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	<title>Comments on: Balkin&#8217;s Grail: &#8220;Durable Compromise&#8221; on Abortion</title>
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	<link>http://www.concurringopinions.com/archives/2008/11/balkins_grail_d.html</link>
	<description>The Law, the Universe, and Everything</description>
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		<title>By: Bill</title>
		<link>http://www.concurringopinions.com/archives/2008/11/balkins_grail_d.html/comment-page-1#comment-45919</link>
		<dc:creator>Bill</dc:creator>
		<pubDate>Fri, 28 Nov 2008 03:11:33 +0000</pubDate>
		<guid isPermaLink="false">http://www.solove.org/archives/2008/11/balkins-grail-durable-compromise-on-abortion.html#comment-45919</guid>
		<description>As a pro-lifer, I have been suggesting to friends a slightly different compromise that I think a majority of pro-lifers  would accept.  Define protectable  life the same way we define death.... brain wave activity.  It has been claimed (although pro-choicers dispute this) that brain wave activity can be detected at about 40 days.  If so, then simply require any woman who wants an abortion to get a fetal EEG.  If  it comes back flat, she can have abortion.  If not, she has to keep the baby.  Defining the beginning of life similar to the end of life has a certain logical elegance to it.

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		<content:encoded><![CDATA[<p>As a pro-lifer, I have been suggesting to friends a slightly different compromise that I think a majority of pro-lifers  would accept.  Define protectable  life the same way we define death&#8230;. brain wave activity.  It has been claimed (although pro-choicers dispute this) that brain wave activity can be detected at about 40 days.  If so, then simply require any woman who wants an abortion to get a fetal EEG.  If  it comes back flat, she can have abortion.  If not, she has to keep the baby.  Defining the beginning of life similar to the end of life has a certain logical elegance to it.</p>
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		<title>By: Scott Moss</title>
		<link>http://www.concurringopinions.com/archives/2008/11/balkins_grail_d.html/comment-page-1#comment-45918</link>
		<dc:creator>Scott Moss</dc:creator>
		<pubDate>Mon, 24 Nov 2008 18:30:14 +0000</pubDate>
		<guid isPermaLink="false">http://www.solove.org/archives/2008/11/balkins-grail-durable-compromise-on-abortion.html#comment-45918</guid>
		<description>Interesting -- I&#039;d figured a blanket ban as of week X would be more desirable to pro-lifers than the current regime of regulation that leaves some fairly late-term abortions legal.

A less-noticed factor in this whole debate, Rick, is that as the Supreme Court starts to allow more regulation of abortion, some state Supreme Courts bar under their own constitutions a variety of abortion restrictions the federal constitution allows; the state courts in CA, NJ, TN, WV, MT, and AK already have so ruled.  So I think the current regime of regulation is on less solid legal ground (setting aside whether that&#039;s good or bad) than many observers acknowledge, given (a) that many state Supreme Courts will disallow state law abortion regulations, and (b) that Justice Thomas&#039;s narrow view of Congress&#039;s legislative power over &quot;Commerce&quot; (the basis for key federal abortion restrictions) means I just don&#039;t see 5 votes on the current Supreme Court for a lot of abortion restrictions -- I think the Gonzalez v Carart decision allowing the federal &quot;partial-birth&quot; abortion ban would&#039;ve come out differently had the plaintiffs been willing to make the &quot;beyond the Commerce power&quot; argument (because their Roe/Casey &quot;right to abortion&quot; argument yielded 4 votes, and Commerce could&#039;ve landed Thomas as the 5th).

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		<content:encoded><![CDATA[<p>Interesting &#8212; I&#8217;d figured a blanket ban as of week X would be more desirable to pro-lifers than the current regime of regulation that leaves some fairly late-term abortions legal.</p>
<p>A less-noticed factor in this whole debate, Rick, is that as the Supreme Court starts to allow more regulation of abortion, some state Supreme Courts bar under their own constitutions a variety of abortion restrictions the federal constitution allows; the state courts in CA, NJ, TN, WV, MT, and AK already have so ruled.  So I think the current regime of regulation is on less solid legal ground (setting aside whether that&#8217;s good or bad) than many observers acknowledge, given (a) that many state Supreme Courts will disallow state law abortion regulations, and (b) that Justice Thomas&#8217;s narrow view of Congress&#8217;s legislative power over &#8220;Commerce&#8221; (the basis for key federal abortion restrictions) means I just don&#8217;t see 5 votes on the current Supreme Court for a lot of abortion restrictions &#8212; I think the Gonzalez v Carart decision allowing the federal &#8220;partial-birth&#8221; abortion ban would&#8217;ve come out differently had the plaintiffs been willing to make the &#8220;beyond the Commerce power&#8221; argument (because their Roe/Casey &#8220;right to abortion&#8221; argument yielded 4 votes, and Commerce could&#8217;ve landed Thomas as the 5th).</p>
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		<title>By: Rick Garnett</title>
		<link>http://www.concurringopinions.com/archives/2008/11/balkins_grail_d.html/comment-page-1#comment-45917</link>
		<dc:creator>Rick Garnett</dc:creator>
		<pubDate>Mon, 24 Nov 2008 17:49:50 +0000</pubDate>
		<guid isPermaLink="false">http://www.solove.org/archives/2008/11/balkins-grail-durable-compromise-on-abortion.html#comment-45917</guid>
		<description>Thanks, Scott, for the note.  For what it&#039;s worth, I tend to think (and maybe this is insufficiently consisent or pure) *both* that (i) elective abortion is a grave wrong, one that the Constitution permits us to closely regulate and that we should closely regulate; *and* (ii) I&#039;d &quot;settle&quot; for a regime somewhere in between the one we have and the one I&#039;d prefer (such a regime, in my view, is probably the one that &quot;politics&quot; would deliver, were it permitted to operate).

I take your point that some regulations might push abortions a bit later, but there is, on the other hand, what I regard as the legitimate desire to &quot;nudge&quot; people, in what is often a very difficult situation, toward a fully considered decision.  (To the extent such nudging is a bit parentalist, it does not strike me as excessively or unjustifiably so.)

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		<content:encoded><![CDATA[<p>Thanks, Scott, for the note.  For what it&#8217;s worth, I tend to think (and maybe this is insufficiently consisent or pure) *both* that (i) elective abortion is a grave wrong, one that the Constitution permits us to closely regulate and that we should closely regulate; *and* (ii) I&#8217;d &#8220;settle&#8221; for a regime somewhere in between the one we have and the one I&#8217;d prefer (such a regime, in my view, is probably the one that &#8220;politics&#8221; would deliver, were it permitted to operate).</p>
<p>I take your point that some regulations might push abortions a bit later, but there is, on the other hand, what I regard as the legitimate desire to &#8220;nudge&#8221; people, in what is often a very difficult situation, toward a fully considered decision.  (To the extent such nudging is a bit parentalist, it does not strike me as excessively or unjustifiably so.)</p>
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		<title>By: Rick Garnett</title>
		<link>http://www.concurringopinions.com/archives/2008/11/balkins_grail_d.html/comment-page-1#comment-45916</link>
		<dc:creator>Rick Garnett</dc:creator>
		<pubDate>Mon, 24 Nov 2008 17:49:41 +0000</pubDate>
		<guid isPermaLink="false">http://www.solove.org/archives/2008/11/balkins-grail-durable-compromise-on-abortion.html#comment-45916</guid>
		<description>Thanks, Scott, for the note.  For what it&#039;s worth, I tend to think (and maybe this is insufficiently consisent or pure) *both* that (i) elective abortion is a grave wrong, one that the Constitution permits us to closely regulate and that we should closely regulate; *and* (ii) I&#039;d &quot;settle&quot; for a regime somewhere in between the one we have and the one I&#039;d prefer (such a regime, in my view, is probably the one that &quot;politics&quot; would deliver, were it permitted to operate).

I take your point that some regulations might push abortions a bit later, but there is, on the other hand, what I regard as the legitimate desire to &quot;nudge&quot; people, in what is often a very difficult situation, toward a fully considered decision.  (To the extent such nudging is a bit parentalist, it does not strike me as excessively or unjustifiably so.)

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		<content:encoded><![CDATA[<p>Thanks, Scott, for the note.  For what it&#8217;s worth, I tend to think (and maybe this is insufficiently consisent or pure) *both* that (i) elective abortion is a grave wrong, one that the Constitution permits us to closely regulate and that we should closely regulate; *and* (ii) I&#8217;d &#8220;settle&#8221; for a regime somewhere in between the one we have and the one I&#8217;d prefer (such a regime, in my view, is probably the one that &#8220;politics&#8221; would deliver, were it permitted to operate).</p>
<p>I take your point that some regulations might push abortions a bit later, but there is, on the other hand, what I regard as the legitimate desire to &#8220;nudge&#8221; people, in what is often a very difficult situation, toward a fully considered decision.  (To the extent such nudging is a bit parentalist, it does not strike me as excessively or unjustifiably so.)</p>
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