Asking The Wrong Question

As the Senate “considers” the nomination of Brett Kavanaugh (note quotation marks, since  support for this particular nominee is entirely partisan and no genuine consideration of his record is being allowed), much of the focus is on his presumed “pro life” approach to cases involving abortion.

Media framing of this issue highlights the most frustrating element of America’s “pro-choice” or “pro-life” public debate:  the persistent refusal to confront the actual question, which is not whether a pregnant woman should continue or terminate her pregnancy.

The question is: who should have the power to make that decision? 

As I have repeatedly argued, a government with the authority to forbid abortion is a government with the authority to require it. I usually point to China, where the government has done precisely that, but yesterday, my lawyer son pointed me to a case right here in the good old U.S. of A.– and a judicial decision by none other than Brett Kavanaugh.

As Salon reported, 

In 2007, as an appellate judge in Washington, D.C., Kavanaugh was presented with an unusual case involving two women who had wanted to continue their pregnancies but had been forced to have abortions instead. They sued and Kavanaugh ruled against them, denying their claims that they had a right to be consulted about the decision to terminate their pregnancies.

Many Americans, probably most, understand the abortion debate to be about a struggle between the right of women to bodily autonomy and the “right to life” that anti-choicers claim embryos and fetuses have. In reality, as this case shows, the legal debate is really only about autonomy — so much so that an anti-choice judge like Kavanaugh ruled against women who wanted  to “choose life,” as conservatives say, rather than allow them a greater measure of autonomy….

The case is a complex one, but the basic story involved three women who received care from the District of Columbia Mental Retardation and Developmental Disabilities Administration. All three women had intellectual disabilities and had been determined legally incompetent. One woman had an elective eye surgery and two had abortions, all chosen for them without any consideration of their wishes. The women argued that they had a right to have their wishes considered, but Kavanaugh ruled against them….

Legal standards regarding who is competent to make medical decisions for themselves are complicated and vary quite a bit from state to state. But Mathis said that even in states that have the fewest autonomy rights for people with certain disabilities, “most courts consider the person’s wishes,” even if they may ultimately rule against them. Kavanaugh, however, “just rejected the notion that there was any reason at all” to ask the women in that case what they wanted.

I emphasized that last line, because it illuminates what is truly at stake in these arguments. The question is not “to abort or not to abort.” The question is: who decides? The Bill of Rights is essentially a list of things that government does not get to decide–what you read, what you believe, whether or to whom you pray. Government officials don’t get to decide to  search you (or your “papers or effects”) simply because you look shifty, or out of place, or because the officer “has a hunch.”

As snotty as the faux originalists are about the constitutional “penumbra” referenced in Roe, it is impossible to read through the Bill of Rights without recognizing that the entire document rests on the Founder’s concern to protect personal autonomy and to safeguard the right of individuals to make their own moral and political decisions–including what the Court has subsequently dubbed “intimate” decisions–free of government coercion or interference. The 9th and 10th Amendments make it clear that rights not “enumerated” (that is, not specifically listed) are not to be “denied or disparaged,” and that powers not specifically delegated to the central government are to be retained by the states and the people.

It is an act of intellectual dishonesty to dismiss the limits that the Bill of Rights places on government’s authority to control its citizens’ exercise of self-determination.

The question, I repeat, is not “what shall be decided?” but “who shall decide it?”

The question for Brett Kavanaugh is not whether he fancies himself “pro-life.” It is whether he is willing to acknowledge that the power of government to control women’s lives is limited by our constitution.

His jurisprudence makes it abundantly clear that he is not willing to make that acknowledgement. For that reason (and a number of other very troubling decisions he has handed down), he is unfit to sit on the nation’s highest court.


  1. “a government with the authority to forbid abortion is a government with the authority to require it” – I feel honored to share an exact word-for-word opinion with you, Sheila. I’ve said this for many, many years. Why is it so hard for the anti-choice group to grasp?

  2. Last night Lawrence O’Donnell methodically, logically, identified the NYT op-ed author as Dan Coats.

    You’ll probably hear about it today.

  3. OMG,

    Thanks for that. After Trump humiliated Coats and his department regarding Putin, it isn’t that surprising. Now, if he’ll step up the rest of the way and take responsibility, he needn’t worry about the rest of his life. The book deal will keep him in groceries.

    Regarding the choice/anti-choice debate: The right has been lying all along. They will spout less government control over our lives, including a woman’s rights, but then will advocate government control over those reproductive rights. This hypocrisy and lie is consistent with Republicanism on many other issues. Reproductive rights is the right-wing’s religious component that seeks to keep control of women and treat their rights as conveniences instead of actual rights. This folly harkens all the way back to women/wives being considered property of the head of the household. Republicans are, of course, still steeped in that backwardness. As we on this blog know, women weren’t allowed to vote until 1920 and women of color not until 1952 (I think).

  4. I believe Kavanaugh’s rulings such as the example Sheila discusses is why only 4% of his records have been released regarding his previous government appointments. Hiding something?

    Pastor Pence sealed his congressional records when he decided to accept DT’s vice presidential partnership.

    For the religious right, God has the ultimate authority—not government consisting of men. God calls the shots and man cannot override the “Thou’s”.

    Science plays no part. Logic or critical thinking is irrelevant. God has spoken—it’s Law.

    These religious zealots (fundamentalists) are no different regardless of which religion you study. They believe the archaic texts literally.

    That always poses problems in societies.

    The problem is they should be a minority in our society and especially in the voting booth.

    When they outnumber people with common sense, we’ll get a government which is warped beyond recognition.

    It’s why many wise men and women refer to USA, Inc as a FASCIST THEOCRACY with Pence as the poster child.

  5. The bogus Kavannaugh “hearings” are rife with the Republicans denying their Democratic members their rights to democracy, Constitutional protection and Rule of Law as it pertains to all of us. Those Republicans are not, contrary to their belief, above the law as they push through Trump’s nominee to a lifetime position controlling life-and-death decisions in the highest court in this land. It appeared to me (I could only watch for brief periods) that the Democrats were asking or trying to ask the right questions but were stopped by the chairman or forced to submit to meaningless Trump-type monologues from Kavannaugh…or were dismissed as being in error. Fortunately; after making their decision to appoint Trump president, the powers of the Electoral College ended or the appointment wouldn’t even have been questioned.

    Here in Indiana in 1970 a lawsuit was brought against Dr. H.C. Moss for performing an abortion on an intellectually challenged, grown woman patient in Central State Hospital; the surgery had been requested by her parents after learning of the sexual activities going on in the hospital. I was 32 years old at that time, had five children and serious “female problems”; doctors at that time simply refused to perform sterilization surgeries. I was fortunate to get an appointment with Dr. Moss; a 3-hour appointment which ended when he asked what my feelings would be if “something happened” to one of my children. My answer was that children are not interchangeable nor can one be replaced with a new child. Still; it took my husband’s permission, including signature on a legal document before the surgery was scheduled. When I awoke afterwards, Dr. Moss came in to speak with me and handed me a laminated card stating I am a member of the “Voluntary Sterilization Association of Indiana”. I still have the card as a reminder; will I have need for it in the future? That will be up to SCOTUS if Kavannaugh’s appointment happens. Any doubts of it happening in any of your minds? And our own Pence is the Pope of Anti-Women as Thinking Human Members of Society. He doesn’t even question the possibility.

  6. Todd,

    “It’s why many wise men and women refer to USA, Inc as a FASCIST THEOCRACY with Pence as the poster child.”

    That’s called reality. Even a jerk, like Donald Trump, could understand that simple fact.

  7. Mea culpa; I need to hone my editing skills. Dr. Moss performed sterilization surgery on the Central State Hospital patient, NOT abortion.

  8. The right to life supporters believe that if they are successful in turning the law their way that the issue will be settled. They cannot imagine any situation that will in the future turn this into a loss for them or generations to come. This kind of absolute thinking twists their decision making and fuels further divisions in the country. It is also the kind of thinking that feeds egos to believe that whatever is good for them is good for all. This is the stuff of fundamental religions worldwide.

  9. It’s harder to plan your life (with an option for abortion) in the US than it is in FL to get a gun. Even mentally unstable and ill people can walk in any store and get one.

    You can take a life with a gun and maybe go to jail/prison for it (if you aren’t a cop) but getting healthcare, or sterilized requires a signature from your parents or spouse? Really?

    What have we become?

    This is not NORMAL.

  10. Banning abortion is about control over women and men. As is religion. Capitalism deeply depends on debt, guilt, and obligation.

  11. Over it, which brings up an idea that I have held for some time, namely that the true religion of the United States is Capitalism, the god we worship is the Dollar, and our Cathedral is Wall Street.

  12. Let’s clarify one thing first: The “right to lifers” don’t care about anyone’s life. They only care about a person’s birth. As Trevor Noah once said, “To them, babies are like comic books. They only have value while they’re in the package.”

    One thing has become abundantly clear from yesterday’s hearing and that is the Judge Kavanaugh lied at least three times, under oath, to the Senate Judiciary Committee when he was appointed to the D.C. Circuit. In a normal world that would be an automatic disqualifier.

    One more thing, it’s nice to say that I agree completely with Todd, this morning.


  13. “It is an act of intellectual dishonesty to dismiss the limits that the Bill of Rights places on government’s authority to control its citizens’ exercise of self-determination.”

    What a beautiful and totally accurate sentence. Whenever we stray from the original intent of the Founders of this country we run things aground. When we do people, citizens, get hurt. If there is such a thing as “American Exceptionalism” this is where the rubber should be meeting the road and those that can’t see this should not be in government or in any other position of responsibility regarding how we, as citizens, are treated in our own country. Sheila chose to illuminate this by choosing a perfect example of how things have gone haywire and continue to. Still another example of how the elegant phrase and its import, “We the People” is often, too often, lost on us. Maybe, just maybe, someday we will fully awaken to what the Founders really did for us so long ago and actually live by it as they intended us to do.

  14. It’s a shame that Kavanaugh is an absolute shoe-in. The Democrats for neither the votes nor the influence (nor the ability to vote as one) that would be required to stop it. The “”hearing”” (one set of quotes simply didn’t seem enough) it just a formality.

    Like they say, elections have consequences and the Democrats’ ceaseless failure to have a coherent platform, differentiate themselves sufficiently, or win an election is going to bring them a lifetime of conservatives on the Supreme Court. Republicans believe in We Can’t Let Them Win and Democrats clung to We Can’t Possibly Lose for much too long. It’s unfortunate we have to pay the piper to such a staggering degree now. Maybe voters will show up next time around, but I wouldn’t bet the farm on in.

  15. A major cause of our predicament is the MODUS VIVENDI between the Southern Baptist Convention and the Anti-Defamation League arranged in the early 80’s [I personally witnessed this event in Dallas, and attempted to stop it, at its beginning, but I failed]. This arrangement whereby unlimited funds for Israel was exchanged for UNLEASHING,unlimited, Anti-Semitic hatred is why the Pence political machine appears to be unstoppable.

    Much like the BATTLE OF THE BULGE we have a major GAP in what, at one time, was called the PLURALISTIC LINE. Since the early 80’s, the SHOULDERS of the gap have, gradually, enlarged to include other minorities, especially the African-American and the gay/lesbian communities.

    The only way to remedy the situation is to close the GAP.

    From “Break Through: The Epic Story of the Battle of the Bulge—The Greatest Pitched Battle in America’s History” by Franklin M. Davis, Jr. (Monarch Books, Derby, Connecticut, 1961) p. 10:

    “For the Allies, notably the American forces the problem was essentially to regain a strategic initiative already established by earlier campaigns in France. In broad detail, that required sealing the enemy penetration at its deepest point, holding the shoulders of the breakthrough to prevent the enemy spilling out to the north and south, and then attacking from a suitable direction to destroy the forces and re-establishing a platform to continue the drive into Germany proper.”

    Also of major importance, “James Dobson’s War on America” by Gil Alexander-Moegerle (Prometheus Books, Amherst, New York, 1997)pp. 9-10:

    “The relevance of that story to this book on the secretive political activist James Dobson is that more and more members of our society feel as if they, too are under personal attack, and the fire appears to be close in, adding a sense of betrayal to the confusion. In general, we fear that one particular religious sect within our ranks, untraconservative Christians, led by fiery zealots claiming to speak for God, are trying to seize political power and force us all to be exactly likethem. A friend of mine recently characterized her feelings about the religious right’s political campaign as one of “terror.” A local businessman spoke of his concern this way, ” I was raised with a strong belief in the separation of church and state and, as a result, I’m very upset about the possibility of the religious right gaining significant control over Washington.” But our fears are not only general but specific.”

    “For physicians who perform the legal medical procedure of abortion, and for their staffs, the analogy of a firefight in which people are dying is all too real. They have watched as activists mass in front of their offices and have feared for their lives. They have seen co-workers struck down by gunfire. They have been stalked in the privacy of their neighborhoods and have answered children’s bedtime questions that are the same as those asked by children of war: “What’s going to happen, Daddy ?” “Will they hurt us?””

    “These parents hear the field generals of this adversary calling out, “Give-us one generation of children and we’ll reshape the entire society,” and they know that it is their own sons and daughters who are being targeted for this conservative Christian revolution.”

    [The author was a former senior vice-president of Dobson’s Focus on the Family]


  16. asking again,why should i,live up to the values of others,need..not opinion. seems theres decisions before justices,who have the final say,not what the person,s, wanted. though some feel above decisions,because of legal care,one should have made a attempt,out of court,no arbitrator,no emotional council, and had a one on one, with the people involved(defendants). someone who wouldnt side,for so called the better.. ive had a few encounters with people who, maybe we can,to be courtious,say.less than normal mental,(hard to,say when we deal with someone like trump,sorry) health. since i was young,and in such clubs as the cub and boy scouts,i seem to be drawn at helping them speak, and showing a way to be self sufficient. not doing the job,but a understanding how,to make it easier,with,understanding. simple, make a fire, but make a containment,and always be vigil.. especially,keeping it going,while enjoying it. i did this without second thought,and never wanted to see them fail. when i converse,i speak in a easy to comprehend,or,find a way for them to comprehend. the court probably needed a friend of the court, or a friend who, wanted to stand on the sideline,and ask, do you want this?after a lenthy discussion,and in confidence that that person,s, trusted them,and thier help…. im reading alot about kavenaugh, some on both sides. what im seeing is a delay in voting him.. sure we had a messed up court before,but what ive seen and read from previous decissions, its all,about the words,and the argument. not so much the reason why its in front of the bench. kamillia harris took this like a prosecutor in her line of questioning,give some time for the person to make a statement,he may have been needed here, she wasnt questioning some hapless crimanal,and sounded like she wanted to trap him, i find that unfair,,,, i wouldnt vote kavenaugh to bench,as hes not in tune with real american values,in many decisions he believes that can grant to the powers that be,and not mainstream Americans.. Merrick Garland was my choice,someone who took time to educate and bring closer,kids who, would never see a judge, or why, they exist… kavenugh strikes me pro religious values and corprate money.. look at his families attire… best wishes…

  17. ” he is unfit to sit on the nation’s highest court”

    I would like to add words to the above statement from Sheila’s last paragraph – “which is why he fits in perfectly with this administration and the current extreme right wing members of Congress”.

  18. Ralph Nader has a different view on Judge Brett Kavanaugh.
    Observers say that confirmation of Judge Brett Kavanaugh to become President Trump’s second pick for a lifetime job on the Supreme Court will make the Court more conservative. It is more accurate to say Kavanaugh will make the Court more corporatist.

    Kavanaugh could be the most corporate judge in modern American history. Two meticulous reports on his judicial decisions, one by the Alliance for Justice (AFJ) and one by Public Citizen demonstrate that for him it’s all about corporations uber alles.

    He ruled 15 times against worker rights, 2 times for worker rights. On environmental protection, he ruled 11 times for business interests and 2 times for the public’s interest. On consumer and regulatory cases, he ruled 18 times for businesses and 4 times for consumer protection interests. In the area of antitrust or anti-monopoly, he ruled 2 times for the corporations and zero times for market competition.

    He seems to love government power when it is arrayed against the people, ruling 7 times for police or human rights abuses versus zero rulings for the victims. But he rules against government agencies when they are protecting the interests of the people over those of corporations.
    The Right Wing-Evangelical-Rabid-Reactionary-Republicans will love Judge Brett Kavanaugh. The Steroid-Capitalists and the Pastor Pence Wing will coagulate for different reasons, but it will be united Front.

    It will be interesting to see how our Counterfeit Democrat – Joe Donnelly will vote. Like the Limbo Song – How Low, Will You Go???

    As Nader describes it – corporations uber alles. Anything that impedes Profit is by definition wrong and must be neutered – Clean Air, Clean Water Regulations, Human Rights, Worker’s Rights, controls on Korporate Amerika are impediments.

  19. I refuse to use the term “pro-life.” It is either “pro-choice” or “anti-choice.” These people aren’t interested in protecting life, or any quality of life.

  20. Let’s face it. It’s a weird country. White men seem to be more inclined to cherish their fathers. African-American men seem too be more inclined to cherish their mothers. Everybody wants to control everybody else. especially politicians. Our nation has a president who doesn’t have the slightest idea what the truth is. The citizens of our country have a vocal range of one octave. Our country’s national anthem has a vocal range of an octave and a half. Other than those menial things, the Unite States is perfect.

  21. As Paul Street has written: Creeping Fascism No Problem for Trump’s Durable Base.

    How, liberals and progressives ask with shocked amazement, can President Trump’s supporters continue to back him? They persist even as one piece of evidence after another emerges of his epic and pathological gaslighting, his shameless immorality, his abject criminality, his wild stupidity and his corruption. Then there’s his chilling authoritarianism, his tendency toward fascism, his ugly sexism, his textbook malignant narcissism and his nasty racism.

    Yes, the evidence is clear as day—to people who pay serious attention to evidence. Nine of every 10 Americans—and certainly a larger share of Republicans and Trump backers—believe in the existence of God. Ask most Americans what exactly one is supposed to believe in when it comes to “God,” and they will say little or nothing in the way of empirical proof. It’s never quite clear what the concept and word mean. It’s about faith, not evidence.

    Evidence is easily devalued in a faith-based nation in which magical thinking (a critical component of authoritarianism and hardly limited to religious and metaphysical matters) is rife.

    “Cognitive dissonance,” a mental pattern first identified by the psychologist Leon Festinger, doesn’t help. People confronted with evidence that contradicts their convictions don’t typically correct their beliefs, Festinger found. Instead, they more commonly double down on their mistaken idea rather than face the mental and egoic pain associated with admitting erroneous thinking.
    Scientific Facts means nothing to the followers of President Agent Orange and Pastor Pence Evangelicals. Any exposure of President Agent Orange’s financial, or human corruption “Cognitive dissonance” will come President Agent Orange’s and Pastor Pence’s rescue, as the base doubles down in their support.

  22. OMG, you burst my bubble. I thought the letter writer would turn out to be Pence or Sessions looking to save a seat on the Republican life boat as the ship sinks. At some point the Mueller bursted dam has to result in many Republicans publicly repenting or more likely blaming as that’s their prime skill nowadays. I sort of respected the middle of the road idea of, I know it looks like I supported him but in reality I was doing my duty as a patriot and defending my country from the threat of Putin by keeping an eye on his deputy in the Whitehouse.

    I still see our problems as a struggle between liberal and authoritarian personalities caused by the organization of authoritarians because it makes for lucrative entertainment media (despite learning yesterday that I am not qualitied to hold opinions).

    Despite the impending Titanic recreation in DC there are sticky problems that will not be solved by the sinking. SCOTUS is one. For that we can blame Mitch, Trump’s bitch, but other than that I can see no solutions. We will be stuck for decades with a Judicial Branch that cannot accept any societal progress, as evolution and natural selection, the continuous adaptation of society to an ever changing environment has taught us, and that will for sure keep us following a world that we won’t be able to keep up with.

    I suppose that the reality of both repairable and lasting damage should not be a surprise.

  23. Sheila’s thesis today answers itself in that we are asking the wrong question, and I have often argued with a pro-life nephew that he is answering a question that hasn’t been asked. Who calls the shots is the only real issue. I don’t know anyone who is for abortion as such, but I know many who are for women to make such decisions free even of statutes since the Constitution proscribes the government from making such decisions for them, and I am one of them.

  24. Little hope that it will make a difference in Kavanaugh being confirmed.

    BUT this morning, Senator Cory Booker [D. N.J.] took a leap off the bridge by knowingly violating Senate rules by releasing an email on racial profiling, which the Repubs had marked as “committee confidential.” In doing so, Booker acknowledged that under Senate rules, the penalty for doing so was possible removal from his position as Senator. (Don’t know if it had anything to do with Booker’s decision to do so this morning, but Rachel Madow asked Booker on her show last night why the Democrats didn’t just go ahead and release them. Booker essentially dodged Madow’s question).’s-dramatic-violation-of-senate-rules-explained/ar-BBMXzq7?ocid=spartanntp

    Booker was quickly joined by Dem. Senators Chuck Schumer and Dick Durbin, who also released “committee confidential” emails that the Repubs were trying to hide. Contrary to a couple of posts here, the Dems, for once, aren’t going down without a fight, and appear to be united.

    To add to all the other “crises” going on in Washington, hard to imagine what the fallout would be from the Repubs trying to or actually ousting three Democratic Senators.

  25. The most that the DNC can realistically do is make Kavenaugh’s shoo-in as expensive as possible for Republicans on Nov 6. We need to support them on that. All blue. It’s all the hope we have to save our liberal democratic republic.

  26. I agree totally with Sheila, but I believe it would have been useful for her to note what particular Bill of Rights applies in abortion cases and why.

  27. Joe; the first 10 Amendments of the Constitution are designated as the Bill of Rights. Amendment I “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…” Abortion, prohibiting access to birth control and denying LGBTQs their civic and human rights are religious based beliefs of those in control at this time. They are establishing their religious beliefs in the form of laws and have defined having “free exercise thereof” as giving them the right to establish these laws. DeVos has already stated her plan to develop all schools as “God’s Kingdom” via the voucher system. Pence announced during his campaign he fully intends to establish Indiana’s RFRA and anti-abortion laws at the federal level. Several years ago Indiana had a law on the books for years against “visiting the bedroom of a person of the opposite sex”, referring to those who were not legally married.

  28. Thanks Jo Anne, but I was suggesting that it was not so much the Bill of Rights that supported a woman’s right to an abortion but rather the right to privacy under the due process clause of the 14th Amendment subject to certain provisions established by Congress.
    But the really important point is what I kept reminding my students in US Constitutional History: “ the Constitution is what the Supreme Court says it is.” Kavanaugh will interpret the Constitution as it fits his already rigidly formed ideology.

  29. Joe; how about including abortion rights under Amendment VIII which prevents “cruel and unusual punishments inflicted”. I am nearing the point of of putting Amendment II in the act; the right to bear arms for personal security which is already accepted by conservatives for all and in some questionable instances. Health care providers and Big Pharma could join the NRA to protect their loss of income from patients denied their services and goods. It could also work to prevent being subjected to religious rights of others being forced on us. This is no crazier than what we are subjected to daily from Trump, the current administration and Congress.

    We are being subjected to a government which operates under the adage attributed to W.C. Fields: “If you can’t dazzle them with brilliance, baffle them with bullshit.” We watch this in action 24/7.

Comments are closed.