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Mother-Child Relationship Depends on Choice, Not Biology; SD Abortion Restrictions Misread Constitution

South Dakota predicates its abortion restrictions on the curious and problematic claim that pregnant women have a “constitutionally protected interest” in their “relationship” with the unborn children they carry. South Dakota law affirms (in insulting patriarchal language, but we must quote the exact words for the argument) as “necessary and proper” the “exercise of the state’s authority” to protect this “fundamental interest” to ensure that pregnant women, who suffer from “emotional crisis,…clouded judgment,” and other “pressures”, are not deprived of these relationships, which are “of great value” to pregnant women and are “one of the greatest rights” women have “in all of life.”

The Constitution does not mention women, pregnancy, or relationships; to find this mother-child relationship in our founding governing principles, the courts have had to conjure an implicit “liberty interest in family relationships” from the implicit “right to privacy” that the Alito Court is calling into question.

One could ask how South Dakota is protecting a liberty interest when it denies women the liberty to choose to have this relationship.

The Supreme Court has held that the parent-child relationship is not a simple matter of biological ties. In Caban v. Mohammed (1979), dissenting Justice Potter Stewart said, “Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.” In Lehr v. Robertson (1983), Justice John Paul Stevens affirmed that statement as correctly aligning with other case law:

The difference between the developed parent-child relationship that was implicated in Stanley and Caban, and the potential relationship involved in Quilloin and this case, is both clear and significant. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by “com[ing] forward to participate in the rearing of his child,” Caban, 441 U.S., at 392 , his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he “act[s] as a father toward his children.” Id., at 389, n. 7. But the mere existence of a biological link does not merit equivalent constitutional protection. The actions of judges neither create nor sever genetic bonds. “[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in “promot[ing] a way of life’ through the instruction of children . . . as well as from the fact of blood relationship.” Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844 (1977) (quoting Wisconsin v. Yoder, 406 U.S. 205, 231 -233 (1972)).

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. 18 If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child’s best interests lie [Justice John Paul Stevens, opinion, Lehr v. Robertson, 1983.06.27].

A constitutionally protected relationship does not exist until a biological parent chooses to accept that “opportunity” and the responsibilities it entails. In Lehr, the plaintiff had impregnated a woman, not married her, not lived with her, and not taken any action to support the child formed from his sperm. The woman married another man, and when the child was two, the married couple filed an adoption petition to make the husband the legal father of the child. The plaintiff complained that the adoption denied him his relationship with the child. The courts, all the way up to the Supreme Court, said, What relationship? The plaintiff “never established any custodial, personal, or financial relationship” with the child. The plaintiff thus had no relationship and no legal right for the state to protect.

So if mere biological ties do not create a liberty interest in a parent-child relationship, if that liberty interest depends on action by the parent, then at what point does the “relationship” between a woman and a fetus become a constitutionally protectable right? What willing action must the woman take to move from mere egg donor and incubation vessel to “mom”? Does the relationship become a right when she starts telling people she’s an expecting mother? when she changes her diet and exercise to make the fetus healthier? when she signs up for Lamaze classes? when she starts making videos giving her unborn child advice in case she dies?

South Dakota claims an overriding state interest in protecting the mother-child relationship. But the state has no such interest until there exists a relationship to protect. Fertilization, cell division, and implantation do not make a relationship. Missing one’s period and throwing up in the morning do not make a relationship. Choice creates a relationship.

And until a pregnant woman chooses to carry a pregnancy to term and deliver a living, breathing baby, there is no mother-child relationship for the state to protect. A woman denied her liberty to choose that relationship is not a mother with a child; she is a prisoner of the state.


  1. P. Aitch 2022-07-02 10:36

    In a vaginal birth the vagina’s going to tear. It’s going to tear a lot. That’s not even risk, it’s just realistic. Those who give birth via cesarean section, a major abdominal surgery, end up with a large wound requiring a significant recovery period.

    And more serious complications, while rare, are not that rare. In any given moms’ group, someone has probably survived hyperemesis gravidarum (which can occur in up to one in 30 pregnancies), an ectopic pregnancy (up to one in 50 pregnancies), or a pregnancy-induced hypertensive disorder (up to one in 10 pregnancies). All of those conditions can be lethal.

    In most situations, the standard for risk is informed consent: awareness of the potential for harm, and a chance to accept or refuse it. If riding in a car or taking a plane meant a near-guaranteed abdominal or genital wound and a 10 percent chance of a life-threatening accident, people would expect a warning and an opportunity to consider whether the journey was worth it.

    But pregnancy is different.

    The Republicans Party does not talk about the risks and the unpleasant aspects, and that’s largely because the Republicans Party wants to control women.

  2. Guy 2022-07-02 11:00

    You explained that well, Cory. Might I add that having a personal “CHOICE” fosters willingness or unwillingness to have a relationship. Anything less than respecting individual “choice” in any relationship or private matter is forcing people to do something against their will. Also, it is not just SOME Republicans that want to control women, it’s also SOME churches. There are many reasons, as a man, I choose not to belong to a church. My Faith in a higher spiritual power is my personal business and my personal choice in how I choose to have that spiritual relationship. A woman should have the same respect and consideration and afforded the choice in pregnancy when it’s her own body, which belongs solely to her and not the government or church.

  3. Guy 2022-07-02 11:17

    I want to add something else. Frankly, abortion rates have dramatically dropped in the last 30 years due to increased sex education in schools and studies have shown that younger generations, like Millennials, are having less sex than than the older generations. This is all due to respecting and allowing individual choice plus EDUCATION. One thing I’ve noticed is SOME Republicans and SOME churches have been pushing to ban Sex Education in schools. So, all that could do is result in more unwanted teenage pregnancies.

  4. Donald Pay 2022-07-02 11:46

    One always has the choice to end a relationship. The right-to-life movement stresses that right as they go about promoting adoption, as an alternative to abortion. Certainly ending that mother-child relationship when the child is born is much more fraught for both mother and child, yet there is Noem and the Right To Life folks hailing the choice of adoption and totally screwing with the mother-child relationship.

    The state often steps in to end mother-child relationships when abuse is occurring, so that relationship does not have primacy, even when the child is actually born.

    Does the State of South Dakota interfere with the mother-child relationship through failure to enact sufficiently protective water quality standards for fetal life? Can a fetus sue the state under citizen suit provisions of the Clean Water Act, or the nearest pig farm to the source of drinking water?

  5. mike from iowa 2022-07-02 12:31

    Magats do not care about the harm their push to own libs cause. They have the mercs on the scotus to force their agenda on everyone and that is all that matters… the end game.

    Magats don’t even get their scotus opinions to match relity/facts and they don’t care about that, either.

  6. All Mammal 2022-07-02 13:11

    When an underage girl needs her parents’ blessing to legally receive medical services or advice when she is or may be pregnant, as SD law established recently, her potential relationship with her unborn is trumped by her legal guardians. Her potential relationship is disregarded by the state and forced to be dictated through the government and her parents and her parents’ medical provider, if they allow her to see a doctor. Laws being written that molest the law of nature beyond recognition are perverted and go against the inalienable rights of the living. Therefore, they are devil worship. I’m not joking. The most threatening are people convinced they are crusading for Go[o]d. Whether they are evil or are being duped doesn’t negate the fact they are devil worshipping. The scrutiny should be turned upon the ones so concerned with something that has nothing to do with them. They are the ones we need to ask questions and find out what sick actual crimes they are hiding. Reminds me of the homophobic preacher who paid a kept man toy in another town. Funded with the church’s checkbook. Or Trump accusing poll workers of voter fraud, while he was attempting to dismantle his own country.
    The louder Noem and her party get, the more I suspect they are committing sick offenses.

  7. Joe 2022-07-02 13:42

    “A radical minority of Americans wants to make an example of women who have sex outside marriage, women who compete with men in the workplace, women who are independent and who cannot be controlled. That’s part of why birth control is likely their next target. That’s why the same movement that claims to care about babies is so uninterested in the health and lives of the people who bring them into this world, and so hostile to the policies that would support those children and their families after they are born.”

  8. Joe 2022-07-02 13:46

    “A raped 10-year-old has to leave the state of Ohio to get an abortion. Ohio state representative Jean Schmidt (R) says she should consider the rape an “opportunity.”

    Ask your “pro life” family and friends if they agree. Proceed accordingly.

  9. Eve Fisher 2022-07-02 14:41

    I had a discussion at the pen today with some inmates who I do Alternatives to Violence Workshops with – started by one of them, not me, about abortion. First thing out of the gate, one guy said, “If you kill a pregnant woman, you get charged with 2 murders. Therefore abortion is murder.” And downhill it went, until I asked, “What’s the worst thing that can happen to a guy here in the pen?” Silence. “Rape, right?” Hanging heads. “Now imagine what if that rape could get you pregnant, and you were told you had to have that baby, and that the rapist had rights over you and that baby from then on? By the way, women hate rape, too. And that’s why rape is used as a weapon of war, right now, in Ukraine and elsewhere. Because it breaks up families, it doesn’t strengthen them. The women are humiliated, the husband is humiliated, and there’s nothing more dangerous than a humiliated man – what comes next? Honor killings. Of a woman who did nothing but get raped.”
    It’s probably the one thing that got through to them.
    But it doesn’t get through to the GOP…

  10. bearcreekbat 2022-07-02 15:54

    As to Eve’s interviews with inmates, unfortunately the inmates are right from a legal perspective given the statutory language currently defining “murder” in South Dakota. Once the “trigger law” went into effect, in South Dakota unauthorized “abortion is murder.”

    From a moral standpoint, however, whether an abortion is considered “murder” depends entirely upon an individual’s personal moral perspective of what acts constitute a “murder.” For some folks, for example, it would morally be considered “murder” to kill someone in self defense or in a state or war.

    . . . For example, in Kantian ethics, the taking of human life is always wrong. According to Kant, all human life is to be revered and no one may ever be killed for any reason, even if one’s life is threatened by another. . . .

    For others, it is perfectfully appropriate and even celebrated to kill innocent children to advance a particluar moral goal:

    29 At midnight the Lord killed all the firstborn sons in the land of Egypt — from the firstborn of the king who sat on the throne to the firstborn of the prisoner in jail. Also, all the firstborn farm animals died.
    30 The king, his officers, and all the Egyptians got up during the night because someone had died in every house. So there was a loud outcry everywhere in Egypt.

    Exodus 12:29-30 NCV

    From a legal standpoint today in South Dakota, however, there seems to be no wiggle room at all: unless performed to save the life of a woman, all abortion is now by definition “murder” according to SD criminal law statutes.

    See comment dated 6-25-22 of DFP blog story “Alito Court Overturns Roe; Abortion Illegal in South Dakota,” listing the relevant statutes and stautory language.

  11. Mark Anderson 2022-07-02 17:21

    Cory, rapists in Texas have a liberty interest. Their governor is going to eliminate rape so I guess we don’t even need to talk about it.

  12. Cory Allen Heidelberger Post author | 2022-07-02 18:55

    All Mammal, Republicans do have a proclivity for projecting their sins onto their political opponents. Grooming, pedophilia, extramarital sex, abortions….

  13. Cory Allen Heidelberger Post author | 2022-07-02 19:06

    Eve, you are a bold teacher. I hope that, in seizing that teachable moment, you were also effective.

    The inmates are, of course, wrong. We can morally justify charging the killer of a pregnant woman with two crimes: killing a woman, and killing the fetus without her consent. On the second charge, I would agree with the idea that women have a liberty interest in a relationship with their children. If a woman has chosen to become pregnant and to carry a pregnancy to term and become a mother, then killing her unborn child is a gross violation of her liberty, which really is one of the greatest rights that woman can have, and the destruction of which right should earn the killer an extremely stiff penalty.

    Not that I want anyone to get in trouble, and not that I believe that SD Republicans are ready to adopt the inmates’ logic and put it into practice in court, but I am eager to see which which state’s attorney decides to test Bearcreekbat’s analysis of our statutes in court by arresting a doctor who performs and a woman who chooses to have an abortion and charging them with homicide.

  14. TGA 2022-07-02 20:47

    What if the fetus kills the host?

  15. Bonnie B Fairbank 2022-07-03 06:36

    The Reptilians would consider that a win-win if the fetus was female, TGA.

  16. mike from iowa 2022-07-03 07:54

    It sorta happens with certain spiders. They give birth and then allow the little begghars to feed on her to ensure thweir survival.

  17. grudznick 2022-07-03 08:22

    Ms. Eve is righter than right on this.

    And today, at the Independence Day version of the Conservatives with Common Sense Breakfast, following the opening rant, all breakfasters will be invited to speak about what they appreciate most the United States of America, and can toss in a tiddley about the Great State of South Dakota as well.

    Happy Independence Day to all, even you fellows who hate our country and our state.

  18. grudznick 2022-07-03 08:42

    Also, take in one of the fireworks shows today or tomorrow. My good friend Lar is partial to the one in Belle, while grudznick prefers the Custer blasting over the trees of the forest from pageant hill and the big rock park, prefaced by a nice dinner at the game lodge.

  19. Jake 2022-07-03 09:18

    Talking about “ending relationships”; I can easily see this present SCOTUS followed immediately by the SD governor and legislature to make it illegal to divorce a marriage. Anyone here doubt THAT possibility???!

  20. John 2022-07-03 09:23

    A woman tweets: “I got an automated call from the pharmacy that my refill of methotrexate was denied. It treats my autoimmune disease. It can also be used as an abortifacient drug. I don’t have a uterus but #AbortionBan affect me too.” — @JenMichelleCrow

    Noem and her apostles will kill women and girls.

  21. John 2022-07-03 09:28

    A fourth grader . . . forced to carry a criminal pregnancy to term. A fourth grader – can’t enter a PG-rated movie, can’t drive, can’t drink, can’t join the military, in most jurisdictions cannot buy a hunting license, can’t get a loan — a fourth grader. Noem and her apostles lost their souls.

  22. Cory Allen Heidelberger Post author | 2022-07-03 10:11

    It’s the choice, not the relationship, that the government should be protecting. If the relationship were the overriding thing of value, the state could justify forcibly impregnating women to ensure they have that relationship.

    Uh oh.

  23. bearcreekbat 2022-07-03 11:21

    I just heard an update on MSNBC about the story of that 10 year old 4th grader. Apparently Kristi Noem was interviewed and asked whether the State of South Dakota would force that child to give birth to the rapist’s child (a 10 year old cannot consent to sex, so this was a rape). Noem’s response was “that is the current law in South Dakota.”

    Had I been the interviewer I would have followed up with the question:

    If that 10 year found some doctor willing to help her terminate that pregnancy would she and the doctor be subject to a 1st degree murder charge in South Dakota?

    The answer would then have to have been the same: “that is the current law in South Dakota.”

    I would then have followed up with the question:

    Would the doctor and that child, if convicted of murder, been subject to being executed by the State of South Dakota?

    The answer would then have to have been the same: “that is the current law in South Dakota,” with the caveat that under the current SCOTUS last interpretation of the 8th Amendment South Dakota may only kill the doctor, but not the child. The child would only be sentenced to a mandatory life in prison.

    But the good news for South Dakota Republicans is that Justice Thomas joined Scalia’s dissent in the Roper case, which declared the death sentence unconstitutional on children under 18, so given Thomas’s alignment with the new conservative Justices there is a reasonable chance that Roper and other children death sentence cases could be overruled, so, of course, South Dakota would appeal any denial of the power to kill this child to the SCOTUS and argue Roper and similar cases should be overruled because, as Scalia wrote, and Thomas agreed, “the Court improperly substituted its own judgment for that of the people in outlawing executions of juvenile offenders.”

  24. mike from iowa 2022-07-03 11:48

    You asked for it, bcb, and here it is….

    Noem Nothing never answered Dana Bash’s question about that child being forced to carry to term. Nearly 11 minutes of my life gone and I can’t get it back. The question yhou seek comes rather late in the video.

  25. mike from iowa 2022-07-03 11:49

    Noem Nothing did say she was not interested in punishing the women, just the doctor, but she speaks with forked tongue.

  26. WillyNilly 2022-07-03 12:30

    Noem has mastered the technique of beginning to answer a question and then never stopping to take a breath. Any interview with her seems to be an opening for a monologue of Republican lies and misinformation. She is rude to the interviewer and rude to any viewers. I just turn her off, she has nothing of value to say.

  27. bearcreekbat 2022-07-03 12:53

    Thanks for that link Mike, it clarifies what Noem said and how she uses word salad to dodge answering questions. Bottom line seems to be that she claims to be “heart-broken” about that girl’s pregnancy from child rape, but doesn’t suggest proposing any particular remedy in SD that I could ascertain. Perhaps she will support some new exceptions to the trigger law in the special session. Let’s hope so.

    But for now, when asked about whether the 10 year old would be forced to give birth in SD (at about 5:50 in the video), Noem tried to avoid the question by talking about the rapist, but when pressed finally said: “in South Dakota today abortions are illegal except to save the life of the mother.” (at about 6:51). So my quotes around “that is the current law in South Dakota” do not belong there, although the substance of that statement appears to be exactly what Noem was saying in the actual quote at 6:51.

  28. mike from iowa 2022-07-03 13:54

    Noem attacked the veracity of Cassidy Hutchinson on the Rubin Report, if memory serves.

  29. 96Tears 2022-07-03 15:55

    Whack! Noem gets spanked by former caucus pal Rep. Adam Kinzinger, who remembers a more humane and honest version of America’s Party Girl Kristi Noem.

    “I’m blown away this is not — I served with Kristi Noem in the House, and it’s like ‘Invasion of the Body Snatchers.’ This is not the Kristi Noem I served with. The Kristi Noem I served with was conservative, dedicated to truth, and I at the time would have thought would have put her country above her political career at any moment.”

    I think Kinzinger’s calling America’s Party Girl a coward and a bully.

    “Dana, it is clear she is running for president or vice president. She’s scared to death of the base. And for her to call into question a 26-year-old patriot who stood in front of the committee alone and told the truth, and then that — to avoid saying that Donald Trump bore even an ounce of responsibility for January 6, I get amazed still every day by what some of my colleagues do. This is one of the biggest ones. She used to be something very different.”

    That’s right, Adam. And then The Lew came sniffing around the South Dakota Governor’s mansion.

  30. mike from iowa 2022-07-03 16:05

    Gracias, 96Tears. I forgot about Bash and Kinzinger’s chat. That was interesting as well. Noem is mind numbingly disgusting as an alleged kristian human being.

  31. Eve Fisher 2022-07-03 17:38

    Cory, one of the most infuriating things about the conversation with the inmates was that they were 100% opposed to abortion (unless the mother’s life was in danger – extreme danger), and at the same time none of them was willing to raise another man’s child. So if the wife / girlfriend was raped, she was on her own. Grrr….

  32. larry kurtz 2022-07-03 19:07

    I’ve known quite a few fat people in my nearly seventy years and have even called one or two friends but allowing them access to life saving surgeries is a bridge too far.

  33. Francis Schaffer 2022-07-03 19:34

    I am not sure the constitution references marriage.

  34. John Dale 2022-07-03 19:53

    Speaking from experience, the role of genetics in one’s disposition and temperament is uncanny and strong; a steel thread. Therefore the maximum potential for bonding should be stronger for blood relatives, while having adopted loving parents is better than not. People who have grown up and reflected as adults on these different circumstances will likely agree?

  35. John Dale 2022-07-03 19:55

    Sometimes I think legal leverage trumps true value assessments and it sets our communities back.

  36. larry kurtz 2022-07-03 20:16

    Mr. Dale makes a great point.

    Businesses should be allowed to ban obese people: airlines and taxi services should charge more for fat people. Scales and Body Mass Index stations should be outside stores where food is sold. Businesses with buffets should have scales at the door and anyone with a BMI over 23 will pay an additional $1.00 for every whole number above that.

    Food stores should have scales at tills that add surcharges according to BMIs. Gas stations should have scales that determine price per gallon according to BMI unless you have documentation in your debit/credit card updated by your doctor that you’re on a weight reduction regimen.

  37. mike from iowa 2022-07-03 20:43

    What gives with you and fat peopler, Kurtz Did one steal your lunch money? Thin people are just as prone to premature deaths and hnealth problems as ujs fatties. You’re as disgusting as imaginary goat roper, Grudzilla.

  38. grudznick 2022-07-03 20:55

    Lar and grudznick are again in lock step, except that I advocate for weighing before entering the buffet, and the weighing before paying. No access to the restroom during the meal.

    I also believe fatter people should be charged more for healthcare. Especially fatter women, as they cost more. Not because they are women.

  39. larry kurtz 2022-07-04 07:07

    Mr. McLaren, have you lost your appreciation for satire? If Mrs. Noem can discriminate against women what stops her from compelling South Dakota’s deranged legislature from passing laws against disabled people?

  40. mike from iowa 2022-07-04 08:09

    That’s McClaren to you, stud.

  41. Cory Allen Heidelberger Post author | 2022-07-04 08:12

    John Dale, your talk of genetics and blood has the underpinning of the strongest human bonds is horsehockey. Blood is not thicker than water. DNA is an abstraction with little if any practical meaning in daily relationships. There are surely people out there with whom I share some genetic descent but about whom I give not a single slim darn (beyond, of course, my general philosophical concern for the equal dignity of all humanity). Every meaningful relationship I have is based on choice. I choose to be a husband, a father, a friend.

    That’s kind of the point of this blog post: a natural biological process inside a woman does not constitute a relationship demanding state intervention. The state protects the woman’s choice to have the relationship, not the external supposition of a relationship.

  42. Francis Schaffer 2022-07-05 11:00

    The abortion discussion has come down to a discussion in South Dakota law of nature vs nurture.
    My thoughts are formed as the dad to six adopted children. I am far from perfect and have been less of a dad than my children have deserved at times, yet better me than the birth parents, or so believes the judicial system and social services of SD and MN.
    Why would we need laws for termination of parental rights, either voluntarily or involuntarily, if the biological relationship is so superior to adoption? Are we as a civil society doing all we can to guarantee this biological bond will establish and flourish?
    I have more thoughts, yet will leave this here for comment.

  43. John Dale 2022-07-05 22:41


    This is a values and moral assessment.

    When do we have the right to live?

    The biology has been settled a long time ago.

    The natural process for the vast majority of cases starts when a woman chooses to mate with a man.

    The statistics do not support the argument that rape and incest constitute the majority of cases covered by the law.

    Therefore, to honor the correct moral assessment (without any deference to religion in this example), it is my belief that conception is when you had the right to live (and the vast majority of others).

    We must teach our children (the ones that survive Planned Parenthood and a new class of drugs coming out to kill fetuses) that abortion is murder.

    When our moral convictions are strong and well thought-out, laws become superfluous.

    This is why we’re taking back school boards across the country.

    At the same time, it will be important for moderates to hold the line against extremists of all kinds.

    I’m not simping for anyone, and you should not simp for anyone, either.

    Abortion is a terrible thing regardless of the various impetuses and women and other purveyors of this terrible practice who think they need it.



  44. O 2022-07-05 23:08

    Dear Mr. Dale, does your “right to live” include the right to food, the right to shelter, the right to be free from life-threatening violence, the right to a safe environment? I just want to be sure we are not discussing the obligation to give birth — because that is different.

  45. bearcreekbat 2022-07-06 00:16

    “When do we have the right to live?” is not the salient moral question under these circumstances.

    Rather, the question is when do we have the right to use another person’s body against her will without regard to the consequences she may suffer so that we may live?

  46. larry kurtz 2022-07-06 07:14

    6. Republicans preach civil rights for human blastocysts but deny the protections of the First, Fourth and Ninth Amendments to people who enjoy cannabis.

  47. mike from iowa 2022-07-06 07:18

    To John Dale and all other alleged moral do-gooders, eff you and your moral values you are trying to force on the rest of us!

  48. Francis Schaffer 2022-07-06 10:06

    When I was instructed in my catholic faith, there was talk of ‘free will’. What happened to that concept? Also, how much closer does this law outlawing abortion for any reason put us to organ harvesting?

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