Trump’s let-the-states-decide statement looked clever until Arizona actually decided.
All across the country, the abortion issue has been helping Democrats and hurting Republicans.
For decades it worked the other way: Pro-choice women were confident the Supreme Court would protect their rights, so they mostly ignored the extreme positions Republican politicians took and based their votes on other issues. But since the Dobbs decision reversed Roe v Wade last year, the intentions of elected officials matter again.
After taking their lumps in the 2022 elections, Republican politicians have been trying to figure out how to finesse the issue. How do they avoid the ire of female voters without alienating their personhood-at-conception base? Last fall, Virginia Governor Glenn Youngkin thought he had the formula: a “compromise” abortion ban at 15 weeks. But that idea went down in flames as Republicans lost control of the Virginia legislature.
Trump also has been searching for an answer. For a while he also toyed with a 15-week ban, but then last week he stalled for time, saying he’d make a statement this week. I was skeptical about this, because Trump often says he’s going to do something and then doesn’t. But in fact he did make a statement on Monday.
I don’t usually post Trump videos, but I think you need to see this to appreciate just how far off-the-rails this guy has gone. To start with, his make-up is comical; he almost looks like he’s wearing blackface. Then there are the obvious, how-stupid-do-you-think-we-are lies about how “all legal scholars, both sides, wanted and in fact demanded” the end of Roe, and Democrats “support abortion up to and even beyond the ninth month”. (In fact, Biden supports restoring the pre-Dobbs status quo, which drew a line at viability, i.e. 24-28 weeks. More radical people, like me, want the government to butt out completely and let women decide how to handle their own problem pregnancies. But describing that view as “support” for abortion is dishonest. I, for one, am neutral on abortion; I have never tried to persuade a woman to get one.)
He’s also proud of being opportunistic on the issue.
You must follow your heart on this issue. But remember: You must also win elections.
That let-the-states-decide position looked clever for about a day. But then a state decided: Tuesday, Arizona’s Supreme Court reinstated an 1864 law banning all abortions that aren’t necessary to save a woman’s life. (In the previous post, I explain why I believe this is a correct reading of a horrible legal situation. It’s the legislature, not the court, that should never have allowed this to happen.)
Then Trump had to scramble: He said Arizona went too far, and predicted the situation would be “straightened out”. Arizona’s mini-Trump, Senate candidate Kari Lake, completely reversed her position. Previously, she had specifically endorsed the 1864 law (by its number in the legal code). But now she says
I oppose today’s ruling, and I am calling on Katie Hobbs and the State Legislature to come up with an immediate common sense solution that Arizonans can support.
But Lake hasn’t said anything. As of this moment, neither Lake nor Trump (nor any other Republican who either has real power or is running to get it) has made an actual proposal to fix Arizona’s draconian abortion law. When it comes time to govern — and not just posture — that’s what you need to do: put a real proposal on paper and vote it up or down, knowing that you’ll make some people unhappy.
Are any Republicans, at either the state or national levels, ready to govern? That’s what the coming weeks will tell us.
The result is horrible, but it’s a correct reading of the the legislature’s mess.
Before he was appointed to the Supreme Court, Judge Oliver Wendell Holmes is supposed to have admonished an idealistic lawyer: “This is not a court of justice, young man. It is a court of law.” In other words, courts exist to apply the laws, not to fix them.
I was holding that idea in mind when I read the Arizona Supreme Court’s ruling reinstating an 1864 abortion law. Undoubtedly, this result — that all abortions are banned excepting only those that protect a woman’s life, and not excepting cases of rape or incest or even health consequences short of death — is horrible. But it could nonetheless be a correct reading of Arizona’s laws.
So here’s the timeline, as I understand it.
In 1864, the territorial legislature passed a law that said:
A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.
That wording got adopted as part of the penal code approved by the legislature in 1913, shortly after Arizona became a state.
The statute’s constitutionality got challenged in 1971, before Roe v Wade, and after some back-and-forth, an appeals court ruled it constitutional. Then the US Supreme Court’s Roe decision came in 1973, and Arizona courts recognized that the 1864 law was unconstitutional under Roe’s recognition of a federal constitutional right to abortion. But this didn’t stop the legislature from testing the boundaries of Roe.
Between 1973 and 2022, and conforming to the federal abortion right established in Roe, the Arizona Legislature codified dozens of abortion statutes in Title 36. … To the extent permitted by Roe and its progeny, all of these statutes restricted abortions, including adding many procedural requirements for physicians performing abortions.
In 2022, shortly before Dobbs was officially announced, the legislature passed S. B. 1164, which amended Title 36 of the state laws. The main thrust of S.B. 1164 was to ban abortions after 15 weeks, which would violate the rights established in Roe. This was one of many laws red-state legislatures passed after Trump’s three judges joined the Supreme Court. The purpose was to see if the new Supreme Court would chip away at Roe’s protections. What’s relevant for this case is the exact wording:
A. Except in a medical emergency, a physician may not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient’s chart and, if required, in a report required to be filed with the department . …
B. Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.
Notice that both provisions are phrased negatively: “a physician may not perform …”. Under the prevailing legal interpretation of 2022, i.e. Roe, the abortions not explicitly prohibited would be allowed. But nothing in S. B. 1164 says they are allowed. Quite the opposite:
This act does not: (1) Create or recognize a right to abortion or alter generally accepted medical standards. The Legislature does not intend this act to make lawful an abortion that is currently unlawful. (2) Repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion
Section 13-3603 was the descendant of the 1864 law.
So then the Supreme Court’s Dobbs decision reversed Roe. This undid the 1973 finding that the 1864 law was unconstitutional, leaving the current state court to pick up the pieces.
Arizona’s Democratic attorney general argued that by banning abortions after 15 weeks, S. B. 1164 implicitly authorized them prior to 15 weeks, and implicitly repealed the 1864 law. A dissenting opinion in the decision agrees with this argument, but I think the majority got it right: There is no affirmative language in S. B. 1164 that authorizes any abortions.
I agree completely with the moral arguments denouncing this outcome: It’s barbaric that Arizona’s women’s rights are constrained by a law passed before statehood and before women had a right to vote. No court of justice would allow this. But we don’t have courts of justice; we have courts of law.
What can be done? The obvious way to repair this situation is for the legislature to do explicitly what the dissenting opinion thinks it did implicitly when it passed S. B. 1164: repeal 13-3603. That would leave Arizona with a 15-week abortion ban recognizing certain exceptions — maybe not the ideal outcome, but a far better one than the current situation.
The mifepristone suit from Amarillo is so embarrassingly bad that even the Court’s conservative majority can’t justify doing what it wants.
The anti-abortion-pill case that right-wing culture-war groups primed to get to the Supreme Court got to the Supreme Court. Oral arguments happened Tuesday, and did not go nearly as well as anti-abortion groups probably imagined when they filed the case. Even Amy Coney Barrett seemed skeptical.
There probably won’t be a decision until June, so there’s no sense going into great detail now. But there are a couple of things worth noting:
When you grease the way for a case to make it to the Supreme Court, you wind up with a greasy Supreme Court case. Legally, this was a bad argument that never should have come this far, and even some conservative justices seemed embarrassed by it.
US courts continue to entertain notions of “Christian conscience” that are so expansive as to be passive aggressive. The rest of us are expected to change our lives so that right-wing Christians can have a buffer zone around extensions of “conscience” they have intentionally constructed to control us.
I explained the greased slide that brought this case to the Supreme Court back when the case was first being heard in Amarillo, almost exactly a year ago: The Northern District of Texas, which contains Amarillo, has one judge who hears just about all the cases. That judge, Matthew Kacsmaryk, is a right-wing culture warrior who can be counted on to rule in the “right” way, independent of facts or the law. The Northern District sits inside Fifth Circuit, whose appellate court is not quite as lawless as Kacsmaryk, but has a similar right-wing bias and will not examine his rulings too closely.
So in this case, foes of abortion rights incorporated their group in Amarillo precisely so they could file their suit in Kacsmaryk’s court. (The Judicial Conference has since changed the rules to limit this kind of judge shopping.) Kacsmaryk did his part and issued a nationwide injunction stopping the sale of mifepristone. The 5th circuit cut that injunction down a little, leaving mifepristone legal but limiting the possibilities for prescribing it. The Supreme Court previously stayed both rulings pending its own examination of the injunction.
That’s what they were discussing Tuesday.
The big reason the case should never have come this far is the plaintiffs’ lack of standing. In non-legalese, they can’t show how the availability of mifepristone harms them, so there’s no injury for the court to try to correct.
According to the doctors, their concrete injury is that someone might take mifepristone, might experience medical complications, might go to the hospital for care, and then the physicians in question might have to complete the abortion despite their moral objections to doing so.
Standing is supposed to be real, not speculative. The injury is supposed to be either happening, or so close to happening that it seems bound to happen without an injunction. A maybe-maybe-maybe argument doesn’t give you standing. There’s a good reason for this requirement: Otherwise, judges could make pronouncements about any topic that interested them, and the awesome power our system gives the courts could be abused.
A lot of articles have covered the case’s standing issue. But I was pleased to see Dahlia Lithwick and Mark Joseph Stern raise the passive aggression issue in Slate. (They don’t use that terminology, which I started using in 2013.) Under questioning, plaintiff lawyer Erin Hawley (wife of the famously swift senator) made an even stronger claim than the quote above would imply. When you read “complete the abortion”, you probably pictured a woman taking mifepristone, her body starting to eject the fetus, but not quite succeeding in getting it out. She might then show up in an emergency room, where an ER doctor opposed to abortion might have to complete the removal of a fetus that is doomed but not yet entirely dead.
However, that grisly scenario is exceedingly unlikely. A far more likely complication (still rather uncommon) is that the woman takes mifepristone, miscarries, but then doesn’t stop bleeding afterward. In this scenario, the abortion is over, the fetus is dead, and now an ER doctor needs to treat a bleeding woman.
The plaintiffs don’t want to, because patching up a woman who has taken a drug to give herself an abortion would make them “complicit” in the abortion.
Hawley … then approached the lectern and cleared up any confusion: Yes, she insisted, treating a patient who has undergone a medication abortion violates the conscience of the plaintiff physicians even if there is no “live” fetus or embryo to terminate anymore. “Completing an elective abortion means removing an embryo fetus, whether or not they’re alive, as well as placental tissue,” Hawley told Kagan. So the plaintiffs don’t object just to taking a “life.” They also object to the mere act of removing leftover tissue, even from the placenta.
Of course, these doctors must remove “dead” fetal tissue and placentas all the time—from patients who experienced a spontaneous miscarriage. By their own admission, the plaintiffs regularly help women complete miscarriages through surgery or medication. Those women they will gladly treat. Other women, though—the ones who induced their own miscarriage via medication—are too sinful to touch. Before the plaintiffs can administer even lifesaving emergency treatment, they need to know the circumstances of this pregnancy loss: Spontaneous miscarriages are OK; medication abortions are not.
It’s impossible to imagine this logic being accepted in any non-abortion circumstance. Suppose a guy gets drunk and drives his car into a tree. When he shows up in the ER, would a doctor (maybe from a religious sect that forbids alcohol) refuse to treat him in order to avoid being complicit in his drunk driving? ERs don’t work that way. In any other circumstance, injured people show up and get treatment. The guy who stitches up participants in a barroom brawl doesn’t need to know what started it or who was right.
It is a twisted line of logic, one that should never have reached the Supreme Court in the first place. But it is also a product of the court’s past indulgence of outlandish claims about moral “complicity.” … All this is reminiscent of Little Sisters of the Poor, a case about a Catholic charitable group that was afforded an exemption from the Affordable Care Act’s contraception mandate. The Little Sisters were asked to check a box signaling to the government that they could not comply with the mandate, at which point the government would step in to cover their employees. But the Little Sisters refused, viewing this action—the checking of a box to opt out of coverage—as “complicity” in abortion because it would in turn trigger government payment for contraception (which they viewed as abortifacients). The Supreme Court and the Trump administration ultimately indulged the Little Sisters’ claim.
It may violate conservative political correctness to say so, but the Little Sisters were just being assholes in that suit. They invented an extravagant claim of conscience in order to screw up ObamaCare and interfere in other women’s lives.
Refusing to bake cakes or make web sites for same-sex weddings (other situations the Supreme Court has treated seriously) are similar examples of passive aggression. Going far beyond any legitimate Christian concern, such cases involve constructing an enormous hypersensitive conscience that will feel “complicit” in anyone’s behavior that it fails to control. Making the world safe for such a construction restricts the freedom of everyone else.
No non-Christian religious group would be allowed to do this. And Christians will keep extending such notions of “complicity” until courts tell them to stop. That should have happened a long time ago.
With its ruling affirming the rights of “extrauterine children” and invoking “the wrath of a holy God”, the Alabama Supreme Court takes a giant step towards theocracy.
Given all the bad press Alabama has gotten this week for its supreme court’s ruling that frozen embryos are “extrauterine children” covered by the state’s Wrongful Death of a Minor Act, you might imagine that the media is just piling on. You might be thinking, “It’s probably not really that bad.” Maybe if you took the time to read the full 131-page decision, you’d understand and even respect where the justices were coming from, even if you still didn’t agree.
Let me shoot that generous notion down: I read the decision. It’s even worse than it looks in the news reports. I started reading newsworthy court opinions with the 2003 Massachusetts same-sex marriage decision, and since then I’ve easily read 100 or so. I’ve never seen one this flat-out insane or this scary in its implications.
It’s tempting to go off on a rant. But instead, let me back up and give you the context.
IVF. The reason anybody freezes embryos in the first place is for in vitro fertilization (IVF), a medical procedure that helps otherwise infertile couples have their own biological children rather than adopt. It’s been going on since 1978 and it’s popular: CNN estimates that about 2% of babies born in the United States are conceived through IVF. Chances are that you know someone who conceived or was conceived through IVF. (I know I do.)
Leaving out a bunch of details, it works like this: Ova are removed from a woman’s ovaries, and then they are fertilized in a laboratory with sperm from that woman’s chosen partner (or maybe a sperm bank). The cells start dividing, and after a few days they are ready to implant in a uterus (either the woman’s own or, if the whole point is to overcome some medical problem there, the uterus of some other willing woman). This is a hit-or-miss process that may require several attempts, so typically a number of ova are fertilized simultaneously, and the embryos not used are frozen in case they are needed later.
Many of the frozen embryos will never be implanted in a uterus, where they might develop into fetuses and eventually babies. Perhaps they are defective in some way. (For example, it’s possible to test the embryos for some heritable genetic issues the parents want to avoid passing on.) Or perhaps the woman succeeds in having all the children she wants before all the embryos are used. The remainder are usually destroyed in one way or another, though they can stay frozen more-or-less indefinitely (“several decade, if not longer” according to the court’s majority opinion).
Bad theology. So far, so good, but then IVF runs into a dogma invented by Catholic and/or Evangelical theologians: At the moment of conception, the fertilized egg becomes a full human being for all moral purposes. (As I’ve explained before, this notion is not just against common sense, it’s also ahistorical and non-Biblical. Among Protestants, virtually no one believed this until after abortion became a conservative political issue in the 1970s.) If this dogma is true, then destroying these clumps of cells means murdering human beings. So unless women can be convinced (or forced) to gestate the extra embryos (even the defective ones), the only moral choice is to grant them a peculiar sort of immortality in a freezer.
An unfortunate accident in Alabama. I’ll let Justice Jay Mitchell, who wrote the Alabama supreme court’s majority opinion, sum up the incident that started the recent case:
The plaintiffs’ IVF treatments led to the creation of several embryos, some of which were implanted and resulted in the births of healthy babies. The plaintiffs contracted to have their remaining embryos kept in the Center’s cryogenic nursery. … [I]n December 2020, a patient at the Hospital managed to wander into the Center’s fertility clinic through an unsecured doorway. The patient then entered the cryogenic nursery and removed several embryos. The subzero temperatures at which the embryos had been stored freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor, killing them.
So there are obvious grounds for a lawsuit: The clinic should have kept the embryos safer and the wandering patient shouldn’t have mucked with them, with the result that something the plaintiffs valued was destroyed. But rather than (or in addition to) suing under the kinds of tort laws that would apply to accidentally destroyed property, they sued under the Wrongful Death of a Minor Act, a law that would apply if, say, someone had run over their six-year-old.
The trial court didn’t buy it.
In each of its judgments, the trial court explained its view that “[t]he cryopreserved, in vitro embryos involved in this case do not fit within the definition of a ‘person’ ” or ” ‘child,’ ” and it therefore held that their loss could not give rise to a wrongful-death claim.
But then the Alabama Supreme Court got involved.
Strange coinages. Conservatives love to make fun of the “politically correct” ways that liberals use words, saying things like “enslaved person” rather than “slave” or “pregnant person” rather than “pregnant woman”. Well, I invite them to read this decision.
You’ve already run into one of the strange coinages: The embryos were stored in a “cryogenic nursery” rather than a “freezer”. (I wonder whether the freezer technicians are listed as “cryogenic nurses”.) Worse, Justice Mitchell frames the case’s main issue like this:
whether the [Wrongful Death of a Minor] Act contains an unwritten exception to that rule for extrauterine children
That’s right: “extrauterine children”. (I bet you have never thought of yourself as a “uterine child”.) And perish the thought that the authors of the 1872 act, writing more than a century before the first IVF baby was born and only two decades after the first commercial ice-making machine, weren’t thinking about frozen embryos when they said “child”, or that we shouldn’t try to guess what their opinions would have been, if some science fiction author could have explained the concept to them. No: We can stretch the notion of “child” to include frozen embryos, and the 1872 law doesn’t explicitly tell us not to. So there you are.
The stretching of “child” happens in two steps. First to “unborn children”, which Mitchell explains was always included in the notion of a “child”.
the ordinary meaning of “child” includes children who have not yet been born.
He gives two arguments for this, neither of which is particularly convincing: Long before 1872, people said that a pregnant woman was “with child”, clearly meaning that her fetus was already a child. (Of course, they also said that she was “expecting” a child, indicating that the child exists in the future, not the present. Mitchell’s cherry-picking technique does not require him to explain this.) Mitchell then misconstrues Blackstone’s 17th-century classic Commentaries on the Laws of England, which Chief Justice Tom Parker’s concurring opinion quotes more precisely: life “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” With that larger context, Blackstone was plainly drawing a boundary at quickening, not conception.
But once you take as established law that the boundary of childhood is conception, then why should it matter whether the conception happened in a womb or in a test tube? Of course the law must protect “extrauterine children”. The law, he writes, “applies to all unborn children, regardless of their location”.
He goes on to fret over the possible unforeseen consequences of limiting the law’s protection to uterine children: What will happen in the future, when laboratories remove women from the gestation process completely?
one latent implication of the defendants’ position — though not one that the defendants seem to have anticipated — is that, under the defendants’ test, even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a “child” or “person,” … [and] then their lives would be unprotected by Alabama law.
God forbid the legislature should have to write a new law for this situation. And speaking of God …
The Chief Justice’s theological treatise. Bonkers as it is, Mitchell’s opinion sounds downright reasonable once you read the concurrence by Chief Justice Parker, a 23-page lesson in Christian theology that begins on page 26.
You see, the Alabama Constitution, which was rewritten in 2022, affirms “the sanctity of unborn life”. Parker feels compelled to interpret this “sanctity” as a uniquely Christian notion, stemming from “the creation of man ‘in the image of God.’ Genesis 1:27 (King James)”. He quotes at length from a 17th-century Protestant theological treatise on the significance of creation in God’s image, which he says accords with the opinions of Catholic saints Thomas Aquinas (13th century) and Augustine (5th century). He then says:
Man’s creation in God’s image is the basis of the general prohibition on the intentional taking of human life.
This would seem to imply that no culture outside the Judeo-Christian tradition cares about murder. Parker also gives attention to John Calvin’s writings on the subject before concluding:
In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 [of Alabama’s constitution] recognizes that this is true of unborn human life no less than it is of all other human life — that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.
No doubt you have heard about judges threatening some malefactor with jail or fines or injunctions, but when was the last time a judge invoked “the wrath of a holy God” against those who would “efface his glory”?
Effects. The immediate legal effect of the ruling is not that big: It sends the case back to the court that had dismissed it, with instructions to apply the Wrongful Death Act.
But fear of the ruling’s implications has thrown Alabama’s IVF facilities into chaos. At least three have suspended operation, worrying not just about the embryos in their own freezers, but also about the possibility that the ideas expressed in this civil case might seep over into criminal law. Vox quotes Stephen Stetson, the director of Planned Parenthood Alabama.
I can appreciate the desire of lawyers who are advising fertility clinics to be conservative. No one wants to be on the hook for any legal liability or risk of criminal prosecution if some district attorney gets the wrong idea.
And then there are the Alabama women who have invested a considerable amount of money, inconvenience, and hope for the future in IVF. They are just out of luck, it seems.
Possibly the Republican-controlled state government will try to help them. A state senator has announced his intention “to introduce legislation that would clarify that embryos are not viable unless they are implanted in a uterus”. Governor Ivey has endorsed this effort.
[Senator Tim] Melson, who is also a medical doctor, says his proposal would make clear that “a human egg that is fertilized in vitro shall be considered a potential life,” but should not be legally considered a human life until it is implanted in a uterus.”
In other words, the state would be saying that ensoulment-at-conception theology is wrong. I wonder how many legislators will be willing to do that, even given how popular IVF is across party lines. (Both Mike Pence and Democratic Senator Tammy Duckworth have children conceived via IVF.)
I also wonder if legislation would be enough. Chief Justice Parker based his opinion on the state constitution and the will of God, so a mere law probably wouldn’t move him. It’s hard to say what the other justices would do. The ruling had an 8-1 majority, but several of the concurrences read like dissents. They reject the majority opinion’s reasoning (sometimes for the very reasons I’ve given above), but reach the same conclusion by a different path.
Beyond Alabama. Arizona, Missouri, and Georgia have fetal personhood laws similar to Alabama’s, though Arizona’s is currently blocked by the courts. Similar laws have been proposed in 12 other states (though the laws are unlikely to pass in some of them, like Massachusetts and New York).
Any of those states could be the site of the next IVF case. Further, a number of birth control options are technically murder, if ensoulment happens at conception. An IUD, for example, primarily works by preventing conception, but it also can prevent a fertilized ovum from implanting in the uterus, effectively killing it.
Marching towards Gilead.Amanda Marcotte examines the deeper implications of the extremist faction that wants to ban IVF. On the surface, she says, their opposition to IVF seems puzzling.
A lot of people are understandably shocked to learn that the anti-abortion movement also hates IVF. After all, the movement claims to be all about motherhood. One would think the people who are always yammering on about how a woman’s greatest purpose is giving birth would celebrate those who endure IVF, which is both painful and expensive, just so they can have a baby.
But she sees an underlying motive:
It’s important to understand that what the Christian right really wants is not motherhood, per se, but a social order where women are second class citizens. They take a dim view of not just abortion and contraception, but all reproductive technologies that make it easier for women to exercise autonomy over their lives.
It also must bug them that many lesbians use IVF to conceive.
Michael Shermer, the publisher of Skeptic Magazine, reposted a Heritage Foundation post from May which proposes to “end recreational sex”. It includes a video in which a woman proposes to “restore consequentiality” to sex by ending birth control. Chris Rufo, the conservative theorist behind the Critical Race Theory panic, replied with
“Recreational sex” is a large part of the reason we have so many single-mother households, which drives poverty, crime, and dysfunction. The point of sex is to create children—this is natural, normal, and good.
So if you’re one of those couples that has been using sex to express your love for each other rather than to conceive children (a path my wife and I have been following for nearly 40 years), Chris Rufo thinks you’re doing it wrong.
It’s important not to paint this issue with too broad a brush: Most people who call themselves Republicans, and even most people who would tell a pollster they support Trump, don’t agree with this extreme anti-sex, anti-choice position. But in the Trump era, the most radical voices consistently prevail in the GOP. Reasonable moderates, to the extent that any still exist, have been consistently unwilling to stand up to ideologues on their right flank. Will they this time? That’s not a bet I’d want to cover.
Abortion bans are unpopular, unless their advocates can demonize the opposing position and distract voters from what they really want.
Since the Dobbs decision last year, abortion has been a winning issue for Democrats. Whenever the issue of abortion has been put in front of the voters, the abortion-rights side has won, even in red states like Kansas, Kentucky, and (most recently) Ohio. Abortion was clearly a factor in liberals gaining the swing vote on the Wisconsin Supreme Court, and in Democrats seizing complete control of state government in Michigan.
Pre-election polling by the Epic-MRA pollster Bernie Porn also highlighted how this year’s abortion rights initiative benefited Dems. Asked what single issue was motivating them to vote, 43% of respondents said abortion, which topped inflation by about 14 points.
“Abortion, abortion, abortion,” Porn said. “This proposal drove women and younger voters to the polls … and if Democrats in other states have a mechanism to put an abortion ballot proposal on the ballot in 2024, then they should consider that.”
A pragmatic Republican politician, then, should want to play this issue down. The no-abortion-at-all, life-begins-at-conception position is the Republican equivalent of defund-the-police: A segment of the base is strongly committed to it, but it’s an almost certain loser if you put it in front of the general electorate.
Democratic candidates, for the most part, have handled defund-the-police like this: They express sympathy for the concerns of the activists (i.e., police violence against people of color), but change the subject whenever specific proposals come up, and run away completely if they are asked to say “defund the police” in public.
So far, though, Republicans have not been able to do anything similar with abortion. Their anti-abortion base is too large and feels too entitled to primacy. Taking over the Supreme Court was the work of decades, and now that the Court no longer stands in their way, they want action. At the state level, they’re getting it, at least in red states that leave legislating to their gerrymandered legislatures and keep abortion propositions off the ballot. But those new laws are producing horror stories that motivate women around the country to vote for Democrats.
What to do?
This week’s Republican presidential debate gave us a look at the current state of play. Everyone on the stage identified themselves, in one way or another, as “pro-life”. But no one volunteered their support for the kind of complete-ban proposals that used to be at the center of the anti-abortion movement.
The one who came closest was Mike Pence, who called out abortion as a “moral issue” and pledged to be a “champion of life” in the White House. But even he could only offer that “A 15-week ban is an idea whose time has come”. [1]
North Dakota Governor Doug Burgum (who signed a 6-week ban in his state) held out for leaving the issue to the states. And I can’t find a debate quote from Chris Christie, but elsewhere he also has also said abortion should be a state matter. But everyone else coalesced behind a federal 15-week-ban, with some hand-waving in the direction of exceptions for rape, incest, and (possibly) maternal health. [2]
N weeks. The basic framing is rarely stated explicitly, but it goes like this: There is some point in every pregnancy where the government’s judgment becomes better than that of the people who are actually involved. So while (up to some point) the government may allow women to consult with the people they trust and decide whether or not to go forward with a pregnancy, beyond that point the government’s decision prevails. Ditto for doctors: Up to some deadline, a doctor may decide whether or not the best thing to do for a patient is to perform the abortion she is asking for, but past that point the decision belongs to the government.
Once you accept that framing, the only decision to make is when the government takes control. There’s going to be an N-week ban, except for a few special situations the government recognizes. So the only issues left to discuss are what N should be and what exceptions should be allowed.
Under the Roe v Wade framework, women had a complete right to choose abortion during the first trimester of pregnancy. In the second trimester, states could impose restrictions narrowly tailored to protect the woman’s health. In the third trimester, the potential viability of the fetus outside the womb allowed states to impose more-or-less complete bans. The Casey decision of 1992 mostly reaffirmed Roe, but shifted the focus more to viability: When could a fetus survive outside the womb? The viability standard depends on a number of factors, including the progress of technology, but generally it set N at around 24 weeks.
So in proposing a 15-week federal ban, the Republican candidates are framing themselves as moderates willing to compromise (at least until they have more power): Their base would like N to be zero, but they’re willing to settle on 15. The real radicals, they claim, are those who reject the N-week model altogether: They support “abortion up to the moment of birth”, a phrase that seems to have been well tested in focus groups.
Ron DeSantis (who signed a 6-week ban shortly after he was reelected and didn’t have to defend it to Florida voters) laid it out like this:
What the Democrats are trying to do on this issue is wrong: to allow abortion all the way up to the moment of birth. … We’re better than what the Democrats are selling. We are not going to allow abortion all the way up till birth and we will hold them accountable for their extremism.
Martha McCallum, a debate moderator, teed up a similar question for Burgum:
What do you say about the states, there’s about five of them, including New Jersey, I think a few others, that allow abortion up until the time of birth. Now if you were president, would you be able to abide that?
Tim Scott also invoked the phrase:
We cannot let states like California, New York, and Illinois have abortions on demand up until the day of birth. That is immoral. It is unethical, it is wrong. We must have a President of the United States who will advocate and fight for at the minimum a 15-week limit.
And Nikki Haley went on offense: Democrats who don’t like 15 should be pushed to specify what number they do support.
What I would love is for someone to ask Biden and Kamala Harris: Are they for 38 weeks? Are they for 39 weeks? Are they for 40 weeks? Because that’s what the media needs to be asking.
This wasn’t just some throw-away line for applause on the debate stage. This is a talking point.
The demonized image. It’s not hard to see why “abortions on demand up to the day of birth” polls so badly. It invokes the image of a healthy woman who carries a healthy fetus for nearly nine months, and then, on a whim, decides to kill her baby rather than let it be born and given to some deserving childless couple eager to provide a loving home. By refusing to stop her from performing such a heinous act, you and I and the nation as a whole are “allowing” it to happen.
But once you draw that scenario into the foreground of your awareness, it should be obvious that it literally never happens, not in New Jersey, California, New York, or anywhere else. Abortions after 21 weeks (still well before birth) were already rare, even under Roe. [3] They get rarer with each week of gestation.
Nearly every one is a special case of some sort. That stands to reason: Who is going to endure months and months of pregnancy if they plan not to have a baby? Women who get late abortions are almost all women who decided not to get early abortions. Overwhelmingly, they wanted to have a child, and then something unexpected happened. Maybe the woman has cancer, and doesn’t dare wait until after the birth to start chemotherapy. Maybe the fetus has failed to develop in some way that dooms it to a short and pain-filled life. Maybe the fetus is already dead.
A million things can go wrong in the final months of pregnancy. Good luck anticipating all of them and writing all the appropriate exceptions into a law, much less making sure that law is applied compassionately in emergency situations.
So while Mike Pence is right that abortion is “a moral issue”, it is the height of arrogance to imagine that we, while sitting on our sofas watching a debate, can decide those complex moral issues better than the people who are actually there and know all the special circumstances.
State governments that opt out of the N-week framework are not “allowing” heartless moms to kill healthy babies about to be born. Instead, they are yielding to the judgment of people who are in a better position to weigh the complicated moral questions a late-term abortion invariably involves.
Restoring the rights protected by Roe. So OK, I have just defended a position that a hostile adversary could smear as “allowing abortion up to the moment of birth”. But a second point is worth making: Despite what the debaters repeatedly claimed, I’m an outlier. The vast majority of elected Democrats aren’t willing to go that far.
The best evidence of what most Democrats want is the bill they tried to pass last year: the Women’s Health Protection Act of 2022. That bill passed the then-Democratic House before getting derailed by a Republican filibuster in the Senate. It had President Biden’s support. The WHPA eliminated prohibitions on abortion “at any point or points in time prior to fetal viability”, and also prohibitions “after fetal viability when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health”.
In other words, it put the law back more or less to where it had been before Roe was reversed last summer. Nothing in it allowed “abortions on demand up until the day of birth”.
Polls. In every poll or election where it has been tested, restoring the pre-Dobbs configuration of reproductive rights is an extremely popular position. So anti-abortion advocates are trying very hard to pretend that this option doesn’t exist. If you watched the debate, you would never have guessed that anyone, much less President Biden, wants to restore precisely the rights the Supreme Court took away.
Mike Pence claimed at one point that a 15-week ban is “supported by 70% of the American people”. When challenged on this, his staff pointed to a poll conducted on behalf of an anti-abortion group, Susan B. Anthony Pro-Life America.
In fact, Pence understated the poll’s result: 77% wanted either a 15-week ban or something even more restrictive. But here is the question the respondents were asked:
Which of the following best describes your position on the abortion issue?
Abortion should be prohibited throughout pregnancy, with exception for the life of the mother, rape, and incest. (26%)
Abortion should be prohibited after a baby’s heartbeat can be detected at 6 weeks of pregnancy, with exception for the life of the mother, rape, and incest. (20%)
Abortion should be prohibited after a baby can feel pain at 15 weeks of pregnancy, with exception for the life of the mother, rape, and incest. (31%)
Abortion should be allowed throughout all 9 months of pregnancy, without any restrictions. (15%)
I’m totally unsure. (8%)
There’s so much wrong with this question I don’t know where to start. First off, respondents are asked to respond to “facts” that are not facts. Embryos (not babies) don’t have a heartbeat at 6 weeks. And the idea that fetuses (also not babies) can feel pain at 15 (or even 20 or 25) weeks is highly speculative and not the current medical consensus. [4]
But perhaps worse than the biased wording is that no option corresponds to the rights women had 15 months ago. If you aren’t for banning abortion at 15 weeks or earlier, the only other choice is essentially “abortions on demand up until the day of birth”.
A similar poll was conducted by Cygnal, with a headline result that “Majority support abortion ban”, fleshed out in the press release to “56% of voters support a federal abortion limit of 15 weeks (23% oppose; 21% unsure), including a plurality of Democrats.”
How did they come up with that? The same way Susan B. Anthony Pro-Life America did, but with even fewer options. The question they asked respondents was:
Do you support a federal 15-week ban on abortions with an exception for rape, incest, and life of the month or support allowing abortion up until the point of birth?
If you probe into the column, “go on offense” means what it usually does with Conway: bury voters in bullshit. She repeats the 6-week-heartbeat and 15-week-pain canards, and claims
Democrats are making a radical push for abortion on demand throughout pregnancy and will try to put some version of that question on the ballot in the coming election.
An obvious way to back this point up would be to point to some abortion-until-birth ballot proposal Democrats are gathering signatures for in some state or another. But Conway doesn’t, because there is none.
She quotes the Cygnal poll (whose biased question I just quoted) claiming that a majority support a 15-week ban. She advocates pushing Democrats the way Nikki Haley did, with “Is there any abortion they find objectionable?”, as if refusing to usurp a woman’s decision is the same as agreeing with every decision a woman could conceivably make (even if no women are actually choosing whatever hideous option Republicans might imagine).
So that’s what’s coming: an avalanche of anti-abortion bullshit. Get your wading boots ready for it.
[1] Pence rooted his position in his religion:
After I gave my life to Jesus Christ as my Lord and Savior, I opened up the book and I read, “Before I formed you in the womb, I knew you” and “See, I set before you life and death, blessings and curses. Now choose life.” And I knew from that moment on the cause of life had to be my cause.
Here Pence demonstrates the back-flips you have to do if you want to claim that the Bible denounces abortion: He takes two quotes out of context and smushes them together so that they seem to say something neither one says.
The two verses are Jeremiah 1:5 and Deuteronomy 30:19. In Jeremiah 1, God tells Jeremiah about his longstanding plan that Jeremiah be “a prophet to the nations”. The focus is on God’s foresight and Jeremiah’s special destiny. The text says nothing at all about any fetus in a womb today.
Deuteronomy 30 centers on those “blessings and curses”: God promises to make a great people of the Israelites if they obey the laws he has just given them, but threatens to wipe them out otherwise. (Moses had to talk God out of such a genocide in Exodus 32 after the golden calf incident. After some coaxing, God was satisfied with three thousand deaths rather than the whole nation.) Read in its proper context, “choose life” means “Don’t disobey and make me kill you.” Again, it’s got nothing to do with abortion.
Invariably, when I make a point like this, someone will object that we shouldn’t argue Biblical interpretation in a political arena, because the Bible plays no legal role in governing the United States. And that’s true: The US Constitution is an entirely secular document. The Founders were almost all Christians of one stripe or another, but they were well aware of the wars of religion that had plagued England and wanted to avoid anything similar happening here.
That said, though, I think that when a politician or a party makes an argument that is invalid in its own terms, it’s worth calling out — even if those terms have no legal standing. So when I see it, I call out bad religion in the same way that I call out bad science.
And politically, I don’t want to see the abortion issue framed as Christians vs. non-Christians or Bible-believers vs. everyone else. Anti-abortion is unrelated to the Bible, except through speculative interpretations that no one would put much stock in if they read the text without prior convictions.
[2] As we’ve seen in the states, these exceptions often are not all they’re cracked up to be. Even if your case seems to fit an exception, you still may not be allowed an abortion.
[3] In 2019, the CDC counted 4,882 abortions after 21 weeks in the whole country, or slightly less than 1% of all abortions. Normalizing for the handful of states that didn’t report, I’ve seen estimates that the number of post-21-week abortions could be as high as 6,000 a year.
[4] The short version of the argument against pain-at-15-weeks is that the nerve clusters that would report pain are not yet hooked up to the brain centers that would recognize it.
Someday soon, a perfectly safe abortion drug could become unavailable nationwide, even in states that defend reproductive rights. That sounds so crazy that most of us have a hard time taking it seriously. (Wasn’t the whole point of reversing Roe to turn the abortion question over to the states?) You hear the claim and then think, “That can’t really be happening.” But it is.
Here’s how it works.
Trump left us a kangaroo federal court. The Amarillo division of the Northern District of Texas has only two federal judges, and one of them, Matthew J. Kacsmaryk, hears 95% of the civil lawsuits. Kacsmaryk is the very model of a Trump judge. He was a lawyer for the right-wing First Liberty Institute until Trump tapped him for a federal judgeship in 2017. Since then, he’s become famous for out-of-the-mainstream legal opinions that are reliably right-wing, but not terribly well reasoned or well rooted in the law.
While on the bench, Kacsmaryk has made a string of controversial rulings: He declared Biden administration protections for transgender workers unlawful; twice ordered the administration to enforce the Trump-era “Remain in Mexico” policy; and attackedTitle X, the only federal program designed to provide birth control to low-income and uninsured people.
The beauty of this arrangement, if you’re an right-wing culture warrior, is that Amarillo has become the perfect place to file a controversial suit, particularly if it’s based on ideology rather than law. You’re practically guaranteed to get Kacsmaryk, which means you’re practically guaranteed to win, at least until there’s an appeal. [It’s worth pointing out that political activists on all sides try to venue-shop like this. But nowhere in America is as well-greased for liberals as Amarillo is for conservatives.] And even if you ultimately lose, you still might win for a considerable chunk of time, because Kacsmaryk might issue an injunction that favors you until the Supreme Court gets around to reversing his opinion, which could take months or even years.
That’s what happened when he forced the Biden administration to continue Trump’s remain-in-Mexico immigration plan. The Supreme Court ultimately reversed Kacsmaryk’s decision 6-3. (Yes, that’s how far-right his reasoning was: Not even John Roberts and Brett Kavanaugh were convinced.) Nonetheless, an injunction kept remain-in-Mexico in place for more than a year while the case was under consideration.
That shouldn’t have happened, but both courts above Kacsmaryk, the 5th Circuit Court of Appeals and the Supreme Court, are dominated by conservative judicial activists. They aren’t so unprincipled that they could endorse Kacsmaryk’s ridiculous reasoning, but they have more wiggle room when deciding whether or not to lift a temporary injunction. Both courts used that discretion to screw the Biden administration. (Trump’s requests to set aside injunctions got much more favorable consideration.)
So what is the current case?
Mifepristone.More than half of all abortions in the US are now through medication rather than surgery. That’s bad news from the anti-abortion perspective, because there’s no abortion clinic to picket or shoot up, and it’s easier to smuggle pills into a handmaid’s-tale state than to run an underground surgery clinic in one. So now that Roe v Wade has been reversed and states are outlawing abortion, the pills are the next big target. Friday, Wyoming became the first state to outlaw them.
If you live in a blue state like California or Vermont, you may roll your eyes: Wyoming is like that. But your state guarantees abortion rights, so the effort to limit access couldn’t possibly affect you or the women you care about, right?
Not so fast.
A typical medication abortion combines two drugs: mifepristone and misoprostol. So a coalition of anti-abortion groups and individuals have filed suit to make mifepristone illegal nationwide, claiming that the FDA made a mistake when it declared the drug safe in 2000.
The suit would be laughed out of any legitimate court, for reasons that former Anton Scalia law clerk Adam Unikowsky explains in detail in his blog Adam’s Legal Newsletter:
The plaintiffs’ theory of standing is irreconcilable with Supreme Court precedent.
The statute of limitations has expired on plaintiffs’ challenge to the FDA’s approval of mifepristone. The plaintiffs claim that the FDA “constructively reopened” that approval in 2016, thus restarting the statute of limitations, but that’s clearly wrong.
The plaintiffs did not exhaust their claims, even though a regulation explicitly required them to do so.
Although the plaintiffs claim that the FDA’s actions are contrary to the Food, Drug, and Cosmetic Act (FDCA), the plaintiffs have failed to identify any particular provision of the FDCA that the FDA has actually violated.
Problems like that would be fatal to an ordinary lawsuit. But wait, there’s Amarillo, where ordinary legal reasoning doesn’t apply. “What’s Amarillo got to do with anything?” you might ask. The FDA isn’t located in Amarillo and mifepristone isn’t manufactured there. Amarillo appears to have no connection at all to mifepristone. But the venue is appropriate, according to the lawsuit, because one of the suing organizations is located there.
This district and this division are where Plaintiffs Alliance for Hippocratic Medicine, including the doctors of its member associations, and Dr. Shaun Jester are situated and are injured by Defendants’ actions.
AHA appears to be “a front group for the Catholic Medical Association, the Coptic Medical Association of North America, the American College of Pediatricians, the Christian Medical & Dental Associations, and the American Association of Pro-Life Obstetricians and Gynecologists.” It was founded last August, after Roe was reversed in June, apparently for the specific purpose of filing this lawsuit in Amarillo.
And what “injury” are the local doctors alleging? Unikowsky summarizes:
The plaintiff-doctors’ theory of standing is, in a nutshell, that if mifepristone stays on the market, other doctors will prescribe mifepristone to their pregnant patients, the pregnant patients will suffer side effects, and then the patients will switch doctors and come to the plaintiff-doctors. This, in turn, will injure the plaintiff-doctors because it will divert their attention from their other patients, potentially force them to complete “unfinished abortions,” and possibly expose them to malpractice lawsuits. By contrast, if mifepristone is off the market, these women will elect to carry their babies to term (as opposed to seeking surgical abortions), thus preventing the plaintiff-doctors from facing these risks.
If that “injury” sounds a little too roundabout to be credible, that’s because it is. Unikowsky cites Supreme Court rulings that have already rejected similar standing claims.
As for safety, the FDA’s original studies are now backed up by more than two decades of experience, both here and abroad. CNN summarizes:
Data from hundreds of studies and 23 years of approved use has shown that mifepristone is highly safe and effective, according to 12 of the country’s most respected medical associations, including the American College of Obstetricians and Gynecologists and the American Medical Association, which signed an amicus brief in the Texas case.
This medicine combination for abortion is also available in more than 60 other countries.
Since its approval in the US in 2000, there have been 5 deaths associated with mifepristone for every 1 million people who used it, according to the US Food and Drug Administration. That means the death rate is 0.0005%.
Mifepristone’s safety is on par with those of common over-the-counter pain relievers like ibuprofen and acetaminophen, studies show.
Data analyzed by CNN shows that mifepristone is even safer than some of the most common prescription medications. The risk of death from penicillin, an antibiotic used to treat bacterial infections like pneumonia, for example, is four times greater than it is for mifepristone. The risk of death after taking Viagra – used to treat erectile dysfunction – is nearly 10 times higher.
If there actually were a safety issue, you might expect some women’s-health organizations to sign onto the lawsuit, but none have. The suing organizations all have prior religious or political orientations. For some it is right in their name, like the American Association of Pro-Life Obstetricians and Gynecologists and the Christian Medical and Dental Associations. The one whose name sounds like it might be objective, the American College of Pediatricians, isn’t:
The group’s primary focus is advocating against abortion and the adoption of children by gay or lesbian people. It also advocates conversion therapy. … ACPeds has been listed as a hate group by the Southern Poverty Law Center for pushing “anti-LGBTQ junk science”.
Hearings. Kacsmaryk held hearings this week, and seemed open to the plaintiffs’ arguments. Of course, no one can say for certain what he will do until he does it, and perhaps the intense attention his kangaroo court has gotten lately — some protesters have come dressed as kangaroos — will intimidate him into backing off. Ordinarily, I advise readers not to get riled up about events that haven’t happened yet and may not happen. But if Kacsmaryk does what he is expected to do, and issues a nationwide injunction making mifepristone illegal, the effects will be sweeping and instantaneous.
An anti-Kacsmaryk protester dressed in judicial robes and a kangaroo mask.
Ordinarily, when an injunction disrupts an otherwise uneventful status quo, you can expect a higher court to set it aside pending review. But they don’t have to. Higher courts don’t even need to endorse whatever justifications Kacsmaryk offers for his injunction; all they have to do to promote right-wing policies they favor is drag their feet. That would get mifepristone off the market for a year or maybe longer, for no legal reason whatsoever.
If they do, women could still use misoprostol alone to induce an abortion. That is slightly less effective than a smaller dose combined with mifepristone, and causes more discomfort and side effects. (Remember: The most likely way for women to get caught when they induce a medication abortion in a state that bans them is to have side effects that take them to the emergency room.) Worse, misoprostol would then become a single target: Finding a way to ban it could end about half the abortions in the US.
Of course, there’s no legal reason to ban misoprostol, so it ought to be safe. But maybe not in Amarillo, where the law doesn’t matter any more.
Will women make their own decisions, or will government decide for them?
For decades, abortion has been a get-out-the-vote issue for Republicans, but not so much for Democrats. After all, as long as the Supreme Court was there to protect your rights, what practical difference could an anti-abortion legislature or Congress make?
But now that Trump’s three appointees have taken their seats on the Court, women’s rights (and privacy rights of all kinds) are up for grabs again. If you want to defend those rights, you have to vote.
The two parties’ positions. Last June’s Dobbs decision has allowed states to pass some truly horrible laws that not only deny women’s bodily autonomy, but even put their lives in danger. Initially, Republicans claimed the Court had simply returned the abortion question to the states, implicitly promising that women in blue states would keep the rights they had before Dobbs. But now many are pushing for a national abortion ban.
If history is any guide, Republicans who haven’t publicly supported such a ban — and perhaps even some who have taken a stand against one — will get in line once it comes up for a vote. Few GOP congresspeople have the backbone to stand up against the anti-abortion movement, and even fewer have shown a willingness to buck Donald Trump. So if a bill is on the floor and Trump is pushing them to support it, what do you think they will do?
“Why haven’t they already passed it?” is a fair question. Such a law has passed the House, but fell one vote short of a majority in the Senate. Two Democratic senators haven’t been willing to create an exception to the filibuster that would allow a majority to pass the law. But if Democrats gain two seats in the Senate — say, if John Fetterman replaces Pat Toomey in Pennsylvania and Mandela Barnes replaces Ron Johnson in Wisconsin — the law will pass and President Biden will sign it.
What’s wrong with the state abortion bans? The best argument against the various state abortion bans is to look at specific examples of what they’ve done.
But while they may appear comforting, the exceptions in state abortion bans often provide little protection in practice. The ban in Texas, for example, includes an exception to protect a pregnant woman’s life. But when Amanda Zurawski found out that her fetus was not viable and that continuing to carry it was dangerous, all she could do was wait. The fetus wasn’t dead yet, and she wasn’t dying yet, so under the law, nothing could be done. She describes her experience like this:
People have asked why we didn’t get on a plane or in our car to go to a state where the laws aren’t so restrictive. But we live in the middle of Texas, and the nearest “sanctuary” state is at least an 8-hour drive. Developing sepsis—which can kill quickly—in a car in the middle of the West Texas desert, or 30,000 feet above the ground, is a death sentence, and it’s not a choice we should have had to even consider. But we did, albeit briefly.
Instead, it took three days at home until I became sick “enough” that the ethics board at our hospital agreed we could legally begin medical treatment; three days until my life was considered at-risk “enough” for the inevitable premature delivery of my daughter to be performed; three days until the doctors, nurses, and other healthcare professionals were allowed to do their jobs.
By the time I was permitted to deliver, a rapidly spreading infection had already claimed my daughter’s life and was in the process of claiming mine.
I developed a raging fever and dangerously low blood pressure and was rushed to the ICU with sepsis. Tests found both my blood and my placenta teeming with bacteria that had multiplied, probably as a result of the wait. I would stay in the ICU for three more days as medical professionals battled to save my life.
Mylissa Farmer tells a similar story. Her fetus was dying and her own life was in danger, but she wasn’t quite sick enough yet for doctors in Missouri to help her. She had to travel to Illinois for treatment.
Since their ordeal, Farmer has lost trust. While she still feels her obstetrician at Freeman Hospital in Joplin is a good doctor, she’s worried about whether medical professionals in Missouri will be able to offer patients necessary care.
“I haven’t lost trust in care, but I’ve lost trust (doctors) will be allowed to make the medical decisions they need to make,” she said.
She’s lost trust in the politicians who represent her, as well.
Despite reaching out to various legislators, she has yet to receive an answer that satisfies her: Why is this law written this way? If it’s to protect women, why did she have to be in danger before she could get care in-state? Why is it such a binary law?
“The world is too nuanced to put such strict rules in place,” Farmer said.
Farmer’s story is not unique. According to the American College of Obstetricians and Gynecologists, preterm premature rupture of membranes happens in 2% to 3% of pregnancies in the United States, and leads to preterm birth in one out of four cases.
Imagine if a similar law were in place nationally. Where would women like Farmer go then?
The new laws treat other health dilemmas with similar disdain. Imagine discovering, shortly after you miss your first period, or perhaps during a prenatal physical, that you have cancer. Chemo-therapy and radiation can seriously harm or even kill a fetus. So what’s the alternative? Wait until the baby is born, and hope that your cancer is still treatable by then? If you’re not facing immediate death, that could be the only legal option. No wonder an article in the journal Demography concludes:
Overall, denying all wanted induced abortions in the United States would increase pregnancy-related mortality substantially, even if the rate of unsafe abortion did not increase.
Who decides? Pro-life rhetoric tends to gloss over such complexities. Pregnancies are problem-free, loving families are lined up to adopt even the most damaged newborns, and so the right thing to do is obvious. All we need is a law to make women do it.
But once you admit that there are any valid exceptions, then someone has to decide which individual cases are exceptional enough to qualify. Republicans believe that those decisions should be made by legislatures, or perhaps by hospital lawyers trying to avoid liability under laws the legislature left vague.
Democrats believe those decisions are best made by the people involved: the pregnant woman, advised by her family, her trusted friends, and the best medical and moral advisors she can find. This is especially true when there are significant risk-tradeoffs to weigh. Take the cancer example: Some women may feel so committed to the life growing inside them that they don’t hesitate to risk their own lives. That decision could be heroic, but the law should not force heroism on people.
And I can easily imagine a husband protesting against heroism: “I’m not ready to sign up for a future where you die and I’m left to raise a child by myself.” Those kinds of discussions need to happen inside families, not in Congress or in front of a hospital ethics board.
Religion. Most abortion decisions are not driven by health considerations, but by how a woman pictures her life proceeding with or without a child, and how she frames the moral questions abortion raises.
Different individuals and different religions see those questions differently. Some (but not all) Christian sects believe that a fertilized ovum already has a human soul, and that killing it is murder. Some (but not all) Jewish sects believe that the soul enters the body much later, perhaps not until the first breath. (See the creation of Adam in Genesis 2:7.) Other religions and non-religious people’s opinions are all over the map. Most Americans appear to believe that the moral status of a fetus starts low and increases as it develops, which is why few people worry much about fertilized ova frozen in fertility clinics.
Whose opinion should control? Consider that if you ate a hamburger yesterday, a Hindu might tell you that the steer it came from had a soul every bit as significant as your own, one that may have inhabited a human body in a previous incarnation. Should this Hindu theology limit what you can eat?
Democrats believe that disputed religious questions should be decided by individuals, and that, unless the government has a secular reason to intervene, your behavior should be governed by your own beliefs (or lack thereof). Republicans believe that conservative Christian theology should control everyone’s behavior, a position they sometimes call “freedom”.
Late-term abortions. Anti-abortion activists believe late-term abortions are their trump card. In one typical attack, the National Republican Senatorial Committee claims “Radical John Fetterman Supports Abortion Up Until the Moment of Birth“. The headline conjures up an image of Fetterman (or any Democrat) actively supporting abortion, as if he recommends that women get abortions and tries to persuade them to do so.
But nothing remotely like that is actually happening.
What most (not all) Democrats believe is what I said in the previous section: The decision whether or not to have an abortion can be difficult, and is best made by the people involved rather than by the government. Republicans, on the other hand, believe in some absolute cut-off: After some number of weeks, the government’s judgment automatically becomes better than the family’s. Your case is exceptional if the government says it’s exceptional.
In fact, late abortions are precisely the situations where the government’s arbitrary rules have the least to offer. Such abortions are rare (about 1% of all abortions take place after 21 weeks, and far fewer after 24 weeks), and almost every one is a unique story in which something has unexpectedly gone wrong with a wanted pregnancy. (Though many abortions near the deadline take place because jumping through anti-abortion hoops can delay a poor woman, who may have trouble assembling the resources she needs to travel to a distant city and stay there through a waiting period.)
For those who believe these babies are unwanted, Matt says: “You’re not going to wait until halfway through your pregnancy to finally have an abortion.”
I can think of no better closing than to repeat what Mylissa Farmer said:
The world is too nuanced to put such strict rules in place.
Post-Dobbs, voters are imagining very different abortion scenarios than the ones the pro-life movement has been pushing for years. That’s an advantage Democrats need to hold onto as the fall elections get closer.
In Michigan, Republicans on the Board of Canvassers are using technicalities to block a referendum that would write the Roe protections into the state constitution. It’s not hard to see why: Not only would that referendum pass, but it would raise Democratic turnout for the state’s other races. Better for Republicans that voters not be offered the choice.
That’s not how the conventional wisdom used to work: Culture-war issues used to be seen as a way to boost Republican turnout. Democrats used to be confident the Supreme Court would protect their reproductive freedom and other personal rights, but now they have to protect their own rights by voting.
Efforts of those who have taken the position that forced birth is somehow pleasant and rewarding, even for America’s 10-year-old rape victims, have backfired spectacularly, as have their claims that abortion rights advocates are lying about new dangers that abortion bans pose to patients with high-risk pregnancies or who are experiencing a miscarriage.
For the last six weeks, Republicans have touted their vision of a post-Roe America. It is a place in which rapists get to choose the mother of their children, even if she is 10 years old; in which patients must be dying of sepsis before they can terminate a failing pregnancy; in which doctors who follow their duty of care to perform a life-saving abortion must persuade prosecutors of their proper judgment at risk of incarceration; and in which pharmacists refuse to provide women with autoimmune treatment because they suspect it could be used for an illicit abortion. This reality unfolded in under a month, because it’s the fondest dream of a small minority of uncompromising extremists.
In under a month, even Americans who call themselves abortion opponents have come to see that when abortion is criminal, every uterus is a potential crime scene.
Those situations aren’t the ones anti-abortion activists want voters to imagine. They’d rather voters thought about foolishly promiscuous women who selfishly want to escape the consequences of their actions, not women who are being re-victimized by the law after men and circumstances have already victimized them once.
All over the country, Republican candidates are being caught between their extreme anti-abortion base, whose support has been necessary to get through Republican primaries, and the majority of general-election voters, whose views are far more moderate and nuanced.
The fall pivot. But could they turn this situation around, and make Democrats own the “extreme” views on their side? Marjorie Dannenfelser of Susan B. Anthony Pro-Life America thinks so:
[Pat] Ryan avoided specifics, couching his position in well-worn, vague terms such as “freedom to choose” and “controlling women’s bodies.” A sharp offense could have punctured this obvious vulnerability, challenging the Democrat to explain exactly what policies he wants and whether there is a single limit on abortion he would support: when the child’s heartbeat can be detected? If not then, what about a first-trimester limit, which two-thirds of Americans support? Or 15 weeks, when some new evidence indicates unborn children can feel pain — a limit 72 percent of Americans support and that sits within the European mainstream? Or like Biden and almost every congressional Democrat, does he advocate legislation that allows abortion throughout all nine months of pregnancy as long as a doctor will say it’s for the woman’s health? Only 10 percent of Americans believe abortion should be legal that late, and this broad loophole means the bill is far more radical than Democrats would have you believe.
The advantage of fantasy. What Dannenfelser is trying to regain might be called the advantage of fantasy. Whoever gets to construct the hypothetical case under discussion can imagine a favorable one, even if that situation is rare or even non-existent. Should a raped 10-year-old be forced to carry the baby to term? Should a pregnant woman with breast cancer be forced to wait months to begin treatments that would harm her fetus? An overwhelming majority of people would approve an abortion in those cases, and reject a law (or a legislator) who wouldn’t allow one.
But what if a perfectly healthy woman with a perfectly healthy 8-month fetus decides on a whim that she no longer wants to be a mother? In a matter of weeks, her pregnancy could come to a successful conclusion, an infertile couple could have a beautiful baby to raise, and the woman could get on with her life. But she chooses an abortion instead. Do you approve of that choice? Should the law allow it?
Are there such cases? It’s not clear. But if a voter can imagine it, the reality may not matter.
How to respond. If the discussion goes there, a poorly prepared Democrat could be in trouble. On the one hand, the fantasy is ugly, and a pro-reproductive-rights candidate could lose support by owning that ugliness. On the other, nuanced line-drawing is tedious and uninspiring. Why here and not there? [1] And if you draw the line based on polls, as Dannenfelser seems to suggest, your position looks calculated rather than principled. [2]
But what should a well-prepared Democrat say?
First, I think you have to acknowledge the ugliness of the fantasy and disapprove of it, as the vast majority of voters do. If that perfectly healthy pregnant woman came to me asking for my approval of her whimsical decision, I couldn’t give it. [3] My sympathies would be more with the childless couple and the possibilities the healthy 8-month fetus represents.
Very quickly, though, you have to draw the line between your personal approval and the law. The law is not a tool for making every situation come out the way you want. If a friend came to me with his plan to cheat on his wife, I would disapprove and urge him to reconsider. But that doesn’t mean I would support a law against adultery.
Third, point out that the law is a blunt instrument. You can’t just pass a law against this case. A law would necessarily identify a larger set of cases, and would impose a rule on them. In each individual case, the government’s decision would overrule the judgment of the people involved: the woman, her doctor, her family, and all the other friends and moral advisors whose opinions she might seek.
The introduction of a broader class allows you to bring reality back into the discussion, and to take back the advantage of fantasy: If we include this woman in a class, and for the entire class substitute the government’s blanket decision for the judgment of the people who are actually present, what new ugly situations have we created? More than we resolved, maybe?
And if we’re going to substitute our own judgment for theirs, don’t we have to be sure we’re right in the overwhelming majority of cases? Just more-often-that-not shouldn’t be good enough, if we’re usurping people’s most important personal decisions.
Do you believe, at any point in pregnancy … that there should be any limit on a woman’s right to have an abortion?
But Pete refused to take the bait.
I think the dialogue has gotten so caught up on where you draw the line, that we’ve gotten away from the fundamental question of, who gets to draw the line? I trust women to draw the line when it’s their own health.
Wallace tried again, framing the issue as personal approval of a hypothetical situation:
Just to be clear, you’re saying you’d be okay with a woman well into the third trimester deciding to abort her pregnancy?
And Pete protested,
These hypotheticals are usually set up in order to provoke a strong emotional [response].
When Wallace cut that answer off, saying that late-term abortions actually happen, he appeared not to realize that he had wandered back onto Pete’s turf: reality. There are about 6,000 late-term abortions each year, representing less than 1% of abortions. And now that they were talking about 6,000 real women, Pete could grab control of the audience’s imagination by painting a more realistic picture.
Let’s put ourselves in the shoes of a woman in that situation. If it’s that late in your pregnancy, that means almost by definition, you’ve been expecting to carry it to term. We’re talking about women who have perhaps chosen a name, who have purchased a crib. Families that then get the most devastating medical news of their lifetime. Something about the health or life of the mother that forces them to make an impossible, unthinkable choice… As horrible as that choice is, that woman, that family, may seek spiritual guidance, they may seek medical guidance, but that decision is not going to be made any better, medically or morally, because the government is dictating how that decision should be made.
So if you’d been picturing a flighty woman late in a problem-free pregnancy, Pete pushed you to think again. Late-term abortion decisions are full of one-of-a-kind complications. A cookie-cutter decision laid out by armchair moralists, or state legislatures guided by armchair moralists, isn’t usually going to weigh those factors as well as the people in the room will. Maybe never, and certainly not in the overwhelming majority of cases we’d need in order to justify a ban.
How to judge who’s winning. As we go into the fall, both sides are going to try to frame their opponents as captive to their party’s extreme wing. But it’s going to be important to point out that the “extremes” are not mirror images of one another: Republican extremists are extremely interested in making your reproductive decisions for you, and Democratic “extremists” are insisting that you retain those rights across the board.
If the Republican is winning that debate, the Democrat will seem licentious and morally slippery. (“I don’t care. Do whatever you want.”) If the Democrat is winning, the Republican will seem arrogant. (“It doesn’t matter what you decide. I know better.”)
[1] Disputing Dannenfelser’s dubious claims takes the debate down a rabbit hole. Anti-abortion activists are famously dishonest about where such lines actually fall. Religious Americans often imagine that someone who claims to represent a church or a religious movement wouldn’t just lie to them about scientific facts. But in fact, anti-abortion activists are some of the most shameless liars in American politics. Apparently, if you believe you are fighting to prevent millions of “murders”, a lie seems like a very small sin.
[2] Republicans drawing lines based on polls also look calculating.
[3] It’s important to understand how far into fantasyland we are here: That woman doesn’t exist, and wouldn’t seek my approval if she did. Very few people other than me care that much about my approval.
Right-wing policies have obvious victims, but right-wing voters can’t be allowed to notice them. This week, reports of a pregnant 10-year-old brought out the full arsenal of denial.
In the TV version of Westworld, the robots — or “hosts” in the corporate vernacular of the eponymous wild-west theme park — aren’t supposed to realize that they are manufactured pieces of an inauthentic environment. During each post-repair reactivation cycle, they are asked: “Have you ever questioned the nature of your reality?” If the answer seems to be drifting towards “yes”, more tinkering is needed.
“Have you ever questioned the nature of your reality?“
Fail-safes are built into their programming. Evidence of the world beyond the park, or of their own artificiality, isn’t supposed to register. “That doesn’t look like anything to me,” says one host as she examines a color photograph anachronistically dropped by a “guest”. Much later, another host says the same line while holding his own blueprints [spoiler].
No victims. The political fantasy world of American conservatives has similar safeguards. Conservative policies have certain obvious victims, people whose undeserved hell stems directly from those policies. But the voters who support those policies are not supposed to notice.
Kids who go hungry or become homeless when social programs are cut? Neighbors of poorly regulated industrial sites who develop bizarre cancers? Communities destroyed by climate-change-induced wildfires? They don’t look like anything, do they? Conservative policies work out best for everybody, other than a few corrupt and power-hungry Democratic politicians, or lazy people of color who want to sponge off the hard work of real Americans (or, conversely, to steal their crappiest jobs). Why would you ever question the nature of that reality?
School shootings. Every few weeks, though, something happens that is too big for the filter to handle, like a school shooting. The connection to policy couldn’t be clearer: Children are dead because the shooter had easy access to weapons that should only exist on a battlefield. Democrats would like to ban or restrict or control such weapons, but conservatives have blocked restrictions, and have even pushed to make such weapons moreubiquitous.
Republican lawmakers and judges have innocent blood on their hands.
That’s when you can see the conservative bubble’s immune system in its purest form. Some parts of it will tell you the apparent victims aren’t real. Those well-spoken kids from Parkland, the ones who survived their harrowing experience and became anti-gun activists? The reason they’re so articulate isn’t that Marjory Stoneman Douglas High did a good job educating them, it’s that they are “crisis actors” who weren’t present for the shooting at all. Similarly, the Sandy Hook parents didn’t really lose any children, they just participated in a “FEMA drill to promote gun control” [scroll down three pages to see text].
Nothing to concern yourself about. If those victims evoked a feeling of empathy, you can turn it off, because (like the hosts at Westworld) they’re just characters in a story, and not people at all.
Or maybe the events that disturb you are “false flag operations“. Remember the Las Vegas shooting, where one guy killed 60 concert-goers and wounded hundreds of others with multiple bump-stock-enhanced AR-15s? It wasn’t the kind of thing that’s bound to happen occasionally in a country with more guns than people. No, it was “the Islamic State and Antifa” carrying out a false-flag conspiracy “scripted by deep-state Democrats and their Islamic allies”. And the guy who responded to Trump’s “invasion” rhetoric by killing as many Hispanics as possible at a WalMart in El Paso? Antifa. Gotta be antifa.
The very act of connecting horrible events to conservative policies is itself illegitimate. Noting the clear cause-and-effect is “politicizing tragedy“. (Framing mass shootings as “tragedies” is an additional sleight-of-hand: Tragedies arise from inexorable Fate rather than human choices.) Learning from the Uvalde shooting that 18-year-olds should not be able to buy assault weapons is “politicizing” the deaths of children. Discussing gun policy “too soon” after a shooting disrespects the dead. (Oddly, though, it was never too soon to blame President Biden’s Afghanistan withdrawal for the deaths of 13 Marines. That could start immediately.)
Discussing other kinds of policy issues after a shooting is fine: mental health, video games, broken families, reinstating school prayer. The NRA’s politicians toss those topics into the post-shooting conversation the way radar-evading aircraft scatter reflective chaff. It’s never “too soon” to raise one of these issues, because (unlike guns) they’re not “political”. You can also propose “solutions” like armed teachers and schools with prison-like security, but not gun control.
The pregnant 10-year-old and Ohio’s laws. This week, though, we saw the clearest right-wing denial operation yet: the pregnant Ohio 10-year-old who had to leave the state to get an abortion.
Inside the conservative information bubble, the abortion issue is about healthy women with healthy fetuses who conceived their babies in wantonness and are killing them out of selfishness. If they didn’t want to raise a child, they shouldn’t have been so promiscuous. As right-wing mega-donor Foster Friess put it in 2012: “Back in my days, they used Bayer aspirin for contraceptives. The gals put it between their knees, and it wasn’t that costly.” More recently, Republican Congressman Greg Murphy of North Carolina defended the Supreme Court’s reversal of Roe with this gaslighting tweet: “No one forces anyone to have sex.“
So how did a 10-year-old get pregnant? Did she consent? Does that question even make sense? I mean, reasonable people can argue about exactly where to draw the age-of-consent line, and some teen-age girls are closer to adulthood than others born on the same day. But ten?
So it’s rape. I don’t need to know the details.
Somehow, her body managed to ovulate. But was it capable of carrying a fetus to term and giving birth without suffering long-term damage? What about psychological trauma? And after birth, what then? Would she be old enough to decide whether to keep the child, or would that choice be taken away from her too?
Then we come to Ohio’s “heartbeat law“, which was passed by the legislature and signed by Governor Mike DeWine in 2019. It blocks abortions after “cardiac activity” can be detected, which is said to happen at about six weeks. (“Cardiac activity” is a deceptive term, and intentionally so. No six-week fetus has a beating heart. To be blunt, the anti-abortion movement is full of liars. You shouldn’t believe what they say about heartbeats, fetal pain, risks related to abortion, post-abortion regret, or pretty much anything.)
At first courts blocked the law, because it blatantly contradicted the Roe/Casey interpretation of the constitutional right to privacy. But then the Dobbs decision reversed Roe, and that same evening Ohio Attorney General Dave Yost announced that the heartbeat bill was once again in force.
When the girl, whose name thankfully has not been released (we’ll see how long that lasts), showed up in the office of a child-abuse doctor, she was six weeks and three days pregnant. (I’m amazed she responded that quickly. A pregnancy that early is sometimes hard for an adult woman to spot, much less a girl with a strong temptation to think “This can’t be happening.”)
That doctor called a colleague in Indiana (which probably won’t get around to banning abortion until a special session of the legislature starts next Monday), and a non-surgical abortion was performed in Indianapolis.
Media firestorm. The Ohio girl quickly became a symbol of the heartlessness of abortion bans. Abortion bans aren’t just about “saving babies”, who would all live to be cute and fat and happy if only their mothers weren’t so self-centered. The bans also have victims.
Sometimes abortion bans inflict hellish experiences on women and girls who have no good options. Sometimes the baby survives only to live in terrible pain for a few months before dying anyway. Some women are not going to get the best treatment for their miscarriages, because that treatment can look like an abortion.
And the Ohio girl is not unique; such cases will come up again. Similar but less extreme cases come up every day.
In Ohio alone, 52 girls under 15 received an abortion in 2020 — an average of one every week, according to the state Department of Health.
Abortion decisions are complicated, and each pregnant woman or girl who doesn’t want to become a mother has a unique story. That’s why I believe the decision should be left to the people involved rather than mandated by law.
In this particular case, the girl got an abortion before a long list of worse things could happen. But to a certain extent, that’s just the luck of timing. Indiana hasn’t gotten around to passing a heartbeat bill (or some even stricter ban) yet. Republicans haven’t managed to ban abortion nationwide — but they’d like to.
So it’s perfectly fair to ask anti-abortion zealots, like Governor Kristi Noem of South Dakota, how she would like such cases handled. The question is not some kind of trap. And there are reasonable ways, short of supporting reproductive rights, to respond to the pregnant-10-year-old story. I can think of two off the top of my head.
Anti-abortion politicians could make a more-good-than-harm argument. Sure, if we ban abortion, some 10-year-olds are just going to have to try to carry their rapists’ babies to term. Some women with difficult pregnancies will probably die because the law will keep doctors from intervening until it’s too late. Some women will die from unsafe illegal abortions. But think of all the babies we’re saving!
They could admit that abortion is a complicated issue, and start crafting a longer list of exceptions to the bans, acknowledging that the life of the fetus is not the only consideration.
Either option, though, would involve admitting that abortion bans have victims. And Republicans can’t do that.
The counterattack. Instead, they unleashed the full arsenal of denial. The story first appeared on July 1, and for a while the filter held: Just don’t mention the story and it will eventually pass. But then President Biden referenced it on July 8, so something more was called for. That same day, PJ Media began casting doubt.
There are major problems and inconsistencies with this story that no one in Big Media noticed or cared about. First, where is the police report or the social services investigation into the rape of the child? Who will be held accountable for child rape and why isn’t that an issue in any of the reporting? I was unable to find any verified police investigation connected to this story. Another troubling fact is the source of this claim is one person: Dr. Caitlin Bernard, an abortionist and activist who is all over the media advocating for more abortions and unrestricted abortions.
Last Monday, the 11th, AG Yost went on Jesse Watters’ Fox News show to imply that the story couldn’t be true because his office hadn’t heard about it. “We don’t know who the originating doctor in Ohio was — if they even exist.” If any local police were investigating such a case, he claimed, he’d know about it, because that’s how well plugged-in he is.
The next day he went further.
Yost doubled down on that in an interview with the USA TODAY Network Ohio bureau on Tuesday, saying that the more time passed before confirmation made it “more likely that this is a fabrication.”
That opened the floodgates. With no new evidence beyond Yost’s statements, Tucker Carlson said definitively that the story was false.
Why did the Biden administration – speaking of lying – repeat a story about a 10-year-old child who got pregnant and then got an abortion or was not allowed to get an abortion when it turns out the story was not true.
The Wall Street Journal described the story as “fanciful” and “unlikely”, apparently because it concerned a victim “no one can identify” (as if the 10-year-old’s identity should be out there). It didn’t say the word “lie”, but attacked Biden for repeating an unverified story.
All kinds of fanciful tales travel far on social media these days, but you don’t expect them to get a hearing at the White House.
(I have a hard time not laughing out loud at that statement. Before January 20, 2021, just about every presidential speech contained “fanciful tales” about Covid miracle cures or immigrant crime or election fraud. But now that a Democrat is in the White House again, the WSJ has rediscovered its high standards for presidential truthfulness.)
Newsmax host Chris Salcedo labeled Dr. Bernard “a pro-abortion sicko” and called for her license to be suspended, while Ohio congressman Jim Jordan agreed that the story “looks like it may just be completely made up”. (Appearing on Fox Wednesday, Indiana’s attorney general announced an investigation into Dr. Bernard, who appears to have done nothing wrong. Her picture has been displayed on television, and according to a colleague, “The local police have been alerted to concerns for her physical safety.”)
At this point, everybody in the world is at fault except the people who passed Ohio’s monstrous abortion law and the Supreme Court that turned their monster loose on the world. Joe Biden, the “left-wing media”, Dr. Bernard — they’re the villains of the story. But think about it: Independent of whether this particular incident could be verified or not, these basic facts are undeniable:
Girls as young as 10 sometimes do get pregnant.
Many red-state abortion bans that are either already in place or pending in the legislature would force those children to carry their fetuses to term, unless and until that effort was about to kill them.
Those two facts by themselves should have lent credibility to the Ohio story: There was no need to make up such a tale, because it was bound to happen eventually; all you had to do is wait.
Truth can’t break through. Wednesday, the story turned out to be true. A 27-year-old man confessed to the rape, which had been reported to local police on June 22. DNA tests were underway. (I guess AG Yost isn’t as well plugged in to local law enforcement as he thinks.) Dr. Bernard filled out the appropriate paperwork. None of the things conservatives had been going on and on about had any basis in fact.
We rejoice anytime a child rapist is taken off the streets.
But anyway, now that we know the story is true, can we finally talk about forcing 10-year-olds to have their rapists’ babies? No, no, of course not.
You see, the confessed rapist is Hispanic, so now this is the story:
Columbus police detective Jeffrey Huhn testified during Wednesday’s hearing that law enforcement does not believe that Fuentes is in the country legally.
Why would Ohio try to force a 10-year-old to have her rapist’s baby? Conservatives will never, ever discuss that question, because even entering such a conversation might cause them to question the nature of their reality.
Scrapping abortions rights got the headlines. But don’t ignore the Court’s assault on gun regulations and the separation of church and state.
Late June tends to be a big time for the Supreme Court. Like freshmen who have put off writing their term papers until the last minute, the Court typically unleashes a flurry of decisions just before leaving town for the summer.
The end of this term has been more significant than most. Last week, three major decisions were published, along with several lesser decisions. The Dobbs decision reversing Roe v Wade was immediately consequential, as abortion has already effectively become illegal in a number of states, with more to follow soon. But it also laid the groundwork for future decisions reversing a number of rights: the right to marry someone of the same sex or a different race, to access contraception, or to choose (with your consenting partner) your own sexual practices.
The week’s other two decisions had fewer immediate consequences, but similarly looked like the first steps down a long road. Carson v Makin directly affects only a few families in rural Maine, but announces the Court’s intention to drastically redraw the line between Church and State. NY State Rifle & Pistol v Bruen tosses out a New York gun regulation that has stood for a century, but similarly calls all gun regulations into question.
Justice Alito’s majority opinion tried to minimize the consequences of this decision, which on the surface only [only!] reversed Roe, but also created a blueprint for throwing out all the substantive-due-process rights. Justice Thomas, on the other hand was explicit about where he wants the Court to go next:
in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,”, we have a duty to “correct the error” established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.
Thomas forgot to mention one other substantive-due-process case: Loving v Virginia, which makes his own interracial marriage legal. (I can see how that might start a difficult conversation: “Sorry, honey, but we were never really married.”) Given the anti-miscegenation laws that existed when the 14th Amendment passed in 1868, it’s hard to see how Loving survives the kind of historical analysis the Court did this week in both Dobbs and Bruen.
Leaning the other way, Justice Kavanaugh not only ignored future reversals, but tried to gloss over the radical nature of this one:
On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.
The obvious implication of that statement is that Kavanaugh would not overrule Congress if it did codify reproductive rights. However, given how duplicitous Kavanaugh has already been on this issue, I wouldn’t count on him following through if such a case reached the Court.
He also waxed philosophical:
The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views.
I’ll be interested to see if Kavanaugh stands by this position the next time a corporate personhood case comes before the Court. The Constitution says nothing about corporations, and yet conservative judges have had no trouble reading between the lines to find “new rights and liberties” for these wealthy and immortal beings.
As I predicted in March, Chief Justice Roberts concurred in upholding Mississippi’s ban on abortions after 15 weeks, but not in overturning Roe completely.
Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy.
That’s typical Roberts, as you’ll see below in the Carson case. He also would destroy Roe, but do it over a period of years by pecking it to death. In this dissent, he makes a doctrine out of that approach:
If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.
Going back to the corporate personhood example, Roberts didn’t recommend this kind of restraint in Citizens United.
The Court’s three liberal justices — Breyer, Kagan, and Sotomayor — wrote a common dissent. Interestingly, they agreed with Thomas that abortion rights are tied to all the other substantive-due-process rights.
The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.
The dissent challenges the legitimacy of ignoring stare decisis to reverse the Roe and Casey precedents.
No recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed. … The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, “contributes to the actual and perceived integrity of the judicial process” by ensuring that decisions are “founded in the law rather than in the proclivities of individuals.” Today, the proclivities of individuals rule.
It attacks Alito’s history-alone reasoning. If “liberty” means exactly what it did in 1868, that has a lot of unfortunate consequences, particularly for women.
The Court [in Casey] understood, as the majority today does not, that the men who ratified the Fourteenth Amendment and wrote the state laws of the time did not view women as full and equal citizens. A woman then, Casey wrote, “had no legal existence separate from her husband.” Women were seen only “as the center of home and family life,” without “full and independent legal status under the Constitution.” But that could not be true any longer: The State could not now insist on the historically dominant “vision of the woman’s role.”
Guns. In Bruen, Justice Thomas writes for the six conservative justices. Thomas is the justice whose thought process seems most alien to me, and here he loses me early on:
In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.
Heller is the 2008 case in which Justice Scalia invented an individual right to bear arms, independent of any notion of “a well-regulated militia”, as if the Founders just threw that phrase into the Second Amendment on a whim.
Judges and legal scholars before Scalia had laughed at this interpretation, which had not figured in any previous Supreme Court decision since the beginning of the Republic. In 1990, retired Chief Justice Warren Burger, who had been appointed by Richard Nixon and at the time was not anyone’s idea of a liberal, called such an interpretation of the Second Amendment “a fraud on the American public“. John Paul Stevens, who wrote the primary dissent in Heller, called it “the Supreme Court’s worst decision of my tenure“.
And then we get to “the Second Amendment’s plain text”. I have explained previously (and at length) why I don’t think the text of the Second Amendment means anything at this point. (Briefly, the Founders’ vision of the role of the militia bears no resemblance to any institution that currently exists: not the National Guard, and certainly not self-appointed yahoos who run around in the woods wearing camo. History just went a different way. The Second Amendment, basically, is a signpost on a road not taken.) So the idea that the Second Amendment has a “clear text” that “covers” something in today’s world — that’s just wrong. If we can’t repeal it and start over, the most sensible approach would be to ignore it.
The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
The regulation in question in this case is New York’s state law that requires gun owners to have a license, and which denies licenses for people to carry guns outside their homes unless they “demonstrate a special need for self-protection distinguishable from that of the general community.” The two New Yorkers bringing suit claim that it should be up to them to decide if they need a gun for self-defense, not up to the state.
Thomas then has to judge whether this regulation is “consistent with the Nation’s historical tradition of firearm regulation”. But he then edits that history in a very convenient way: Pre-colonial English history is too early to matter (though it wasn’t when assessing abortion laws in Dobbs). Gun regulations in the Wild West come too late. Even colonial and federal-era history can be swept away with the proper hand-waving.
Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.
And two post-Civil-War cases in Texas “support New York’s proper-cause requirement”, but they can be dismissed as “outliers”. When the Kansas Supreme Court upheld a “complete ban on public carry enacted by the city of Salina in 1901”, its decision was “clearly erroneous”. And the New York law Thomas is overturning was passed in 1911. (Justice Breyer’s dissent correctly sums up Thomas’ historical analysis as “a laundry list of reasons to discount seemingly relevant historical evidence.” The dissent in Dobbs makes fun of how Thomas’ cramped view of history in this case contrasts with Alito’s expansive citation of sources back to the Middle Ages in Dobbs. Thomas, naturally, signed on to Alito’s opinion, and his concurrence did not correct Alito’s historical analysis.)
Thomas’ whole historical method ignores the possibility that early American legislators believed they had a perfect right to regulate firearms, but didn’t see any special need at the time. (Breyer: “In 1790, most of America’s relatively small population of just four million people lived on farms or in small towns. Even New York City, the largest American city then, as it is now, had a population of just 33,000 people. Small founding-era towns are unlikely to have faced the same degrees and types of risks from gun violence as major metropolitan areas do today, so the types of regulations they adopted are unlikely to address modern needs.”)
And so, having adopted Heller’s interpretation of the Second Amendment and eliminated any conflicting examples from consideration, Thomas reaches his conclusion.
At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” in order to carry arms in public.
Justice Breyer’s dissent raises the central failing of Thomas’ dogmatic approach.
The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence. And yet the Court today purports to answer that question without discussing the nature or severity of that problem.
In other words, Thomas loses himself in estimating how many angels could dance on a pinhead in the 1790s, without any concern for what is happening today. (Alito’s concurrence berates Breyer for even daring to consider the present-day problem the law in question is trying to address.) Breyer finds that “decisions about how, when, and where to regulate guns [are] more appropriately legislative work”, and that judges should show “modesty and restraint” in overruling legislatures who take on that work. And he raises this key question:
[W]ill the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?
Church and State. Because John Roberts doesn’t sign on to decisions like Alito’s reversal of Roe, he has gotten an image as the “moderate” on the Court. I don’t think that’s exactly true. Roberts is every bit as radical as the five who signed Alito’s opinion. He just moves towards his extreme goals in a stealthier, more step-by-step fashion. Roberts is like the thief who doesn’t strip your whole orchard in one night; but he leaves a hole in the fence and keeps coming back.
Campaign finance is a good example. Roberts didn’t destroy Congress’ ability to control political contributions in one fell swoop. He ate away at it over a period of years.
His majority opinion in Carson v Makin is similarly one of a series of cases that eats away at separation of church and state. On the surface, this decision doesn’t do much: A handful of families who live in rural areas of Maine will be able to get state support to send their children to conservative Christian schools, in spite of the Maine legislature’s attempt not to fund such schools. (And even they won’t get support for the schools they want, because Maine’s law also disqualifies schools that discriminate against gays and lesbians.)
To get that tiny result, though, Roberts blows a big hole in the wall between church and state. New cases will be coming through that hole for years to come, and the principles established in Carson will funnel more and more public funding to the Religious Right.
Here’s the background: Some rural areas of Maine have so few students that it’s not worth supporting a public high school. Instead, some of them contract with high schools in neighboring districts to take their students. But some don’t even do that. If you live in one of those, you can get tuition reimbursement from the state to send your children to a private high school that meets certain requirements. One requirement is that the school be “nonsectarian”. That condition was added in 1981, after the state attorney general ruled that paying tuition to a sectarian school would violate the Establishment Clause of the First Amendment.
Maine has a fairly narrow definition of “sectarian”. It’s OK for a school to be founded by or associated with a church or other religious organization. But public money was banned from going to a school which
in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.
The two families that brought suit against this policy live in Glenburn (population 4,648) and Palermo (1,570). They want Maine to help them pay tuition to schools that clearly are sectarian. For example, one of the schools, Temple Academy, has as its mission statement:
Temple Academy exists to know the Lord Jesus Christ and to make Him known through accredited academic excellence and programs presented through our thoroughly Christian Biblical world view.
It goes on to pledge
To provide a sound academic education in which the subject areas are taught from a Christian point of view.
To help every student develop a truly Christian world view by integrating studies with the truths of Scripture.
So Temple is not like a nominally Catholic or Baptist school where students of other faiths might opt out religion classes or worship services. Students who attend any classes at all are being indoctrinated in a conservative Christian worldview, and part of every teacher’s job is to promote a particular version of Christianity.
Also, the Maine law is not like a voucher program, where the legislature delegates choice of schools to parents, understanding that some parents will choose sectarian schools. Maine’s legislature tried NOT to fund religious indoctrination; but Roberts’ decision says that it MUST.
This is new, and it is radical.
Justice Breyer’s dissent (Breyer, who is retiring and will be replaced next term by Ketanji Brown Jackson, is going out with a bang) is a good introduction to how the Court has historically interpreted the First Amendment, which bars any government “establishment of religion” but also guarantees individual citizens “free exercise” of their religious faith. Breyer says that these two clauses are “often in tension” but express “complementary values”. Quoting previous Court decisions, Breyer imagines what motivated the amendment’s two religion clauses.
Together they attempt to chart a “course of constitutional neutrality” with respect to government and religion. They were written to help create an American Nation free of the religious conflict that had long plagued European nations with “governmentally established religion[s].” Through the Clauses, the Framers sought to avoid the “anguish, hardship and bitter strife” that resulted from the “union of Church and State” in those countries.
“Conflict” is a bit of an understatement here. In England, the Anglican/Catholic/Puritan struggle dominated the 1600s, resulting in the beheading of Charles I, a long civil war, and the Glorious Revolution of 1688. On the Continent, the Thirty Years War killed at least 4.5 million people. The Founders knew this history and desperately wanted to avoid repeating it.
Previous Courts held that the tension between the two religion clauses created “play in the joints”. In other words, states had room to navigate between them. One state might choose to draw the line in a different place than another.
States enjoy a degree of freedom to navigate the Clauses’ competing prohibitions.
Roberts started taking that freedom away when he wrote the majority opinion in the 2017 Trinity Lutheran case, where Missouri was forced to include religious schools in a grant program to make playgrounds safer. Breyer can live with that outcome (in 2017 he wrote a partial concurrence), but doesn’t think that decision forces this one.
Any Establishment Clause concerns arising from providing money to religious schools for the creation of safer play yards are readily distinguishable from those raised by providing money to religious schools through the program at issue here—a tuition program designed to ensure that all children receive their constitutionally guaranteed right to a free public education. After all, cities and States normally pay for police forces, fire protection, paved streets, municipal transport, and hosts of other services that benefit churches as well as secular organizations. But paying the salary of a religious teacher as part of a public school tuition program is a different matter.
It’s striking that in this case (as in the gun case above) it is Breyer and the liberals, not Roberts (or Thomas) and the conservatives, who are defending states rights.
We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.
The cases Roberts cites as precedents, Breyer says, don’t justify this shift from permission to requirement.
In the majority’s view, the fact that private individuals, not Maine itself, choose to spend the State’s money on religious education saves Maine’s program from Establishment Clause condemnation. But that fact, as I have said, simply permits Maine to route funds to religious schools. It does not require Maine to spend its money in that way.
This particular decision may not affect many Americans. But Breyer sees clearly where Roberts is headed.
What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education? What other social benefits are there the State’s provision of which means—under the majority’s interpretation of the Free Exercise Clause—that the State must pay parents for the religious equivalent of the secular benefit provided? The concept of “play in the joints” means that courts need not, and should not, answer with “must” these questions that can more appropriately be answered with “may.”
And doesn’t Roberts’ policy implicitly favor more popular religions?
Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education.
After all, who but Christians will be able to find a market for religious schools in rural Maine? This is a problem I have had with the conservative view of “religious freedom” all along: In practice, it only gives rights to conservative Christians — or, completely by accident, to other religious groups who happen to agree with conservative Christians on a particular issue like abortion or homosexuality.
So it may be amusing to imagine how this ruling might someday be used to make Evangelical taxpayers support a Muslim madrassah, or some other school they would abhor. But I question whether such a thing will ever happen. This Court’s sectarian majority believes in special rights for Christians. It will find ways around extending those rights to anyone else.
Here’s how Sherry Kolb put it in “Are Religious Abortions Protected?“, where she examines the argument (raised in a recent lawsuit filed by a Florida synagogue) that a Jewish doctor may feel religiously obligated to perform an abortion in situations where a state has banned them.
Despite appearances to the contrary, this Court is not especially friendly to Free Exercise claims. … Its rulings instead reflect its friendliness to conservative Christianity and, accordingly, to Judaism and Islam where the ask is minimal or the traditions happen to be the same. Christians can violate the anti-discrimination laws for religious reasons because they are Christians. The sooner we come to understand that the Court is all about Christianity rather than some capacious vision of religious liberty for all, the sooner we will begin the process of finding solutions to our modern-day theocracy problem that do not ask the Court to behave with integrity or consistency.
The Weekly Sift 