Personal Autonomy – Sheila Kennedy

Puncturing The “Pro-Life” Myth

I assume there are sincere people (mostly, but not exclusively, male) who bought into the myth that prohibiting abortions was all about “saving babies.” In the wake of actual bans, the incredible dishonesty of that assertion has become harder to ignore.

The avowed “pro life” activists have been conspicuously silent about the fact that– In the wake of the Dobbs decision–in states like Indiana that have stringent bans, women have died or suffered extreme medical consequences in greater numbers than before. While most women already knew that the purported “pro life” concerns about “life” didn’t extend to the lives of women, those activists have been equally silent about the sharp rise in infant mortality. As the linked report shows, in the year and a half following the Supreme Court Dobbs decision, hundreds more infants died than usual in the United States. The vast majority of those infants had congenital anomalies, or birth defects, and it is likely that a number of those babies experienced painful deaths.

The refusal of ideologues to understand that abortion availability is an essential part of healthcare has meant that women suffering miscarriages have been denied adequate and timely treatment, and that pregnant women who very much want to carry their babies to term are having difficulty finding an ob/gyn to provide prenatal care and deliver those infants. The state’s abortion ban has led to a decline in OBGYN residency applications–a decline likely to worsen the already alarming shortage of maternal care providers. A patient in Northern Indiana died last year from an ectopic pregnancy because there was no ob-gyn to treat her.

None of which seems to bother the “pro life” Micah Beckwiths of the world.

Now, it turns out that the medical consequences of these bans–their very negative effect on actual lives–extends far beyond reproductive medicine. According to the Indiana Capital Chronicle, the bans are also interfering with the diagnosis and treatment of breast cancer. In the wake of Dobbs and state bans, finding a local provider for breast screenings has become far more difficult. Planned Parenthood clinics that used to provide those screenings have closed and staff shortages at other sites have increased as medical personnel leave states with bans. The remaining health care providers are overwhelmed.

One in 3 oncology fellows surveyed by the American Society of Clinical Oncology says abortion restrictions hurt cancer care, and more than half of fellows said they are likely to consider the impact of abortion restrictions on care when deciding where to practice. Although many states like Indiana allow exceptions when the termination of a pregnancy is necessary to protect the life of the pregnant patient, the rules on how to apply these exceptions are unclear. In Ohio, two cancer patients were denied treatment until terminating their pregnancies under the state’s 6-week ban, forcing them to seek care out of state. As these bans persist, more Hoosiers will face similar situations—many of which may go unseen.

Early detection through routine screenings plays a critical role in improving survival rates, as 1 in 8 women in the U.S. will develop breast cancer in their lifetime. But when health centers are forced to close, those lifesaving screenings disappear too.

How “pro life” are the pious ideologues who talk endlessly about the “pre-born” but refuse to acknowledge the profoundly negative outcomes of these bans for the lives of already-born women?

Excuse my cynicism, but I remain convinced that the real motive for these bans is the patriarchal belief that women should be returned to a submissive social status. Increasing efforts by GOP politicians to restrict access to birth control give the game away.

With the advent of the pill, women were–for the first time– able to manage their fertility and plan their families. Women were able to enter the workforce, able to participate with men in the broader civic and political society. As Morton Marcus and I documented in From Property to Partner, reproductive choice has been far and away the most important element of women’s liberation.

Initially, perhaps some people were convinced that the “pro life” movement really was about keeping wicked and “ungodly” women from “killing babies.” Now that we have irrefutable evidence that, thanks to these bans, more babies and more women are dying, it will be interesting to see how many of those people revise their opinions.

I’m not holding my breath, because for the great majority of those “pro life” warriors, it was never about life. It was about male dominance and faux religion.

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Braun And The American Idea

If you were hiring someone to manage a manufacturing business, would you hire someone who didn’t know anything about the product your factory produced? What about a nonprofit executive who disagreed with the organization’s mission?

The answers to those questions is pretty obvious, but for some reason, when it comes to government, we don’t require evidence that candidates for office understand what government is and– just as important– is not supposed to do.

As early voting gets underway in Indiana, Hoosier voters are going to the polls to choose between two statewide tickets. One of those is composed entirely of candidates who neither support nor understand America’s constitutional system. Beckwith, Banks and Rokita are out-and-proud Christian Nationalists waging war against the First Amendment’s Separation of Church and State. They simply reject the system put in place by the Founders. Braun–who seems motivated only by a desire to be important–rather clearly doesn’t understand the role of government or the structure of American federalism.

One of the TV ads being run by Jennifer McCormick–who does understand those things–shows an earlier interview with Braun in which he enthusiastically endorsed the Dobbs decision that allowed state-level governments to ban abortion. When asked if he would also support criminalizing the procedure, he said he would. Less well-known was his opinion, shared in another interview, that decisions about same-sex and inter-racial marriages should also be returned to the states.

Evidently, Braun has never encountered the Fourteenth Amendment, which–among other things– requires state and local governments to govern in a manner consistent with the Bill of Rights, and forbids them from denying to their citizens “the privileges and immunities” of American citizenship. For over fifty years, those privileges and immunities have been protected by a doctrine called substantive due process, often called the “right to privacy.” That doctrine confirmed the principle that “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception (or more recently, the choice of one’s marriage partner) are none of government’s business.

Permit me to slip into “teacher mode.”

Constitutional scholars argue that the right to personal autonomy has always been inherent in the Bill of Rights, but it was explicitly recognized in 1965, in Griswold v. Connecticut. Connecticut’s legislature had passed a law prohibiting the use of birth control by married couples. The law prohibited doctors from prescribing contraceptives and pharmacists from filling those prescriptions.The Supreme Court struck down the law, holding that whether a couple used contraceptives was not a decision government is entitled to make.

The Court held that recognition of a right to personal autonomy—the right to self-government—is essential to the enforcement of other provisions of the Bill of Rights. Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the terminology “substantive due process” comes from. Wherever it resided–in a “penumbra” or the 14th Amendment—the Justices agreed on both its presence and importance.

The doctrine of Substantive Due Process draws a line between decisions that government has the legitimate authority to make, and decisions which, in our system, must be left up to the individual. I used to tell my students that the Bill of Rights is essentially a list of things that government is forbidden to decide. What books you read, what opinions you form, what prayers you say (or don’t)—such matters are outside the legitimate role of government. The issue isn’t whether that book is dangerous or inappropriate, or that religion is false, or whether you should marry someone of the same sex, or whether you should procreate: the issue in America is who gets to make that decision.

Not the federal government. Not state governments. Individual citizens.

I will refrain from pointing out the impracticality of “states rights” on these intimate issues. (If you are in an inter-racial marriage and move to a state that forbids such unions, are you suddenly unmarried?) The more fundamental point is that allowing any unit of government to decide such matters violates the Bill of Rights and the libertarian philosophy that underlies our constitutional system.

Indiana’s MAGA GOP is offering voters an entire statewide slate of men who neither understand nor respect the Constitution–men who are applying for jobs without demonstrating any familiarity with the job descriptions.

Voters who feel comfortable allowing Indiana’s deplorable legislature to decide who they should be allowed to marry or whether they should be required to reproduce should vote for Braun and his merry band of theocrats. The rest of us will cast our votes for the Democrats.

Note: I voted early afternoon yesterday, on the first day of early voting. I stood in a fast-moving line for nearly an hour. If this year’s election will be decided–as I believe it will be–on turnout, it was a fantastic sign.

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The Indiana Retention Vote

The other day, a reader asked me what I thought of a current effort to deny retention to three members of Indiana’s Supreme Court– judges who had voted to uphold Indiana’s abortion ban. As I told that reader, voting no on a retention vote because of disagreement with one ruling would set a very dangerous precedent.

I subsequently spoke with several practicing lawyers, including a good friend who is a highly respected trial lawyer, an active member of the local bar, and personally pro-choice. He suggested that I share the following information with my readers.

First of all, the process. For fifty years, Indiana has had a merit selection process to identify and appoint members of Indiana’s Supreme Court and Court of Appeals. Once candidates who have been found to be highly qualified are appointed, they submit to a statewide retention vote within two years. Thereafter, they are submitted for a retention vote every 10 years.

This year, Chief Justice Loretta Rush, Justice Mark Massa, and Justice Derek Molter are up for retention to the Supreme Court. None of them is known as “liberal” or “conservative” or partisan. The organized opposition to their retention is based upon their ruling on a challenge to Senate Bill 1, the abortion ban passed by Indiana’s regressive legislature in the wake of the Dobbs decision. Indiana’s ban broadly prohibited abortion but made exceptions for 1) when an abortion is necessary either to save a woman’s life or to prevent a serious health risk; 2) when there is a lethal fetal anomaly; and 3) when pregnancy results from rape or incest.

We can argue about how those exceptions work–or don’t–in the real world, but they are written into the law.

Abortion providers sued to invalidate the law and to enjoin its enforcement. The lawsuit was what lawyers call a “facial challenge”–meaning that the providers had to prove that they had standing and that there were no circumstances under which the law could be upheld. The court found that the plaintiffs had standing to bring the case and that Article 1, Section 1 of the Indiana Constitution protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk.

At the same time, the majority found that the Indiana Legislature had the authority to prohibit abortions that didn’t fall within one of those three categories. It also recognized that, prior to Roe v. Wade, Indiana and forty other states had upheld legislative limitations on abortion.

Lawyers can agree or disagree with the majority’s interpretation. I do disagree– but it was a reasoned decision, far from the historical dishonesty and religious ideology that permeated Dobbs.

As readers of this blog know, I strongly support abortion rights, and I disagree profoundly with the Dobbs decision. But the postcards that are being disseminated to the public accusing these three justices of voting to ‘strip away’ Hoosier women’s rights to abortion are misleading and unfair. The Justices are bound by precedent–and, unlike the U.S. Supreme Court– they followed their honest reading of that precedent.

As my lawyer friend reminded me, Indiana has one of the most respected supreme courts in America. Our justices serve in many capacities in national judicial organizations, and Chief Justice Rush has been president of the Conference of Chief Justices and Chair of the National Center for State Courts. Opinions of our supreme court are frequently cited in other state judicial opinions and scholarly articles and relied on by state and federal courts nationwide.

Typically, only 75-80% of those who go to the polls will bother to vote on judicial retention. Of that group, there’s a “hard core” of approximately 30% who always vote no. That means that an organized group opposing a judge or justice need only muster another 21% or so–and that’s why this effort is so dangerous. The retention of judges should be based upon their entire body of work and not upon a single opinion, even a questionable one.

I share the anger of people who oppose Indiana’s ban, but our animus should be directed at the legislature–not at a court that, rightly or wrongly, held that the legislature had authority to act.

If the effort to unseat these jurists succeeds, it will close the Indiana Supreme Court for several months, pending the selection of new justices. Worse still, if the Braun/Beckwith ticket wins (and this is deep-Red Indiana), Christian Nationalists will select the new Judges. I’m sure that Braun would be more than willing to subvert the merit process in order to elevate clones of Alito, et al. to Indiana’s top court.

Be careful what you wish for.

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Let’s Talk About Choice

A reader of this blog recently asked me why Americans seem so confused about whether individual “choice” is an essential element of freedom. Why, for example, do many Americans see reproductive choice as a critical human right, but oppose school choice, or the individual’s choice to own lethal weapons? Why did people during a pandemic oppose rules requiring them to wear masks, claiming their right to choose? Can we make sense of these differences?

I think we can.

I have frequently alluded to the libertarian principle that underlies America’s constitutional system. Those who crafted America’s constituent documents were significantly influenced by the philosophy of the Enlightenment, and its then-new approach to the proper role of the state. They endorsed the principle that Individuals should be free to pursue their own ends–their own life goals–so long as they did not thereby harm the person or property of another, and so long as they were willing to accord an equal liberty to their fellow citizens.

The principle seems straightforward, but it requires a measure of consensus about the nature of harm to others.

To use a relatively recent example, lots of folks were enraged when local governments imposed smoking bans in public places. They insisted that the choice to smoke or not was an individual one. The bans, however, resulted from medical research documenting the harms done by passive smoke. The ordinances were based upon lawmakers’ agreement that individuals should retain the choice to smoke in their homes or cars or similar venues, but not where they would be polluting the air of non-consenting others.

Essentially, the libertarian premise asks: What is the nature of the “harm to others” that justifies government intervention? When may government disallow a seemingly personal choice? How certain does the harm have to be? Does harm to others include harms to non-persons (fetuses)?

Most sentient Americans understood that a rule requiring people to wear masks in public places during a pandemic was essential to preventing harm to unconsenting others, just as the ordinances against smoking in a local bar protected non-smokers from the hazards of passive smoke, and laws against speeding protect against potentially deadly accidents.

When we get to issues like gun ownership and educational vouchers, there is considerably less agreement–although survey research suggests that most Americans favor considerable tightening of the laws governing who can own weapons, given the daily evidence that lax regulation is responsible for considerable and often deadly harm to others.

What about allowing “parental choice” in the use of tax dollars to send one’s children to private and religious schools? Or, for that matter, “parental choice” to control what books the local library can include on its shelves?

The evidence strongly suggests that “educational choice” is harming both civic cohesion and the public school systems that serve some 90% of the nation’s children. (Given the large percentage of voucher users who choose religious schools, there is also a strong argument to be made that these programs violate the First Amendment’s Separation of Church and State.) There is also a significant difference between exercising choice with one’s own resources–which parents can absolutely do–and requiring taxpayers to fund those choices.

With respect to libraries, parents can certainly choose to prevent their own children from accessing books of which they disapprove, but efforts to keep libraries from offering those books to others is a clear violation of the portion of the libertarian principle that requires willingness to accord equal liberty to others.

Whether to impose on an individual’s right to choose a course of action will often depend upon a weighing of harms. With respect to a woman’s right to choose an abortion, even people who claim that a fertilized egg is a person should understand that an abortion ban demonstrably harms already-living women–physically, emotionally and economically. (It has become abundantly clear that very few of the “pro life” activists really believe that a fertilized egg is equivalent to a born child; they are far more likely to favor a return to a patriarchal time and a reversal of women’s rights. But even giving them the benefit of the doubt, a weighing of the harms clearly favors women’s autonomy.)

Bottom line: a free society will accord individuals the maximum degree of individual choice consistent with the prevention of harm to others. There will always be good-faith debates about the nature and extent of the harms justifying government prohibitions, but those debates should start with a decent respect for–and understanding of– the philosophical bases of our constitutional system and the relevant credible evidence.

A good society chooses wisely.

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Family Values

What are “family values?”

To hear Republicans describe them, family values are a traditional, a backward-facing insistence on sexual “purity” (for women) and heterosexuality: mom in the home watching the children (no pre-school or day care), gays in the closet, no access to abortion. Occasionally, there will be a nod to the importance of dad’s fidelity, but that gets awkward these days, given GOP allegiance to a male sexual predator.

Democratic policies illustrate a very different approach to valuing families.

For one thing, Democrats emphasize job creation, so that families can adequately care for the children they may–or may not–choose to have. (On that score, the GOP’s performance has been dismal: during the DNC, Bill Clinton noted that, since 1989, America has created about 51 million new jobs. Fifty million were created during Democratic administrations, one million under Republicans. This jaw-dropping statistic turned out to be true, albeit slightly misleading.)

Even if you discount the importance of a robust economy to the health of the American family, a glance at the policies pursued by the parties confirms that Democrats are far more family-friendly. Nicholas Kristof recently made that case. Calling Republican efforts to paint themselves as the “pro-family” party “chutzpah,” Kristof wrote

Children are more likely to be poor, to die young and to drop out of high school in red states than in blue states. The states with the highest divorce rates are mostly Republican, and with some exceptions like Utah, it’s in red states that babies are more likely to be born to unmarried mothers (partly because of lack of access to reliable contraception).

One of President Biden’s greatest achievements was to cut the child poverty rate by almost half, largely with the refundable child tax credit. Then Republicans killed the program, sending child poverty soaring again.

Can anything be more anti-child?

Well, maybe our firearms policy is. Guns are the leading cause of death for American children and teenagers, largely because of Republican intransigence and refusal to pass meaningful gun safety laws.

It’s because of the G.O.P. that the United States is one of only a few countries in the world without guaranteed paid maternity leave. Republicans fought universal health care and resisted the expansion of Medicaid; that’s one reason a child in the United States is three times as likely to die by the age of 5 as a child in, say, Slovenia or Estonia.

Kristof also noted several of the anti-child policies advanced in Project 2025, including ending Head Start–which has been a lifeline for low-income children– and dismantling the Department of Education.

Banning abortion and requiring women to give birth whether or not they can afford to feed and clothe a child is hardly “pro family”– even ignoring the fact that when women with dangerous pregnancies cannot access adequate care, they often die, leaving existing children motherless. And Republican extremism on abortion and birth control has led to obstacles to in vitro fertilization–for some families, the only avenue to producing those children Republicans want women to keep turning out.

Kristof also recognized the importance of the economy in supporting families. If marriage rates are important–and he agrees that they are–the evidence of economic influence is compelling.

Union membership among men raises their marriage rates, for example, apparently because they then earn more money and become more stable and appealing as partners. But Republicans have worked for decades to undermine unions.

And while marriage is important, so is access to divorce. Before easy access to divorce, large numbers of women were trapped in violent marriages that terrorized them and their children. (JD Vance is on record counseling women to remain in such marriages.) As Kristof notes,

One careful study by the economists Betsey Stevenson and Justin Wolfers found that the introduction of no-fault divorce in America was associated with about a 20 percent reduction in female suicides, at least a 25 percent reduction in wife-beating and an apparent decline in husbands murdering wives.

Which raises the question: can an anti-women party be pro family values?

In this policy arena–as in so many others–the fundamental difference between today’s GOP and the Democratic Party really does get back to dramatic differences in values. That’s why calls to “bridge our differences” and “achieve compromise” ring so hollow. If the debate is about the best way to achieve result X–say, feeding hungry children–then we can absolutely come to some sort of mutual agreement. But when one party wants to feed children and the other party doesn’t, compromise isn’t likely.

Americans aren’t divided over policy; we are divided over values–and not just family values.

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