Recognizing Reality

The Supreme Court has finally stepped in to say “enough” to the oh-so-clever politicians trying to mask their disdain for women’s autonomy by pretending a concern for women’s health.

The Texas law that triggered the lawsuit was one of a number of similar efforts to cloak anti-choice measures in excessive and onerous “medical” regulations. It required doctors performing abortions to have admitting privileges at nearby hospitals, and imposed a number of physical requirements on clinics, making them meet the standards of ambulatory surgical centers.

Although Texas argued that the measures were aimed at protecting women’s health, Rick Perry was among the political figures who were more forthright about the law’s actual motive, describing it as one step toward an “ideal world” in which there would be no abortion.

Motive aside, as Justice Breyer wrote for the majority, neither of the provisions imposed by Texas “offers medical benefits sufficient to justify the burdens upon access that each imposes.” Justice Ginsberg was more blunt, noting that “It is beyond rational belief” that those provisions actually protected women’s health.

As numerous medical experts have pointed out, abortion is one of the safest of medical procedures. (Colonoscopies and tonsillectomies are riskier, but political figures expressing concern about those operations are non-existent.)

What participants in the ongoing battles over reproductive choice, same-sex marriage, and other “culture war” issues that roil American public debate miss is the actual legal question at the heart of these conflicts. The issue is not whether a woman should terminate a pregnancy or carry it to term; the question is: who should decide what she should do?

Too many Americans fail to understand the purpose of the Bill of Rights, which was to protect individual autonomy—a person’s right to self-government—against government infringement. The Bill of Rights, as I tell my students, is a list of things that government is prohibited from doing. Government cannot tell you what to say, or what to believe, no matter how ugly your speech or deluded your belief. Government cannot tell you whether or how to pray, who to marry, how many children to have, or what career to follow.

Government can’t do these things even if a majority of its citizens wants it to. Just as your neighbors cannot vote to make you an Episcopalian or a Baptist, popular majorities cannot use government to restrict the individual liberties protected by the Bill of Rights.

In short, government cannot tell you how to live your life—how to make what the Court has called your most “intimate decisions.” The rest of us don’t have to agree with the decisions you make, but you get to make them.

The Texas law was one of several transparent efforts by lawmakers trying to do an “end run” around a woman’s right to make decisions with which they disagree.

Fortunately, the Court saw through the dishonesty of that effort.


  1. There seem to be several of those nod-of-the-head, yeah-it’s-understood things between people against the decision in Roe. Foremost seem to be the opinion is poorly written, lacks constitutional validity, and is in conflict with the intentions of the Framers of the Constitution. Justice Blackmun, who wrote the opinion, at one time was counsel for the Mayo Clinic. He spent months in research. If one reads the opinion, one gains an insight—abortions were performed even in ancient times and within the law. At the time of the Framers, the same was true. Justice Douglas caught grief for his reference, in Griswold v Connecticut, to the right of privacy being protected in an emanation of a penumbra of rights found in the Bill of Rights. The phrase, as well as the concept, had been used by the Court decades before. More persuasive, perhaps, was Justice Goldberg’s concurrence in Griswold—a case that is pivotal to other cases, particularly in the area of choice, that address privacy—that one need not look to an emanation of penumbras of rights for a right to privacy. Justice Goldberg found that right to privacy protected by the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) Hamilton was opposed to a “bill of rights” for fear an enumeration of rights could be used by a government to say anything not so enumerated was outside what could be considered a “right.” One should read Justice Blackmun’s opinion. The opinion is history, a brilliant navigation through complex issues, and the supreme law of the land for over 43 years.

  2. Another victory for women and our right to govern our own bodies.

    I noticed that Pence’s response to a judge blocking his anti-abortion law was uncharacteristically mild. Hmmm, could that have anything to do with wanting to be re-elected?

  3. One can only hope that they will have a similar epiphany regarding money as “speech.”

  4. We are on a roll today; Sheila’s blog, Mark Small’s very informative comments and Nancy and Ginny waded in to start a day of pros which will be followed by a few cons, including a few who will argue with whose “reality” IS “reality”.

    The front page of the Star today has some interesting headline articles: “INDIANA’S NEW ABORTION BILL HALTED”, “Judge rules for same-sex couples” (referring to mother’s name(s) on birth certificates. The headline that “takes the cake”, below the fold, “A Trump-Pence GOP ticket? It’s a possibility”…if this one doesn’t give you nightmares you haven’t been paying attention.

    I feel I must wade in on the article regarding mother’s names on birth certificates due to an extremely grievous family situation. When my 24 year old granddaughter died having seizures during her pregnancy; a pregnancy she knew endangered her life but opted to try to carry her baby to term, resulted with her mother (my daughter) providing foster care for her six year old granddaughter (my great-granddaughter). My daughter was already a licensed foster parent so there was no problem with her having custody; the problem came with Indiana law. Family members may only foster parent a relative child for a specific number of months; they must then either adopt or place the child in foster care with strangers who can have custody for years. My daughter, of course, opted to adopt her granddaughter; it wasn’t until they were in court they were informed that the name of the child’s birth mother would be removed from the birth certificate and the adoptive mother’s name (her grandmother) was inserted. Neither of them wanted this to happen; they were given the option to change the child’s last name to hyphenate her mother’s last name to her father’s.

    The court may have to power to always make these decisions but that does not mean they are always right. SCOTUS has been proving this point repeatedly to our disadvantage the past few years. They happened to make two beneficial decisions this week; could this be the beginning of enlightenment or are they trying to prove they can function with only eight members? Will these decisions be appealed due to the fact that there were NOT nine members on the panel when these decisions were made?

  5. I think this is another SQUIRREL issue. The Republicans keep the Right Wing Church folk voting AGAINST their own economic rights by creating these phony issues. As Prof K says, they have no real concern for womens health. They just want to keep the Church folks stirred up so they can ask for their vote again. And then shaft them and give more tax cuts to their wealthy donors, make it easier for the donors to pollute our air and water, all the while taking away services for the lower income citizens. SQUIRREL indeed.
    And when Abortion is not available, they will go back to demonizing Gay folks, Black folks, Immigrants, Migrants, Whatever. They are VERY creative at the SQUIRREL game.

  6. Listen to hear the public uproar (and laughter) if GOP moralists would draft legislation to criminalize another birth control human activity condemned by the Bible: the sin of Onan.

  7. Note that this was a 5-3 decision, meaning that regardless of a 9th justice, the outcome would remain the same. We have Justice Kennedy to thank for that.

    Abortion didn’t start with Roe v. Wade. Safe abortion started with Roe v. Wade. I would like to see “Cider House Rules” on every high school reading list in this country. Today’s kids have no idea what danger young women seeking abortion in the middle of the 20th century faced. We need to remind everyone of that periodically.

  8. I think that a great deal of what passes for conservative morality is a funding issue. Some clarity results if you just consider the Republican Party, the army of conservatism, as a business, let’s call it GOP Inc.

    First, as with all businesses, the one mission is “make more money regardless of the impact on others”. GOP Inc’s customers are businesses also following the same dictate.

    In this world of business what stands in the way of making more money? Well lots of things, business is hard, but given that dictum and the political power of organized customers and the nature of business the biggy is in “regardless of the impact on others”. Others object to being impacted and demand from government regulation preventing it.

    So being pro-business requires being anti- government and GOP Inc as a business can be viewed as businesses union. They charge businesses donations, union dues, for the service of representing them in restraining government.

    Now under slightly different circumstances that service would be covered by another group of businesses called lobbyists. So GOP Inc’s competition for businesses bucks is the lobbying business.

    How to compete? Well lobbyists turn their customer’s dollars into selectively restrained government by sales techniques. All lobbyists are salesmen with unlimited expense accounts and are good at hog tying minds in service of their employer.

    What GOP Inc offers as a competitive advantage is eliminating the middle man, the lobbyist. Government for sale directly rather than indirectly. You pay us, GOP Inc, “donations” and we’ll not only not regulate you but we’ll promote you by telling consumers to stop worrying about “impacts” and worry instead about jobs to finance your lives.

    Now many issues can be traced directly to government obviously not protecting consumer/voters from being adversely impacted. For instance the businesses selling killing machines and fossil fuels and banking. Other things are merely GOP Inc maintaining their inventory of voters in order to remain in political power in order to have influence to sell. One easy block of voters to capture are church folks. That fact is demonstrated by the ease with which mega-preachers build huge lucrative customer bases by selling illusion.

    So, now we (finally) can connect GOP Inc. to abortions and it has nothing to do with morality. Untwist your panties ladies because GOP Inc is not that interested in your lady parts. It’s interested in buying easy minds to sell to its customers and anti-choice minds are made to be easily bought. Pro choice of any kind minds are tough to buy, limited choice being an anathema to freedom lovers of both genders.

    There you have it. All one has to do for clarity is to let go of the obsolete notion the it’s the Republican Party and accept its replacement as GOP Inc. acting as all businesses do.

    Now of course the GOP Inc sales force here will come to the table with the rejoinder that Dems are too! Pure political BS. Dems are largely liberals who accept that business is a necessary evil but must be regulated and that requires strong government to protect our freedom. Full stop. End of discussion.

  9. Remember that Roe v. Wade was a progression from the Griswold V. Connecticut where the state prohibited a married couple’s right to use birth control and prohibited a doctor’s right to inform patients about birth control.

    If those opposed to abortion really want to eliminate most abortions. they will make contraception available to everyone and educate young people on how to avoid unwanted pregnancies. Interestingly, the most fierce opponents of abortion oppose contraception as well. It makes no sense unless the goal is to control women.

  10. One additional thought. Every country serves both businesses and individuals because for individuals to have successful lives they also have to be organized into businesses in order to use their time and skills to create value for which they get paid by which they buy what they want and need.

    As with all things political the operative thought is balance.

    Supporting fossil fuels when humanity knows for sure that their use will lead to unaffordable future impact as well as create a non-sustainable present is not balance.

    Supporting the killing machine industry because a few folks collect guns as a hobby but it’s at the expense of 100 lives a day is not balance.

    Supporting banks without distinguishing between investment and commercial and consumer is not balance as all banks can just create money from thin air by selling debt.

    Supporting the military-industrial complex by creating unnecessary wars is not balance, lives should never be spent unnecessarily, ours or others.

    Freedom is about balance. We can have good business and consumers/workers/voters with acceptable impact only but it’s not easy. It requires not only stable strong democracy but also the most capable of us working tirelessly to regulate in a balanced way.

    It’s impossible to have balance and GOP Inc too. We must first put them out of business then build from scratch a new second party to fill the gap created when a handful of people killed the Republican Party and replaced it with GOP Inc.

    We can do this. We’re American voters. There are no alternatives available to us.

  11. I thought liberals were trying to end back-alley abortions in non-sterile unsafe environments. Texas had almost 200 abortion recipients who required emergency hospitalization last year. Doctors with admitting privileges speed the proceeds. As things are without the new law podiatrists face more scrutiny than abortion providers.

  12. “Doctors with admitting privileges speed the proceeds. ”

    Ken; did you mean “speed the procedure”? Proceeds are the fees paid for services. Doctors providing speedy procedures for emergency hospitalizations last year were due to the botched”back alley” abortion procedures due to lack of available clean, medically staffed health care clinics such as Planned Parenthood and others which were shut down by Republicans.

    Yes; we liberals and thinking conservatives are “trying to end back-alley abortions in non-sterile unsafe environments. ” This cannot be accomplished without funding being reinstated to medical clinics for low income women.

  13. “Texas had almost 200 abortion recipients who required emergency hospitalization last year.” I can’t find a single credible (not some anti-choice blog or right-wing Christian newsletter) source of data to support that assertion anywhere. If you can prove that’s true, then I’d say Texas needs to put its energy and money into upgrading its clinics and hiring smarter staff, not wasting time and revenue trying to circumvent settled law.

  14. Excellent comment wrt Mark! Very enlightening.

    Agreed,only SAFE abortion started since R vs W.

    I’m in agreement with the previous contributor stating this a squirrel issue for those of the Republican Tribe. Politicians keep exploiting the topic for the sole purpose of keeping “the flock” stirred up/angry. Democrats use the same method with respect to other topics/subjects.

  15. @OMG from 8:34 am, well, OMG, all I can say is OMG. 😉 Evidently you and I are familiar with Onan and his cheap tricks.

  16. “Democrats use the same method with respect to other topics/subjects.”

    I can’t come up with an example.

  17. Sorry, Ken. I am unimpressed. Perhaps it is my training to review journal articles under Dr. F.E. Bloom, former editor of the journal, Science. That article seems mainly to be meant for the education of physicians in the proper diagnosis and treatment of possible complications from both miscarriages and abortions.

    Delve into the citations you will see that (1) legalization of abortions greatly reduced mortality and complications (and is one of the recommendations in the article you cite), (2) abortions are safer than many other procedures, including colonoscopies and dental procedures, (3) child birth in a hospital is way riskier to women, (4) abortions in hospitals are riskier than those performed in outpatient settings and (5) these statistics don’t come from Texas, but rather from San Francisco that included mostly lower income woman and a higher than average number of late term abortions.

    I don’t usually include my PhD in my signature, but I still remember my training as a research scientist.

  18. Here’s the bottom line from what Ken posted.

    8 weeks and under – Less than 1%
    8-12 weeks – 1.5-2%
    12-13 weeks – 3-6%
    Second trimester – Up to 50%, possibly higher

    I would think that those rates of complications are less than the consequences of continuing the pregnancy and I’m absolutely sure they’re much less than non medically supervised back street abortions.

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