Monthly Archives: February 2013

Words Fail….

A Facebook friend notes that Indiana Sen. Travis Holdman–author of the bill to require insertion of a transvaginal probe into a woman’s womb in order to take a video both before and after she obtains medication causing abortion–is also the author of a bill making it a crime to take a video of a farm or industrial operation.

After all, what happens on your farm or in your factory is private. Your uterus, evidently, is more like a high-school locker–yours to use as long as you follow the rules established by the relevant authorities, but subject to search when those authorities deem necessary.

Furthermore, as “pro-life” lobbyist Sue Swayze pointed out, if you’re pregnant it’s because you previously allowed something else to enter your vagina. And once you’ve allowed something to enter, you have obviously waived any right to decide what else you will admit into those lady-parts. Using her “logic,” once you’ve had sex, you lose the right to pick and choose who or what else visits those regions. You are fair game to be raped.

Aren’t we all proud to be Hoosiers?

Stop whining, women! It’s not like someone is taking pictures of your farm!

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Live and Let Live in a Connected World

Watching the Indiana legislature is sort of like driving past a big wreck….hard not to slow down and stare, even when you know you should look away. The debate over a measure intended to close down “clinics” (aka Planned Parenthood) by requiring them to build mini-hospitals and force patients to undergo two trans-vaginal ultrasounds got me thinking more generally about the nature of law in our contemporary society.

I often tell students that the underlying premise of the Bill of Rights is “live and let live.” There was a libertarian philosophy that heavily influenced our approach to government, a respect for the individual right to personal autonomy, best summed up as: people have a right to live their lives as they see fit, so long as they don’t harm the person or property of a non-consenting other, and so long as they are willing to extend an equal right to self-determination to others.

The seeming simplicity of that construct belies the difficulty Americans have had in applying it. The confounding issue is the nature of harm (and sometimes, as in the so-called “abortion wars,” the definition of “person”).

Smoking is a good example. If you are an adult, the government has no business interfering with your choice to engage in a bad habit. When it became known that passive smoke is harmful, however, the government was justified in stepping in with regulations intended to protect non-smokers from the effects of your bad habit. Seat belts are a more dicey proposition; there is an argument that drivers who fail to buckle up sustain more injuries in accidents, thus driving up the insurance premiums for everyone else, but that’s a pretty speculative harm on which to base a fairly substantial intrusion.

The problem is, as a society, we are becoming more and more connected. Increasingly, the actions of one person affect many others, and if those actions threaten some sort of harm, we look to government to intervene. Worse, the Puritans who have always been a part of American culture remain with us, insistent scolds who want government-as-moral-nanny-state, government that both protects us from ourselves and prevents us from sinning (as they define sin).

We may never agree on where to draw the line. Government surely has the right to tell us we can’t rob the local liquor store, and it just as surely has no right to insist that we eat our broccoli, but between those poles lies great conflict.

We need to become much more thoughtful about the nature of the harms that justify government interventions in our lives. I understand the ongoing debates about abortion–those debates spring from very different beliefs about “personhood.” Seat belts, not so much.

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They Just Can’t Help Themselves

Senate Bill 371, currently passing easily through the various stages of the legislative process, requires facilities that dispense abortion-inducing drugs to meet all the structural and operational specifications of facilities that provide surgical abortions. In other words, in order for a clinic to prescribe or supply a pill to induce a very early abortion, its facilities must rival those of a hospital or surgical center.
SB 371 also requires the physician providing such a prescription to provide the patient with materials–colors specified!–oversee ultrasound imaging, and document efforts to have the woman return in two weeks for a follow-up examination and ultrasound.
This bill has nothing to with women’s safety. It has everything to do with limiting the availability of safe and legal abortion.  As a side effect, it also limits the availability of all reproductive health care for low-income women.  Note the language: it applies only to “clinics.” None of the standards in SB 371 apply to private physicians who dispense abortion-inducing drugs.
The restrictions apply only to “clinics”–read, Planned Parenthood– that provide health care at low cost.
Medication abortion is a safe, early-stage procedure.  SB 371 is an unwarranted interference with the doctor-patient relationship, not to mention an unconstitutional effort to deny some women but not others access to reproductive health services by forcing the closure of the clinics that serve them. This measure is yet another salvo in the GOP’s ongoing war on Planned Parenthood. and a woman’s right to make her own moral decisions.
On the other hand, the perennially cash-strapped ACLU can use the legal fees that will be generated when it wins the inevitable legal challenge. So I suppose there is a bright side to everything.
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A Constitutional Ethic

At this point in the semester, my undergraduate class is encountering a concept called “the constitutional ethic.” (The term is an organizing theme of the textbook we are using, written by yours truly and colleague from Minnesota.)

So what do we mean by “constitutional ethic”? How does such an ethic differ from our usual understanding of ethical behaviors–i.e., honesty, truthfulness, adherence to the law? If the constitutional ethic is “over and above” personal ethics, in what way is it more or different? And how can I describe that difference in language that is accessible to undergraduates?

Here’s what I plan to explain to my class:

As we’ve been discussing, the Constitution is the basis of America’s legal system; as it has operated over the years, it has shaped a distinctive value system and legal culture, a framework within which we make policy and operate our common institutions. Elected and appointed officials take an oath to uphold that constitutional system, an oath that implicitly obliges them to understand its most basic and important characteristics. (For example, policymakers need to understand not just that we are a government of checks and balances, but why our system was constructed that way.)

At its most basic, adherence to the Constitutional Ethic requires public officials to act in ways that are consistent with these basic systemic structures, and to avoid acting in ways that would undermine them.

Some examples might “flesh out” the concept.

Respect for due process guarantees would seem to rule out drone strikes on persons–especially but not exclusively Americans–who have not been afforded legal process to determine guilt or innocence.

Respect for government’s obligation to treat citizens equally would seem to rule out efforts to marginalize GLBT people, or refuse them access to the institutional benefits enjoyed by heterosexual citizens.

Respect for one of our most fundamental rights–the right to vote, to participate equally in our democracy–imposes an ethical obligation to refrain from vote suppression tactics of the sort we saw during the last election.

Respect for the principle of free speech, protected by the First Amendment, imposes an ethical obligation to refrain from attempts to censor ideas of which we disapprove.

It really isn’t complicated. It’s just increasingly rare.

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