Tonight, Monday, October 4, at 7:30 p.m. I will be on a panel (via Zoom–link below) discussing the impending threats to reproductive choice, from Texas to Mississippi.
Here’s the description, and for those who want to “attend,” the information for RSVPing:
Rabbi Dennis Sasso hosts a conversation regarding reproductive rights after the controversy related to the abortion laws in Texas. Rabbi Sandy Sasso will moderate the conversation and share the Jewish perspective with guests Dr. Leigh Meltzer, Obstetrics & Gynecology Physician at IU Health, and Emerita Professor of Law and Public Policy Sheila Kennedy. R.S.V.P to firstname.lastname@example.org or (317) 253-3441.
For those who would like to see the discussion but can’t make tonight’s Zoom presentation,I’m told the session will be recorded, and will be available on the Congregation’s You Tube channel. (Who knew congregations had You Tube channels!)
My brief introductory remarks mostly reiterate points I’ve previously made on this blog, but in case any of you have missed my “take” on Texas, etc., I’m pasting a rough draft below. I anticipate a fairly lively discussion following the introductory remarks from the three of us.
There are three things we need to understand about the context of today’s legal debates over abortion—one philosophical, one historical, one sociological.
Liberal democracies are grounded in the libertarian premise that we are all entitled to make our own moral choices unless we are harming the person or property of someone else. In order to be considered legitimate in a diverse liberal democracy, legislation banning or requiring certain behaviors on moral grounds should reflect widespread public consensus—That’s why the First Amendment’s religious liberty clauses, properly understood, forbid government from imposing the religious beliefs of some Americans on others.
When it comes to abortion, that consensus does not exist.
Historically, the “pro life” movement was not, as popular mythology suggests, a reaction to Roe v. Wade. It wasn’t until 1979—a full six years after Roe—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.” Objecting to abortion was seen as “more palatable” and more likely to motivate religiously conservative Christian voters than the actual motivation, which was denial of tax exemptions for the segregated schools established following the decision in Brown v. Board of Education.
Those origins persist. Sociological research confirms that Whites who score high on measures of racial resentment and racial grievance are far more likely to support strict limits on abortion than whites who score low on these measures. Research also confirms that people active in the “pro life” movement are much more likely to be committed to a patriarchal worldview in which control of reproduction, and female sexuality in particular, is important to the maintenance of the gender hierarchy they support.
The history and research go a long way toward explaining why it is so difficult to have evidence-based, logical discussions about abortion and birth control with anti-choice activists. The issue isn’t really abortion.
What is far less well understood, however, is that the consequences of upholding Texas’ law—if, in fact, the Court eventually does that—would be devastating, and would extend far beyond the issue of abortion. (Thus far, as you know, the Court has simply punted—it hasn’t ruled on the constitutionality of the law.)
A decision to allow the empowerment of culture war vigilantes would achieve a longstanding goal of so-called “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the interference of the federal government.
Such a decision would effectively approve a federalism on steroids, and—I am not engaging in hyperbole here—the effective unraveling of the “United” States.
I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protections against unreasonable search and seizure..
Texas’ law strikes a terrifying blow against that principle.
Let me explain why this law created private vigilantes. The idea is that by enlisting private citizens to enforce the law the state can avoid challenges to the bill’s constitutionality. The theory is that, since the state itself won’t be directly involved in enforcing the law, state officials won’t be proper defendants to a lawsuit.
Why does that matter?
What far too many Americans don’t understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors. If there hasn’t been state action–government action– there hasn’t been a constitutional violation.
Allowing this gambit to succeed would do much more than leave the most restrictive anti-abortion law in the country in place; it would encourage other states to employ similar tactics–and not just for abortion, but for all sorts of culture war issues and from all political perspectives. As Lawrence Tribe recently warned, California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.
This ploy shouldn’t pass constitutional muster. In law school, I remember studying a 1948 case involving racially-restrictive deed covenants. Those covenants were between private parties, but the Court found state action present because those private deed restrictions could only be enforced with the participation of judges, clerks and other state officials. That case is still good law.
The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.
The bottom line is that, if successful, this effort would empower zealots of both the right and left. This is probably not what the idiots in the Texas legislature had in mind, but it would be an almost-certain consequence. Even a more conventional overruling of Roe –a distinct possibility in a case pending from Mississippi—would invite unintended consequences. We can discuss those during Q and A.
Finally, as many of you know, my longstanding preoccupation has been with civic literacy—with the failure of so many Americans to understand their own government. The pandemic has given us a glaring illustration of that ignorance; we have officials and pundits insisting that they have the right to control their own bodies, that government can’t tell them to be vaccinated. Ironically, most of the people making this argument are anti-choice—in other words, they are claiming a right for themselves that they are unwilling to extend to others. But it isn’t only the glaring hypocrisy; they are also wrong. Government has a duty to prevent citizens from harming others, and the Court has recognized the right to mandate vaccination for at least 100 years. A woman who aborts is not a threat to her neighbors; a citizen who refuses to wear a mask or be vaccinated is such a threat–and the law recognizes the distinction even if too many Americans don’t.
14 thoughts on “A Link And A Prayer…”
I am very much pro choice because I do not think abortion is murder but if I sincerely did think that an embryo or fetus is a person, I would think that it is my obligation to prevent murder, which is a societal harm. I agree that many abortion opponents, perhaps most, do not have this pure a motive but I sympathize with those who do. This group thinks they are called to prevent a societal harm. I think your point about consensus is the key. If there is widespread disagreement on whether abortion is murder we must permit individuals to follow their own moral compass rather than legislate. No one is forcing those who believe that abortion is murder to abort when they are pregnant. They have the freedom to continue the pregnancy.
Sadly, many zealots like AG Todd Rokita are willing to do anything to get his way or achieve a victory for one of his wealthy donors. As a result, these zealots have ruined religion and their political party.
This year, the Guardian had an article about the Red States diverting federal/state monies from the TANF funds for needy families. These are block grants, but the state has made many restrictive policies that most needy people won’t apply for the dollars.
This has allowed diverting those dollars toward Christian-backed anti-abortion nonprofits. Indiana participated in this venture. I sent a FOIA to FSSA to get that info, but they haven’t responded. Time to ask the State’s Public Access Counselor for assistance. I am guessing these nonprofits will be used as the private sector enforcers should SCOTUS give Indiana the green light.
Methinks it’s time to tighten the screws on Rokita.
Outstanding remarks! I long ago heeded the admonition to “stay in my lane” on this issue and to keep my opinions and stance to myself. But in polite society if anyone asks I simply tell them I’m ? “pro-women”.
I do not doubt that tonight’s dialogue between Jewish rabbis, you, Shiela, and Dr. Meltzer will be interesting. I will probably watch it on YouTube.
I heard a doctor from Texas on NPR stating that she is very distressed by the Texas law. She is afraid to terminate a pregnancy even when the fetus is not viable. What angers me the most about the Texas law is that it makes no exceptions for rape, incest, endangerment to the mother etc. I am deeply disturbed that the state legislature thinks its good policy to exacerbate the divisiveness in this country by letting citizens sue other citizens for aiding and abetting someone seeking to obtain an abortion. But still, their courts will have to be involved. That means the state is involved.
No laws making abortion illegal will stop abortion. Those who can will go to a state where it is legal. Those who cannot may end up dying due to sepsis or a bungled attempt with a coat hanger or knitting needles. The danger of desperate women trying to abort when it is illegal is in some of the more dramatic episodes of “Call the Midwife.”
This also reinforces the patriarchal stance that it is women who must shoulder the responsiblity to ensure that they do not get pregnant. I could have sworn that men are involved in procreation. I’m just waiting for them to outlaw vasectomies and give subsidies for viagra.
It’s too bad that most of the pro-choice women cannot or are not willing to move out of Texas to a state that supports womens’ reproductive rights. The pro-birth women can stay and suffer the consequences of this legislation.
There is more to the Women’s Rights Fight than abortion. There is the exploitation of women including sexual harassment, sexual misconduct and sex crimes. Hideous crimes against women have been revealed in Sports, Hollywood, etc. The Rich and Famous considered Epstein one of the Boys.
Oh and there is this from Politco: A Donald Trump donor is accusing Corey Lewandowski, one of the former president’s longtime top aides, of making unwanted sexual advances toward her at a Las Vegas charity event over the weekend.
Trashelle Odom, the wife of Idaho construction executive John Odom, alleges that Lewandowski repeatedly touched her, including on her leg and buttocks, and spoke to her in sexually graphic terms. Odom said that Lewandowski “stalked” her throughout the evening.
Four people who were first-hand witnesses at the event corroborated Odom’s allegations. POLITICO also spoke with two people — one who was at the event and another who was not — who described conversations they had with Odom about the incidents immediately after they happened.
Lewandowski’s roles advising Trump included overseeing the principal pro-Trump super PAC, Make America Great Again Action. But Taylor Budowich, a Trump spokesperson, announced on Twitter that Lewandowski was being removed from that job.
Trashelle Odom and her husband, Idaho construction executive John Odom, were among the donors to Make America Great Again Action this year. Prior to the weekend’s incident, the couple had given the Lewandowski-run super PAC $100,000. Those close to the Odoms said they planned to ask for their money to be refunded unless Lewandowski stepped aside from the organization.
It is amazing even with all Toxic Oder emanating from The Trumpet and his gang, the GOP donors still flock around him. Lewandowski was removed not because he did anything wrong in Trump World but, he became a hindrance to The Trumpet’s donor scams.
What to do? Codify Roe and jail sexual harrassers.
As I read this article I am reminded of the many “blue laws” that existed during my youth. “Blue laws” stopped the sale of liquor and closed businesses on Sundays.
One thing that Sheila Kennedy’s introduction makes painfully clear is that this issue is not about abortion beliefs at all. It’s much more fundamental than that. It’s about is democracy and freedom possible among civilized people? Or, put another way, is civilization possible outside of authoritarian government? It demonstrates how desperate the Republican Party has become for power. They are perfectly comfortable with risking the end of the longest experiment the world has seen in liberal democracy and the pre-eminence of the individual and human knowledge in failure as long as only they end up in control.
This is our generation’s slavery issue.
Never understood the “Constitution forbids government from imposing religious beliefs” argument against abortion regulations/restrictions. Just because a particular public policy coincides with the tenet of a religion doesn’t invalidate the public policy. If that were the case there would literally be hundreds of laws invalidated.
Incest is also against many, if not all, religions. So we can’t have laws against incest because religions oppose it? The Catholic Church is against the death penalty so a state can’t outlaw the death penalty? Again, there are hundreds of laws out there that coincide with religious beliefs. That doesn’t invalidate the laws.
The left likes to think abortion regulations/restrictions are pushed b/c of religious beliefs, but it’s extremely rare that I see that as the motivation for the law.
In my opinion this is critical to understand:
“In order to be considered legitimate in a diverse liberal democracy, legislation banning or requiring certain behaviors on moral grounds should reflect widespread public consensus—That’s why the First Amendment’s religious liberty clauses, properly understood, forbid government from imposing the religious beliefs of some Americans on others.”
If a moral view is widely held by society independent of any particular religion it can be, should be, enshrined in law.
Outlawing abortion will not bring an end to abortion. Abortion has existed as long as sex has existed. Legal abortion simply means abortions take place in a sanitary, sterile environment and not as many women die. I think the whole abortion issue is a first step to instituting a Stasi-like system of neighbors and friends reporting on the activities of citizens to a governmental body.
Letting a law stand that enlists & encourages vigilantes to interfer in their neighbor’s private matters is uncivilily intrusive. I can’t imagine what kind of bully, invasive businesses would spring up with their goal of being awarded “bounties” in court.
I was always under impression that Bill of Rights also protected minority from majority, and could be asserted in the courts?
I heard Lawrence Tribe on the Texas law, and it comes down to that the State would have to uphold so the vigilantes would be considered working for the State. Are private citizens not considered part of the State where they live?
Conception is the beginning of Human Life & many people feel protective toward that occurance, and in some religions considered pure & sacred. Do their ideas, feelings & beliefs trump another citizens own beliefs & decisions over their personal healthcare?
Where in the US Constitution is there “right to privacy”? It’s in the Bill of Rights, but one sided? Maybe that’s why in 1980’s Medical industry called for Hippa laws, which could get murky under the newTexas law.
I think that politicians,State & to some degree Church need to back off adults personal lives. Putting burdens on people that they aren’t willing to carry themselves should be outlawed.
The impossible nut to crack: which “moral” codes do we legislate, and on what authority? Not an ineffable absent God critter, for sure. How about Islam? Lots of people believe in it strongly…as do Catholics in their morality. Hindus?
Is China doing this on Confucian principles?
Which do people presume morality belongs to religion? We’re really talking about the desire by people to have their own way, regardless of others’ needs and wants.
So it’s predictive sociology: what will work.
Lotta Catholics on the Supreme Court. Bet they vote with the Pope!
Succinct and well stated introduction to the topic, Sheila. Sorry I had to work.
I may check out the You Tube channel this weekend.
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