Personal Autonomy – Sheila Kennedy

The Patriarchal Backlash

Supporters of the draconian abortion bans passed by Red states like Indiana like to pooh-pooh allegations that those bans are part of a “war on women.” But a woman’s ability to control her own reproduction is absolutely essential to her ability to participate equally in economic and civic life, and depriving her of that control is a major goal of those who want to take America back to patriarchy, to a time when women were subservient.

MAGA’s war against women doesn’t stop with abortion bans and restrictions on birth control. The Guardian recently reported on Republican proposals to cut a variety of federal subsidies that disproportionately help women.

As they prepare to take control of the White House and Congress next month, conservatives are eyeing cutbacks to federal programs that help tens of millions of women pay for healthcare, food, housing and transportation.

The ferocity of the backlash to women’s growing equality raises obvious questions: why is it that the United States, with our vaunted celebration of individual rights and civic equality, has never had a female President, as other countries have? Why are women still under-represented in our legislative bodies, compared to numerous other countries?

Recently, Yascha Mounk posed those questions to Alice Evans, a scholar who focuses on them. Evans has a book coming out titled “The Great Gender Divergence,” and her observations are instructive.

Evans noted that there are wide differences in labor force and leadership participation across the globe.

Across Scandinavia there is a very strong share of female representation. In Latin America there are 11 legislative assemblies which actually mandate gender parity, and you’ve just seen two women fight it out for the presidency in Mexico.

When Mounk asked Evans to speculate about why these differences exist, her explanation began with a history of women’s emancipation that was very similar to the one Morton Marcus and I offered in our book From Property to Partnership.

As she noted, in 1900, much of the world was very patriarchal.

Our Enlightenment, our scholars, our scientists, our parliaments, and our judiciary were incredibly patriarchal, a total sausage fest. But then there is a big disruption, and I do think economics and politics are important here. So over the 20th century, skill bias and technological change are ramping up demand for skilled labor. That happens across the world. These factories open up and women seize the economic opportunities they create. It’s also mediated by technology: When women have contraceptives they can control their fertility, further their education and then build careers.

So what accounts for the striking differences in female political and economic participation across the globe? Culture. Especially the persistence of patriarchal cultures, where male status depends upon “protecting” women and keeping them submissive, and where a “husbands’ status is contingent upon them being the breadwinner and women remaining at home.”

The interview is wide-ranging, and focuses largely on the situations of women in countries where male resistance to female empowerment is far more powerful and effective than in the U.S. But Evans’ observations about culture–especially patriarchal culture–have obvious pertinence to America, where our citizenry includes a wide variety of subcultures, many of which are patriarchal to a greater or lesser degree.

There has been a lot of hand-wringing over the fact that Trump pulled more than the expected vote percentage with some traditionally Democratic-voting constituencies. Pundits have offered various theories, almost all based upon policy differences, ignoring the likely effect of the “macho” elements of some of these cultures, and the corresponding belief that women are unfit for the Presidency. Then there is the influence of fundamentalist religions, virtually all of which circumscribe the role of women. The recent resurgence of White Christian Nationalism is at least partially a backlash against the growing role of women and gays in American society.

Project 2025 proposes an agenda that is thoroughly paternalistic and patriarchal, and anyone who thinks the Trump administration won’t try to impose its provisions on American society is, as they say, “smoking something.” (The extent to which his chosen clowns, conspiracy theorists and buffoons will succeed is a different question.)

James Davidson Hunter coined the term Culture Wars back in 1992. It was an apt phrase then, and it is even more appropriate now. The divisions between modernists and “traditionalists,” between urban and rural Americans, between resentful Whites and people of color are all essentially cultural.

Today’s “cold civil war” isn’t between Republicans and Democrats. (Face it, there aren’t any real Republicans anymore.) It’s a culture war between a MAGA movement that wants to reinstate a racist, homophobic, patriarchal society and those of us who want to live in an inclusive 21st Century.

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The Voice Of The People

We Americans talk a lot about democracy. Those conversations multiplied during this year’s election cycle, when it became obvious that democracy was under attack by a MAGA base that preferred Trump’s promised autocracy. That said, those conversations rarely focus on the Founders’ approach to democratic governance, and the constitutional mechanisms they employed as a result of their concerns.

It is a truism that the Founders weren’t fans of what they called “the passions of the majority.” In addition to limiting the right to vote to those they trusted with that power–White guys with property–they crafted a system that limited the operation of democratic decision-making; the Bill of Rights was a list of things that government was forbidden to do even when a majority of voters wanted government to do them. The limitations were founded on that libertarian premise I frequently cite, a belief that government action is legitimate when necessary to prevent citizen A from harming the person or property of citizen B, but not when government is trying to restrict an individual”s personal liberties, the choices that–in Jefferson’s famous words–neither pick a neighbor’s pocket nor break his leg.

The Founders’ decision to restrict the areas that were remitted to democratic decision-making is why many people who don’t really understand that basic framework often claim that America wasn’t intended to be a democracy, but a republic. To be accurate, our system is a democratic republic, in which we elect representatives who are supposed to respond to the democratic will of the people when legislating in the large number of policy areas where majority rule is appropriate.

Those of us who have been sounding the alarm over America’s retreat from democracy have pointed to the growing lack of proper representation–and the numerous systemic flaws that have separated government’s performance from the expressed will of its citizens. Thanks to pervasive gerrymandering, the Electoral College, the filibuster, and the composition of the U.S. Senate, among other undemocratic systemic mechanisms, elected officials have increasingly felt free to ignore even clear expressions of popular sentiment.

That retreat from representative democracy isn’t simply a federal phenomenon; it occurs with regularity at the state level. Two recent examples may illustrate the point.

Example one: In the wake of the Dobbs decision, several state legislatures imposed draconian bans on a woman’s right to obtain an abortion. Polling clearly showed that–in most of those states–large majorities of voters opposed those bans, and subsequently, in states where the electorate had the opportunity to oppose the bans through referenda (a democratic mechanism not available in my state), they overturned them.

Example two: Right-wing ideologues have waged consistent war against public schools. In a number of states, legislatures send tax dollars to private schools–predominantly religious schools–through voucher programs. I have posted numerous times about the negative effects of those programs: their failure to improve educational outcomes, their disproportionate use by upper-middle-class families, and the degree to which they deprive public schools of critically-needed resources.

When citizens of a state are able to vote on those programs, they lose.

In ballot initiatives, voters delivered a stunning rebuke to school vouchers, which siphon scarce and critical funding from public schools—which serve 90 percent of students—and redirect it to private institutions with no accountability.

Although the outcome of the 2024 election may test the resolve of the most committed and determined public education advocate, educators and their allies can find strength and inspiration in what happened in Nebraska, Colorado, and Kentucky. In those states, support for public schools was put on the ballot and won a resounding victory.

As the NEA President noted,

“Voters rejected diverting public school funding to unaccountable and discriminatory private schools, just like they have done every time vouchers have been on the ballot. The public knows vouchers harm students and does not want them in any form.”

Thanks to the distortions in our electoral systems, voters in the United States have been steadily losing the right to democratically direct their governments. The 2024 election was different only because the further threat to democratic decision-making was so transparent. The truth is that, thanks to the operation of the cited anti-democratic mechanisms (aided and abetted by low levels of civic literacy and engagement and funded by the plutocrats), the voice of the people has become more and more irrelevant.

The cranks and ideologues have used those poorly-understood mechanisms to attain and retain public office, and they no longer feel constrained by the demonstrable wishes of even large majorities.

If and when the resistance manages to overcome MAGA, that will only be a beginning. We haven’t had majority rule–aka democracy– for quite some time.

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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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