe the constitution is clear.

Further, I'm not sure what exact "legal definition" the judge is using. A quick search reveals that each RL US State defines Person slightly differently: https://www.ncsl.org/documents/lsss/tue_haskins_handout2.pdf . However, I'll note that most definitions include the word "individual(s)" or the phrase "natural person", so let's explore that:

Individual:  a single human being as distinct from a group, class, or family. (Oxford)

We defined that a human is a person in an earlier post, so this definition doesn't weaken my argument at all when we consider how the constitution uses the term "person"

Natural Person: In jurisprudence, a natural person (also physical person in some Commonwealth countries) is a person (in legal meaning, i.e., one who has its own legal personality) that is an individual human being (https://en.wikipedia.org/wiki/Natural_person)

So, simplified, "a natural person is an individual human being". Again, a human is a person as shown in an earlier post. The constitution extends the universe of persons to fetuses, case closed. (Before you look too hard at "legal personality" to try to glean something, that simply means "to be capable of having legal rights and duties within a certain legal system" (https://www.definitions.net/definition/legal+personality), so it doesn't change the definition of humans or persons. Our constitution provides the rights of section 5 to all persons, which per section 1, is a status established before birth, therefore the fetuses protected by the bill at issue do enjoy a "legal personality".)

So, even if the Court were to rule it must use a legal definition of person, I do not see how that weakens my or Ted's case in any way.

----------------------------

2. Yes, a fetus is entitled to the rights provided by the Constitution. The hypothetical offered above represents a conflict of interests: The interest of the state in deterring crime, and the interest of the state in protecting the fetus's right to liberty. I would argue that in this situation, the state cannot simply "do nothing" - otherwise there would be an effective 'purge' (If you don't get the reference: https://en.wikipedia.org/wiki/The_Purge) during pregnancy, and given the frequency of that status, the danger to all life and thus liberty (a status only possible in life) in society would be pretty severe. Therefore, if the state did nothing, it is infringing on the rights of Section 5 far more broadly than if it takes action.

True, imprisoning the woman does impact the liberties of the fetus, but what alternative does the state have? Early Delivery of the fetus - what if this results in the death of the fetus, always a possibility with early births? Surely a temporary denial of rights - expiring when the woman is released from prison, or perhaps earlier if the fetus is born during the sentence and released to some other guardian - is preferable to a permanent denial of rights through causing fetal death due to Early Delivery. And again, doing nothing about the criminal pregnant woman is simply not an ethical response.

But, you might say, none of this negates the fetus's fundamental rights. Well, I would point you to the principle of strict scrutiny:

In U.S. constitutional law, when a court finds that a law infringes a fundamental constitutional right, it may apply the strict scrutiny standard to nevertheless hold the law or policy constitutionally valid if the government can demonstrate in court that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve the compelling purpose, and uses the "least restrictive means" to achieve the purpose.

https://en.wikipedia.org/wiki/Strict_scrutiny

Imprisoning a pregnant woman who has committed some crime meets a test of strict scrutiny. The government's interests in deterring crime and protecting society from it are obvious here. The action is narrowly tailored and uses the least restrictive means - the government infringes upon the least possible number of individual rights by taking action against the criminal to prevent further broader societal impact. The government keeps the remaining infringement of rights temporary - at most, the length of the prison sentence - by not subjecting the fetus to a dangerous early delivery. There is no "less restrictive" means to achieve the valid governmental interests in deterring crime and protecting society from it, therefore in the hypothetical offered the government can override the fundamental rights of the fetus.

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3. The phrase "narrowly tailored" is not present in Politics Fan vs The South or in any of my previous posts. Instead the precedent states:

"The state has the authority to place reasonable restrictions on abortion access when there is an important and legitimate government purpose for doing so"

and

"The limitations the state can place upon abortion access, must be tailored to only cover such legitimate government purposes without being overly broad."

I explained in an earlier post why there is an important and legitimate interest for the bill to protect. With respect to its tailoring to those purposes without being broad, the bill does this by only protecting those fetuses likely to have a chance at viability outside of the womb, as illustrated in an earlier post. A complete abortion ban, hypothetically, would indeed be too broad as it would lock off the liberties of the woman and protect organisms that do not yet represent a life that can sustain itself. Instead, this law is closely tailored to protect potentially viable fetuses, and thus life that is offering a potential societal contribution, and thus worthy of governmental interest and protection, regardless of such life being a person or not (while we believe such life is a person, it is not necessary for the court to find that it is to identify a governmental interest). The law confines itself to this group by not providing fetal protection before 20 weeks, where viability is nonexistent or very close to it. As stated by the Government:

II. THE PCAP SERVES THE LEGITIMATE GOAL OF PROTECTING UNBORN LIFE

As the Court has repeatedly ruled, we may look to common law to guide our interpretations of the Atlasian Constitution. In the United States, protection of life has been repeatedly upheld as a legitimate governmental interest to be weighed against the aforementioned right to privacy. This question is central to many substantive due process cases surrounding rights to medical autonomy, from abortion (Planned Parenthood v. Casey) to assisted suicide (Washington v. Glucksberg).

Lincoln's interest in protecting life, well into the range of "fetal viability," is entirely legitimate. As Mr. Dragon's brief discusses, the law is grounded in science suggesting that not only are the fetuses being protected viable outside the womb, but are capable of experiencing pain independently of their mother. This is simple: if a fetus may survive outside the womb, and it's developed enough to experience essential human functions like pain, Lincoln has a legitimate interest in ensuring its protection.

III. THE PCAP IS NARROWLY TAILORED TO PROTECT THE UNBORN

The PCAP is as narrowly tailored as possible to protect pain-capable unborn children. This is facially obvious: as in the link posted by Mr. Dragon, fetuses are capable of feeling pain at 20 weeks, the point at which the law prohibits abortions. Anything less restrictive would allow pain-capable fetuses to be aborted. Furthermore, the law allows a full five months for pregnant women to make decisions about their future. This is a generous timeframe, one ending well into the second trimester. There is no less "broad" way for Lincoln to protect the unborn -- and the least broad option is still broadly protective of women's rights.

Therefore the law clearly compiles under the actual provisions of Politics Fan vs The South, even if it is not "narrowly tailored".

As "narrowly tailored" was the government's phrasing and not my phrasing, I'd encourage Ted to expand on this answer as needed.

With respect to the desired exceptions issued by the Petitioner, I note that the Petitioner was a member of the Lincoln Council when this bill was being debated, and he did not offer any amendments covering any of these situations. I might have even supported some of them which would have allowed them to pass. But Petitioner did not offer any of them, and it is not the job of the Court to cover for the Petitioner's legislative failures.

Request for clarification on this point: do you allege here that the petitioner lacks standing on these issues? That he cannot raise an issue before the court if he did not previously raise the issue as a legislator?

If so, what precedent or legal principle do you base this argument on?

If not, I would appreciate it if you could elaborate upon your rationale for mentioning the petitioner's legislative role at all. How precisely is it germane to your case?

Nope, I'm not arguing anything about Standing, as the precedent is pretty clear that standing simply doesn't exist in Atlasia. Politics Fan vs The South states:

We therefore must conclude that no standing requirements can feasibly exist within our system.

Instead, I'm responding to the Petitioner's apparent assertion that the court should obligate the government to provide a right to an abortion in the cases noted in the article he cites. I asserted that there is no constitutional basis for the court to do this, and instead that the petitioner would need to pursue such changes through a legislative process.



I'll respond to your other post later in the weekend.

[Attorney General & PPT Dwarven Dragon]

Could you please elaborate on the distinction being made by this change? What health does the region not consider to be "physical"; how is such a distinction to be assessed, and by who?

Based on the argument presented by the friend of the court, it would seem the intention is to completely remove mental health from being a valid consideration. If so: where does the region draw the line between the mental and the physical, how do they reach this conclusion, and why do they draw the line at that point?

I have focused my argument on the physical vs mental distinction because that was the question raised by Justice Ilikeverin, but that's not the only consideration here. The frivolous excuses raised by doctors seeking to please their patients by offering a late term abortion have revolved around other issues too - financial concerns (i.e. "economic health", even though this would never dictate an abortion vs putting the baby up for adoption), family troubles (i.e. "familial health", even though this would never dictate an abortion vs putting the baby up for adoption), or even just the age of the woman (as its own exclusive factor, not the age and the condition it has brought with it, just the number in and of itself). Really, it's amazing how much abortionists have managed to justify under the umbrella of "Health". In fact, an abortion ban with a broad "Health" exception is really no different than an explicit allowance for abortion until birth.

Heck, even NARAL Pro-Choice America is fine with some abortion bans as long as they have a health exception. (see: https://www.prochoiceamerica.org/state-law/new-york/, "NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman’s life and health."). This isn't because NARAL has some problem with late term abortions, it's because they know that a health exception, in practice, allows almost any late term abortion to take place, so as long as it's there, the ban or restriction is fine because it does nothing.

The distinction between "eligible" and "ineligible" health conditions relies upon several things: 1) the pregnancy must have caused the health condition to occur, 2) ending the pregnancy must resolve the condition, and 3) there must be no other solution to resolve the condition.

Yes, an abortion for health reasons is an act by the state to preserve the life and liberty rights enjoyed by the woman. But at the point the bill restricts, there is also the life and liberty rights of the potentially viable fetus for the government to take into account. Thus, if at all possible, it will pursue another avenue so that no life is sacrificed.

If the pregnancy did not cause the condition to occur, there is no reason for the government to interfere with it - the way to improve the life and the health of the woman must lie elsewhere.

If the abortion does not resolve the condition, then again, the solution must be elsewhere. Sure, perhaps the pregnancy brought upon it (i.e. a woman lost her job after becoming pregnant due to a discriminatory employer), but the abortion is not going to make it go away. The fetus should be taken to term, put up for adoption if necessary, and then the state should pursue a solution that will actually resolve the condition at issue, rather than taking life to only provide a temporary solution or no solution at all.

Finally, if there are other solutions at hand, such as adoption, or the baby being raised by a relative, or if the health condition is minor and can be ignored, or if the baby could survive an early delivery with appropriate medical care - and the lack of an actual abortion will not prevent the state from preserving the life of the woman - the state should make use of that option, rather than resorting to sacrificing a life.  This last part will be explored more in reference to your hypothetical at the end.

At least most mental health conditions would not fall under these factors, regardless of their physical origin - if the thought of having to raise the child is severely affecting the woman, but the child being raised by someone else would resolve it, the abortion is not necessary to protect health, and thus an abortion should not be performed.

Initially, of course, whether these factors are met would be determined by the abortionist, perhaps in consult with other employees at the facility. If law enforcement was alerted to a potentially lawbreaking incident, those officers would make a determination based on their decision to charge the abortionist or not. If the abortionist pled not guilty, then the final decision is of course made by a judge or jury in a court of law.

As you are certainly aware, the distinction between "physical health" and "mental health" is a false dichotomy: physical health can severely affect the mind and mental health can severely affect the body. From a biological perspective, these categories do not even exist - the brain cells and neurochemicals that affect "mental" health very much do exist physically.

Fundamentally, wherever the line is drawn, is not the region taking the category of "women who need an abortion for health reasons" and arbitrarily subdividing this group into two categories, of "women with health reasons we deem legitimate" and "women with health reasons we deem illegitimate"? What rational basis exists for the abrogation of their equal protection of the laws?

Again, the line is drawn according to where the abortion itself is necessary to preserve health, as the bill in question dictates - if it is not, or if it would not resolve the condition, or if there is some other solution - then it should not be performed. Mental Health conditions often have some underlying cause unrelated to the abortion, and as stated above, do not typically pose life or death questions, thus they would typically not be eligible.

Yes, the region is creating categories, and the basis is very simple - there are two lives to preserve here - the woman and the fetus. Usually, both can be saved. If so, the region should do that. The region should only be pursuing an abortion where it is the only solution to preserve the woman's rights under section 5, and where doing it would preserve those rights.

The friend of the court here alleges the distinction present is that mental health needs are ignored by the new law because they are more likely to be frivolous. Assuming this distinction between "mental" and "physical" is even valid, why would this be case? Under the requirements of the new law, would not these women supposedly seeking some frivolous excuse for a late-term abortion instead just use an equally frivolous excuse that's still legal under the umbrella of "physical health"?

Perhaps, but all laws have loopholes, and no law is perfect. The region believes the language enacted is the best language possible to achieve its purposes.

Furthermore: even if one assumes the distinction being made between "health" and "physical health" is real and meaningful, and even if one assumes a rational basis exists for this distinction to be made and enforced, how could this restriction possibly be considered "narrowly tailored" with respect to the precedent of Politics Fan v South?

While I will repeat that "narrowly tailored" is not present in Politics Fan v The South, and instead arose in Ted's brief (see my last post), this is indeed narrowly tailored to the purpose of protecting all life involved in the situation. It gets medical practitioners to pursue whatever solution will preserve both lives in question whenever possible. Where the fetus's right to life is unclear (before viability), abortion is permitted carte blanche (the 20 week period) out of respect for the rights of the woman. Where the state can preserve one and only one life, the freedom to choose which is allowed. Any other version of the law (either an earlier restriction or a later or more loose restriction) would be too broad - either infringing on the woman's rights in cases where only she has a clear right to life, or infringing upon preservable right to life rights of the fetus.

(content warning: the following paragraph describes a hypothetical r*pe victim's situation in some detail and briefly discusses suicidal ideation)


The arguments before the court have alluded to the lack of an exception for rape, so allow me to use such a scenario as a hypothetical here. Imagine a woman was violently raped, and afterwards suffered from severe depression and post-traumatic stress disorder as a result. Furthermore, she became pregnant, but due to the trauma associated with even the awareness of her pregnancy, and the avoidant behavior common among PTSD patients, she does not seek an abortion until after the 20 week limit has passed. In the 25th week of her pregnancy, her medical care providers and other medical professionals unanimously conclude an abortion is necessary. In their assessment, if forced to carry the fetus to term, the patient would in all likelihood kill herself rather than give birth -- and if she's placed on some sort of intensive 24/7 suicide watch until the baby is born, being forced to give birth would cause so much more additional trauma that her suicide would be imminent and inevitable.


(end of content warning)

Frankly, how does this situation differ in any way from something like an ectopic pregnancy? Why would the law allow an abortion in one instance but not the other?

Let's look at the 3 conditions I outlined above and see whether this qualifies:

1) Did the pregnancy cause the condition at issue: Yes
2) Does an abortion resolve the issue: As far as we can tell, Yes.
3) Is there another solution: Well...

This is actually a really interesting question because there isn't a clear answer. Likely, an abortion would have to be done in this circumstance, and a case brought to court based upon that, and then we would have to see what the judge or jury decides. But the best educated answer I can give is:

In this case, the doctor and his colleagues should carefully look at all angles of the situation. For instance, is it just the normal birthing process that would bring about the trauma - i.e. would doing a birth by c-section at the appropriate time alleviate it - if so, do that, combined with the suicide watch noted above.

If it is truly determined that the only solution to resolve it is an immediate abortion - then the conditions are met and the abortion in this hypothetical is indeed permitted under this law.

As far as an ectopic pregnancy goes, the process is much simpler:

1) Did the pregnancy cause the condition at issue: Yes
2) Does the abortion resolve the issue: Yes
3) Is there any other solution: No. An ectopic pregnancy never results in a viable life, and endangers the life of the woman, and so must be ended.

Therefore the abortion is allowed.

[Attorney General & PPT Dwarven Dragon]

Bump?

Either they're involved in lengthy deliberations, they're on a long break, or they have decided to quietly dismiss the case. Either way there's no reason for either of us to worry about this thread - it's clear the questioning is over. They will issue a formal decision when or if they choose. It is not our place to try to speed up or criticize procedures or work patterns.

[Attorney General & PPT Dwarven Dragon]

With BK having to recuse himself from this trial for personal reasons and with the 4 remaining justices being unable to reach a decision:


The judgment is affirmed by an equally divided court

So the law is upheld?