Monday, March 06, 2006

The unraveling begins


Many are now wringing their hands over South Dakota's new abortion law, fearing that it means the end for abortion rights in this country. But the people who should really be cowering in fear are Republican political candidates. For South Dakota has begun the process of undermining the Republican Party nationally.

In response to the controversy over South Dakota's new law, three potential GOP candidates for President in 2008 have recently suggested they would sign a bill that banned almost all abortions:

Virginia Sen. George Allen's (R) chief of staff, Dick Wadhams, a national GOP strategist, said Allen "has consistently supported the rights of the people in their states to pass laws which reflect their views and values." A spokeswoman for Massachusetts Gov. Mitt Romney (R) said that if Romney were the governor of South Dakota, "he would sign it. [Romney] believes that states should have the right to be pro-life if that is the will of the people."

A spokesperson said Sen. John McCain, R-Ariz., would have signed the South Dakota legislation, "but [he] would also take the appropriate steps under state law -- in whatever state -- to ensure that the exceptions of rape, incest or life of the mother were included." (Exactly how such "steps" would be received by this bill's sponsors remains unclear).

Not far from their minds is the early-primary state of South Carolina, one of the most anti-abortion states in the country, where voters in 1994 elected a governor (Republican David Beasley) who wanted to outlaw all abortions -- even those endangering a woman's life.

"And there are lots of people here who agree with [Beasley]," said Henry McMaster, the state's attorney general and former GOP chairman. "This is a heavily pro-life state. Any presidential candidate who isn't, who doesn't prove himself on this issue, will suffer."

They might indeed suffer in the primaries. But what about the general election? Most Americans may want abortions more difficult to obtain (as they imagine current circumstances) but they don't want almost all abortions criminalized. If Republican presidential candidates announce their support for criminalizing abortions in the primaries in order to win the votes of the pro-life faithful, their Democratic opponents will be more than happy to remind the public of that position when the general election comes round. That, I predict, will help split the Republican coalition that has governed the country for years.

For this we can thank the wonderful folks in the South Dakota legislature, who have put the criminalization of abortion squarely on the table for public discussion. By making it important for Republican politicians to take a stand-- not on the relatively popular issues of partial birth abortion bans and parental notification requirements, but on the far less popular question of criminalizing abortion-- South Dakota has managed to do what years of Democratic politics could not-- create a wedge issue that will destroy the Republican party's winning coalition nationally.


Maybe if it wasn't for all the anti-choice Democrats (like Harry Reid) I'd buy this more enthusiastically.

I think it is misleading to say that the law "criminalizes" abortion. While this may technically be accurate, when most people see that terminology, they will think you mean that the law imposes criminal penalties on women. It does not; abortionists are subject to the sanction. In this way, the legislators are implicitly making a judgment that women who seek abortions are entitled to something of a categorical insanity defense, the reasoning being that anyone who would seek to terminate their offspring is obviously under some duress (e.g. Susan Smith). The doctors, who perform tha act detached from emotional baggage and for a renumeration, are entitled to no such defense.

What I think it will do is make American women decide which they are more afraid of: an Al-Qaeda attack or losing their right to abort.

I think most, if not all, women would want to abort an Al-Qaeda attack.

Perhaps for the 2006 Congressional campaigns the Republican slogan should be: "As South Dakota goes, so goes the Nation." But I would expect the GOP to abort such a slogan for the health - or death - of the party.

The law indeed criminalizes abortion as it provides for the prosecution of licensed medical professionals. It is not hard to imagine that, given the notoriety that such a trial would cause even in South Dakota, the woman involved would be ostracized by her neighbors. Curious to see that Ryan apparently sympathizes with a woman who killed her living children in cold blood but believes that women seeking abortions are somehow mentally disturbed.

By making it important for Republican politicians to take a stand-- not on the relatively popular issues of partial birth abortion bans and parental notification requirements, but on the far less popular question of criminalizing abortion-- South Dakota has managed to do what years of Democratic politics could not-- create a wedge issue that will destroy the Republican party's winning coalition nationally.

Do you really believe the public perceives S.D.'s new law be any more disagreeable than the GOP's official platform on abortion? Are there really a significant number of Republican voters who would cease voting for the GOP based on the GOP's public support to a strict ban on abortion? If so, why in the world haven't they left yet? I don't see how this could possibly be the magic bullet that undermines the GOP's winning coalition when their platform has, for quite some time, openly called for a "Life Amendment" and an end to all abortions.

Even if the platform hasn't been broadly embraced on this point in the last decade, there are plenty of high profile Republicans who have, for years now, expressed their desire to enact federal legislation similar to S.D.'s. If this were going to be a wedge issue, it seems like the Rockefeller branch and the Santorum Branch would have been "wedged" a long time ago. I'd be willing to put money on the fact that this doesn't materialize as you've predicted. But I could be wrong.

2004 Platform: We support a human life amendment to the Constitution and we endorse legislation to make it clear that the 14th Amendment's protections apply to unborn children. Our purpose is to have legislative and judicial protection of that right against those who perform abortions. We oppose using public revenues for abortion and will not fund organizations which advocate it. We support the appointment of judges who respect traditional family values and the sanctity of innocent human life.

Some people believe killing a fetus is no different than killing an infant. The people of South Dakota, for instance.

This is democracy. The people of SD don't want doctors performing what they consider murder. Fine. The rest of the country is free to do what they want. If they want to, NY and LA can even eliminate the arbitrary granting of personhood that occurs upon passage out of the mother's boday, and pass laws declaring that infants up to a year old are nonpersons too, subject to termination at the mother's whim. And the people in SD will be horrified by that, but it's not their problem, any more than this is the problem of people in NY and LA.

Dems will engage in their usual scaremongering that this is the return of the Taliban, but ultimately this is much ado about nothing.

Unraveling? Well, when all those "lives" are protected by the abortion abolitionists in South Dakota, no need to worry about the quality of life those who are defective will have. Florida's courts, upheld by SCOTUS' Mon. Mar. 06, 2006 case dispostion, have already established precedent for dealing with this -- inventing new medical diagnoses by judicial officers without medical licensure to establish that people with 20/20 vision have new disabilties of blindness, i.e, can't see. With all the State and Federal disability benefits available for the blind, the problem should solve itself, no?

Simon writes on SCOTUSblog – “I have to admit that, on the basis of her previous comments at SCOTUSblog, I approach the prospect of agreeing with Mary with some trepidation, but I have to admit that having read the Jones v. State opinion, my gut feeling is that the dissent has it absolutely right. Frankly, I have to admit that I'm confused by the majority.”

I can understand Simon’s “trepidation,” but, based on the following, I dispute that such trepidation should be ascribed to me rather than America’s lawyers and judges making medical diagnoses without medical licensure.

I am disabled, autistic. I also have traumatic brain injury from my father bashing my head against his walls to cover up drugging me and sexually abusing me when I was a minor child.

I have lived a life of Hell on Earth, no affordable housing. Lived in my car, in vineyards in California at nite, and in a rat infested chinchilla barn with no toilet, heat, or food facilities.

I tried to pull myself up by my bootstraps. Went to college on student loans, $200,000 at last count. Fought valiantly to graduate law school.

My father, who bashed my head, could not let the defective child become a lawyer and expose his National Security surveillance work for IBM. So he spent $100,000 on five attorneys and a family law psychologist to abuse me in the California courts in a grandparent visitation, taking away complete custody over my daughter just because he "could provide better" on his $12,600 per month income than I could being disabled -- never any finding of parental unfitness on my part.

The California courts refused to provide my necessary reasonable accommodations to access the courts to fight for my daughter, so my mother tried to help scribe my pleadings for me. Allowing a defective disabled autistic to actually participate in court was too much for the Court system and the attorneys, so they caused my mother (who was my caretaker and financial provider) to set herself on fire and die on my father's front law with public protest signs over the abuse, which I witnessed acquiring PTSD.

Immediately after she died, I was thrown on the streets homeless with no replacement caretaker or financial support of any kind. It was a terror-filled torture I cannot begin to describe. I begged everyone I still knew to help me get pleadings scribed to put before the California court that killed her to ask my father to pay disability adult child support, since after my mother died he was my only available guardian for purposes of my ability to communicate with courts and agencies for disability benefits.

The California courts have never in 16 years given me a day for that hearing, ever.

My father hired new attorneys to threaten me, knowing he was my guardian and had fiduciary duties to assist me with obtaining the disability adult support from him, who threatened that if I did not sign a paper dropping my necessary disability support, my father would destroy my California bar admission.

Immediately after my mother died, the California Bar revoked my previously granted good moral character clearance because I was disabled and my mother had self-immolated and I lost my caretaker and financial supporter. Even though I fought with them for 7 long years to get my necessary reasonable accommodations, and finally when I got them on the 4th bar examination and passed, they ruled I was not of the moral character to be allowed to become a California lawyer because I kept being homeless due to no housing in that area of California anyone on SSI disability could afford and because without a speech recognition assistive device I was unable to perform the tasks of working. They approved the good moral character of a murderer with 17 felony convictions who stabbed to death with scissors his sister.

When I tried to appeal, I was never to this day, 16 years later, allowed to have my appeal pleadings docketed, never given any appeal review, and they simply closed my case in a non-final status. When I asked the California Supreme Court for reasonable accommodations to file a petition to get an order requiring the appeal to be heard, I was told by the Clerk of Court on instructions of the Chief Justice Ronald M. George that people without arms, quadraplegics, and people with autism/learning disabilities who use speech recognition will not be licensed as attorneys in California.

I fled to Florida, to try to get my bar admission there. My father surreptitiously followed me closeby concealing himself just over the border in Georgia, and continued to prey on my daughter and myself to make sure I never get my bar admission.

I was hit in a car accident by a speeding driver who admitted not looking at the road while she was driving, and a Florida court refused to accommodate my disabilities to enable me to participate in the traffic hearing, used but never let me see a transcript, never let me cross-examine witnesses against me, lost more than 650 pages of my disability documentation showing I had 20/20 vision and a perfect driving record the previous 10 years without even a parking ticket on it -- and diagnosed me without a medical license as being unable to see, i.e. blind.

Having diagnosed and ruled I am blind and that is why I should lose my driver's license, the Florida courts all the way to the Florida Supreme Court held appeal review without providing me any way to complete pleadings knowing they ruled me blind!! If I am ruled blind, how could I even know the charges against me without brail??? No problem, I was convicted of a lesser included civil infraction of a criminal traffic offense I did not commit, which is not allowable as any infraction or offense existing under Florida law -- and upon this non-existent infraction/offense I have lost my driver's license and any independence I could have hoped for now for four years and it is ongoing.

I petitioned the United States Supreme Court, ruled blind, and no one there bothered to ask if I could "see" the pleadings I was ordered to file, and then, on the above facts, my petition was denied certiorari (US SUP. CT Docket No. 05-7287), leaving me now res judicata (all other courts and agencies must accept) that I am ruled with a new disability, I cannot see, i.e., am blind. I have been chastised before for seeing this like Dred Scott, so, not to despair, this new ruling give me new hope – to be the first blind person in America to pursue a driver’s license.

Now, I guess that also makes me eligible for all blind disability benefits of the States and Federal government, and retroactively to the Aug. 11, 2002 period in which I was ruled blind, but how can I explain to them when I apply how I can see with 20/20 vision but I have been ruled by the United States Supreme Court disposition of my case as blind, and all other courts and agencies must accept this diagnosis? Meanwhile, the Florida Department of Highway Safety and Motor Vehicles has no reasonable accommodations on its driver's licensing tests to accommodation people ruled and diagnosed blind!! Even though I can see.

Now I am being denied my Florida bar admission for more than four years, because I cannot access the Florida Board of Bar Examiners web site Florida Bar Application since I use speech recognition device and have simultaneously been ruled diagnosed blind and cannot see. The FBBE’s web site application is not provided in brail, nor would I be able to understand the brail to fill the bar application absent brail training now being provided me by the State of Florida. So, again, I am locked out.

When I pursued my cases for my disability rights, while minding my own business, a Vessel surveillance platform was docked adjacent to my husband and I, where we lived on a decrepid sailing vessel (due to no affordable housing in Florida), and was recklessly tied during 2004 Hurricane Jeanne ensured to kill us. And to prey upon a disabled person ruled by the United States Supreme Court’s case disposition as blind!! A most despicable act. Why? Because I tried to enforce my disability civil rights?

Even though, upon arresting the imperiled recklessly tied Vessel in admiralty, the Magistrate ruled we have a meritorious six-figure salvage claim, the other side (who can only substantiate ownership of the offending Vessel with unreliable xerox copies), brought forth an admitted perjurer who committed perjury under Oath in Federal Court about his licensing, to conceal the whereabouts of the person who homicidally tied the Vessel. See, Petranos v. The Vessel Mistress, M.D. Fla. 04-cv-2534.

So, to crush disability rights of a person who has 20/20 vision but ruled by the highest Court in the land’s case disposition to be diagnosed blind, the perjurer brought forth to conceal the person who tried to kill my husband and I to stop my disability rights lawsuits, has been allowed by the Bush administration's FBI, US Coast Guard, and Federal District Court Judge James D. Whittemore to masquerade with false licensing credentials – thereby threatening the National ports security in light of the UAE/Dubai crisis.

I just wanted everyone to know that even when a disabled person tries to help themselves to be independent, working, and productive, the only fate the Bush administration and America’s courts system intend to allow is their death and destruction.

And I have been ruled and diagnosed blind!! When is Florida getting me my seeing eye dog?

I am not sympathetic with Susan Smith. Smith's conviction was, however, reversed because of the insanity defense.

I am merely attempting to understand why the legislature would not impose criminal sanctions on a women aborting her offspring but would against the accomplice. Just as the South Dakota law has a self-defense provision (exception to save life of the woman) it may be seen as having an ex-ante, categorical insanity defense for women, but not for the doctor (the doctor is not facing the desperate situation, is engaged in a commercial transaction, and is not facing hormonal changes due to pregnancy that may affect emotions). Pro-choicers frequently accuse pro-lifers of wanting to make criminals out of women facing a desperate situation. Professor Balkin's point may, unintentionally, reinforce that mistaken view regarding the law at issue here.


The law does not sanction "abortionists". It sanctions doctors. There's no such thing as an "abortionist", a made-up word that the pro-life movement concocted to try and make it sound like doctors who, in consultation with their patients, perform abortions are homicidal maniacs.

I am "anti-choice" (to quote the first commenter) but I agree with our host. This is not an issue, nor is it the time, for extreme, polarizing positions. For people like me, who want the issue of abortion taken away from nine judges (concededly the nine finest legal minds in the country) and given to the collective wisdom or folly of the people voicing their opinions through the democratic process, the South Dakota law is a very big setback. We will, very likely, soon have the replacement of Justices Stevens and Ginsburg. I hate to think of the hell the new nominees will be put through because of this law. The least the SD morons could have done to make the law palatable is to attempt to replace "that it is necessary" with "it threatens the physical or mental health of the mother under accepted medical and psychiatric standards".

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After what Missouri just did, this abortion business is clearly overkill. The monied interests have empowered the well meaning and small minded. Unleashed in the same pandora fashion as anti-Japanese riots in China. But hopefully the truimphalist, mad max approach to the Alito-era will be spotted a mile away by the materialist middle of the spectrum--which tends to assume fundies are the "good guys", doing the Lord's work they're personally to unmotivated to get wrapped up in.

Right, Dilan. There's no such thing as a doctor who specializes in abortion. They're all just everyday doctors who happen to do an occasional abortion.

Where's the rolleye smilie when you need it?

the url Ryan supplied is about Andrea Yates who did pursue an insanity defense or at least a diminished capacity because of post partum depression defense. Susan Smith is a different person. Ryan's reasoning implies that women are mentally unstable simply because they are women, and therefore incapable of sound judgment. This may indeed be why the troglodytes in SD only target the doctors, but it is hardly a reasonable argument.

The url Ryan supplied references Andrea Yates not Susan Smith. Ryan's argument implies that women are normally subject to diminished capacity and incapable of being responsible for their actions. This may indeed be why the troglodytes in SD only target doctors, but it is hardly a reasoned argument.

So, if Roe .v. Wade is overturned, what will the privacy impact be? If RVW was ostensibly about the government's right to regulate reproduction, wouldn't it then be okay states to regulate reproduction? Would it erode the Griswald and Eisenstadt precedents/

Justice Kennedy, who is a pro-choicer who supplied the necessary fifth vote to uphold Roe in 1992, uses the term abortionist repeatedly, without scare quotes. See

Some people believe killing a fetus is no different than killing an infant. The people of South Dakota, for instance.

This comment by the always quotable TallDave should be cut out and hung on a wall. Yes, the people of South Dakota clearly believe abortion is exactly the same as infanticide. With the incredibly trivial distinction, mind you, that there is absolutely no criminal penalty under this statute for obtaining an abortion! But yeah, they think abortion is murder, just without all the penalties you get for murdering someone and that other irrelevant crap.

The insanity defense theory does not imply that all women are insane - not all women seek abortions, and it is a tempoirary insanity due to circumstances (perhaps duress is a more appropriate term). The fact that men can't seek abortions and women can (because only women can become pregnant) is a biological fact of life, not a conspiracy by Troglodytes. And the views of women on abortion are no different than those of men.

And yes, I meant Andrea Yates; Susan Smith, however, also pled temporary insanity due to hormonal issues after pregnancy. I guess she hates women.

Another thing. Unless a woman becomes preganant through rape, permitting her to abort indeed assumes she can't take responsibility for her own decisions - the decision to have sex. Pregnancy is not some side-effect of sex, it is the biological purpose. If she after-the-fact seeks to get away from her responsibility, she is the equivalent of a man who has sex and then claims to be able to choose to not financially support the child.

South Dakota is known for its draconian legislation---For more indications of South Dakotas point of view see Solem v Helm, overturned by SCOTUS. A 3-strike non violent petty felon who got life without parole.


There are doctors who specialize in abortion. Some specialize in all matters relating to reproductive health. These are known as OB-GYN's. Others specialize specifically in performing abortions. There isn't any specific categorical term for them that I am aware of, but "abortion doctors" is fine. But there's NO such thing as an "abortionist". That's just a made-up spin term by pro-lifers intending to dehumanize the people who perform the procedure, and most importantly, to distract attention from the fact that they are doctors. Many people, after all, have quite a different opinion about abortion when it is presented as a matter between a patient and her doctor.


In most instances, the purpose of sex, biological or otherwise, is to have an orgasm. Pregnancy is the side-effect, and often an unwanted one.

Your post, however, does clarify what the real issue is behind banning abortions for many people. It isn't some technical argument about when a human life begins; it is a deep distaste for that the fact that many folks have sex because it pleases them and think there is nothing wrong with attaining that pleasure without being forced to reproduce. For them, that IS the purpose of sex, and it offends the religious beliefs of those who think that the natural "order" is that sex must be connected with procreation.

I for one, have never understoid why abortion laws shouldn't fall under equal protection. I can't think of any other law that subjects one party to a crime to a penalty and immunizes the other, equally culpable party.

I mean, it's not like doctors force abortions on women. In most cases, the woman is the more active pary. She seeks out the doctor, she asks for the abortion, she has the power to stop it from happening at any point up to the strat of the procedure, etc... If anything, she is more of a criminal than the doctor.

Yet all these laws immunize women from prosecution. To me, you can't get a more blatant violation of equal protection.

If you read the debates on the 14th amendment, the stated purpose of the EPC was, in essence that "the black man shall be subject to the same laws that the white man is, whatever penalty the white man gets so too does the black man, etc..."

Here, a woman is allowed to murder her child and get off scot free.

Even under lowest scrutiny bsic rational basis review, I can see no rational basis for only punishing the doctor when it comes to abortion.

Let's say a wife wants to kill her husband so she hires a hitman to take him out(essentially what pro lifers think an abortionist is-a paid assassin), both the wife and the hitman would be equally liable.

IMHO, all abortion laws that don't equally punish the mother should be struck down as violations of the equal protection clause for failing to satisfy rational basis review(a la Skinner, Lawrence and Cleburne


Great point about the religious motivation behind this. There's a great book called "Abortion Rights and Religious Freedom" that came out in 1992 that argues that laws that criminalize pre 20 week abortions violate the establishment clause. It's well worth checking out.

What is he purpose for sex being pleasurable? There doesn't seem to be any evolutionary reason for pleasure in itself. Sex is pleasurable for the same reason eating is pleasurable - to encourage people to do things that make themselves (or their group) survive. Your argument is like saying "some people eat for the purpose of obtaining pleasure, and getting nutrients is just a side effect."

As to the establishment clause argument, good luck with that. I guess if a state repeals its laws permitting the application of the death penalty, someone could sue and claim the repeal is religiously motivated. And goodbye to the Civil Rights Act of 1964, inspired by a minister who directly lobbied for its passage and stated it was a religious mandate.

Given the Democrats' recent attempt to link their economic and foreign policies to Christianity, I guess we can expect a lot of Great Society and New Deal laws fall under this establishment clause test.

ryan, re sanctioning "abortionists," not women:

No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being unless it is necessary to preserve the life of the pregnant woman, or if there is a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being unless it is necessary to preserve the life of the pregnant woman, or if there is a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.

Any violation of this section is a Class 5 felony.

You're telling me a woman who self-aborts, whether by RU-486 or coathanger, is exempt from this? How? Seems to me like she's both the "person administering the drug" (or "employing the procedure") and the pregnant woman involved, and she's a class 5 felon. And even if she has a doctor do it for her, it would seem to me she's an accessory.

Cool. Sharia in South Dakota.

Appropos of men being able to "abort" their parental responsibilities for children they don't want:

And, yes, a ban on abortion is Sharia law. That means Sharia reigned in every state in the country until the 1960's. Those mullahs sure are sneaky. And every U.S. President in U.S. history followed Sharia except Bill Clinton and Gerald Ford (Carter was sorta squishy on abortion) - the only pro-choice presidents in history.

And the statute appears to me to exempt the woman even if she does teh aborting act herself. She would not be acting "upon" the pregnant woman - she is the pregnant woman. It is a strange use of language to say you act "upon" yourself - you can only act "upon" another. It only applies to third parties. The term "pregnant woman" in the statute is always treated distinctly from the term "person" to whom the law applies.


I don't endorse the establishment clause argument. But with respect to the first paragraph of your post, you are substituting a hypothesis about the evolutionary purpose of sexual pleasure for the reason that many people have it. And the latter purpose is the relevant purpose. If people want sexual pleasure and don't want to have children, you seem to think that is somehow illegitimate, because that may not have been the original evolutionary purpose of the activity. That is an interesting viewpoint-- it is also fundamentally inconsistent with the concept of individual liberty.

My point still stands. The public abortion debate is expressed in terms of life vs. choice, but behind the scenes, the motivations of many "pro-lifers" have little to do with preserving life and a lot to do with enforcing their vision of the proper "purpose" of sexual activity. Maintaining the connection between sex and pregnancy is crucial, and the solution, for them, for women who do not wish to have babies is not to have sex, because the "purpose" of sexual pleasure is not its own end, but to encourage us to procreate.

I think the current debate about abortion is skirting one of the most important issues that would solve 90% of the problem. Why not actually focus on making birth control so widely available and affordable that unwanted pregnancies become very rare? Why not focus on educating our entire population about the realities of sex, STDs, birth control, and pregnancy so they are actually able to make informed decisions... and if they choose to have sex, they will know enough to get and use protection. The reason why the United States has the *highest* teenage pregnancy rate in the developed world is because other countries actually do all of those things. And what about this point: pro-lifers seem to focus exclusively on saving a fetus. What about ensuring that pregnant women get adequate prenatal care so their babies arrive healthy? What about ensuring that all children have adequate medical care, enough food to eat, a good education, and aren't forced to live a life in poverty with no hope? If all abortion is outlawed, next year for example, that will create a huge spiral of increased poverty, hopelessness, and despair for women who are forced to give birth without the social or economic support that is necessary to give a child a good life. Thus, women and children will suffer immensely. I would really like to see people who say they are "pro-life" take an active interest in helping children who are alive right now have better, happier, and more hopeful lives and focus on making sure women who are not emotionally or economically capable of being good mothers don't get pregnant in the first place. Look up the poverty rates for children in South Dakota. It's pretty obvious SD legislators care a lot about fetuses, but not all that much about children living in poverty.

Thank you very much for this information.

sohbet mirc
sesli sohbet

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