Tag Archives: abortion

Closing Argument: Abortion

https://madison.com/opinion/cartoon/hands-on-wisconsin-end-of-roe-means-fewer-rights-for-women/article_5769a345-2d8d-5b54-8307-4fa275b9a8e7.html

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?

https://www.dailyastorian.com/opinion/editorial-cartoon-national-abortion-ban/article_5f259790-3593-11ed-a5fe-236574f0cac2.html

By contrast, Democrats support a law that would restore the rights women lost when Roe was overturned.

“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.

The case that got the most publicity was when a raped 10-year-old had to leave Ohio and go to Indiana to get an abortion. (Indiana has since passed a ban nearly as extreme as Ohio’s, but it does have a rape exception. That law is being challenged in state courts.)

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. 

https://madison.com/opinion/cartoon/phil-hands-the-battle-for-abortion-rights-in-editorial-cartoons/collection_267451d3-8cf7-53a8-a089-58541ae775db.html#10

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?

https://www.timesfreepress.com/news/2022/sep/15/the-entrepreneur/

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”.

https://www.cagle.com/dave-whamond/2022/10/the-party-of-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.)

The Guardian quotes one woman’s husband:

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.

https://www.washingtonpost.com/comics/2022/06/27/cartoons-abortion-supreme-court-dobbs/

The Battle for Voters’ Imaginations

https://www.theeditorialcartoons.com/editorial-cartoon/Nick+Anderson%27s+Editorial+Cartoons/2022-07-28/195313

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.


After Sarah Palin lost Alaska’s only House seat, Democrat Pat Ryan won a special election in a purple district, and Kansas voters resounding rejected giving their legislature the power to ban abortion, Republicans are beginning to catch on that November might not be quite the cakewalk they had expected, and the Dobbs decision overturning Roe v Wade is a big reason.

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.

Dahlia Lithwick explains:

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.

A Democratic training video. If you look up “well-prepared Democrat” in a dictionary, chances are you will see a picture of Pete Buttigieg. In a townhall discussion during his presidential campaign, Fox News moderator Chris Wallace tried Dannenfelser’s gambit of trying to make Buttigieg draw a line.

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.

No Victims Allowed

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?

Usually, right-wing media filters narrative-busting facts out of the news stream before they can disturb right-wing voters’ peace of mind. Has the January 6 Committee proved beyond the shadow of doubt that Trump knew his “stolen election” claims were lies? Fox News will protect its viewers from seeing that evidence. Does the Biden administration have the best job-creation record in the history of the modern presidency? Are vaccinated-and-boosted Americans 17 times less likely to die of Covid than unvaccinated Americans? Does right-wing political violence kill many, many more people than left-wing political violence? Do countries with national health care have lower expenses and higher life expectancies than the US? Nobody wants to hear that stuff; just leave it out.

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 more ubiquitous.

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.

https://www.washingtonpost.com/opinions/2022/07/08/paralyzed-by-inaction/

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.)

Jonathan Turley wrote an article for the NY Post that was originally headlined (and promoted on Twitter as) “Activist Tale of a 10-year-old Rape Victim’s Abortion Looks Like a Lie” before somebody toned it down for the print edition.

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.

But none of them have apologized for their mistakes. Attorney General Yost’s response to the arrest did not even acknowledge the total irresponsibility of his previous statements:

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.

Instantly, right-wing media has gone from outrage at the Left inventing the rape story to outrage at the illegal immigrants who are raping our children.

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.

Three Supreme Court decisions with long-term consequences

https://claytoonz.com/2022/06/26/scotus-erode-us/

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.

Let’s take them one by one.

Abortion. Justice Alito’s majority opinion striking down Roe v Wade has barely changed since I wrote about the draft that leaked out in May. So I won’t repeat that material, but instead will focus on the concurrences and dissents from other justices.

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.

https://www.washingtonpost.com/opinions/2022/06/24/first-domino/

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.”

https://theweek.com/political-satire/1014636/open-carry

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.

Anyway, Heller is the archetypal “originalist” decision: It does some grammatical sophistry that has basically nothing to do with the issues the Founders actually cared about, and then — surprise! — deduces that the Founders agreed with the author.

This is what Thomas is building on.

Thomas follows the statement above with:

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?

I think we know the answer to that one.

https://www.reformaustin.org/author/nick-anderson/

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.

Who’s to blame for overturning Roe?

https://www.timesfreepress.com/cartoons/2022/may/07/overturned/5402/

There’s plenty of blame to go around.


The two featured posts today look at the leaked Alito opinion overturning Roe v Wade through two very different lenses. The other post goes through the text of the opinion and examines its claims and arguments. This one considers the question: How did we get here?

In particular, whose fault is it that women in about half the states are going to lose their right to bodily autonomy, and their ability to plan their lives?

Let’s start with those most directly responsible.

Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas. Or, as Stephen Colbert described them: “four old dudes and a woman who thinks The Handmaid’s Tale is a rom-com”.

Sometimes when we start assessing secondary blame, we lose sight of the primary blame. (Yeah, you shouldn’t have left your keys in the ignition, but the main reason your car got stolen was that some thief stole it.) Let’s not do that here: Roe is being overturned because five Supreme Court justices are putting their personal religious opinions above their duty to respect established precedents.

Now, as Justice Kavanaugh rationalized during the oral arguments, it’s not unheard of to reverse a precedent, and reversals have been some of the Court’s best decisions.

But a reversal is typically done after the Court has tried and failed to make the precedent work. That’s what happened, for example, when Brown v Board of Education (1954) reversed the “separate but equal” doctrine of Plessy v Ferguson (1893). In a series of cases from 1938 to 1950, the Court ordered students admitted to previously segregated white schools because the separate educational path provided for Black students was not really equal. In Brown, the Court drew a conclusion from that experience: Separate-but-equal schools were unworkable, because states with segregated schools would never provide a truly equal education to Black students.

But (in spite of what Alito claims, which I discussed in the other post) nothing about Roe and Casey has proven to be unworkable. The only major thing that has changed since Roe was decided in 1973 and upheld in 1992 is the composition of the Court. Alito, Barrett, Gorsuch, Kavanaugh, and Thomas are overturning Roe because they want to.

What’s more, they were all deceptive about this in their confirmation hearings. It’s arguable that they did not “lie”, depending on how tightly you define that word. (Thomas, I would argue, clearly did lie, though his lie may not be provable. It is simply unbelievable that, even though he was in law school when Roe was decided, he never participated in a discussion about it.) When asked about their approach to the Roe precedent, all five gave lawyerly answers that, in retrospect, were designed to deceive. If they could be cross-examined somewhere about their statements (which they can’t be, short of an impeachment hearing), all would have to say something similar to Bill Clinton’s “It depends on what the definition of ‘is’ is.”

And we already knew that Brett Kavanaugh lied repeatedly during his confirmation.

It is ironic, in my opinion, that these five deceivers are now trying to claim the moral high ground. They do not deserve it.

Donald Trump. It isn’t just that Trump appointed Gorsuch, Kavanaugh, and Barrett. It’s that he turned the Court over to the anti-abortion Federalist Society. Judges up and down the court system were selected by Leonard Leo, and rubber-stamped by Trump

Mitch McConnell. The reason Trump got to appoint three justices in four years is that McConnell played shenanigans in the Senate.

When Antonin Scalia died 11 months before the end of President Obama’s term, Obama nominated Merrick Garland to the Court. This was in no way a radical choice: Garland was already the chief judge on the most powerful appeals court in the country; he had been confirmed for that job by 73 senators; he was widely regarded as a moderate; and at the age of 63, he would probably only hold the seat for about 20 years, rather than 30 or 40.

In short: Obama was bending over backwards to be reasonable.

McConnell knew he could not present a valid reason not to confirm Garland, so he simply refused to hold hearings or bring the nomination to a vote, which is the process the Constitution calls for. The reason he gave was that an election was coming up, and the American people should have a chance to weigh in on this decision. (They did: Hillary Clinton got millions more votes than Donald Trump, but Trump got to make the appointment, who turned out to be Neil Gorsuch.)

McConnell also pushed Brett Kavanaugh’s nomination, and rubber-stamped the sham investigation of the sexual assault charge against him. When Ruth Bader Ginsburg died two months before the 2020 election, McConnell completely reversed his 2016 rhetoric about giving the American people a voice, and rammed Amy Coney Barrett’s nomination through in record time to give Trump his third justice.

https://www.reformaustin.org/political-cartoons/mitch-mcconnell/

The anti-democratic structure of the Senate. If the Senate were a democratic institution, Mitch would never have been majority leader to begin with, because the GOP would not have achieved a Senate majority any time in the last 24 years.

Here’s how that works: Every state gets two senators, no matter how many people it has. So Wyoming gets one senator for every 140,000 registered voters, while California gets one for every 11 million registered voters. In other words, it takes about 70 California voters have as much influence on the Senate as one Wyoming voter.

Sounds fair, right?

But you might be thinking: “Sure, blue California is under-represented compared to red Wyoming, but red Texas is also under-represented compared to blue Vermont. So maybe it all washes out.”

It doesn’t wash out. If you run the numbers, the last time Republican senators got more votes (over a complete 6-year Senate election cycle) than Democratic senators was 1994-1998. But in the 24 years since 1998, Republicans have held a Senate majority for 12 years: half the time.

In 2016, for example, when Mitch McConnell was using his Republican “majority” to keep President Obama from appointing Merrick Garland, sitting Democratic senators had gotten 50.7% of the total six-year Senate vote, compared to the Republicans’ 44.1%.

In a democratic country, Mitch wouldn’t have been majority leader at all, and Merrick Garland would be on the Court instead of Neil Gorsuch.

Similarly, during the Trump and Bush years, a democratic Senate would have had a Democratic majority. Bush probably could have gotten Alito and Roberts through anyway, because in those rose-colored days senators were not as partisan about the Court. (Alito was approved 58-42, and Roberts 78-22.) But Gorsuch, Kavanaugh, and Barrett would not have been confirmed.

Next, you might be wondering how we got such a skewed Senate. Historical accident, right?

No. Republicans in the late 1800s intentionally packed the Senate by admitting new states with tiny populations. As historian Heather Cox Richardson explained to Bill Moyers:

After 1888, when we get the installment of Benjamin Harrison in the White House, he loses the popular vote by about 100,000 votes. But he’s installed thanks to the Electoral College. The Republicans under Harrison between 1889 and 1890, they let in six new states in 12 months. That was the largest acquisition of new states in American history since the original 13 and it’s never been matched again. They let in North Dakota, South Dakota, Montana, Washington, and then Idaho and Wyoming to go ahead and make sure that they would continue to control the Senate, and the Electoral College. And they’re not hiding this. They actually go onto their media which is their equivalent of the Fox News channel at the time and say, by letting in these states, we’re going to hold onto the Senate for all time and we’re going to make sure we hold onto the White House for all time.

So if you’ve ever wondered why one Dakota wasn’t enough, that’s the reason: Republicans were packing the Senate. The Senate remains skewed in their favor to this day.

It’s almost impossible to unmake states, and hard to imagine passing a constitutional amendment to give larger states more senators, so the easiest way to change the Senate to better reflect the voting public would be to grant statehood to Puerto Rico and D.C., which presumably would elect four Democrats to the Senate. (If Democrats wanted to imitate Republicans, they could give statehood to East and West Puerto Rico, each of which could have a population roughly equal to the two Dakotas put together.) That won’t happen, McConnell says, because eliminating the Senate’s Republican bias would be “full-bore socialism“.

Also, admitting Puerto Rico and D.C. would let a lot of Hispanics and Blacks cast meaningful votes, so that’s a non-starter.

https://claytoonz.com/2022/05/03/goodbye-to-womens-rights/

The Electoral College. Like Benjamin Harrison, Donald Trump was never elected by the American people; he was installed by the Electoral College. In 2016, he got 46% of the vote, almost 3 million votes less than Hillary Clinton’s 48%. But his 46% produced 304 electoral votes to Clinton’s 227.

A less extreme miscarriage of democracy happened in 2000. That election has often been described as “close”, but it really wasn’t that close: Al Gore got half a million more votes than George W. Bush, so there was no doubt who the People chose. But after Florida was adjudicated in his favor (the vote in Florida really was close), Bush’s fewer votes turned into a 271-266 Electoral College win. (Sixteen of those electoral votes come from the aforementioned Montana, Idaho, Wyoming, and the two Dakotas. If they were all one state, it would have 5 million people, or 9 electoral votes; Bush loses.) Bush went on to appoint Justice Alito and Chief Justice Roberts.

Minority-vote presidents aren’t an accident; that’s what the Electoral College was designed to do: make some Americans’ votes count more than others. So in 2016, a few thousand voters in Wisconsin, Michigan, and Pennsylvania overruled much larger majorities in states like California, New York, and Illinois. If you’re a Californian, your vote just doesn’t matter as much as a purple-state vote. Sucks to be you.

Why did the Founders curse us with this unjust system? In a word: slavery. Votes in slave states were supposed to count more than votes in free states.

In 1787, the slave states wanted federal power comparable to their full populations (including slaves), but for obvious reasons they didn’t want to give the vote to slaves (or women, or men who didn’t own enough property). In school, most of us learned about one result of this desire to wield power in the name of people whose rights you totally deny: the 3/5ths Compromise. In setting the number of representatives a slave state got in Congress, its slave population would be included, but at a 40% discount.

That settled the House. The Senate was already undemocratic, so no problem there. But that left the presidency: If presidents were elected by the People, states that let more people vote would have more influence on the outcome.

Can’t have that, so the Electoral College was born. Each state got one electoral vote for each senator or congressman. So no matter how few people a state let vote, its influence on the presidency was guaranteed.

As Shakespeare had Marc Antony say: “The evil that men do lives after them.” Slavery ended with the 13th Amendment in 1865, but the blatant injustice of the Electoral College lives on. Women can thank it for the loss of their bodily autonomy.

https://ifunny.co/picture/evangelical-christians-actual-aclump-of-children-cells-gedxH7mc8

Theocrats. There are people who honestly believe that an ovum acquires a complete human soul the instant it bonds with a sperm. That sounds nutty to me (and it’s completely non-Biblical, so don’t tell me it’s the “Christian” position). But your religion is your own; it doesn’t have to make sense to me.

Where I lose patience is the point where people decide that their theological speculations give them the right to interfere in other people’s lives. You can believe whatever you want about fetuses and souls and abortion. But if you’re not the pregnant woman, what happens to the pregnancy is not your decision. And if no pregnant woman is asking for your advice, your opinion doesn’t matter.

The gullibility of purportedly pro-choice senators. Susan Collins isn’t the only one, but she is definitely on the poster.

My favorite Susan Collins joke describes how she gets lunch in the Senate cafeteria: She studies the menu for half an hour, and then orders the same thing as Mitch McConnell.

That’s pretty literally what happened during the Kavanaugh confirmation. Collins was one of the last senators to commit to Kavanaugh, who was confirmed 50-48. (Collins and Democrat Joe Manchin were the deciding votes.) For weeks, her agonizing decision process had us all speculating about what she would do. In the end, though, after all that dithering, she voted with Mitch McConnell, just as she had on the deficit-busting billionaire-boosting Trump tax cut, and as she did on Trump’s first impeachment. (She said Trump had learned “a pretty big lesson” from being impeached, and predicted that “he will be much more cautious in the future”. She voted to convict on his second impeachment, and says she’s “very unlikely” to support him in the 2024 Republican primaries. But in the general election? She leaves it open. Maybe failing to overthrow democracy on 1-6 taught him something.)

During her speech advocating Kavanaugh’s confirmation, Collins recounted her conversations with the nominee.

Our discussion then turned to the right of privacy, on which the Supreme Court relied in Griswold v. Connecticut, a case that struck down a law banning the use and sale of contraceptives. Griswold established the legal foundation that led to Roe eight years later. In describing Griswold as “settled law,” Judge Kavanaugh observed that it was the correct application of two famous cases from the 1920s, Meyer and Pierce, that are not seriously challenged by anyone today. Finally, in his testimony, he noted repeatedly that Roe had been upheld by Planned Parenthood v. Casey, describing it as “precedent on precedent.” When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed it was wrongly decided, he emphatically said “no.”

Kavanaugh had obviously lied numerous times during is confirmation hearings, but Collins took his affirmations of Roe’s status at face value. Now she describes Kavanaugh’s apparent vote to overturn Roe as “completely inconsistent” with what he told her, but she accepts no responsibility for being such a stooge.

https://www.reddit.com/r/PoliticalHumor/comments/68x91p/but_her_emails/

Pro-choice voters who refused to vote for Hillary Clinton. Who could have foreseen that electing Donald Trump might risk ending abortion rights? Well, everyone, actually. This is from an AP article written in May, 2016:

Scalia’s death was a shock, but the next few years are almost certain to produce more vacancies. Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy turns 80 in July and Justice Stephen Breyer will be 78 before the end of the summer. A Trump nominee in any of those seats would cement conservative domination of the court for years, if not decades. By contrast, a victory by the Democrats in November probably would lead to the most liberal Supreme Court in a half-century. …

Advocates on both sides of the abortion debate were quick to react in ways that pointed to the importance of the presidential election. “Donald Trump’s list of potential Supreme Court nominees are a woman’s worst nightmare. Their records reveal a lineup of individuals who would likely overturn Roe v. Wade if given the chance, gutting what’s left of abortion access in this country and heaping punishment on women,” said Ilyse Hogue, president of NARAL Pro-Choice America. On the other side of the issue, Susan B. Anthony List President Marjorie Dannenfelser said Trump’s list was especially strong and stood in contrast to judges Democratic front-runner Hillary Clinton would choose. “There is no question Clinton would only nominate judges who stand in lock-step with the abortion lobby and would strike down even the most modest abortion limits,” Dannenfelser said.

But here’s what Bernie-supporter H. A. Goodman was writing in November, 2015 in a Salon article “Hillary Clinton is on wrong side of everything: Stop telling me I have to vote for her because of the Supreme Court“:

Ruth Bader Ginsburg is fine and the New York Times writes that she has “no interest in retiring.” Justice Scalia isn’t stepping down from the U.S. Supreme Court soon and will only contemplate retirement when he “can’t do the job well.” Anthony Kennedy is in “no rush” to leave the Supreme Court. Justice Breyer has no plans to step down but will “eventually” retire one day.

The paranoid legions, frightful of voting their conscience and actually upholding our democracy, can rest assured that all four Supreme Court justices mentioned are still capable of lasting four more years.

It turned out that Scalia didn’t last six months. But even after his death reminded everyone that you never know, here’s an article advocating that gay progressives vote for Jill Stein, because even if those votes did happen to cost Hillary the election, “Trump would be an acceptable setback for the ultimate greater good.”

Many are quick to point out that this election is actually about who gets to nominate Supreme Court judges and I agree that it is better to elect a candidate who would nominate liberals to these positions.

But anyone who knows politics knows that all of the potentially vacant seats are currently occupied by conservatives, so in the worst case scenario, after Obama nominates, liberals will still have a 5-4 advantage.

That worked out great, didn’t it? Obama would choose Scalia’s replacement, Ginsburg would live forever, and Kennedy was already a “conservative”, so nobody needed to worry about a Federalist Society extremist replacing him. Supreme Court? Not a problem.

Every pro-choice American who has treated abortion as a secondary issue. For nearly fifty years, pro-choice politicians have hidden behind the Supreme Court, and pro-choice voters have let them do it.

Now that Roe is being overturned, Democrats are beginning to work on protecting abortion rights through federal legislation. But given their narrow majority in the Senate and a few Democratic senators’ unwillingness to end the filibuster, they will be unable to pass that legislation.

But Democrats have had Senate majorities about half the time in recent decades, and for about six months during the Obama administration, they had a filibuster-proof majority. Roe could have been codified then. Or the filibuster could have been eliminated long ago, when the party had a few votes to spare, and then Roe could have been codified.

Even if they could not pass legislation, they could have made Republicans vote it down again and again. They could have challenged those legislators to explain that vote to their constituents.

But it was easier to rely on the Court. As a result, after the Supreme Court’s protection of abortion rights ends, there is no second line of defense. Abortion rights are already gone in Texas, and will vanish in many other states in June.

It didn’t have to be this way.

What Alito wrote

https://www.ajc.com/opinion/mike-luckovich-blog/54-mike-luckovich-going-going-gone/PW5FT437ZJENHNII5YQRL2STFM/

A summary of his arguments, and how they might be used to take away other constitutional rights.


A week ago, Politico released a leaked draft of Supreme Court Justice Samuel Alito’s opinion overturning Roe v Wade. Politico claimed this was to be the majority opinion, representing not just Alito, but supported by Justices Thomas, Gorsuch, Kavanaugh, and Barrett as well. The draft dates from February, and we do not know what revisions may have been made since. The decision on the case (Dobbs v Jackson Women’s Health) is expected to be released before the Court’s current term ends in June.

The case concerns a Mississippi law that bans abortions after 15 weeks, in violation of the existing Supreme Court precedents. The Court has three basic options:

  • Respect the Roe and Casey precedents by invalidating the Mississippi law.
  • Create a loophole that allows the law to take effect, and chips away at abortion rights in general, but does not overturn Roe in its entirety.
  • Overturn Roe, allowing states to regulate or ban abortions as they see fit.

This is how I summarized the situation in March:

So it’s clear which approach Roberts will favor: Don’t make headlines by reversing Roe, but chew away at it by creating a loophole for Mississippi, maybe by changing the definition of “viability”. The language of such a decision could subtly invite states to push the boundary further, until a woman’s right to control her own pregnancy would have little practical meaning. Roe would continue to stand, but like a bombed-out building without walls or a roof, would protect no one.

That probably won’t happen, though, for a simple reason: When Barrett replaced Ruth Bader Ginsburg, Roberts lost control of the Court. He is no longer the swing vote, so he loses 5-4 decisions when he sides with the Court’s three surviving liberals.

And I warned that reversing Roe would not be the final chapter of this saga.

Roe doesn’t stand alone. It is part of a web of substantive due process decisions on a variety of issues. Reversing Roe will send ripples through the whole web, putting all those rights up for grabs.

So here we are. Unless something inside the Court has drastically changed since February, the constitutional right to abortion, which has existed for 49 years, will vanish sometime in June, and a number of other rights will be in doubt, including the right to use birth control, for consenting adults to choose their own sexual practices, and for two people of any race or gender to marry.

What does Alito’s ruling do? Alito has written an unambiguous reversal of Roe.

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. … Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.

Unenumerated rights. No one claims that the word “abortion” appears in the Constitution. But there are several places where a judge might find implicit protection for rights not specifically listed:

  • The Ninth Amendment, which says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This recognizes the existence of rights beyond those the Constitution mentions, but provides little basis for identifying them.
  • The Equal Protection Clause of the 14th Amendment, which guarantees “any person” within the jurisdiction of the states “the equal protection of the laws”. Judges at many levels have, for example, rooted same-sex marriage here — same-sex couples are guaranteed the equal protection of the marriage laws — but Justice Kennedy’s majority opinion in Obergefell gave equal protection a secondary role.
  • The Due Process Clause of the 14th Amendment, which says that no one can be deprived of “liberty” without due process of law. Abortion and the related privacy rights have been rooted here, in a doctrine called “substantive due process”, which I described in March.

Another place to look for an unenumerated right is in Supreme Court precedents themselves. Under the doctrine of stare decisis, the Court will usually stand by a previous decision, even if the current justices believe the case was wrongly decided. For example, corporate personhood arises from a bad decision the Court made in 1886. It continues to be upheld despite the fact that the word “corporation” does not appear in the Constitution.

His arguments. Alito dismisses the equal-protection option like this:

[I]t is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretext designed to effect an invidious discrimination against one sex or the other.”

Due-process rights not otherwise mentioned in the Constitution, Alito writes, have to pass what is called the Glucksberg Test:

[T]he Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered Liberty.”

He concludes that the right to abortion does not pass this test.

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. …

Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State.

Much of the opinion’s 98 pages consists of a long history lesson about state laws and common law cases.

Alito also addresses the possibility that a right to abortion is part of a broader right to privacy, which does pass Glucksberg.

Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy”. Casey elaborated: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Alito also dismisses this justification in what is by far the weakest part of his argument, consisting mostly (in my opinion) of question-begging and because-I-said-so.

Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. … This attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion

And finally he dismisses stare decisis.

In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.

I found this part bizarre. Alito’s first two factors just reiterate that he disagrees with the original decision, which is a precondition for stare decisis being relevant at all. (If you agree with a precedent, you don’t need a doctrine to tell you to follow it.) His examples of the “unworkability” and “disruptive effect” of the Roe framework (as adjusted by Casey) are mostly examples of state legislatures persistently attempting to find loopholes that allow them to harass women seeking abortions, and engaging in bad-faith efforts to sneak harassment in as health regulations, building codes, and other Trojan horses.

Would Alito find gun-right decisions (like Heller) “unworkable” if blue states persistently harassed gun owners and forced courts to keep striking down bad-faith laws by the dozens year after year? I doubt it.

And as for “reliance”, I look at my own reliance on Roe (which I explained ten years ago): My wife and I planned our life together around the assumption that we would not have children. We took precautions to prevent pregnancy, but ultimately we could not have fully trusted our plans if abortion had not been an option.

This is not something special about us. Around the nation, women are planning their lives and careers based on the belief that they will not have to carry a fetus, give birth, or raise a child until they decide to do so. In a very real sense, women are not equal to men in a world without abortion.

More critically, since any form of birth control can fail, women whose lives will be in danger if they get pregnant will have to give up sex if abortion is not available.

So Alito’s assertion that there are no “reliance interests” in Roe is just absurd. He doesn’t rely on Roe, so he thinks no one does.

The problem with “deeply rooted in this Nation’s history and tradition”. You know what definitely is “deeply rooted in this Nation’s history and tradition”? Sexism, racism, and bigotry of all sorts. If “liberty” is going to be defined by what that word meant when the 14th Amendment passed in 1868, then only straight White Christian men will ever have unenumerated rights protected by substantive due process. Justice Kennedy acknowledged as much in his Obergefell opinion:

If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.

Jill Lepore went further in The New Yorker:

There is nothing in [the Constitution] about women at all. Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.” There were no women among the delegates to the Constitutional Convention. There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.

… Women are indeed missing from the Constitution. That’s a problem to remedy, not a precedent to honor.

Think about the common-law authorities Alito cites, and some of their other opinions. In addition to opinions about abortion, for example, Sir William Blackstone’s Commentaries on the Laws of England also includes this assessment of a wife’s personhood:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.

And Thomas Hale, who, in addition to sentencing two women to death for witchcraft, also had a lasting impact on the law unrelated to abortion, which became known Hale’s Principle:

but the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.

Lepore notes the opinions that Alito does not cite:

Alito cites a number of eighteenth-century texts; he does not cite anything written by a woman, and not because there’s nothing available. “The laws respecting woman,” Mary Wollstonecraft wrote in “A Vindication of the Rights of Woman,” in 1791, “make an absurd unit of a man and his wife, and then, by the easy transition of only considering him as responsible, she is reduced to a mere cypher.” She is but a part of him. She herself does not exist but is instead, as Wollstonecraft wrote, a “non-entity.”

So Alito’s litany that prior to the 20th century abortion rights can be found in

no state constitutional provision, no statute, no judicial decision, no learned treatise

is much less impressive when you realize that no woman had any input into these documents. I find it hard to argue with Lepore’s conclusion:

To use a history of discrimination to deny people their constitutional rights is a perversion of logic and a betrayal of justice.

How should we justify unenumerated rights? History is a fine tool to use when judging what unenumerated rights the Constitution implicitly guarantees to individuals and groups who were enfranchised and empowered at the time (such as straight White Christian men). But in order to keep those rights from further enlarging the unfair advantages those individuals and groups already have, we need to combine those historical findings with a generous respect for the equal protection of the laws.

Justice Kennedy recognized just such a conjunction of prinicples in Obergefell:

The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.

For example: Do men have a traditional right to bodily autonomy, even when someone else’s life is at stake? Of course they do. American law has never forced a man to, say, donate a kidney to someone who will die without it. That would be absurd. But if a woman can be forced to risk her own lives to save the life of a fetus, does she enjoy the equal protection of the laws? I don’t think so.

Many of the same men who would force a woman to give up months of her life or even risk death for a fetus also believe that the Constitution protects them against the comparatively trivial inconvenience of a vaccine shot that might save not just their own lives, but the lives of the fellow citizens that they might otherwise infect. This is not equality under the law.

And about that history … A number of authors suggest that Alito’s reading of the history of abortion is biased. One of the more amusing examples of the historical acceptance of abortion in America is Ben Franklin’s abortion recipe, which he published in 1748 as part of a textbook.

And a brief prepared for this case by the American Historical Association contradicts Alito:

The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called “quickening,” which could occur as late as the 25th week of pregnancy. This was a subjective standard decided by the pregnant woman alone and was not considered accurately ascertainable by other means.

Are other rights at risk? Alito explicitly denies that his reasoning leads to the end of other rights associated with substantive due process:

As even the Casey plurality recognized, “abortion is a unique act” because it terminates “life or potential life”. … And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

While it is true that lower courts cannot directly quote Alito’s ruling to support eliminating other privacy rights, anti-abortion extremists also describe the pill, Plan B, and IUDs — and basically all birth control other than barrier methods — as “abortificants”. If states can ban abortion, they can ban these as well.

A bill currently advancing through the Louisiana legislature would define personhood as beginning “at fertilization”, which would make the use of an IUD attempted murder. This law would probably pass muster with Alito, who says that abortion laws going forward need only pass a rational basis test, the loosest possible legal standard.

And nothing stops these same five justices from walking the same path for a different issue on a different case. Consider what Alito writes about a right to abortion:

Not only are respondents and their amici unable to show that a constitutional right to abortion was established when the Fourteenth Amendment was adopted, but they have found no support for the existence of an abortion right that predates the latter part of the 20th century — no state constitutional provision, no statute, no judicial decision, no learned treatise.

This statement is equally true if you replace “abortion” with “same-sex marriage” or “interracial marriage” or “sodomy”. Why would the radical conservative justices not make that substitution in some future case?

Vox’ Ian Millhiser points out that Alito has already made a similar argument against same-sex marriage.

Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.

Every issue, when you come down to it, is “unique” in some way. If criminalization in 1868 shows that a right does not exist, then clearly the right of consenting adults to choose their own sexual practices, for example, is not “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty”. Neither is the right to marry the person of your choice.

This is where it matters that Alito and his fellow conservative justices made so many misleading and deceptive statements during their confirmation hearings. Could Alito’s statement that he does not “cast doubt on precedents that do not concern abortion” be one more deceptive reassurance that will only last until the five radical justices find a more convenient opportunity to take away other rights that contradict their conservative interpretations of Christianity?

Harvard Law Professor Mary Ziegler thinks it probably is:

The Court can draw whatever distinctions it likes and dodge the cases it doesn’t. But the draft of Dobbs v. Jackson Women’s Health Organization stresses that states were criminalizing abortion. True enough. But in the late 19th century, Congress passed the Comstock Amendment, which criminalized contraception. States criminalized same-sex intimacy.

The draft suggests that abortion is different because of the state’s impact on fetal life. This language — and the draft’s historically questionable narrative about the doctors who originally pushed to ban abortion — will encourage antiabortion leaders to ask the conservative justices to declare that a fetus is a rights-holding person under the Fourteenth Amendment — and that abortion is unconstitutional in blue as well as red states.

If this is where a final opinion ends up, the Court has painted itself into a corner — and maybe by design. Whether abortion is different or not, the Court will not likely send this back to the states for good. It will simply invite conservatives back for the next round.

In short, anyone who trusts Alito’s statement, and so believes that birth control (Griswold), same sex marriage (Obergefell), interracial marriage (Loving), and homosexuality (Lawrence) are secure, is a fool.

We know who Samuel Alito is, and he is not trustworthy.

Where Does the Religious Right Go After Roe?

https://politicalcharge.org/2021/09/04/the-weeks-best-cartoons-texas-abortion-ban/

Suppose the Supreme Court reverses Roe v Wade this term. Then what?


The Dobbs case. The Supreme Court has already heard arguments on Dobbs v Jackson Women’s Health Organization, a case centering on a law Mississippi passed in 2018. That law bans all abortions after 15 weeks, in direction violation of the 24-week standard the Court laid out in Roe v Wade in 1973 and affirmed in Planned Parenthood v Casey in 1992. This is the first major abortion case to hit the court since Amy Comey Barrett’s arrival gave conservatives a 6-3 majority. A ruling is expected before the Court’s current term ends in June.

Based on the justices’ general philosophies, and on their comments and questions during the hearing on this case in December, most observers expect the Court to uphold Mississippi’s law. The question is how they will do it: Will the conservative majority leave the framework of Roe and Casey in place, but find a loophole that lets Mississippi’s law stand? Or will it fulfill the decades-old dream of the Religious Right and reverse Roe and Casey outright, essentially declaring that those decisions were mistakes?

If you’ve been following Chief Justice John Roberts over the years, you know that big reversals are not his style, particularly in cases where a majority of the public disagrees, as it does here. Roberts has a partisan Republican agenda, but he likes to keep it just below the public’s radar, and he is wary of sparking a left-wing backlash that could benefit Democrats. The last thing he wants is to make the Court itself a central issue in the 2022 midterms, or to reawaken talk of packing the Court with enough new justices to overcome the conservative majority installed by presidents and Senate majorities that didn’t represent a majority of voters.

So it’s clear which approach Roberts will favor: Don’t make headlines by reversing Roe, but chew away at it by creating a loophole for Mississippi, maybe by changing the definition of “viability”. The language of such a decision could subtly invite states to push the boundary further, until a woman’s right to control her own pregnancy would have little practical meaning. Roe would continue to stand, but like a bombed-out building without walls or a roof, would protect no one.

That probably won’t happen, though, for a simple reason: When Barrett replaced Ruth Bader Ginsburg, Roberts lost control of the Court. He is no longer the swing vote, so he loses 5-4 decisions when he sides with the Court’s three surviving liberals. That’s what happened in September when the Court refused to grant an injunction stopping Texas’ six-week abortion ban from taking effect. The Court did not rule on the validity of the law, so Roe was not overturned. But it refused to enforce Roe, so abortion is effectively banned in Texas for the time being. (And other states are passing similar laws.) Like many observers, I read that refusal to act as a tacit acknowledgement that Roe is doomed: Why should the Court bother to enforce a precedent they’re going to reverse soon anyway?

Justices Alito and Thomas have made no secret of their desire to reverse Roe. The three Trump appointees (Barrett, Kavanaugh, and Gorsuch) all refused to commit themselves during their confirmation hearings. But the conservative movement that backed them intended for them to reverse Roe, and it will feel betrayed if they don’t.

Getting through Senate confirmation tends to encourage boldness that wasn’t apparent during the hearings. In 2018, for example, Brett Kavanaugh convinced swing-vote Senator Susan Collins of his reverence for precedent, which Collins interpreted to mean Roe. But by the time Dobbs was argued last December, Kavanaugh was singing the praises of reversals.

If you think about some of the most important cases, the most consequential cases in this Court’s history, there’s a string of them where the cases overruled precedent. Brown v. Board outlawed separate but equal. Baker versus Carr, which set the stage for one person/one vote. West Coast Hotel, which recognized the states’ authority to regulate business. Miranda versus Arizona, which required police to give warnings when the right to — about the right to remain silent and to have an attorney present to suspects in criminal custody. Lawrence v. Texas, which said that the state may not prohibit same-sex conduct. Mapp versus Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment. Giddeon versus Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same-sex marriage.

In each of those cases — and that’s a list, and I could go on, and those are some of the most consequential and important in the Court’s history — the Court overruled precedent. And it turns out, if the Court in those cases had — had listened, and they were presented in — with arguments in those cases, adhere to precedent in Brown v. Board, adhere to Plessy, on West Coast Hotel, adhere to Atkins and adhere to Lochner, and if the Court had done that in those cases, you know, this — the country would be a much different place.

Given that Kavanaugh was the new justice considered most likely to follow Roberts’ lead, sometime in June we can expect a 5-4 decision reversing Roe, as part of a 6-3 decision upholding Mississippi’s law. The Religious Right will erupt in celebration, as a half-century quest reaches a successful conclusion. Like the Ring of Sauron melting into the flames of Mount Doom, Roe will be gone forever.

But what then? Is that the end of the saga, or will there be sequels? Maybe the Religious Right will be like the dog that final catches the car and doesn’t know what to do next. Maybe they’ll hold a victory party and then break up, like a caravan that has crossed the desert and finally reached its destination.

Or maybe not. Maybe the Religious Right and the Court’s conservative radicals still have places to go.

The legal roots and branches of Roe. Conservative rhetoric makes Roe a prime example of “legislating from the bench”. In this way of telling the story, seven justices in 1973 thought a right to abortion was a good idea, even though the Constitution doesn’t mention it. So like a small, un-elected, lifetime-tenured legislature, they voted to establish that right. Of course they had to construct some hocus-pocus argument to hide their usurpation of legislative power, but really they conjured abortion rights out of thin air.

That’s not how it happened. Roe was part of a long process that included several decisions before it and several after, most of which had nothing to do with abortion. And just as Roe wasn’t conjured out of thin air, it can’t vanish in a puff of smoke either. Whatever logic reverses it will have far-reaching consequences that may take decades to play out.

Roe, along with several other important decisions, arises out of an interpretation of the 14th amendment, one of the three post-Civil-War amendments that freed the slaves and defined their place in American society. (A series of terrible 19th-century Supreme Court decisions undercut those amendments, opening the way for the former Confederate states to disenfranchise Black voters and replace slavery with Jim Crow. But that’s a topic for another day.) In particular, the 14th amendment says:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It’s not hard to figure out what it means to deprive someone of life or property, but lawyers have been arguing ever since about the definitions of liberty and due process. A narrow definition of liberty might just mean staying out of jail; a broad definition might extend to living the way you want to live.

And if some state is telling you that you can’t live the way you want to live, how much process are you due? Maybe due process just means that a state has to dot all its i’s and cross all its t’s before it starts dictating your major life decisions. Or maybe some decisions are so central to a life of liberty that states need really good reasons to interfere in them. And maybe some are so important that a state can’t limit them at all.

The idea that the 14th Amendment’s due process promises more than just a procedural standard is known as substantive due process. Fundamentally, this notion is neither liberal nor conservative. Roe is rooted in substantive due process, but so are arguments against vaccine mandates. (Contra Senator Cornyn, though, Dred Scott was not a substantive due process case.) Conservative courts from the Progressive Era to the early New Deal used substantive due process to throw out liberal reforms like limited work-weeks or a minimum wage: Telling workers they couldn’t work long hours for low wages was seen as such an egregious violation of their liberty that no process was deemed sufficient. (The Court at the time did not appreciate the irony of using an anti-slavery amendment to justify working long hours for low wages. Obviously, those decisions are not in force today.)

The path from the 14th Amendment to Roe goes like this: Substantive due process implies that each person lives inside a sphere of personal liberty, which cannot be violated by governments for any but the most serious reasons, if at all. (Vaccine mandate cases, for example, revolve around whether a pandemic killing almost a million Americans sufficiently justifies invading the personal sphere of anti-vaxxers.)

Prior to Roe, that personal sphere was found (in Skinner) to contain a right to procreate even if the state would like to sterilize you, (in Loving) to include a right to marry someone of any race, and (in Griswold) to encompass a married couple’s right to use birth control. (Justice Douglas wrote: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”)

After Roe, the personal sphere grew (in Lawrence) to include the right of consenting adults to choose their own sexual acts, and (in Obergefell) to allow same-sex couples to marry.

In short, Roe doesn’t stand alone. It is part of a web of substantive due process decisions on a variety of issues. Reversing Roe will send ripples through the whole web, putting all those rights up for grabs.

Conservative understand this, and welcome it. This week, at Ketanji Brown Jackson’s confirmation hearing, Senator Cornyn of Texas pushed Jackson to disavow substantive due process entirely.

Justice Jackson, … you’ve suggested that policy making isn’t in your lane and you strive to be apolitical, something I applaud. But why isn’t substantive due process just another way for judges to hide their policy making under the guise of interpreting the Constitution?

He went on to rail against the Obergefell decision on same-sex marriage. And Senator Braun of Indiana had this exchange with the Indianapolis Star:

Question: Would you apply that same basis to something like Loving v. Virginia, the Supreme Court case that legalized interracial marriage?

Answer: When it comes to the issues, you can’t have it both ways. When you want that diversity to shine within our federal system, there are going to be rules and proceedings, they’re going to be out of sync with maybe what other states would do. It’s a beauty of the system, and that’s where the differences among points of view in our 50 states ought to express themselves. And I’m not saying that rule would apply in general depending on the topic, but it should mostly be in general, because it’s hard to have it on issues that you just are interested in when you deny it for others with a different point of view.

Question: So you would be OK with the Supreme Court leaving the question of interracial marriage to the states?

Answer: Yes, I think that that’s something that if you’re not wanting the Supreme Court to weigh in on issues like that, you’re not going to be able to have your cake and eat it too. I think that’s hypocritical.

And Senator Braun is correct: Unless the argument used to reverse Roe is very precise and subtle — and I’ve seen no sign that any of the conservative justices combines the skill and will needed to write such an opinion — it will also be an argument for reversing a long list of rights Americans have come to rely on.

Those rights will not go away immediately when Dobbs is settled in June, but red-state legislatures will recognize the Court’s invitation to pass laws violating them. And once those cases reach the Supreme Court (which may take several years), the conservative bloc will see no option other than to make a decision compatible with their reversal of Roe.

After all, as Brett Kavanaugh explained to Susan Collins, the Court has to respect precedent.

The Roe v Wade Death Watch

https://www.ajc.com/opinion/mike-luckovich-blog/125-mike-luckovich-no-choice/RLWAWD4BKNGUHMOWE2YYL7TJQY/

Despite numerous claims during confirmation hearings that they would respect precedent, Republican justices look ready to overturn Roe.


Wednesday, the Supreme Court heard arguments in Dobbs v Jackson Women’s Health, a case that invites the Court to overturn Roe v Wade. Their decision will most likely not be announced until the end of the Court’s term in June, and comments justices make during oral arguments do not always predict what they will decide. But it sure sounded like five of the justices — Thomas, Alito, Gorsuch, Kavanaugh, and Barrett — were preparing to overturn Roe, while Chief Justice Roberts was looking for a way to uphold Mississippi’s Roe-violating law (that bans abortions after 15 weeks, in open defiance of Roe’s fetal-viability standard) without reversing Roe completely, thereby chipping away at abortion rights rather than instantly ending them. [1]

What is Roe v Wade? When a Supreme Court decision is talked about as much and as often as Roe has been, sometimes the original gets lost in the noise. So I went back and read Roe, which was decided in 1973. If you’ve never read it, or read it so long ago you don’t remember, it’s worth a look.

For one thing, Justice Blackmun’s majority opinion assembles an excellent summary of the history of abortion laws going back to ancient times. Anti-abortion arguments often imply that abortion has traditionally been illegal, and that only modern judicial hocus-pocus has created a pregnant woman’s right to choose that option. But in fact the opposite is true: Abortion-producing potions are as old as history, and laws banning abortions prior to “quickening” (when women start to feel the fetus moving) were rare until the late 1800s.

It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.

The second thing worth noting is that Roe is a delicate balancing of rights and interests rather than the sweeping extension of judicial authority it is frequently portrayed as. On one hand, “the right of personal privacy includes the abortion decision”, but a state also has legitimate interests that could conflict with an “absolute” right to abortion: “in safeguarding health, in maintaining medical standards, and in protecting potential life.”

That’s where Roe’s trimester breakdown comes from. During the first trimester, Blackmun wrote, abortion is safer than childbirth, so the state’s interest in maternal health can’t justify first-trimester restrictions. The state’s interest in potential life becomes “compelling” at the point of viability.

With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Where does the right to privacy come from? Any anti-abortion critique of Roe is bound to assert that the Constitution never specifically mentions the “right to privacy” that justifies a woman’s right to terminate her pregnancy. In particular, unlike freedom of speech or the right to bear arms, it’s not in the Bill of Rights.

This is an argument Alexander Hamilton anticipated in The Federalist, and why he thought including a Bill of Rights in the Constitution in the first place was “dangerous”: Oppressive governments might use a list the people’s rights to claim that anything not listed was not a right. As Edmund Pendleton wrote to Richard Henry Lee in 1788:

Again is there not danger in the Enumeration of Rights? may we not in the progress of things, discover some great & important, which we don’t now think of? there the principle may be turned upon Us, & what [government power] is not reserved, said to be granted.

The right to privacy has implications far beyond abortion, and had been recognized long before Roe, which provides a long list of previous cases that applied and developed it. One case in particular should resonate with the anti-abortion faction today: Pierce v. Society of Sisters.

In 1925, the Supreme Court struck down an Oregon law that required children to attend public schools. The law was an anti-Catholic measure targeting parochial schools. But if you search the Bill of Rights for a provision that specifically allows parents to choose a Catholic school for their children, you won’t find it. [2] That freedom to choose depends on recognizing a sphere of personal autonomy that governments can’t invade.

Roe does not argue that a right to privacy exists; that was well established by 1973. Rather, the Court concluded in Roe that

This right of privacy, whether it be founded in the Fourteenth Amendment‘s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment‘s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

What about fetal personhood? Blackmun discussed this at length in Roe. He concluded that no occurrence of “person” in the Constitution could plausibly be claimed to include the unborn. If the Court was going to recognize the fetus as a person with constitutional rights, it would have to do so on its own authority. Blackmun was unwilling to claim such authority.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question.

He goes on to describe views of the ancient Stoics, most Jews, and (as was true at that time) “a large segment of the Protestant community” that the moment of conception does not establish an ensouled being with the full moral value that it will have after birth.

Elaborating on that point, I will say that no branch of the US government should be making pronouncements that establish one religious position as superior to another, if there is any way to avoid doing so. The Founders had were well aware of how religious conflicts had torn England apart during the 1500s and 1600s, as one sect and then another claimed control of the government and used it to enforce their views. They wanted no such conflicts in their new country, which is why they wrote a secular Constitution.

Blackmun continues:

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.

Gaslighting. Comments the justices made Wednesday underlined just how dishonest and disingenuous many of them had been during their confirmation hearings. AP summarized:

During his confirmation to the Supreme Court, Brett Kavanaugh convinced Sen. Susan Collins that he thought a woman’s right to an abortion was “settled law,” calling the court cases affirming it “precedent on precedent” that could not be casually overturned.

Amy Coney Barrett told senators during her Senate confirmation hearing that laws could not be undone simply by personal beliefs, including her own. “It’s not the law of Amy,” she quipped.

But during this week’s landmark Supreme Court hearing over a Mississippi law that could curtail if not outright end a woman’s right to abortion, the two newest justices struck a markedly different tone, drawing lines of questioning widely viewed as part of the court’s willingness to dismantle decades old decisions on access to abortion services.

Kavanaugh in particular now makes a virtue out of breaking precedent and ignoring the principle of stare decisis.

If you think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent.

That string included landmark cases like Brown v Board of Education, which overturned the prior standard of “separate but equal” schools. [3]

So the question on stare decisis is why, if … we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this Court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and — and not stick with those precedents in the same way that all those other cases didn’t?

Maybe he should have told Susan Collins that during his confirmation interview. Or maybe she shouldn’t have been so gullible about what he did tell her.

Dahlia Lithwick thinks it would be “refreshing” if the conservative justices’ new honesty about their intention to reverse Roe meant that the gaslighting is over

After confirmation hearings in which they promised that stare decisis was a deeply felt value and that Roe v. Wade was a clear “precedent of the court” and “the law of the land.” there’s something sort of soothing about knowing the lying to our faces will soon be over. They were all six of them installed on the Supreme Court to put an end to Roe v. Wade after all, and that is exactly what they intend to do. There will be no more fake solicitude for women making difficult choices, no more pretense that pregnant people really just need better medical advice, and no more phony concerns about “abortion mills” that threaten maternal health. There is truly something to be said for putting an end to decades of false consciousness around the real endgame here, which was to take away a woman’s right to terminate a pregnancy—rape, incest, abuse, maternal health no longer being material factors. At least now we might soon be able to call it what it is.

Sadly, though, she goes on to point out that the lying continues. Now they’re gaslighting us about the significance of reversing Roe: Kavanaugh pretended that leaving abortion to the states (i.e., giving Mississippi exactly what it wants) would be a compromise. Alito claimed personhood-at-conception isn’t a religious view, because some secular philosophers agree. (Plato believed in the immortality of the soul. Does that secularize the doctrine?) Barrett opined that forced pregnancy is not such a big deal anymore, because (assuming you survive childbirth) it’s easier now to give the child up for adoption. (Why should it bother a woman to devote nine months of her life to the survival of her rapist’s genes?)

But the most extreme gaslighting concerns the implications of overturning Roe: It won’t stop there. The right to privacy undergirds, for example, same-sex marriage, gay rights in general, and the right to use contraception. All of these rights are targeted by the same theocratic faction that put Gorsuch, Kavanaugh, and Barrett on the Court.

At their [confirmation] hearings, Roe was settled law, the precedent of the court. But now Roe is Plessy, which is why when the justices whisper softly that Lawrence v. Texas, Obergefell, and Griswold are not under threat today, you might wonder why you should trust them. They are all settled law—until they are not. They told us as much at their confirmation hearings and assured us today they were lying then, but aren’t lying now.

Where will abortion be illegal? You might imagine that the only immediate effect of the Court deciding in Mississippi’s favor is that their ban-at-15-weeks law would take effect. But 12 states have already passed abortion bans that are set to apply automatically as soon as Roe is reversed: Mississippi, Texas, Idaho, Arkansas, Kentucky, Louisiana, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, and Utah.

https://sportsugar.com/7-maps-and-charts-that-show-what-could-happen-if-roe-v-wade-fell/

But that’s not all. Josh Marshall connects the dots between abortion and the Republican minority-rule project.

Many purple and even blue states are sufficiently gerrymandered at the state level that we should assume they’ll soon outlaw abortion too. I’m talking about states like Wisconsin, Michigan, Pennsylvania, Ohio.

Wisconsin as so often is an instructive example. Wisconsin is a very closely divided state politically. It usually goes to the Democrats at the presidential level. But it’s always by a narrow margin whoever wins. The state’s governorship is similarly always close, though at the moment there’s a Democratic governor. The Democrats won the governorship in 2018 by a tiny margin. Then Joe Biden won the presidential race there by another very small margin. And yet Democrats struggled in 2020 to prevent Republicans from getting a supermajority in the state legislature. A supermajority!

Given that Republican majorities in purple-state legislatures have successfully insulated themselves from the people, all it takes is electing a Republican governor one time, and abortion rights will be gone for decades to come.


[1] Appearing to respect a law or precedent while gutting it in practice is a very Robertsy thing to do. For example, he didn’t strike down the Voting Rights Act in 2013, he just eliminated the government’s main tool for enforcing it.

If you look at the broad sweep of Roberts’ career, he wants to achieve partisan objectives without tarring the Court’s non-partisan image.

[2] You also couldn’t claim that the Founders intended to include such a protection. Some of the Founders were virulently anti-Catholic. In a 1774 letter to Parliament, which I believe was written by John Jay, the Continental Congress described Catholicism as “a religion that has deluged your island in blood, and dispersed bigotry, persecution, murder and rebellion through every part of the world.”

[3] It’s worth pointing out that the Court didn’t reverse the Plessy standard of separate-but-equal just because the 1954 justices had different views than the 1896 justices. The intervening half-century had brought a long series of cases to the Court in which states claimed that their segregated schools were “equal”, but they really weren’t. In Brown, the Court concluded from experience that the Plessy standard wasn’t workable; separate schools for Black students were always going to be unequal.

Nothing similar has been happening with respect to Roe. The only difference between 2021 and 1973 is that different people are on the Court.

A Dozen Observations about Abortion, Texas, and the Supreme Court

https://www.arkansasonline.com/news/2021/sep/03/opinion-john-deering-cartoon-about-texas/

As you undoubtedly already know, the Supreme Court refused to interfere with the new Texas abortion ban, which took effect Wednesday. In brief, the law bans abortion after a “heartbeat” is detectable in the embryo, which happens (not really, but sort of, more below) at around six weeks. That’s usually before a woman knows she’s pregnant, so most pregnant Texas women will not, at any point in the process, have legal options other than carrying their fetus to term.

What makes this law different from dozens of other anti-abortion laws (that routinely get voided by the federal courts) is its method of enforcement: Abortion is illegal, but not criminal. No one is arrested or sent to jail. But private citizens can sue people (other than the pregnant woman herself) who perform or “abet” a post-heartbeat abortion. If they win, they get attorneys fees plus $10,000.

That enforcement method makes it tricky for a federal court to block the law. Ordinarily, a court would enjoin state officials not to enforce a law that violates established constitutional standards, but here Texas can say: “We don’t enforce it. Private citizens and the state courts enforce it.” Five conservative judges (three of them appointed by Trump) decided to take advantage of that loophole. So the law stands and abortion is effectively banned in Texas.

Much has been written about this situation in the last week, so rather than add another article to the stack, I want to organize what’s already out there. That’s why this post is a list of short observations rather than a single essay. In each case, I’ll point you to other sources that do the elaboration.

Let’s start with some basic references.

The law itself (Senate Bill 8) is here. It’s written for lawyers, and I don’t recommend reading it unless you’re really getting down into the weeds.

The Supreme Court’s rejection of the request to intervene is only 12 pages, and is much more readable. The majority’s statement is barely more than a page. Chief Justice Roberts wrote a three-page dissent. Justices Breyer, Sotomayor, and Kagan also wrote dissents, each of which was co-signed by the other two. So the Court published roughly ten times as much material explaining why it shouldn’t have done this than justifying why it did.

Slate has a good FAQ about what the law covers and how it might be interpreted. Some of the issues will depend on what judges do, and even if the law is technically on your side, you still will have to respond if someone sues you.

The bill is named the Texas Heartbeat Act, but a six-week embryo doesn’t have a heart.

LiveScience.com explains:

Rather, at six weeks of pregnancy, an ultrasound can detect “a little flutter in the area that will become the future heart of the baby,” said Dr. Saima Aftab, medical director of the Fetal Care Center at Nicklaus Children’s Hospital in Miami. This flutter happens because the group of cells that will become the future “pacemaker” of the heart gain the capacity to fire electrical signals, she said.

NPR goes into more detail:

“When I use a stethoscope to listen to an [adult] patient’s heart, the sound that I’m hearing is caused by the opening and closing of the cardiac valves,” says Dr. Nisha Verma, an OB-GYN who specializes in abortion care and works at the American College of Obstetricians and Gynecologists.

The sound generated by an ultrasound in very early pregnancy is quite different, she says.

“At six weeks of gestation, those valves don’t exist,” she explains. “The flickering that we’re seeing on the ultrasound that early in the development of the pregnancy is actually electrical activity, and the sound that you ‘hear’ is actually manufactured by the ultrasound machine.”

Healthline.com says that at six weeks, an embryo is “about the size of a grain of rice”.

You might be wondering why anti-abortion activists lie so blatantly about this rather obscure point of biology (or perhaps how they can call themselves Christians while they do). Similarly, they make bogus claims about a fetus’ ability to feel pain at 20 weeks. Neither of these thresholds have any legal significance. (After all, farm animals have heartbeats and feel pain, but they are killed by the millions without any political backlash.)

What activists are trying to suggest with heartbeats and suffering is the presence of a human soul, which many of them say enters the embryo at conception. (In National Catholic Reporter, Michael Sean Winters writes: “That heartbeat should strike the consciences of anyone with an open mind about the morality of the issue.” Sorry, but that shot just goes right past me; I am neither engaged nor shamed by it.)

They may describe this theological speculation as “Biblical”, but in fact it is not, as I’ve explained before. In Catholic circles, this teaching was virtually unknown before the 1600s, and it didn’t become orthodox among conservative Protestants until after Roe. For Evangelicals, the politics motivated the theology, not the other way around.

In any case, one American’s theology does not bind other Americans, because the Founders very explicitly did not set up a theocracy.

Complete bans on abortion are not popular now, and never have been.

Gallup has been asking about abortion for nearly half a century, and the numbers have been remarkably stable. Less than 1-in-5 Americans believe abortion should be “illegal in all circumstances”, and that’s been true consistently since 1975. The split between those who want abortion legal in “any circumstances” or “certain circumstances” bounces around a bit more. Even that may not represent an actual change of opinion, but could correspond to a change in the circumstances that came to mind when the question was raised.

On the specific question of overturning Roe v Wade, public opinion has long supported leaving Roe alone. In 1989 the public was against overturning Roe 58%-31%, and the most recent survey was 58%-32%.

I sum up my reading of public opinion with a quip. Most Americans, whether we are conservative or liberal, have exactly the same opinion about both abortion and guns: “I am appalled by the sheer number of them in this country, and wish there were fewer. But if my family gets into some extraordinary situation and decides that we need one, I don’t want the government to stand in our way.”

The court majority is acting in bad faith.

The majority purports to be stymied by the complexity of the situation: No one knows exactly who will decide to enforce the Texas law, so how can they craft an injunction?

it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.

Will Wilkinson points out the obvious:

you know that the conservative majority would not affirm this principle in general. There is zero chance that Alito, Gorsuch, Kavanaugh, Barrett and Thomas would offer the same deferential treatment to a formally identical California law designed to frustrate citizens’ 2nd Amendment rights by incentivizing civil lawsuits against anyone who gives away or sells or in any way aids or abets the possession or ownership of a firearm.

Justice Sotomayor’s dissent is blunt and direct:

It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.

But of course, it’s not the case in general. This is a one-time-only principle that applies solely to abortion.

https://twitter.com/mluckovichajc/status/1433774563502985218

A decision this consequential shouldn’t happen through the shadow docket.

Essentially, the Court has reversed Roe v Wade: Texas has made nearly all abortions illegal; the Court has refused to protect a woman’s previously recognized constitutional right; and now other red states are scrambling to pass their own bounty-hunter law.

It is certainly within the Court’s power to reverse previous precedents and thereby reinterpret the Constitution. But the typical way for a reversal to happen is through the regular docket (known to lawyers as the “merits” docket): A case challenging the precedent works its way up through the federal courts. Through that process, the lower courts develop a body of publicly available evidence and reasoning. Then the Supreme Court hears lawyers for both sides argue the case, and interested third parties submit briefs supporting one side or the other. The justices withdraw for weeks or months to consider it all, and then a decision is announced, supported by a written majority opinion (which may be critiqued by dissents from judges outside the majority). When Brown v Board of Education reversed Plessey v Ferguson in 1954, that was the lengthy process it went through. (The original lawsuit was filed in 1951.)

A case challenging Roe is already on the Court’s calendar for this term. We should get a decision by June at the latest. If a majority wants to reverse Roe — and apparently it does — that is the proper way to do so.

One key virtue of the regular process is transparency: The Court’s power may be mostly unchecked, but when it does something, we at least know what it did and why. Five justices can’t just say “Do this” and go home; they have to spell out the new interpretation in enough detail that lower courts and the various levels of state and federal government know what the law is now. The Court’s reasoning is available for legal scholars to examine and criticize, and Congress knows exactly what it must do if it wants to achieve a different outcome.

But the Court also has what is called the “shadow docket”. Wikipedia explains:

Shadow docket decisions are made when the Court believes an applicant will suffer “irreparable harm” if the request is not immediately granted. These decisions are generally terse (often only a few sentences), unsigned, and are preceded by little to no oral arguments. Historically, the shadow docket was used only rarely for rulings of serious legal or political significance, but since 2017 it has been increasingly utilized for consequential rulings, especially for requests by the Department of Justice for emergency stays of lower-court rulings.

So, for example, you might ask the Court to intervene if a law was about to go into effect that would remove one of your previously recognized constitutional rights. If, say, you had to give birth to your rapist’s baby because all the abortion providers in your state had to turn you away, you might reasonably claim to face irreparable harm. The no-longer-viable clinics might also reasonably claim irreparable harm.

By not acting, the Court is basically announcing: “Not so fast about thinking you have a constitutional right.” It has made women’s rights evaporate without any kind of transparent process. Or maybe that’s not the Court’s intention at all. Who can say, when the majority barely wrote a page of explanation?

Chief Justice Roberts, who is usually thought of as one of the conservative justices, complained about this lack of process:

I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. … We are at this point asked to resolve these novel questions—at least preliminarily—in the first instance, in the course of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary merits briefing and without oral argument. … I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims

Translating from the legalese: If we don’t know what to do, we should freeze the situation as best we can until we have time to figure it out. But the other five conservative justices rejected that reasoning.

The Senate’s hearings on recent Supreme Court nominees have been a charade. The nominees lied, and the senators who credited those lies were either naive or complicit.

Numerous examples are possible, but the most ridiculous one was the 45-minute speech Susan Collins gave defending her vote to confirm Brett Kavanaugh. For eight paragraphs she addressed “the concern that Judge Kavanaugh would seek to overturn Roe v. Wade”, assuring the country that the constitutional right established in Roe “is important to me”, and extolling Kavanaugh’s reverence for long-established precedents.

Naive? Complicit? Hard to say.

The 6-3 conservative majority is the result of a system rigged to over-represent White rural voters. The Court’s current conservatism does not and never has represented the will of the American people.

Supreme Court justices are nominated by the president and confirmed by the Senate. Both of these institutions are rigged in favor of White rural voters.

Three of the current justices (Gorsuch, Kavanaugh, and Barrett) were nominated by Donald Trump, who was chosen by the Electoral College in defiance of the American people. (Trump lost the popular vote to Hillary Clinton by 2.8 million votes, but won a 304-227 victory in the Electoral College.)

Sometimes Roberts and Alito are included on this list of minority justices, because George W. Bush also lost the popular vote in 2000. However, they were nominated in Bush’s second term, after he won re-election democratically.

Recent Republican majorities in the Senate have also not represented the American people. The principle that each state has two senators means that blue (and racially diverse) California’s 39 million residents have the same power as red (and almost entirely White) Wyoming’s 581 thousand. Combined with the successful attempt to stack the Senate by admitting tiny Northwestern states in 1889-1890, Republicans have a consistent structural advantage: For the last quarter-century, Republican senators have neither represented a majority of voters nor received a majority of votes, and yet they have held the majority of Senate seats about half the time.

This includes the term when Mitch McConnell refused to consider President Obama’s nomination of Merrick Garland, as well as the next term when McConnell and popular-vote-loser Donald Trump awarded that Court seat to Neil Gorsuch.

Senate Republicans use their artificially inflated numbers, together with the filibuster, to make sure the system stays rigged in their favor by denying statehood to (largely Black and urban) District of Columbia and (Hispanic) Puerto Rico.

Now that abortion rights have actually been lost, the Republican dog has caught the car.

Somewhere in Islands in the Stream, Ernest Hemingway describes a bridge that is much desired but (precisely for that reason) can never be completed: As long as the bridge is in the future, corrupt politicians can raise funds to build it. But if it is ever finished, the money will dry up.

For decades, anti-abortion politics has been a similar scam, as David Frum explains:

Pre-Texas, opposition to abortion offered Republican politicians a lucrative, no-risk political option. They could use pro-life rhetoric to win support from socially conservative voters who disliked Republican economic policy, and pay little price for it with less socially conservative voters who counted on the courts to protect abortion rights for them.

That dynamic played out most clearly in 2016, when Trump dominated the anti-abortion vote, while pro-choice people assured each other that they could stay home or vote for Jill Stein.

But now, after years and years of warnings and an ever-increasing set of hoops women have had to jump through, abortion rights really are vanishing, even for women who are privileged in every way other than gender. If you live in a professional-class suburb of Dallas, and if your U of T freshman daughter gets roofied at a frat party and comes home pregnant, she either carries the baby to term or your family has to break the law — and maybe get sued.

If this possible impact on their lives means that the complacent majority will get riled now, the jig is up. That’s why national Republicans haven’t been spiking the football to celebrate an achievement they’ve been promising for decades.

Congress could fix this, if Democrats thought women’s rights were more important than the filibuster.

The Texas abortion law would be undone if Congress passed the Women’s Health Protection Act, which reinstates the protections of Roe v Wade nationally. Speaker Pelosi believes she can get the bill through the House. It’s unclear whether all 50 Democrats in the Senate would vote for it. But a handful of Republicans also claim to be pro-choice — here’s a chance to redeem yourself, Senator Collins — so the bill should get a majority, if it comes to a vote.

But it won’t come to a vote, because of the filibuster. A woman’s right to choose is yet another price the country must pay for Senator Manchin’s and Senator Sinema’s attachment to this time-dishonored Senate tradition, because the WHPA clearly can’t muster a 60-vote supermajority.

The Department of Justice could also do something.

Law professor Lawrence Tribe explains: It turns out the country has previously faced the problem of states turning a blind eye to (or even encouraging) vigilantes trying to intimidate Americans out of exercising their constitutional rights. In that previous era, Congress responded by passing the Ku Klux Klan Act of 1871, which is still on the books.

Section 242 of the federal criminal code makes it a crime for those who, “under color of law,” willfully deprive individuals “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” … In addition, Section 241 of the federal criminal code makes it an even more serious crime for “two or more persons” to agree to “oppress, threaten, or intimidate” anyone “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.” This crime may be committed even by individuals not found to be acting “under color of law” but as purely private vigilantes, as long as they’re acting in concert with others.

Tribe believes that using the KKK Act to protect abortion rights in Texas would be “in tune not just with the letter but the spirit the law”. He asserts that we have now reached the point where “the need to disarm those who cynically undermine constitutional rights while ducking all normal avenues for challenging their assault on the rule of law becomes paramount.”

Ordinary people can monkey-wrench the enforcement process.

A campaign to spam websites asking for tips on Texas abortions is taking off. We’ll see if this is just a snap reaction or if it has staying power.

If any pro-life folks think women’s-rights defenders are playing dirty, let me point out that so far no one is using the kinds of tactics the pro-life movement has long used against abortion clinics. No one is bombing their offices or threatening their workers with violence, because (unlike the pro-life movement) the pro-choice movement doesn’t have a terrorist wing.

As satisfying as monkey-wrenching might be, though, it probably won’t make much difference. Even if monkey-wrenchers make vigilante lawsuits harder to assemble, abortion clinics and other support services are already being shut down by the threat of such lawsuits, even if suits have not yet been filed.

Texas has made rape a viable reproduction strategy.

If you are a man who is unable or unwilling to convince any woman to bear your children voluntarily, you can still win the evolutionary battle to pass on your genes by committing enough rapes. Eventually you may wind up in jail, but your descendants will thank you. They will also thank the Evangelical Christians who paved the way for you.

Crime and Punishment: Did Trump Spill the Beans on the Pro-Life Movement?

Did Trump get the pro-life position wrong? Or just express it too bluntly?


Fact-checkers tell us that Donald Trump makes mistakes all the time. [1] But Wednesday something unusual happened: He made a mistake he had to back away from.

You can hardly blame him, because his interviewer (Chris Matthews) cheated: He asked follow-up questions and kept badgering for an answer. (Who knew journalists could do that?) After two minutes of dancing back and forth on the topic, Trump let Matthews nail him down:

MATTHEWS: Do you believe in punishment for abortion? Yes or no, as a principle?

TRUMP: The answer is that there has to be some form of punishment.

MATTHEWS: For the woman.

TRUMP: Yeah. There has to be some form.

That statement set off not just feminists, but the anti-abortion folks Trump was trying to appeal to. So Trump had to retreat, ultimately settling on the approved pro-life response: After abortion becomes illegal, doctors should be punished, not women. (He also claimed that MSNBC created the confusion about his views by editing his exchange with Matthews. That should raise his pants-on-fire-lie numbers even higher: The interview was pre-recorded, but aired in its entirety.)

But Trump’s about-face just started a new and even more interesting debate: What kind of mistake did Trump make? Did he get the pro-life position wrong? Or did he spill the beans by stating that position bluntly, without the usual flowery misdirection?

After all, most of Trump’s apparent gaffes have been of the second type: He says what his followers are really thinking, without the caveats and nuanced word choices that make those positions defensible in front of the educated elite. Is that what happened here?

The case for spilling the beans. The essence of the pro-life position is that as soon as sperm meets ovum, you have a fully ensouled human being, with all the God-given rights anybody else has. [2] The natural consequence of this belief is that any abortion, at any stage of a pregnancy, is murder.

Pro-lifers use the word murder in its literal sense, intending nothing metaphoric or hyperbolic. That’s why they so often equate the millions of abortions that have happened since Roe v Wade with the Holocaust.

If you follow where that logic naturally goes, then everybody connected with an abortion is conspiring to commit murder. After all, any mother who paid a man to stick a knife through her baby’s heart would be guilty of murder, so if there is no moral distinction between a baby and a fetus (an “unborn child” or “pre-born baby” in pro-life jargon), any woman who pays a doctor to end her pregnancy must also be a murderer. Why should she go unpunished?

And in fact, in states where pro-lifers have managed to put restrictions on abortion, women do get punished:

Multiple U.S. women — with few options to get themselves to one of their state’s dwindling legal clinics — have been arrested for illegal abortions after they bought abortion-inducing medication online. And thanks to the growing number of laws aimed at protecting “fetal rights,” other women have been punished for doing activities that allegedly harmed their pregnancies. Americans have been charged with murder for allegedly seeking to harm their fetuses by attempting suicide, using illicit drugs, or even falling down the stairs.

A woman in Indiana has been sentenced to 20 years in prison for “feticide”. And if pro-life activists are trying to help her or change the law so that no other women get punished, they’re being awfully quiet about it. As far as that goes, Indiana has a pro-life governor who could commute her sentence at will, if he thought that punishing her was unjust.

But no matter how logically it follows from pro-life assumptions, it seems harsh and cruel to punish women who didn’t want to get pregnant and are just trying to get their old lives back. Nobody likes to think of themselves as harsh and cruel, and besides, it’s bad politics. So pro-lifers deny that’s where they’re headed, even though all the evidence says they’re really headed there.

The counter-argument. When stating a position I disagree with, there’s always a danger that I’ll make a straw man out of it, so I’ll let some prominent pro-lifers state it themselves at length. Here’s how Marjorie Dannenfelser of the Susan B. Anthony List put it on NPR’s Morning Edition:

[T]he pro-life movement has never, for a very good reason, promoted the idea that we punish women. In fact, we believe that women are being punished before the abortion ever occurs. In other words, the early feminists believed this was the ultimate exploitation of women.

The real earliest roots of feminism and the women’s movement really embraced the idea that her innermost soul, in Susan B. Anthony’s words, recoil from the dreadful deed, but thrice guilty is the one who drove her to the deed. And who is that? It’s the abortionist. And that who – is who is the one to be punished when there’s a law against abortion.

Steven Ertelt of LifeNews.com makes a similar point:

the pro-life movement has historically opposed punishing women who have abortions — instead focusing on holding abortion practitioners criminally accountable for the unborn children they kill in abortions.

That pro-woman mentality is partly due to the understand[ing] that the abortion industry preys on women — selling them abortions by lying to them about the humanity of their unborn children and the destructive effects abortion will have.

Charles Camosy, author of Beyond the Abortion Wars, wrote an op-ed for The New York Daily News:

Isn’t pro-lifers’ refusal to follow the logic of their position a dishonest political game — one played because pro-lifers know that, as Trump just learned, the logically consistent position alienates virtually everyone?

That might be true if women have an uncoerced choice to have an abortion. But as I argue in some detail in my book “Beyond the Abortion Wars,” that’s not how our culture works.

Broadly legal abortion is the product of privileged men.

… Unsurprisingly, the all-male Roe court made women “free” to act like men: to imagine themselves as able to live sexual, reproductive, economic, professional lives as men do. Women’s equality was not about getting equal pay for equal work. Not about getting mandatory family leave and affordable child care. Not about passing strict anti-discrimination laws in hiring practices.

What was essential for social equality, according to those responsible for our abortion laws, was that women are able to end their pregnancies when they are a burden on their economic and social interests. But being pregnant and having a child is often so burdensome precisely because our social structures have been designed by and for people who cannot get pregnant. Notice how, in this context, our abortion laws end up serving the interests of men and coercing the so-called “choice” of women.

Someone who is coerced into having an abortion as a means of having social equality should not be put in jail. Women, like their prenatal children, are victims of our horrific abortion policy. Instead, physicians who profit from the violence of abortion ought to be punished.

Ad hoc. Whenever I listen to anti-abortion rhetoric, I’m always struck by the ad hoc reasoning. Points are made that would seem to have implications for lots of other issues, but somehow those concerns vanish as soon as the topic shifts away from abortion.

The easiest place to start is with the Susan B. Anthony quote. It sounds great, doesn’t it? The head of the anti-abortion Susan B. Anthony list quoting Anthony herself, as if she were carrying forward the great woman’s legacy. Unfortunately, there’s no historical record of Anthony ever saying it, and precious little to indicate that Anthony had a position on abortion at all. Even if the quote were legitimate, isn’t it obvious that “the one who drove her to the deed” is not the abortionist, but the man who got her pregnant? (Odd that nobody ever talks about punishing him.)

Dannenfelser and Ertelt seem to be imagining a world in which doctors run some sort of boiler-room operation that cold-calls pregnant women and tries to sell them abortions. Or maybe abortionists hang around outside gynecologists’ offices (the way anti-abortion activists sometimes surround abortion clinics) trying to talk women out of their firm intention to give birth.

Reality is quite different: There is a strong demand for abortion services and always has been, back to the days when young women would come to the local potion-maker or hedge-witch looking for a miscarriage-inducing herb or tea. It is a fact of life that not every woman who gets pregnant wants to raise children at this point in her life, or maybe ever. [3] And even a family that is raising children already doesn’t necessary want to have more of them.

I can see the woman as a pure victim in some cases (say when a high school girl gets pregnant by one of her teachers, who then arranges the abortion for her and talks her into it), but in many cases an abortion is the result of a mature woman deciding what she wants to do with her life — a possibility that pro-life activists seem to ignore entirely.

Many, like Ertelt, claim she is likely to regret this decision. (An actual survey says 95% don’t.) But where else in our lives do conservatives argue that the government should stop us from making regrettable choices, or punish the people who help us carry them out? Quite the opposite: a basic tenet of conservative philosophy is that people should be free to make their own mistakes … in every case but this one.

Camosy’s argument is even more ad hoc. If the majority of pro-lifers felt this way, the political party where they have so much influence would be working on the issues he accuses the Roe v Wade court of ignoring: “equal pay for equal work … mandatory family leave and affordable child care … strict anti-discrimination laws in hiring practices.” In fact the exact opposite is true, and the Republican opposition to these proposals is not even controversial within the party. As soon as the topic shifts away from abortion, Republican concern about women making coerced choices vanishes.

Do they even believe it themselves? People who genuinely believe something don’t make ad hoc arguments; the things you really believe don’t wink in and out depending on the topic. So I have to wonder: Do pro-lifers themselves believe what they’re saying?

Fred Clark, a turncoat from the pro-life movement, says no. He quotes Dannenfelser’s response as an example of what he calls “the Standard Answer”, and then recalls his own experience.

I relied on the Standard Answer when I was a good, faithful pro-lifer. It made the question go away, just as it was meant to do. The Standard Answer worked very well for me until one day, suddenly, it didn’t.

It stopped working for me because, alas, I started listening to what I was saying.

That led to an “unsettling” realization.

I did not want my questioners to think that I wanted to see these women punished because I genuinely did not want to see them punished. At some basic level — some level at which I had not yet allowed myself to articulate my own thoughts to myself — I did not think that punishing these women would be good, fair, right, necessary or just. I thought punishing these women would be wrong.

Why would I think that? Well, that was the question that the Standard Answer was designed and employed to prevent me from ever asking of myself. …

I came to realize I was incapable of defending the central dogma of the anti-abortion religion my people had adopted as the central pillar of our faith — that a fertilized egg is morally and legally indistinct from a human child or a human adult. If that claim were defensible, then I would have no reason not to want to see those women punished and no reason not to try to convince others that they also should want to see those women punished.

Please note what I’m not saying here. I’m not saying I became incapable of believing this claim about the full personhood of the zygote, but that I became incapable of defending it. I’m not sure that anyone is ever capable of believing this claim. [4]

Anyone with functioning compassion understands what Clark realized: that it’s just wrong to punish a woman who sees no better path into the future than having an abortion. So if that’s where the logic of your position relentlessly leads, but you want to go on thinking of yourself as a good and decent person, you need to obfuscate that logic somehow — not just for other people, but for yourself.

That’s what the rest of us need to understand: When pro-lifers give the Standard Answer, they aren’t even trying to make sense; they’re trying to comfort themselves. They’re trying to minimize the cognitive dissonance that comes from advocating something harsh and heartless while claiming to be good Christian people.

Trump didn’t misstate the logic of their position, he just failed to include the comforting obfuscation they need. No wonder they got so upset.


[1] Of his statements checked by PolitiFact, only 8% are judged True or Mostly True, compared to 78% Mostly False, False, or Pants on Fire. By contrast, 51% of Hillary Clinton’s checked statements rate True or Mostly True, with only 28% Mostly False, False, or Pants on Fire. Bernie Sanders‘ split is similar: 51% to 29%.

[2] A lot of people will tell you that this position is Biblical, but it isn’t. In actual history, anti-abortion politics came first, and the justifying theology came later. None of the Bible passages ensoulment-at-conception people quote supports their position without a lot of interpretation, and many are simple taken out of context.

On the other hand, Genesis 2:7 states pretty clearly that the soul enters the body with the first breath:

And the Lord God made man of the dust of the ground, and breathed into his nostrils the breath of life, and man became a living soul.

That interpretation is reinforced by the fact that the words for breath and soul in Biblical Hebrew are very similar.

[3] In 2012, I described the role that legal abortion played in the choices my wife and I made in “What Abortion Means to Me“.

[4] I made a similar claim in the fifth of my “Five Take-Aways from the Komen Fiasco“.