Category Archives: Personal Autonomy

It Always Comes Back To Racism II

Last Sunday, my post described the actual origin of the anti-choice movement, which was an effort to turn out Evangelical voters in order to protect segregated “Christian” academies.

Last Tuesday, I posted about the research tying a variety of our current hostilities back to racism. Opposition to immigration from “brown” countries, belief in a number of conspiracy theories and, of course, devotion to Trump and his “Big Lie,” among other distortions of public opinion, all strongly correlate with racist ideologies.

After that particular post was written, The Guardian added to the evidence. 

The article began by noting that the US Supreme Court is very likely to overturn Roe v. Wade this spring–and that the Court’s refusal thus far to halt a patently unconstitutional Texas statute means that, for women in Texas, reproductive rights have already been nullified.

The article then reported on an ugly underside of the “pro life” movement that has rarely been the focus of media coverage.

These victories have made visible a growing cohort within the anti-choice movement: the militias and explicitly white supremacist groups of the organized far right. Like last year, this year’s March for Life featured an appearance by Patriot Front, a white nationalist group that wears a uniform of balaclavas and khakis. The group, which also marched at a Chicago March for Life demonstration earlier this month, silently handed out cards to members of the press who tried to ask them questions. “America belongs to its fathers, and it is owed to its sons,” the cards read. “The restoration of American sovereignty must follow the restoration of the American Family.”

Explicit white nationalism, and an emphasis on conscripting white women into reproduction, is not a fringe element of the anti-choice movement. Associations between white supremacist groups and anti-abortion forces are robust and longstanding. In addition to Patriot Front, groups like the white nationalist Aryan Nations and the neo-Nazi Traditionalist Worker party have also lent support to the anti-abortion movement. These groups see stopping abortion as part of a broader project to ensure white hegemony in addition to women’s subordination. Tim Bishop, of the Aryan Nations, noted that “Lots of our people join [anti-choice organizations] … It’s part of our Holy War for the pure Aryan race.” That the growing white nationalist movement would be focused on attacking women’s rights is maybe to be expected: research has long established that recruitment to the alt-right happens largely among men with grievances against feminism, and that misogyny is usually the first form of rightwing radicalization.

The article provided evidence that the growing presence of White Christian Nationalists at “Pro Life” marches and events isn’t because the movement has been “infiltrated” without its consent.  To the contrary, “just as the alt-right loves the anti-choice movement, the anti-choice movement loves the alt-right.”

In 2019, Kristen Hatten, a vice-president at the anti-choice group New Wave Feminists, shared racist content online and publicly identified herself as an “ethnonationalist”. In addition to sharing personnel, the groups share tactics. In 1985, the KKK began circulating “Wanted” posters featuring the photos and personal information of abortion providers.

Now, mainline anti-choice organizations routinely share names, photos and addresses of abortion providers.

The association has a long and ugly history. 

Before an influx of southern and eastern European immigrants to the United States in the latter half of the 19th century, abortion and contraception had only been partially and sporadically criminalized. This changed in the early 20th century, when an additional surge of migrants from Asia and Latin America calcified white American racial anxieties and led to white elites decrying the falling white birth rate as “race suicide.”

This led to a campaign of forced birth for “fit” mothers–White women– while another widespread campaign actively supported involuntary sterilization for poor women, particularly Black and incarcerated women.

The final paragraphs of the report are chilling:

In the current anti-choice and white supremacist alliance, the language of “race suicide” has been supplanted by a similar fear: the so-called “Great Replacement”, a racist conspiracy theory that posits that white Americans are being “replaced” by people of color. (Some antisemitic variations posit that this “replacement” is somehow being orchestrated by Jewish people.)

The way to combat this, the right says, is to force childbearing among white people, to severely restrict immigration, and to punish, via criminalization and enforced poverty, women of color. These anxieties have always animated the anti-choice movement, and they have only become more fervent among the March for Life’s rank and file as conservatives become increasingly fixated on the demographic changes that will make America a minority-white country sometime in the coming decades. The white supremacist and anti-choice movements have always been closely linked. But more and more, they are becoming difficult to tell apart.

This isn’t about “saving babies.” It never has been.

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After Roe

Happy Sunday! I will be delivering the following “sermon” (via Zoom) at the Danville Unitarian-Universalist Church this morning.

_________________

Thank you for asking me back! I’m gratified.

As you all know by this time, my academic background is law—and more specifically, Constitutional law and the Bill of Rights.

The Bill of Rights, the approach to individual liberty that animates it, and the jurisprudence interpreting it  tell us when government must respect declarations of “my body, my choice.” We’ve been hearing that slogan a lot from the people who are refusing to be vaccinated—and ironically, they’re often the very same people who label themselves “pro life” and vigorously oppose a woman’s right to control her own body.

I’m here to tell you that the anti-vaxxers throwing that slogan around have it exactly backwards.

The Founders who crafted our Constitution and Bill of Rights were influenced by the philosophy of the Enlightenment and by what we call the “libertarian construct”—the belief that we humans have an inborn right  to “do our own thing”—to pursue our own interests, form our own beliefs, and make our own life choices and moral judgments, free of government interference– until and unless we are harming the person or property of someone else, and so long as we are willing to grant an equal right to others.

That approach to human rights requires government to refrain from interfering with citizens’ political or religious beliefs, but it also imposes a governmental duty to protect citizens from harm. Philosophers like Hobbes believed that was a major purpose of government—to keep the strong from taking advantage of the weak, to protect citizens from threats both foreign and domestic. We can certainly quibble over the nature and degree of the harms that justify government action, but if government can protect us from drunk drivers and the dangers of passive smoke, then a dangerous and frequently fatal pandemic is clearly a sufficient basis for government rule-making.

A pregnant woman’s decision to terminate her pregnancy, on the other hand, poses no threat of harm to her neighbors.

Despite the rhetoric—the legal issue is not whether abortion is right or wrong, good or bad. The issue is who gets to make that decision, the individuals involved or the government? In our Constitutional system, decisions about the religion you will follow, the books you will read, the political philosophy you’ll embrace, and many others—are all supposed to be left to the individual. What the courts call “intimate” decisions, like those about who you will marry and whether you will procreate, are to be left up to individual citizens, because they are none of  government’s business.

I agree with the people who point out that the so-called “pro-life” movement is really pro-birth. Most of the legislators who identify themselves with the pro-life label are clearly unconcerned about women’s lives, or about feeding, housing and educating babies once they are born. But I wasn’t asked to speak to the considerable dishonesties of the anti-choice position; I was asked to focus on what will happen if—as most of us anticipate—the Supreme Court eviscerates or overrules Roe v. Wade.

Before that, however, we need to look at the actual origins of the anti-abortion movement.

Noted religion scholar Randall Balmer has documented those origins. It wasn’t until 1979—a full six years after the Court decided Roe v, Wade—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” than what was actually motivating them, which was protection of the segregated schools they had established following the decision in Brown v. Board of Education. 

According to Balmer (this is a quote),

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.

End quote.

Let me emphasize that. It was rightwing anger about civil rights laws that actually motivated the “Right to life” movement. The Rightwing was savvy enough to recognize that organizing grassroots evangelicals to defend racial discrimination wouldn’t cut it—that they would need a different issue if they wanted to mobilize evangelical voters on a large scale.

The bottom line is that what motivated the Christian Right’s political activism, including but not limited to its opposition to abortion, was racism and defense of racial segregation.

Let’s give credit where credit is due: that tactic has been incredibly successful. Christian Nationalists now own one of America’s two political parties—and I say that as someone who worked hard for the Republican Party for 35 years. Mitch McConnell has achieved the GOP’s fever dream of taking over the Supreme Court, and much as it pains me to say this, with the imminent demise of Roe, we are looking at what is probably the first of many times this Court will roll back individual liberties.

So what now?

If Roe is overruled—or more likely, effectively neutered– there will certainly be some horrendous consequences. But there may also be some unanticipated positives.
We have all come up against the intransigence of the “one issue” anti-choice voters, the people who disagree with Republicans about virtually everything else, but vote Republican because they are “pro life.” Without Roe, I think many of them will abandon the GOP.
Losing Roe will also make it much more difficult to energize a national movement against birth control, which is actually a target of the most rabid anti-choice activists—a significant number of whom are men who want women barefoot, pregnant and back in the kitchen. Bottom line: anti-choice voters have been a mainstay of the GOP–and at the federal level, at least, they will arguably be considerably less motivated.

If Roe is no longer the law of the land, the issue will revert to the states, and a number of states will opt to protect reproductive choice. Those of us who care about women’s autonomy will need to do some serious fundraising to make it possible for poor women in Red states to travel to places where abortion is legal, and that’s a pain. But even now, with abortion theoretically legal, there are many places in the U.S. where clinics are few and far between; women have to travel long distances, put up with bogus, medically-inaccurate “counseling,” and deal with other barriers to the exercise of what is currently a constitutional right to terminate a pregnancy.

What the de-nationalization of Roe might do–should do–is redirect liberal and pro-choice energies from national to state-level political action. And while there are no guarantees, that could be a huge game-changer.

The current agenda of the Republican Party doesn’t reflect the desires of the American majority–far from it. GOP numbers have been shrinking steadily; some 24% of voters self-identify as Republican. Their electoral success has been due primarily to the 2011 gerrymander, and that was made possible because they controlled a large number of state governments when redistricting took place. More recent GOP vote suppression tactics that have depressed Democratic turnout and disenfranchised Democratic voters have also been facilitated by state-level control. In many states—possibly even Indiana—redirecting voters’ attention to state-level politics could change that.

Without Roe, it is reasonable to predict that the single-issue anti-choice voters that have been a mainstay of the GOP will be less motivated to vote. Pro-choice voters, however, will be newly energized, and polling suggests they significantly outnumber “pro-life” activists. A recent Pew survey has found that 61% of Americans say abortion should be legal in all or most cases, with 27% saying in all cases and another 34% saying in most cases. Only twelve percent of the public says abortion should be illegal in all cases, and only 26% would outlaw it most cases.

In anticipation of the loss of Roe, some states have already seen efforts to protect reproductive rights. A ballot drive has been launched in Michigan. Reproductive Freedom for All’s petition would affirm the right to make pregnancy-related decisions without interference, including about abortion and other reproductive services such as birth control. The groups leading the effort are Planned Parenthood Advocates of Michigan, the Michigan ACLU and an organization called Michigan Voices.

New Jersey has already enshrined abortion rights in state law. Lawmakers in that state bolstered protections for reproductive rights in anticipation of the upcoming U.S. Supreme Court decision, and Gov. Phil Murphy has signed a bill codifying abortion rights into state law. He also signed a second bill that expands insurance coverage for birth control.

Meanwhile, in states like Florida and South Dakota, lawmakers are rushing to impose new restrictions on abortion, anticipating the Court’s acquiescence with much more restrictive rules.

Knowing our Hoosier legislators, I anticipate some pretty dreadful legislation being introduced here. It will require organization and activism in Indiana to derail what the ridiculous pro-gun, anti-vaccine legislators who call themselves “pro life” will try to do.
Indiana will need an enormous uprising—of women, of men who support women, and especially of liberal churches—if we are going to escape replicating the Handmaid’s Tale here in Hoosierland.

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Ruth Marcus Schools The Court

A recent opinion column by Ruth Marcus is really a “must read” by anyone who thinks that the absence of a specific provision in America’s constitution is evidence that the document is “neutral” about an issue.

Marcus’ essay focuses on reproductive rights, but her explanation of the Constitution’s operation extends well beyond abortion. Although she doesn’t put it this way, what she is really exposing is the fact that judges who call themselves “originalists” are actually revisionists who use the absence of a particular word in the text to justify a preferred, distinctly unoriginal interpretation of the Bill of Rights.

The argument–which was on display during oral arguments in Dobbs v. Jackson-– is that, absent express constitutional language, an issue must be left to “the people.” As Marcus points out,

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

She also notes the highly selective application of the “leave it to the people” approach.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.

What this disingenuous argument rejects is the whole purpose of the Bill of Rights (the Founders’ actual “original intent”)–which was to keep government from invading the fundamental rights of the people to personal autonomy–the right to self-government. A reading of the history of the too-frequently overlooked Ninth and Tenth Amendments makes clear that “unenumerated” rights were among those to be protected.

When people argue that the right to privacy is not protected from government overreach because the word “privacy” doesn’t appear in the document, they conveniently ignore the reality that without recognizing a zone of privacy, it is impossible to give effect to very explicit provisions of the First, Third, Fourth and Ninth Amendments (not to mention the 14th, which was ratified after the Civil War.)

When the Supreme Court decided, in Bowers v. Hardwick, that the Constitution didn’t protect a right to homosexual behavior, because such behavior was not addressed in the document, legal scholars–and a later Court–addressed the fundamental error in that analysis: It had inverted the question. Where in the Constitution or Bill of Rights is government given authority to tell people who and how they can love?

The question is always: who gets to decide this matter, government or the individuals involved? The Bill of Rights answers that question by enumerating things government is forbidden to do. It cannot censor our speech, decide our religions, search our homes or persons without probable cause, or take a variety of other actions that invade an individual’s right to self-determination (the Constitutional definition of privacy).

As Marcus reminds readers,

There are any number of rights that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. The right to travel. The right of parents to educate their children as they choose. The right to contraception. The right to private sexual conduct. The right to marry a person of another race. The right to marry a person of the same gender.

All these derive from the intentionally broad phrases of the 14th Amendment’s protections against the deprivation of “liberty” without due process of law. “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,” Justice John Harlan, no liberal, explained in a 1961 dissent, from an early case involving access to contraception.

If a woman’s right to control of her own body doesn’t have constitutional protection, then logically, none of the rights Marcus enumerates are protected either–and the intellectually dishonest “religious” conservatives on the Court are quite capable of coming for those rights in the future.

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What’s Next?

I recently had a disquieting political discussion during an otherwise lovely lunch with my youngest son.

It probably won’t shock readers of this blog to learn that our children and grandchildren are pretty political…and I’m happy to report that they all have developed what I consider to be excellent values. The differences arise from our views of America’s probable future. One son has already moved to the Netherlands, a granddaughter lives in northern England, and this son–our youngest–expects that America’s descent into autocracy and White Supremacy will prompt his children to eventually relocate as well.

Our discussion wasn’t exactly an argument, but we had very different predictions about the likely political fallout when–not if, since we agreed it will happen– the Supreme Court eviscerates or overrules Roe v. Wade. I opined that their “victory” will lead to a reduction in the passion of the pro-fetal-life movement, and energize women who have previously felt protected by Roe. My son disagreed–he sees the anti-choice zealots taking their fervor to state legislatures and–thanks to gerrymandering–tightening their red state control.

I should mention that this son is a lawyer, and a very good one. He knows how to frame and present a convincing argument….Needless to say, I left lunch depressed.

A few days after that conversation, I was a guest on a podcast called Who Gets What–the brainchild of two longtime friends, Morton Marcus and John Guy. After the recording stopped, Morton and I were talking, and he made an observation that I found both fascinating and relevant to the consequences of a reversal of Roe v. Wade.

Morton said he’d been looking for a truly objective, scholarly analysis of the multiple ways in which women’s “liberation”–the growth/emergence of women’s participation in all the “nooks and crannies” of society–has changed that society. As he noted, there’s been a lot written about the subject, but it’s mostly advocacy (pro and con), or focused on relatively small parts of the bigger picture. He’d found no analysis encompassing the truly monumental social changes triggered by the steady expansion of women’s participation in all parts of our society.

Morton’s observation is accurate, at least so far as I can tell–I’m unaware of any scholarship that addresses the entirety of the immense social changes that have occurred as a result of women’s emancipation from the confines of “barefoot and pregnant.”

However one defines the “women’s movement,” however, its power depends on reliable birth control.

Yes, we can look to history and find examples of powerful women; we can point to the suffrage movement and similar efforts to assert or enlarge women’s rights–but real change, I submit, came only with the ability of women to control our reproduction. Only then could we enter fully into workplaces (most of which no longer required brute strength), an entry that gave us another form of choice: the economic means to leave unsatisfactory marriages, or to renegotiate the terms of more agreeable ones.

There’s a reason the people who want to return the U.S. to the social structures of the 1950s are so focused on controlling women’s reproduction. (It isn’t just abortion; if you don’t believe birth control is next, I refer you to the Hobby Lobby case…)

The future of American democracy may well depend upon the extent to which American women understand the far broader implications of a loss of control over their reproductive lives. Yes, there are compelling medical, economic and psychological reasons to allow women to exercise the self-determination men take for granted. Yes, the arguments advanced by pro-fetal-life activists are inaccurate gaslighting. But if women lose control over their bodily integrity, they won’t just lose the momentum that has been building toward their full participation in American society, they’ll do a U turn.

Women’s equality will lose considerable–critical– ground.

I think that–deep down, if not consciously–activists on both sides of the issue understand that this fight is really between continuing inclusion of half the population in the life of the nation, or a return to some version of male social dominance. The question is whether the majority of non-activist women understand the actual nature of the debate, care about continuing their progress toward equal civic participation, and are sufficiently motivated to protect the hard-won improvements in women’s prospects and status.

What happens next–whether my son’s predictions or my own hopes prove accurate–ultimately depends on the answer to that question–and upon who wins those statehouses.

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Some People Shouldn’t Be Parents

Not long after I joined the faculty at IUPUI’s School of Public and  Environmental Affairs (now the O’Neill School), I had a student whose answer to virtually every thorny policy issue we discussed was the same: license people before allowing them to become parents.

This was in an upper-level undergraduate class in Law and Public Policy, and the student’s “day job” was as a probation officer. (Like a significant percentage of undergraduate students at IUPUI back then, he was older than traditional college students, and had a full-time job.) Each time, I would patiently explain why the Bill of Rights prevents government from making so personal a life choice for individual citizens, and he would respond to the effect that such a constraint was unfortunate, because he saw the results of bad or inadequate parenting on a daily basis.

As I reflect on those discussions, I’ve concluded that we were both right.

It should be obvious that the decision whether to procreate is not a decision that government in a free society can or should make. (Speaking of obvious–someone needs to  forcefully remind six Justices on our current, politicized Supreme Court just why liberty requires procreation decisions to be left to the individuals involved .) But my student wasn’t wrong when he pointed out that some people simply should not be parents.

I thought about that student, and those long-ago discussions he initiated, when I read reports about the utterly unfathomable conduct of the parents of Ethan Crumbly, the young man who killed four classmates and wounded seven others in Michigan. Per CNN, we learned that the parents have been charged along with their son after they failed to appear for their arraignment, withdrew 4,0000 from an ATM, and hid out in a warehouse some 40 miles from their home in an apparent effort to flee.

The judge has set their bail at 500,000 each.

Parents of a school shooter are almost never charged, even when their negligent storage of weapons is implicated in a shooting. But these parents are–as my students might put it–something else.

Oakland County Prosecutor Karen McDonald has alleged that James Crumbley on November 26 bought the gun at a store in Oxford, and that the parents gave the weapon to their son as an early Christmas present.

During Saturday’s arraignment, McDonald said, “It’s … clear from the facts that (Ethan Crumbley) had total access to this weapon,” and that the parents “didn’t secure (the gun) and they allowed him free access to it.”…Shortly after James Crumbley bought the gun November 26, his son posted a picture of a gun on an Instagram account and captioned it, “Just got my new beauty today. SIG SAUER 9mm” with a heart-eyes emoji, McDonald said.

If the parental culpability had stopped with the purchase and  grant of access, I doubt they’d have been charged, but their jaw-dropping behaviors went far beyond stupidity and negligence. Jennifer Crumbley  posted about the gun on social media, calling it “his new Christmas present,” and took her son to a shooting range the weekend before the school shooting. When a teacher discovered Ethan searching for ammunition on his phone–the day before the shooting– and reported it to school officials, the mother not only didn’t respond when those officials called her, but sent a text message to her son saying, “LOL I’m not mad at you. You have to learn not to get caught.”  

On the day of the shooting , a different teacher became alarmed by pictures Ethan had drawn showing bullets, a bloody body, and a laughing emoji–along with alarming text.

The parents were called for a meeting in the school with a counselor and their son, who by that time had altered the illustration “by scratching out the drawings of the gun and bloody figure, along with the words, according to McDonald.”

The parents refused to take their son out of the school, and he was allowed back to class.

Other media outlets have reported that school officials strongly recommended that the parents obtain immediate psychological counseling for Ethan, but the parents appeared to dismiss that recommendation.

Later in that day–the same day his parents had refused to take him home– Ethan Crumbley “opened fire outside a bathroom, aiming at students in the hallway as well as those who were hiding in classrooms.” He killed four students and injured seven.

Maybe my long-ago student was right when he opined that some individuals shouldn’t be parents.  Since the Supreme Court appears ready to give government the right to require parenthood, maybe the Justices should stop cloaking that decision in rhetoric about fetal personhood, and just hold that government can decide who gets to procreate.

After all, the government with power to tell people they can’t abort can also tell them they must…

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