(Crap i've parsed below)
WARNING: Seriously, do NOT read this message if you're not KSU-W. It will bore the crap out of you.
Sprac, you’ve already demonstrated your basic ignorance of constitutional law by arguing that I can’t criticize the invention of a right to abortion unless I can point to where the constitution says life begins - an argument so amusingly idiotic that you’ve now quickly abandoned in favor of.... your equally silly equal protection argument.
I think the problem is just that I know so, so much more than you do about this, and I mistakenly assumed I could elide the details without losing you. That's probably why my remarks seem confusing to you. But I can slow things down and go step by step. First, I did not abandon anything: The legal definition of when life begins and the equal protection argument are connected, but I skipped a few steps by jumping to the question. Next time I won't assume the link need not be explained in excruciating detail that will make this thread unreadable for all but a handful of people:
Let's pretend Roe never happened, and Jane Doe visits a state clinic in Kansas seeking to terminate her pregnancy. At the clinic, Jane Doe is denied this medical procedure and informed that the state makes it a crime to seek or provide an abortion (let's even say there's an exception when the life of the mother is in jeopardy). Jane Doe--a very astute constitutional law scholar--files suit in federal district court seeking an injunction against enforcement of the Kansas statute on the grounds that it violates the Equal Protection Clause of the Fourteenth Amendment. Judge KSU-W grants Kansas's motion to dismiss, erroneously believing that Kansas is immune from suit pursuant to the 11th Amendment (this is a suit for equitable relief, not money damages, you dumbshit). Jane Doe appeals, but a panel of the 10th Circuit determines it lacks Article III standing because Jane Doe, since filing her case, has subsequently given birth and handed the child over for adoption, and thus there is no active case or controversy for the court to decide. Her appeal is dismissed for mootness. Jane Doe appeals, and SCOTUS grants certiorari because pregnancy, as a temporary disability, is capable of repetition yet evading review. What result?
Of course, the Court will first address whether it has subject matter jurisdiction. It concludes that pregnancy fits within the "capable of repetition yet evading review" exception to mootness. The Court also sternly admonishes Judge KSU-W for misunderstanding the reach of the 11th Amendment. Having determined it has jurisdiction, the Court proceeds to the merits.
Because of Judge KSU-W's hilariously bad dismissal, the record on appeal is devoid of much factual content. So the Court looks to the pleadings. Jane Doe has alleged that the Kansas law violates the Equal Protection Clause because it unfairly discriminates against her because she is a woman. The Justices--all principled jurists--prudently apply the existing framework on gender discrimination under the EPC.
Step 1: Is gender a suspect classification under the EPC, such that a classification based on gender triggers heightened scrutiny? Yes, yes it is.
Step 2: Does the law classify on the basis of gender on its face? That is, is the law facially discriminatory? Yes. Only women can become pregnant, therefore we are dealing with a law that classifies on the basis of gender on its face.
Step 3: What is the standard of review? The standard of review in gender discrimination cases is intermediate scrutiny. We ask: Is the law substantially related to an important government interest? First, we need to hear Kansas's supposed "important government interest(s)" before we can determine the fitness between the means and the ends. In Planned Parenthood v. Casey, the Supreme Court recognized a legitimate interest in protecting
potential human life, but that interest in
potential life only becomes compelling after the point of viability. By contrast, the Kansas law is an outright ban on abortion--even before viability. Because the government must advance a secular purpose, it cannot rely as so many do on Judeo-Christian norms of morality. At this stage, the burden is on Kansas to convince the Court that it is advancing an "important government interest."
So, what's your secular, important
governmental interest that justifies this law? You're going to have to argue that the rights of the unborn child have been violated. But in order to do that, you're going to have to make the novel argument--I emphasize that this indeed would be truly novel law--that pre-viability fetuses are capable of possessing legal rights. The problem is, that's a really hard argument to make if you give weight to the whole common law tradition, which as an Originalist I have to believe you do.
So, yes: If you're defending an equal protection challenge to an outright abortion ban, you--bearing the burden--have to make a legal argument for when "life", as a human being capable of having the rights of all living Americans, begins. Do you see the link now?
Steps 4+: Unnecessary as a matter of Constitutional avoidance.
First, equal protection for women does not in any way require a right for a woman to kill a human life growing inside of her. That doesn’t have a damned thing to do with equal protection.
Sorry, Chief. See supra.
Second, your straw man argument that originalists must believe that the equal protection clause to the 14th amendment only applies to slaves completely misunderstands originalism. Start here: https://www.nationalreview.com/corner/neil-gorsuch-explains-originalism-dianne-feinstein-citing-14th-amendment/amp/
Well I'll be damned, even Justice Gorsuch doesn't know what Originalism means! Or, more likely, he was trying to rough ridin' get confirmed when he made those statements, and his conflated explanation is more palatable. But what is described there is more akin to Textualism, a.k.a a plain-meaning approach. That is not controversial. In fact, it's a bedrock canon of statutory and contractual interpretation. The problem is, that's not what Originalism means, and if you were really as knowledgeable as you claim, you'd know that. Originalists look either to the intent of those who passed/ratified a law/Amendment/Constitution (minority view) or to how a normal, reasonable person would have understood the law/Amendment/Constitution at the time when it was passed/ratified (majority view).
