S019 v Lincoln

[S019]

Greetings honorable justices,

Today I am suing to declare the L.C. 10.11 also known as the Lincoln Pain-Capable Abortion Prohibition and Born Alive Survivor Protection Act to be unconstitutional.

My case rests on a few points, particularly constitutionality and precedent.


The last time that the court handled the issue of abortion rights in Politics Fan v the South, the court wrote in the majority opinion that "The limitations the state can place upon abortion access, must be tailored to only cover such legitimate government purposes without being overly broad. For example, hypothetically, a total ban against certain medical procedures would likely be unconstitutional, as no legitimate government purpose would exist to justify preventing doctors from performing procedures they believe to be appropriate and in the best interests of their patients."

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."

This clearly falls outside of covering "legitimate government purposes." Imprisonment for doctors does not help to advance the administration of government or aid the government in any other way. It is not clear what "legitimate government purpose" is served here.

As previously ruled by the court in Politics Fan v the South, Sections 5 and 14 of the federal constitution protect the right to privacy, which the court also ruled included the right to choose an abortion.

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

"Section 14. The enumeration of certain rights in this Constitution shall not be construed as to deny or disparage those natural rights and liberties herein unlisted."

Also while not explicitly stated in the Lincoln Constitution, the Lincoln Constitution includes an equal protection clause which should be interpreted as all citizens having the same rights, include their rights as an Atlasian citizen. As federal law supercedes state law, the right to privacy should also exist in Lincoln. This right to privacy includes the right to choose an abortion.

1. All persons born or naturalized in the Republic of Atlasia and being residents of one of the states of this region, are citizens of Lincoln, with all the rights, privileges, and responsibilities of the same. No citizen shall be denied equal protection under the law.

Thus, it is the view of the petitioner that current abortion law in Lincoln violates a woman's right to privacy, and we humbly ask the court to strike the law down.

[windjammer]

This has been seen

[Bacon King]

Writ of certiorari in the case of S019 v Lincoln has been granted.

Petitioner's brief is expected by 5:00 pm default forum time on 7/16/2021. Respondent's brief is expected by 5:00 pm on 7/19/2021. Any amicus curiae briefs are expected by 5:00 on 7/20/2021. Additional time may be granted at the discretion of the court.

[S019]

Honorable justices, I would like to ask for an extension on my brief, I had been in New York City this past week with family and not had much time to be on Atlas, as a result, I missed this granting. I greatly apologize for the inconvenience.

[Attorney General, LGC Speaker, and Former 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.

[S019]

Greeting honorable justices,

The brief will first focus on the issue of precedent. The Supreme Court has addressed the issue of reproductive rights before in the case Politics Fan v the South.

In addition to covering personal privacy, this right also has some extension that covers marriage, procreation, contraception, as well as family planning; this is evident in cases such as Loving v. Virginia and Griswold v. Connecticut, both of which were decided within the common law jurisdiction of the United States based upon Constitutional language in their Bill of Rights that is verbatim identical to our own Article I.

The court ruled that a right to privacy not only exists but it extends to other types of privacy other than simply personal privacy, including family planning. It is the view of the petitioner that the issue of abortion is one of family planning, and thus under this decision the right to elective abortion should be protected.

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

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.

Therefore, it can be assumed that the real-life cases which provided much of the reasoning behind the extension of the right to privacy to abortion, one of which is Roe v Wade also apply as valid precedent, due to the principle of common law.

In the majority opinion in Roe v Wade, Justice Harry Blackmun wrote:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

It is the view of the petitioner that current law in Lincoln is overly restrictive and thus may possibly include the implementation of detriment by the State, in this case the Lincoln government. For instance, it may be noted that under current Lincoln law, abortion is only legal if "the patient is within twenty weeks [5 months] from the commencement of pregnancy" or "the abortion is necessary to protect the patient's life or physical
health." Current Lincoln law removed a provision that would allow abortions in the case of "an absence of fetal viability." It is the view of the petitioner that forcing women to birth a nonviable fetus may indeed provide distress and psychological harm to the woman.

Justice Blackmun also wrote that:

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

The second trimester lasts from 13 weeks to 28 weeks, it is the view of the petitioner that from 20 weeks to 28 weeks, the government of Lincoln is not regulating abortion "in ways that are reasonably related to maternal health." While the government does indeed include provisions for physical health, it makes no mentions of mental health, and as discussed earlier carrying a nonviable fetus to term could indeed prove traumatic for the mother.

Additionally, current Lincoln law also includes the following restriction on medical professionals: "(b) 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." It is entirely unclear to the petitioner how the provision for jailing doctors is at all germane to maternal health.

It should be noted that the Atlasian Supreme Court in Politics Fan v South, seemed to agree with Justice Blackmun, with Justice Bacon King writing for the court that:

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

Yet again, it is unclear to the petitioner what legitimate government purposes are served by punishing doctors.

Thus, when we consider both Atlasian precedent on the issue as well as the real life cases that additionally served as precedent, the view of the petitioner is that the Lincoln Pain-Capable Abortion Prohibition and Born Alive Survivor Protection Act simply does not survive the test of judicial precedence.

Next, we will look at the issue of constitutionality:

As already mentioned, the Atlasian Supreme Court has affirmed a right to privacy, and has ruled, consistent with the pre-reset case of Roe v Wade, which serves as common law precedent, that said right does extend to abortion.

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

"Section 14. The enumeration of certain rights in this Constitution shall not be construed as to deny or disparage those natural rights and liberties herein unlisted."

The court has previously ruled that Sections 5 and 14 establish the right to privacy as a right entitled to all citizens of the Atlasian Republic. While this case is based on Lincoln law and not federal law, it can be understood that the citizens of Lincoln also enjoy these rights by virtue of being Atlasian citizens, this sentiment is also supported by the constitutions of both Lincoln and Atlasia.

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.

1. All persons born or naturalized in the Republic of Atlasia and being residents of one of the states of this region, are citizens of Lincoln, with all the rights, privileges, and responsibilities of the same. No citizen shall be denied equal protection under the law.

Therefore, it can be assumed that the citizens of Lincoln also enjoy this right to privacy and by extension, the right to elective abortion. It is the view of the petitioner that this right is currently being violated by the Lincoln government due to its current abortion law.


I thank the court for their time.

[Mike Thick]

Greetings, honorable justices. I will be representing Lincoln in this matter.

I humbly request, in light of the circumstances of my appointment as well as the leniency granted to the petitioner, that the deadline for Lincoln's brief be extended to Friday the 23rd.

[Bacon King]

Greetings, honorable justices. I will be representing Lincoln in this matter.

I humbly request, in light of the circumstances of my appointment as well as the leniency granted to the petitioner, that the deadline for Lincoln's brief be extended to Friday the 23rd.

granted

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.

granted

[Attorney General, LGC Speaker, and Former 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)
-------------

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.

[Mike Thick]

I plan to post my brief tomorrow afternoon, and apologize to the Court for the delay.

[Mike Thick]

I. INTRODUCTION

Thank you, Honorable Justices. Here is Lincoln's brief in support of the law (which we will refer to herein as the PCAP). We will keep our case brief.

The Court has ruled that Atlasians have a right to privacy, one which extends to private medical choices. However, this right is not absolute: regulations may "cover such legitimate government purposes without being overly broad." (Politics Fan v. The South) The PCAP clearly serves a legitimate interest, and is narrowly tailored to suit this interest. Therefore, it should be upheld.

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.

IV. CONCLUSION

Our case is simple: the PCAP easily meets the requirements laid out in Politics Fan v. The South. As such, we ask that the Court uphold the law as constitutional.

[Bacon King]

Please accept my apologies for the lack of input thus far, as I've just now ended my fourth consecutive 12+ hour shift of work. My first priority right now is getting some rest and catching up on my sleep, but i will have questions for both parties tomorrow

[ilikeverin]

Mr. S019, for what purposes would someone seek an abortion after the point banned in this law?

Mr. Dragon and Mr. Bessel, what to you does it mean to have a "important and legitimate" government interest? And what interests are served by ensuring that there is a specific carve-out for abortions judged to protect specifically "physical" health, as opposed to (putatively) "mental" health?

[Attorney General, LGC Speaker, and Former 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.

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

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.

[S019]

Mr. S019, for what purposes would someone seek an abortion after the point banned in this law?

Honorable Justice ilikeverin,

I apologize greatly for my delay in response as I had been on vacation and not checked Atlas regularly.

Anyways, I would like to begin my response by noting that late term abortions are a political term. It quite bothers me that the state has tried to use this misogynist political framing to defend their draconian law. This article tells the story of these women: https://www.washingtonpost.com/us-policy/2019/02/06/tough-questions-answers-late-term-abortions-law-women-who-get-them/, women who the state evidently has no regard or empathy for.

Foster and Kimport described five “profiles” of women in the study: “They were raising children alone, were depressed or using illicit substances, were in conflict with a male partner or experiencing domestic violence, had trouble deciding and then had access problems, or were young and [experiencing their first pregnancy."

This excerpt describes the misogyny of the state in full detail. Many of these women are in difficult life situations and their personal lives should not be used for virtue signaling to appease the Christian right. What type of country are we if we can't support some of our most vulnerable citizens, such as victims of domestic violence or those in abusive relationships?

[ilikeverin]

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?

[Attorney General, LGC Speaker, and Former 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

[windjammer]

I have no question to ask. The fundamental question that this court case is going to answer is whether or not having an abortion is a constitutional right and to which degree.

I have already given my position in previous rulings.

[Bacon King]

Questions for the petitioner:

The heart of your argument, by my assessment, is that two elements of the bill are unconstitutional: the first being the new restrictions to abortion access (the reduction from 24 to 20 weeks, the narrowing of the health exception to only cover "physical" health) the second being the criminal penalty against doctors who violate the restrictions. Is that a fair assessment?

You appear to be placing great emphasis on the latter portion of LPCAP, and indeed in your OP appear to be citing it as sufficient justification to deem the bill unconstitutional via the precedent of Politics Fan v South. Let's set aside the other part of LPCAP for a moment, and focus on this part with the crime. Can you elaborate on why you believe a crime against doctors who perform a procedure that has been deemed illegal is unconstitutional on privacy grounds?

Would this bill still be unconstitutional, in your opinion, if the first section of the bill did not exist, and the criminal penalty only covered those abortions already prohibited by existing statute? If it only enforced abortion restrictions this court has already deemed constitutional? Or if instead the bill was criminalizing some other medical procedure - for example, genital mutilation?

It's possible I misunderstand you, but I do not understand how a criminal penalty could be an unconstitutional violation of privacy. An abortion restriction is either "tailored to only cover... legitimate government purposes without being overly broad" (and thus constitutional per the precedent of Politics Fan v South), or it does not meet said criteria (and thus unconstitutionally violates the expectation of privacy between a patient and doctor). If the government has a legitimate and constitutional reason to restrict something, does that not necessarily imply they can use the force of law to enforce the restriction?

(more questions to come, for both parties)

[Associate Justice PiT]

     To Mr. S019 (and reviving this thread), does considering the framework outlined by Planned Parenthood v. Casey as cited by Mr. Dragon in his amicus brief affect your argument that setting a limit of 20 weeks to legally perform an abortion is unconstitutional?

[Bacon King]

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.

[Bacon King]

For the respondent and the friend of the court presently engaged in these proceedings:

Prior to the passage of the bill in question, regional law permitted any abortion that was necessary to protect the "life or health" of the mother. This bill changed it to instead read "life or physical health".

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?

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?

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"?

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?

(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?

[Bacon King]

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?

[Bacon King]

Question for the petitioner:

Setting aside the rest of the bill here, could you elaborate on why specifically you believe the reduction from 24 weeks to 20 weeks is unconstitutional?

In the real world, only 1.3% of abortions in the United States occur 21 or more weeks after pregnancy has commenced - and most abortions that do occur after that point are for medically necessary reasons. There's no reason to believe Atlasian-specific data wouldn't show a similar or lower incidence of abortions at 21+ weeks after pregnancy.



Setting aside everything else in the bill, why would it be unconstitutional for the regional government to set the limit at 20 weeks, when only a negligible number of elective abortion procedures occur later?

[Bacon King]

Please note I have no further questions at this time! However, when the parties answer I may wish to respond and/or request further clarification