Author Archives: Sheila

Who Decides?

Can you stand a few more observations about the Supreme Court’s birth control decision and women’s reproductive rights in this, the 21st Century?

The amount of disinformation about abortion–and the use of that disinformation by cynical Republican operatives–is fairly widely known. I’ve previously quoted religious historian Randall Ballmer for the actual genesis of the “pro life” movement.

Ballmer points out that 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.” Being against abortion was “more palatable” than what was actually motivating the Religious Right, which was protection of the segregated schools they had established following the decision in Brown v. Board of Education.

Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

So much for the “moral outrage” that presumably prompted the movement.  A number of political scientists and sociologists attribute its continued salience to an equally unlovely motive: keeping those uppity women in their place: the kitchen and bedroom. (When women are able to plan their families and manage their reproduction, they can enter the workforce, and if necessary, leave abusive husbands.) 

Those pious concerns about women’s health have always been dishonest; abortion is far safer than childbirth. A recent study reported by the New Yorker further confirms that claims about later regrets or emotional problems following abortion are simply fabrications.

If there was any doubt about the pro-Republican, anti-woman animus motivating attacks on women’s reproductive autonomy, the Supreme Court’s birth control decision should dispel it. 

As both Justice Ginsberg and the New York Times Editorial Board pointed out, between 70,500 and 126,400 women will immediately lose access to no-cost contraceptive services.

The Trump administration has been attacking both the A.C.A. and access to birth control since the moment President Trump took office. On the latter front, its most successful effort before this week was to gut the nation’s decades-old family planning program, called Title X, in an explicit effort to cripple Planned Parenthood. All of the administration’s efforts on this front have most directly affected poor women and women of color.

As Nancy Papas noted, in a trenchant comment to my previous post on the subject, denying women access to birth control makes no sense (unless, of course, your goal is to erect barriers to female equality). Less birth control means more unwanted pregnancies and abortions, more unwanted children (and increased levels of child abuse). Employee health declines; employee absenteeism rises–and more children on a family plan means higher cost health insurance premiums.

There’s another cost that rarely is factored in: these decisions are “exceptions” to the American concept of liberty.

The Bill of Rights is often described as a list of decisions and behaviors that government must respect: individuals have the right to decide for ourselves what books we will read, what–if any–Gods we will worship, who we will marry and whether and how often we will procreate, among other things. The Courts have routinely referred to such decisions as “intimate” and ruled that government interference with them is illegitimate and unconstitutional. Those same Courts have carved out de jure exceptions for abortion, and now, what amounts to a de facto exception for birth control.

Here’s a thought: states with progressive legislatures (not Indiana, unfortunately) should partner with health insurance companies to establish a fund that would provide low-or-no cost birth control for women who work for these anti-woman “religious” companies. The women should apply directly, eliminating the need for the “religious” owners to be “complicit.” (I guess it doesn’t bother them to be “complicit” in worsening the health of women who take birth control medication for reasons other than contraception–but then, logic and honesty aren’t involved in these decisions.)

Here’s another thought: if America had a single-payer system like the 36 countries that pay less for health outcomes superior to ours, government wouldn’t allow employers to impose their religious beliefs on employees who don’t share them.

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Joe Biden Is Coming For Your Windows

If it wasn’t so serious–and terrifying–it would be funny. 

Anyone who watched Trump’s Rose Garden “press conference” and still thinks that the guardian of the nuclear codes is sane, is equally demented. 

Dana Milbank shared his bemusement in the Wednesday Washington Post.

President Trump’s window is closing.

All signs suggest it’s closing on his presidency because of his world-class incompetence with the coronavirus pandemic, the protracted economic collapse that resulted, and the increasingly overt racism Trump has embraced.
 
But it also appears the window is closing on his connection to reality, if it hasn’t already.

Milbank described Trump’s use of the ostensible press conference to launch a bizarre and lengthy attack on Joe Biden– “attributing a platform to his Democratic opponent that bore hardly any resemblance to anything occurring in the real world.”
 
Trump informed the assembled White House reporters that Biden would “incentivize illegal alien child smuggling,”  “abolish immigration enforcement,” “abolish police departments” and “abolish our prisons.” According to Trump, Democrats are “calling for defunding of our military” and “wouldn’t mind” if terrorists blew up America’s cities.

He also said “Biden and Obama stopped their testing– they just stopped it.” (Presumably, they are also culpable for failing to prevent 9/11.)

The weirdest accusation was that Biden’s energy plan would require eliminating windows. According to Trump’s unhinged diatribe, Biden’s energy plan “basically means no windows” in homes or offices by 2030.

Uh-huh.

Lest you think Milbank was exaggerating for comic effect, his description of the “press conference” (note quotation marks) was echoed by a number of other observers. Cody Fenwick attributed the performance to Trump’s longing for the rallies he has been unable to hold.

There was no consistent thread or argument to his ramblings, aside from his own supposed greatness. It was pure stream of consciousness, supplemented by factoids apparently printed on notes on his lectern. He claimed to be the defender of African Americans at one moment because he favors school choice, but then slipped into attacking low-income housing and saying he’d preserve the suburbs — an unsubtle code for protecting white neighborhoods.

He lied so constantly that CNN’s Daniel Dale, one of the president’s most assiduous fact-checkers, noted that he couldn’t cover the speech in real-time on Twitter because there were just so many falsehoods.

The Lincoln Project tweeted out: “We’re watching the self-destruction of the president in real time.”

And back at the Washington Post, in a column that was far from amusing or bemused, Paul Waldman argued that people who aren’t furious with Trump and the GOP just aren’t paying attention.

Let me take you for a moment to a fantasy land. In this place, the coronavirus pandemic was bad for a couple of months but now it is largely under control. If you lived there you’d still be a little uncertain about going to a concert or a movie, but your life would have largely returned to normal.
 
You wouldn’t have lost your job; the government would have had a comprehensive support program that kept unemployment low. You’d be able to see your family and friends without fear. Your children would be returning to school in September. There would be some precautions to take for a while longer, but there would be no doubt that the pandemic was on its way to being defeated.

As Waldman says, this isn’t a fairy-tale; it’s life in numerous other countries around the world. (I know it’s true of the Netherlands, because I have a son who lives in Amsterdam, and that’s been his experience.)

Waldman provides data that should enrage us: new case totals from Monday. France: 580; UK: 564; Spain: 546; Germany: 365; Canada: 299; Japan: 259;  Italy: 200; Australia: 158; South Korea: 52.

The United States? 55,300.

There are many reasons we have experienced this catastrophe (and it quickly became two catastrophes, an economic crisis added to the public health crisis), but one stands above all others: President Trump.

Is there a single aspect of his response to this pandemic that has not been a miserable failure? For weeks he ignored warnings and denied that the pandemic would be a problem. He didn’t prepare the equipment and systems we’d need to respond.

Waldman lists the failures, then focuses on the President’s disconnect from reality.

And he demanded that everyone around him echo his insane claims that everything is under control and the pandemic is being vanquished. It was a month ago that Vice President Pence pathetically proclaimed that “we are winning the fight against the invisible enemy,” and the administration’s great success was “cause for celebration.”

And now (since nothing bad can ever be Trump’s fault) the White House is trying to discredit Dr. Fauci.

As Waldman points out, we should all be furious–because we’ve been robbed:

Even if you’re lucky enough not to have gotten sick or lost a loved one, you’re the victim of a robbery. Trump stole so much from all of us — our time with friends and family, our mental health, even our faith that our country could meet a challenge.

I can just hear the Trumpers’ response: but think how angry we’ll be when Joe Biden steals our windows…

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The Pandemic And The Constitution

Several faculty at the O’Neill School of Public and Environmental Affairs, where I teach, collaborated on a special summer school course investigating the challenges posed by the pandemic to our particular fields–criminal justice, disaster preparedness, non-profit organizations…and in my case, civil liberties.

Here’s an abbreviated (but still pretty long) version of my lecture.

The Coronavirus pandemic has raised a number of issues that are new or even unprecedented. One is a fundamental governance issue: what is the proper balance between government’s obligation to protect and the individual’s right to autonomy, or self-governance?

The rights guaranteed to individuals under the U.S. Constitution are civil liberties; they are guarantees against governmental infringement of our fundamental, human rights. Civil rights, on the other hand, are statutory rights against discriminatory behavior by private entities. The question we’re going to explore in this class is limited to civil liberties—specifically, how much additional latitude the Constitution gives government to limit individual rights in order to discharge its duty to protect our health and lives—civil liberties in the time of a pandemic.

There are a multitude of issues raised by government’s efforts to keep us safe and control the pandemic.

·      One of the most visible—and contentious—issues involves federalism. Federalism, as you know, is the structure whereby government jurisdiction, or authority, is divided between federal, state and local units of government. What is the role of the federal government in a pandemic? What powers and decisions are reserved to the states? In previous situations involving threatened pandemics, there was much more co-ordination, and most of the questions we now face didn’t arise. This time, however, there has been a great deal of public confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, but he has also disclaimed responsibility for tasks that he says are state responsibilities. Several of those statements are inconsistent with the Constitution, which vests primary responsibility with the states. As you consider America’s response to the COVID-19 pandemic, and the very uneven experiences of the states, you might also consider where America should place primary responsibility for pandemic response.

·      Another issue that has been debated is: What are the limits of civil disobedience and the First Amendment right to assembly during a pandemic? This issue arises in several ways: some citizens have protested state orders requiring masks and social distancing (and some of those protestors have been armed, which is disquieting). Those protests pale, however, before the hundreds of thousands of citizens who have participated in the widespread Black Lives Matter demonstrations following the murder of George Floyd. The states did not move to curtail those demonstrations on the basis of the threat to public health, and the data we now have suggests that those protests were not, in fact, a triggering event. The lack of spread has been attributed to the fact that protestors were outdoors, and a significant percentage of them wore masks.

·      Requirements to wear masks have generated especially nasty confrontations, with people comparing the requirements to “communism” and “attacks on the Second Amendment.” My own reaction to these assertions is based less on the Constitution—which I think pretty clearly allows such measures –and more on logic, or more properly, the lack thereof. The government can and does require you to wear a seat-belt; ordinances require that we refrain from smoking in public places. For that matter, government requires us to wear clothing—at least enough to cover our genitals—in public. It is illogical to obey these and other common mandates and yet claim that wearing a mask in order to abate a pandemic is somehow a new and offensive invasion of personal liberty. I will say that what I find offensive is the unwillingness of these people to wear a mask intended to prevent them from infecting others. They are either unbelievably selfish, or perhaps they believe, with the President, that the pandemic is a “hoax.”

·      So much for masks. What about the shutdowns, the “stay-in-place” orders? Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. Government does have to demonstrate the reasonableness of those measures, but assuming it meets that burden, requirements for quarantines and vaccinations are clearly allowed.

·      What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” I am unaware of cases testing those restrictions.

·      Using cellphones for “contact tracing” has been met with considerable alarm from privacy advocates and organizations concerned with the level of government surveillance. That’s another area of legal ambiguity.

·      The right to vote is a critically-important constitutional right, and cases have already challenged restrictions on the availability of absentee ballots. (A related issue is the evident inability of many states to handle increased voting by mail—situations that may deprive people of their constitutional rights by reason of inadequate capacity to perform, rather than by intent.)

·      Several states have used pandemic restrictions to justify denying women’s constitutionally-protected reproductive rights, spawning litigation about the degree to which those restrictions can be imposed.

·      Both the right of Assembly and the Free Exercise Clause of the First Amendment have been cited by religious organizations—primarily churches—that have objected to limitations on public gatherings. (Medical scientists tell us that singing in a confined space is particularly dangerous.)

·      Then there are incarcerated persons, and would-be immigrants who are being detained at particular risk. At what point do the conditions of confinement rise to the level of “cruel and unusual punishment”?

·      A fascinating case that has been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of disinformation be held liable? The case is Washington League for Increased Transparency and Ethics v. Fox News. The plaintiff alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

The Executive Director of the non-profit was quoted as saying that they aren’t trying to chill free speech, but that they believe the public was endangered by false and deceptive communications in the stream of commerce. She emphasized that there are a lot of people who listen to Fox News, and that Fox is not taking the recommendations of public-health officials seriously. She has asserted that “This lawsuit is about making sure the public gets the message this is not a hoax.”

I think it is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the mirror-image of “falsely shouting fire in a crowded theater.” In this case, Fox is accused of shouting “There’s no fire; stay in your seats” when, in fact, there is a fire.

For a more scholarly exposition of these and other civil liberties issues, click here.

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It Depends And It’s Complicated

Every so often, intellectual luminaries initiate what the rest of us might call a “pissing match.”

One such match was triggered by a letter published in Harpers, warning that the spread of “censoriousness” is leading to “an intolerance of opposing views” and “a vogue for public shaming and ostracism”. Some of my favorite authors–and some not-so-favorite– are signatories (and no, I’m not identifying either category.)

The letter approves of the “powerful protests for racial and social justice” that it says are leading to “overdue demands for police reform, along with wider calls for greater equality and inclusion across our society”, but it goes on to disapprove–strongly–of what it calls “a new set of moral attitudes and political commitments” leading to the delivery of “hasty and disproportionate punishments instead of considered reforms”, and it charges that this disproportionate response tends “to weaken our norms of open debate and toleration of differences in favor of ideological conformity”.

As an aside, I’m not so certain those norms ever existed outside certain rarified circles. I sure haven’t seen much evidence of a genteel “toleration of differences”– and such courtesies certainly haven’t characterized social media.

I find myself agreeing with a remark attributed to US senator Brian Schatz (D. Hawaii), that “lots of brainpower and passion is being devoted to a problem that takes a really long time to describe, and is impossible to solve, and meanwhile we have mass preventable death”.

A Guardian article reported the reactions of some of that paper’s columnists, at least two of whom pointed out that the letter was a bit fuzzy in its definition of “cancel culture.” Zoe Williams, for example, wrote

This reminds me a lot of the arguments we used to have about religious tolerance in the 90s. Toleration was a good and necessary thing; but what if it meant you had to tolerate people who themselves wouldn’t tolerate you?

One of the Guardian commenters was Samuel Moyn, a professor of law and history at Yale, who had signed the original letter. He explained that he’d signed on, not because he is a free speech absolutist–a status he disclaims–but because he believes that,

If it is true that hierarchies are in part maintained – not just undone – by speech, and that speech can harm and not just help, it doesn’t follow that more free speech for more people isn’t generally a good cause. It is.

A few people sent me the original letter, and asked my opinion. With the caveat that I am no more equipped to weigh in than anyone else, here are my reactions:

Free speech has always been contested. It has also always been misunderstood: we have the right to “speak our piece” without interference by government. We have never had–and never will have–the right to speak our piece without repercussions, without hearing from people who disagree with what we have said.

Do extreme negative responses intimidate people, and deter others from speaking out–suppressing, rather than encouraging, productive debate? Yes. Isn’t that regrettable? Usually–although not always.

Is the extreme sort of blowback that the letter excoriates often unfair, and even unhelpful to the cause of those engaging in the disproportionate reaction? Yes–often.

Have the Internet and social media amplified both hateful speech and over-the-top censorious responses to it? Yes. Does that reality make civil, productive discussion and debate more difficult? You betcha.

None of this, however, qualifies as “breaking news.”

A number of people critical of the letter point to signatories who–they say–are guilty of the very behavior they criticize. That doesn’t make the criticism wrong, of course, but it does point to the fact that whether a reaction is proportionate to the offense is very much a subjective determination.

I tell my students at the beginning of each semester that my goal is for them to leave my class using two phrases far more frequently than they did previously: It depends and it’s more complicated than that.

Meanwhile, Senator Schatz has a point.

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Law And Order

No mentally-competent American still believes that Donald Trump is (1) honest (2) intelligent (3) informed or (4) sane. In a way, we are probably fortunate that he is so incredibly incompetent and unable to restrain himself from broadcasting his idiocy–if he was smart and just as corrupt, he could pretend to be other than what he is. Fortunately, he is too stupid to hide what he is.

Give him credit for one thing, though: he knew enough to commute Roger Stone’s sentence rather than pardoning his creepy co-conspirator.

The difference is significant: a pardon erases the conviction of guilt. A President’s decision to commute a sentence, however, doesn’t eliminate a federal conviction or imply that the person was innocent. It doesn’t even remove the ramifications of a criminal conviction, such as losing the right to vote or inability to hold elected office.

So–since even Trump must have recognized that letting Stone off the hook via either mechanism would engender huge blow-back–why not give his old pal a pardon?

Mother Jones asks–and answers–that question.

Why the second-class treatment of a commutation instead of a pardon? Wasn’t Stone important enough for a pardon?

But wait. Someone who gets a pardon can no longer invoke the Fifth Amendment as a justification for refusing to testify in court. If Stone were called in some other case, he’d be required to spill any beans he had. But if I understand the law correctly, a commutation is more limited. The conviction stands, and the possibility of putting yourself in further jeopardy remains. Thus your Fifth Amendment rights stand.

So if you wanted to help out a buddy, but you also wanted to make sure he couldn’t be forced to provide dangerous testimony in the future, commutation sure seems like the best bet, doesn’t it?

Reactions to the commutation have reminded us that Trump has either pardoned or commuted the sentences of a long list of other truly despicable–and unambiguously guilty– men: Joe Arpaio (Contempt of Court) Michael Milken (Fraud)  Scooter Libby (Perjury) Eddie Gallagher (War Crimes) and Rod Blagojevich (Corruption) come to mind.

There is another interesting wrinkle, legally, to Trump’s latest favor to the dark side.

Seth Abramson, an attorney and commentator, has characterized Stone’s commutation as that of a “co-conspirator,” and opined that–because it amounts to a “self-pardon”–it is obstruction of justice and thus unconstitutional. Nancy Pelosi has weighed in by recommending passage of a law forbidding a President from pardoning or commuting a sentence if the conviction was for illegal behavior to protect the President–which Stone’s quite obviously was.

Perhaps the most succinct summary of the situation came from Mitt Romney–who seems to be the only Republican in the Senate with either scruples or a backbone. Romney tweeted

Unprecedented, historic corruption: an American president commutes the sentence of a person convicted by a jury of lying to shield that very president.

There is broad recognition that another four years for this grotesque buffoon would be the end of America’s experiment with democratic self-government. Inconceivable as it seems, however, he continues to have the devotion of his base/cult. They won’t desert him and they will turn out for him.

If we want to save America in November, we’d better get massive turnout of people who come prepared to “vote blue no matter who.”

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