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Obdicut posted:That's great, tell ActusRhesus, who was arguing as though this law was coming in a vacuum of regulation. It wasn't, it was further increasing an already overburdensome amount of regulation on abortion providers. Furthermore, that a case progresses this far really doesn't mean a drat thing about its merits as a regulatory force, just about its merits as a legal case. You could have an incredibly well-crafted piece of gun control regulation that'd achieve great ends for modest impact and have it get struck down. The merits of a regulation and whether it will hold up in court are really not very related at all. "overburdensome amount of regulation" is not the right way to discuss regulations. You shouldn't quantify regulations. Thread, what's the collective noun for regulations from a conservative perspective.
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Oct 16, 2014 01:04
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ActusRhesus posted:So you can have a great law that just happens to be unconstitutional? Inconvenient, that. Yes, exactly. So everything you said about the people supporting this actually being reasonable from a policy perspective is wrong. It is completely verifiable that the people pushing this law are not doing it for the safety of women obtaining abortions. Discendo Vox posted:"overburdensome amount of regulation" is not the right way to discuss regulations. You shouldn't quantify regulations. You know what would have made this post useful? Then explaining what you think is the right way to discuss regulations. As it stands, how am I supposed to reply? The extent of restrictions on abortions in Texas is already far too great. Is that okay? Should I just keep trying sentence and you'll give me a thumbs up or down, or do you actually want to finish your thought?
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Oct 16, 2014 01:05
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drat you interwebs.
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Oct 16, 2014 01:06
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Discendo Vox posted:An effective takedown of the bill/argument would be a) here are the procedures involved b) here are which clinics are at issue c)here are the clinics only offering procedures that are obviously not within the stated category the bill attaches the admission rights requirement to d) the bill is overinclusive. I know it seems arbitrary, but that's how to dismantle that argument. This doesn't dismantle the argument because even if you apply the bill to just some clinics, it still increases the danger to women according to the AMA by restricting access and introducing delays, but the stated rationale is to decrease danger to women. Allowing the stated rationale a pass on any clinic is an error; it's always bullshit. Discendo Vox posted:This still isn't addressing what's in ActusRhesus' argument, which is specific to the content of the procedures. A comparison between the procedures at issue and the regulatory status of other procedures also isn't helpful- then the other procedures are inapposite. So you're going with "Americans United for Life are the real medical authorities on questions about abortion, colonoscopies, and the state of the industry, not the industry organizations making recommendations based on the consensus of professional, credentialed doctors." Oooookaaaaayyyy.
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Oct 16, 2014 01:08
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Obdicut posted:You know what would have made this post useful? Then explaining what you think is the right way to discuss regulations. As it stands, how am I supposed to reply? You don't talk about regulations in terms of collection or quantification in this setting. You talk about the content of specific regulations and their effect. Talking about too much regulation is meaningless because regulatory "degree" is itself meaningless beyond the specific impact of the regulations. VitalSigns posted:This doesn't dismantle the argument because even if you apply the bill to just some clinics, it still increases the danger to women according to the AMA by restricting access and introducing delays, but the stated rationale is to decrease danger to women. Allowing the stated rationale a pass on any clinic is an error; it's always bullshit. It's not relevant to the specific argument at issue- that's what it means to be "inapposite". The increase in danger you refer to is too broad, not because it's probablistic, but because it won't apply to all categories of women seeking all categories of care at all the impacted clinics. You need to talk about what clinics offer what services and perform what procedures in order to make these impact claims. (this is a problem with these letters or amici briefs- they're painting with broad strokes and leaving a lot of openings, but as is often the case, they're not well-drafted because the adjudicators often won't pay much attention to them) VitalSigns posted:So you're going with "Americans United for Life are the real medical authorities on questions about abortion, colonoscopies, and the state of the industry, not the industry organizations making recommendations based on the consensus of professional, credentialed doctors." Oooookaaaaayyyy. Discendo Vox fucked around with this message at 01:18 on Oct 16, 2014 |
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Oct 16, 2014 01:09
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Discendo Vox posted:This still isn't addressing what's in ActusRhesus' argument, which is specific to the content of the procedures. A comparison between the procedures at issue and the regulatory status of other procedures also isn't helpful- then the other procedures are inapposite. By using other elements of the bill you're effectively overcompolicating the number of working parts in the argument. Yes. And part of the problem with the plaintiff's case was they went for the facial challenge jugular and initially ignored the as applied challenge route which, though a harder legal argument to make in theory is really more compelling argument under the facts of this case for clinics that are dealing in medication only. That and failing to get a specific finding on improper purpose. Since it seems the district court judge was favorable to them, they should have pushed for that as factual findings are almost impossible to overturn...but since they put no evidence in to support improper purpose, there's no finding on it and, since the district court did not find improper purposes it's going to be virtually impossible to argue it on appeal. ActusRhesus fucked around with this message at 01:12 on Oct 16, 2014 |
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Oct 16, 2014 01:10
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Discendo Vox posted:An effective takedown of the bill/argument would be a) here are the procedures involved b) here are which clinics are at issue c)here are the clinics only offering procedures that are obviously not within the stated category the bill attaches the admission rights requirement to d) the bill is overinclusive. I know it seems arbitrary, but that's how to dismantle that argument. You have the argument wrong. The argument isn't that the law attaches an admissions requirement to X, but clinic A only does procedure Y, so it shouldn't be covered but is. The argument is that the law attaches an admissions requirement to clinics that provide abortions (and other requirements), the admissions requirement (and the other requirements) are medically unnecessary for clinics that provide abortions and imposed only for the purpose of interfering with the Constitutional right to abortion, therefore the law "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion” and is unconstitutional. Although the law also appears to have an overbreadth problem, that's not the primary issue in the lawsuit. The lawsuit was decided on the grounds that it put an undue burden on women seeking abortions.
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Oct 16, 2014 01:19
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Not My Leg posted:You have the argument wrong. The argument isn't that the law attaches an admissions requirement to X, but clinic A only does procedure Y, so it shouldn't be covered but is. The argument is that the law attaches an admissions requirement to clinics that provide abortions (and other requirements), the admissions requirement (and the other requirements) are medically unnecessary for clinics that provide abortions and imposed only for the purpose of interfering with the Constitutional right to abortion, therefore the law "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion” and is unconstitutional. Yeah, I know- the issue in question wasn't the lawsuit per se, but ActusRhesus's argument re: the breadth problem. as ActusRhesus points out, targeting the breadth problem would be a better choice in the long term.
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Oct 16, 2014 01:20
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Discendo Vox posted:Yeah, I know- the issue in question wasn't the lawsuit per se, but ActusRhesus's argument re: the breadth problem. as ActusRhesus points out, targeting the breadth problem would be a better choice in the long term. yeah, there's a lot of monday morning quarterbacking going on here, but I think they hosed themselves by not going hard on the as applied argument. Still, at the end of the day, the only part I think will be upheld is the admissions requirement, with the "within 30 miles" part cut. the way they chose to go, the fifth circuit's language re: the lack of evidence on exactly what percentage of women will be effected etc. etc. (assuming it's an accurate summary of the testimony at the district court level) will be problematic. Not insurmountable, but probably problematic. Do you know anywhere where one can read the actual transcripts? It's hard to say what exactly was put forth, but from the 5th circuit summary it sounds like they really chose a poor expert and didn't make a very good record...which is dumb as anyone trying this case should know regardless of the outcome, it's going to go pretty high in appellate review. ActusRhesus fucked around with this message at 01:27 on Oct 16, 2014 |
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Oct 16, 2014 01:23
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Discendo Vox posted:You don't talk about regulations in terms of collection or quantification in this setting. You talk about the content of specific regulations and their effect. Talking about too much regulation is meaningless because regulatory "degree" is itself meaningless beyond the specific impact of the regulations. Don't really know what this means. Do you mean that I should list all of the regulations on abortion clinics and why they're medically stupid, every time I claim that the regulations are overbroad?
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Oct 16, 2014 01:23
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Obdicut posted:Don't really know what this means. Do you mean that I should list all of the regulations on abortion clinics and why they're medically stupid, every time I claim that the regulations are overbroad? Overbroad isn't a synonym for "too much". Each regulation will be overbroad in terms of the specific scope of its application- again, it's not meaningful to say they're collectively overbroad unless they are structurally identical. Instead of talking about regulations in the categorical, why not talk about regulations in the particular?
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Oct 16, 2014 01:27
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Discendo Vox posted:Overbroad isn't a synonym for "too much". Each regulation will be overbroad in terms of the specific scope of its application- again, it's not meaningful to say they're collectively overbroad unless they are structurally identical. Instead of talking about regulations in the categorical, why not talk about regulations in the particular? Are you writing obtusely on purpose, or do you have some horrible job that requires you to murder English like that? There are a very large numbers of regulations in Texas that have been put in place to inhibit the ability of women to acquire abortions, without having a medical basis. I am referring to these in the collective, since they are numerous. Can you please, in clear, non-jargon English, explain what the problem with this is.
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Oct 16, 2014 01:31
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Discendo Vox posted:That's not what I'm saying. I'm saying that the current regulatory status of other procedures isn't sufficient to justify making the regulatory status of abortions match the risks of those procedures unless you demonstrate that the current regulatory status of, for example, colonoscopies, is correct. All of which isn't neccessary to attack the content of the reg,a nd which opens you up for other problems with the construction of the argument. It doesn't seem suspect to you that the authors of the bill didn't think to include admitting privileges for more dangerous procedures or even consider updating the regulatory status of procedures that are more likely to result in complications requiring hospitalization, despite the medical organizations raising the issue of this inexplicable oversight while the bill was being considered? VitalSigns fucked around with this message at 01:34 on Oct 16, 2014 |
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Oct 16, 2014 01:32
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Obdicut posted:Are you writing obtusely on purpose, or do you have some horrible job that requires you to murder English like that? I'm guessing attorney. He's not writing obtusely, he's using the legal definition of overbroad as it's used in constitutional analysis. Since this is a SCOTUS thread, it's not inappropriate.
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Oct 16, 2014 01:33
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Obdicut posted:Are you writing obtusely on purpose, or do you have some horrible job that requires you to murder English like that? Here's my best shot: The problems with the regulations you are talking about are going to be specific to those regulations. To meaningfully attack those regulations, you need to specifically identify how each of them isn't effective at doing what it says it does. The intent of the regulation doesn't matter, because it's very hard to prove the intent. The ambiguity of the intention of the regulation is why antiabortion people have been able to continue shuttering clinics- they dream up some bullshit regs with a halfassed rationale, but the legal challenge from pro-choice lawyers is usually to say, "hey, these regs are disingenuous and are only intended to stop abortions". That's not an effective argument in the short or the long term. The only way to really stop this is to get down into the weeds and identify the specific problems with each of the regulations. This means taking the bullshit rationale at face value, and demonstrating why each reg, case by case, doesn't accomplish its stated goal. A side effect of this approach is you create a body of caselaw establishing the proper limits of abortion regulation. ActusRhesus posted:I'm guessing attorney. 
Discendo Vox fucked around with this message at 01:39 on Oct 16, 2014 |
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Oct 16, 2014 01:37
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ActusRhesus posted:I'm guessing attorney. He's not writing obtusely, he's using the legal definition of overbroad as it's used in constitutional analysis. Since this is a SCOTUS thread, it's not inappropriate. It's inappropriate to insist that we can't also talk about the subject in common language. I'm not making a legal argument. I'm saying that the current amount of regulation of abortion in Texas is already far more than is medically necessary or helpful. Also, the new regulations that cause clinics to close thus absolutely and definitely raise the risks and hazards for women seeking abortions (whether that risk is from a back-alley abortion, unsafe abortifacients, or just more time before the abortion). In other words, even if you're going to do a po-faced analysis of this regulation as a sincere attempt to regulate medical practices for the good of wimmins, you can't analyze it as though these regulations can only improve outcomes: they can also (and would) substantially make them worse. And this is the obvious, common-sense, default position to start from, because the problem is in the other direction: there is too much restriction on obtaining an abortion in Texas, which results in a lot of harm.
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Oct 16, 2014 01:40
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Obdicut posted:It's inappropriate to insist that we can't also talk about the subject in common language. I'm not making a legal argument. I'm saying that the current amount of regulation of abortion in Texas is already far more than is medically necessary or helpful. Also, the new regulations that cause clinics to close thus absolutely and definitely raise the risks and hazards for women seeking abortions (whether that risk is from a back-alley abortion, unsafe abortifacients, or just more time before the abortion). The thing is that what makes regulations problematic isn't the amount of them. Talking about the amount of regulations isn't meaningful- how would you even measure it? You have to talk about what the regulations do. That means talking about their content.
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Oct 16, 2014 01:42
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Obdicut posted:It's inappropriate to insist that we can't also talk about the subject in common language. I'm not making a legal argument. Right but you're forgetting that ActusRhesus has shifted from openly scorning the SCOTUS injunction with a sarcastic quip about how they must not want abortion clinics to follow any medical standards whatsoever to "oh well actually I always agreed the law was bullshit, I just want to make the legal arguments against it better"
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Oct 16, 2014 01:43
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Obdicut posted:I'm not making a legal argument. Dude...it's the SCOTUS thread. Isn't this whole discussion about the legal framework of this decision (and the likely higher court decisions)?
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Oct 16, 2014 01:45
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VitalSigns posted:Right but you're forgetting that ActusRhesus has shifted from openly scorning the SCOTUS injunction with a sarcastic quip about how they must not want abortion clinics to follow any medical standards whatsoever to "oh well actually I always agreed the law was bullshit, I just want to make the legal arguments against it better" I told you this would happen, dudette.
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Oct 16, 2014 01:45
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VitalSigns posted:Right but you're forgetting that ActusRhesus has shifted from openly scorning the SCOTUS injunction with a sarcastic quip about how they must not want abortion clinics to follow any medical standards whatsoever to "oh well actually I always agreed the law was bullshit, I just want to make the legal arguments against it better" actually, if you were paying attention, I said several times throughout this discussion that the law will probably ultimately be struck down in significant part. my scorn is not directed towards SCOTUS but towards the overly simplistic way the case is being discussed here.
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Oct 16, 2014 01:46
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Discendo Vox posted:Here's my best shot: The problems with the regulations you are talking about are going to be specific to those regulations. To meaningfully attack those regulations, you need to specifically identify how each of them isn't effective at doing what it says it does. What do you mean by 'meaningfully' attack? I'm not laying out a legal strategy. I'm asserting that abortion in Texas already has restrictions on it and regulations on it that are medically unnecessary and problematic and should be done away with. If you're asking me to go through each one and explain to you why it is bad, I"m going to ask you why, what will you do after I explain them all? Why wouldn't you look it up yourself? quote:The intent of the regulation doesn't matter, because it's very hard to prove the intent. I'm not making a legal argument. I understand the SCOTUS makes law, but we have to be able to also talk about the effects of those laws and the conditions in which those laws come about, especially since the Supreme Court has become so ultimately political. So please stop criticizing me for not formatting what I say into a legal argument when I'm not attempting to make one. quote:The ambiguity of the intention of the regulation is why antiabortion people have been able to continue shuttering clinics- they dream up some bullshit regs with a halfassed rationale, but the legal challenge from pro-choice lawyers is usually to say, "hey, these regs are disingenuous and are only intended to stop abortions". That's not an effective argument in the short or the long term. OKay, so use a different legal argument. I'm not saying that what I am saying is a legal argument. I never in the least bit, in any way, indicated that I was. quote:The only way to really stop this is to get down into the weeds and identify the specific problems with each of the regulations. How will me doing that, now, help? quote:This means taking the bullshit rationale at face value, and demonstrating why each reg, case by case, doesn't accomplish its stated goal. A side effect of this approach is you create a body of caselaw establishing the proper limits of abortion regulation. The proper limits of abortion regulation are the same as other medical regulation: that is the main problem, it is treated as though it is different from other medical procedures. There is no need for congress to get fine-grained in its regulation of medical procedures unless there's something weird or exploitative going on, and abortion is a pretty routine and non-problematic area. Discendo Vox posted:Here's my best shot: The problems with the regulations you are talking about are going to be specific to those regulations. To meaningfully attack those regulations, you need to specifically identify how each of them isn't effective at doing what it says it does. What do you mean by 'meaningfully' attack? I'm not laying out a legal strategy. I'm asserting that abortion in Texas already has restrictions on it and regulations on it that are medically unnecessary and problematic and should be done away with. If you're asking me to go through each one and explain to you why it is bad, I"m going to ask you why, what will you do after I explain them all? Why wouldn't you look it up yourself? quote:The intent of the regulation doesn't matter, because it's very hard to prove the intent. I'm not making a legal argument. I understand the SCOTUS makes law, but we have to be able to also talk about the effects of those laws and the conditions in which those laws come about, especially since the Supreme Court has become so ultimately political. So please stop criticizing me for not formatting what I say into a legal argument when I'm not attempting to make one. quote:The ambiguity of the intention of the regulation is why antiabortion people have been able to continue shuttering clinics- they dream up some bullshit regs with a halfassed rationale, but the legal challenge from pro-choice lawyers is usually to say, "hey, these regs are disingenuous and are only intended to stop abortions". That's not an effective argument in the short or the long term. OKay, so use a different legal argument. I'm not saying that what I am saying is a legal argument. I never in the least bit, in any way, indicated that I was. quote:The only way to really stop this is to get down into the weeds and identify the specific problems with each of the regulations. How will me doing that, now, help? quote:This means taking the bullshit rationale at face value, and demonstrating why each reg, case by case, doesn't accomplish its stated goal. A side effect of this approach is you create a body of caselaw establishing the proper limits of abortion regulation. The proper limits of abortion regulation are the same as other medical regulation: that is the main problem, it is treated as though it is different from other medical procedures. There is no need for congress to get fine-grained in its regulation of medical procedures unless there's something weird or exploitative going on, and abortion is a pretty routine and non-problematic area. ActusRhesus posted:Dude...it's the SCOTUS thread. Isn't this whole discussion about the legal framework of this decision (and the likely higher court decisions)? Are you really saying that we can't talk about the politics surrounding a case, the effects the case will have, or anything else? And if you want to talk about holding strictly to the legal framework, then don't do stuff like this: quote:Where I think the Texas law got it wrong was looking just at abortion rather than including lasik, lypo, etc. etc. Now, if you want to say this is because I'm an anti-woman secret pro life plant, fine. But the fact of the matter, again, is that the whole loving point of Roe v. Wade was to prevent women from having to rely on quacks. So SOME regulation is needed. The results of the Texas law are a problem. But at the other end of the spectrum are the Dr. Gosnell cases. There is a reasonable middle ground to be had and, while you may disagree with someone's ideas on where that middle ground might lie, dismissing anyone who disagrees with you as a liar, a troll, or an idiot isn't really a compelling argument. Rarely does a case with absolutely no merit on the opposing side made it this far in the appellate process. Where you're jumping back and forth between talking about the real-world effects of the regulation, the appropriateness of it, and the legal merits of it. The case has legal 'merit'. It has no--in fact, it has negative--regulatory merit. The reasonable middle ground is in the opposite direction of this law. Obdicut fucked around with this message at 01:52 on Oct 16, 2014 |
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Oct 16, 2014 01:47
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Discendo Vox posted:I told you this would happen, dudette. snerk.
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Oct 16, 2014 01:47
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Obdicut posted:The proper limits of abortion regulation are the same as other medical regulation: that is the main problem, it is treated as though it is different from other medical procedures. There is no need for congress to get fine-grained in its regulation of medical procedures unless there's something weird or exploitative going on, and abortion is a pretty routine and non-problematic area. a. Congress isn't involved here...it's the Texas state legislature. b. That same argument could be used to criticize significant portions of the Affordable Helathcare Act. (Not saying I would agree with those criticisms, but be careful making blanket statements that can easily be applied in areas you wouldn't want them) c. Rule 1 of appellate advocacy. No one gives a gently caress what you think. What does the law say and how does the law apply to the case?
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Oct 16, 2014 01:53
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ActusRhesus posted:actually, if you were paying attention, I said several times throughout this discussion that the law will probably ultimately be struck down in significant part. my scorn is not directed towards SCOTUS but towards the overly simplistic way the case is being discussed here. Remember when your first post on the subject before any discussion described HB2 as requiring clinics "to adhere to set medical standards" as if they weren't adhering to set medical standards before? I do! ActusRhesus posted:This is great news. Requiring facilities that conduct invasive medical procedures to adhere to set medical standards would be detrimental to women's health. You know we can read things you've posted before, right? Like they don't just disappear when you decide to shift your position on the DL?
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Oct 16, 2014 01:53
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Obdicut posted:It's inappropriate to insist that we can't also talk about the subject in common language. I'm not making a legal argument. I'm saying that the current amount of regulation of abortion in Texas is already far more than is medically necessary or helpful. Also, the new regulations that cause clinics to close thus absolutely and definitely raise the risks and hazards for women seeking abortions (whether that risk is from a back-alley abortion, unsafe abortifacients, or just more time before the abortion). Here's where I think some of the confusion is coming in. When a lawyer says a law is "overbroad" they generally mean that it covers cases in which it would be constitutional, but it is written so broadly that it also covers cases in which it is unconstitutional. So, a law that says nobody can own guns is overbroad (post Heller), because while it covers some situations that are probably fine (banning ownership of machine guns) it also covers situations that are not (handguns). When you say "overbroad" I suspect you mean "overly burdensome", which is to say, it impedes a persons ability to exercise their constitutional rights without sufficient justification. A law that says all doctors who perform abortions must also be chess grandmasters is overly burdensome, because it burdens a woman's right to access without sufficient justification. I happen to agree that the Texas law is also overly burdensome, because it imposes medically unnecessary restrictions on the right to receive an abortion, which has the effect of impairing the right without sufficient justification (contrast that with a law that says "abortion providers must be doctors" which burdens access to abortions, but is not overly burdensome, because it provides a significant countervailing medical benefit). Different constitutional rights have different legal standards to determine what is overly burdensome, with abortion law being a bit of a mess, and the standard (from Casey being "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion." It's probably some form of intermediate scrutiny, but hell if I know. Not my area of law.
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Oct 16, 2014 01:54
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ActusRhesus posted:a. Congress isn't involved here...it's the Texas state legislature. The texas legislature, then. quote:b. That same argument could be used to criticize significant portions of the Affordable Helathcare Act. (Not saying I would agree with those criticisms, but be careful making blanket statements that can easily be applied in areas you wouldn't want them)] I think it's more that I'd rather the health care act go farther in the direction of putting more decision-making and regulation into the hands of doctors, nurses, etc. If there are parts of the act that actually fine-toothed regulation medical stuff at this level, I think that's a mistake just because of the speed of change in medical practice, but I'd have to see examples to really know. quote:c. Rule 1 of appellate advocacy. No one gives a gently caress what you think. What does the law say and how does the law apply to the case? Then why did you jump back and forth between talking about the actual regulation and the appropriateness of having it or not, and the legal merits? If you want to be a beep-boop lawyer robot, that's cool, but then you shouldn't be talking about how that malpractice case hit you hard, man, and some regulation is necessary--that's not a legal argument about what the law says, it's an opinion about what the law should be, just like mine was.
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Oct 16, 2014 02:00
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ActusRhesus posted:
What ever gave you that idea? ActusRhesus posted:my scorn is not directed towards SCOTUS but towards the overly simplistic way the case is being discussed here. You are missing the purpose of the SCOTUS thread.
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Oct 16, 2014 02:08
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The SCOTUS thread is where we share drink recipes to booze ourselves into insensibility while slurring about the downfall of human civilization that will follow quickly on the heels of the latest decision, right? Or am I confusing this with another thread.
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Oct 16, 2014 02:12
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VitalSigns posted:The SCOTUS thread is where we share drink recipes to booze ourselves into insensibility while slurring about the downfall of human civilization that will follow quickly on the heels of the latest decision, right?
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Oct 16, 2014 02:13
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VitalSigns posted:Remember when your first post on the subject before any discussion described HB2 as requiring clinics "to adhere to set medical standards" as if they weren't adhering to set medical standards before? I do! congratulations. you can link to one deliberately inflammatory comment, ignore the obvious hyperbole, and ignore everything that followed. I applaud your use of the search function. It's not a shift in position at all if you were paying attention to what I was saying rather than what you wanted me to be saying. My point from the get go was it's dangerous to take any politicized debate and out of hand dismiss the other side's position. It's dangerous because it leads you to argue rhetoric and smug superiority rather than digesting their argument and addressing it head on. "They're stupid" does not win cases. And that's, to an extent, what happened here, and why they lost at the circuit level (and when I say lost, I'm referring only to the issues that have been addressed so far, namely the stay. there hasn't even been a ruling on the law itself, so saying what the 5th circuit will or won't do is somewhat speculative, though the decision re: the stay certainly suggests which direction at least 3 of them are leaning). Too much focus on "Texas hates women" (without an adequate factual case for improper motive, and not enough focus on facts, statistics, and a step by step dissemination of the claimed motives of the legislature and why the law does not address their concerns. You want to know why I posted that? Because the fact of the matter is, the plaintiff's lawyers in this case completely hosed up this case. They ignored the somewhat slam dunk as applied challenge (and now will likely be barred from bringing it as an alternative argument later) they failed to put on any evidence to support an improper motive theory, or move for an articulation of findings on that point (a hard hurdle, but worth pushing, especially if the improper motive was as obvious as everyone here thinks it was) and, as Vox has done a really excellent job laying out, they relied more on rhetoric than fact and law which is not compelling at the appellate level and part of the reason they lost. The legislature has an allegedly legitimate basis. And courts give heavy deference to the stated intent of the legislature. So the plaintiff needs to do one of two things: prove with objective evidence that the stated objective is a subterfuge for improper purpose (which was done successfully in a number of civil rights cases) or take the stated purpose at face value and demonstrate why the law doesn't match the legislative goal. Sure it's easy to say the fifth circuit just hates women, but their argument was not as compelling as it could have been. I think the Supreme Court will still strike it down, but they didn't do themselves any favors the way they strategized this case. However, everyone here was too busy with the "this seems to be good for the pro-choice side, gently caress you Thomas/Scalia/Alito/Rogers/whoever" circle jerk to look critically at the failures in the argument that, while seemingly victorious in the short term are not going to be nearly as effective in the long term as they could have been, and may in fact be problematic. I don't know yet. Will need to see how they handle it in briefs. So yes. I admittedly stirred the pot to see if someone, anyone, would address this legal case in a legal framework. So far 2 people have. ActusRhesus fucked around with this message at 02:26 on Oct 16, 2014 |
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Oct 16, 2014 02:13
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ActusRhesus posted:So yes. I admittedly stirred the pot to see if someone, anyone, would address this legal case in a legal framework. So far 2 people have. Or someone called out your garbage opinion that had no basis in reality and you've been backpedaling for pages and pages. Stop.
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Oct 16, 2014 02:28
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joeburz posted:Or someone called out your garbage opinion that had no basis in reality and you've been backpedaling for pages and pages. Stop. And what opinion would that be?
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Oct 16, 2014 02:31
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ActusRhesus posted:congratulations. you can link to one deliberately inflammatory comment, ignore the obvious hyperbole, and ignore everything that followed. I applaud your use of the search function. It's not a shift in position at all if you were paying attention to what I was saying rather than what you wanted me to be saying. My point from the get go was it's dangerous to take any politicized debate and out of hand dismiss the other side's position. It's dangerous because it leads you to argue rhetoric and smug superiority rather than digesting their argument and addressing it head on. So you posted deliberately shallow and smug rhetoric that completely misrepresented the case, followed it up with more misrepresentation of the plaintiff's argument as "refusing to recognize the state's interest in regulating medical procedures" all as a clever ruse to draw out scorn-laced replies and teach us a lesson about how beginning with a disingenuous and obviously false argument will just invite others to dismiss everything one has to say, in hopes we'll heed the warning to us all not to commit such mistakes in other debates. Very clever, thank you sensei ActusRhesus posted:So yes. I admittedly stirred the pot to see if someone, anyone, would address this legal case in a legal framework. So far 2 people have. Dance, puppets, dance! I mean, you could have saved everyone the confusion and made the legal argument within a legal framework in the first place instead of confusing everybody with posting factually wrong things and only slowly shifting to "well here's how to argue the case" as false claim after false claim was beaten back, because it sure looked like a retreat... ...but then I guess we would never have learned the important lesson to never begin a discussion by asserting obvious falsehoods. And really, isn't that the greatest lesson of all?
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Oct 16, 2014 02:31
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VitalSigns posted:Very clever, thank you sensei namaste.
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Oct 16, 2014 02:34
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ActusRhesus posted:And what opinion would that be? ActusRhesus posted:This is great news. Requiring facilities that conduct invasive medical procedures to adhere to set medical standards would be detrimental to women's health.
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Oct 16, 2014 02:42
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don't just cut and paste. Tell me exactly what opinion I advanced. Because again, I'm pretty sure the only positions I took with anything vaguely resembling seriousness were a. not acknowledging where your opponent might have a rational argument is unwise and weakens your own position; and b. the plaintiffs hosed up but it probably won't matter in the long run. ActusRhesus fucked around with this message at 02:51 on Oct 16, 2014 |
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Oct 16, 2014 02:45
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ActusRhesus posted:don't just cut and paste. Tell me exactly what opinion I advanced. Well you did repeat your accusation that one side of the case opposes all medical regulation on abortion ActusRhesus posted:
That might have had something to do with people assuming you were trolling and refusing to take you seriously in the face of such a blatantly false opening claim, but idk you seem well-versed in the art of good-faith debate so I'm sure you know what you're doing.
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Oct 16, 2014 02:53
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ActusRhesus posted:yeah, there's a lot of monday morning quarterbacking going on here, but I think they hosed themselves by not going hard on the as applied argument. Still, at the end of the day, the only part I think will be upheld is the admissions requirement, with the "within 30 miles" part cut. Admissions is not something hospitals are required to give. Allowing it to remain intact effectively bans abortions in the state (which is the goal) because catholic-run hospitals are never going to willingly give admitting privileges to abortion providers and the Hobby Lobby case has made it clear there's no chance in hell of them ever being forced to do so either. Admitting privilege itself is a de-facto abortion ban in right wing states. The people who crafted this law have not hidden the fact that they want to outlaw abortion, but can't do so directly because Roe v. Wade would prohibit it. Let me put it another way that should be easy for everyone to understand: Lee Atwater, abortion edition posted:You start out in 1970 by saying, “ban abortion, ban abortion, ban abortion.” By 1973 you can’t say “ban abortion”—that hurts you, backfires. So you say stuff like, uh, mandatory ultrasound, admitting privileges, and all that stuff, and you’re getting so abstract. Now, you’re talking about women's safety, and all these things you’re talking about are totally well-being things and a byproduct of them is, abortion is restricted. ... “We want women to be safe,” is much more abstract than even the mandatory waiting period thing, uh, and a hell of a lot more abstract than “ban abortion, ban abortion.” Again: admitting privileges is an indirect means of banning abortions in a state and if it's allowed then the remaining clinics will simply be hit with even more requirements until they can't meet them all and the state ends up with zero providers.
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Oct 16, 2014 03:09
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VitalSigns posted:Well you did repeat your accusation that one side of the case opposes all medical regulation on abortion I believe that was *after* I was called a gimmick account. Could be wrong. Too lazy to scroll back. But context is somewhat important here.
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Oct 16, 2014 03:09
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