Category Archives: Personal Autonomy

A Link And A Prayer…

Tonight, Monday, October 4, at 7:30 p.m. I will be on a panel (via Zoom–link below) discussing the impending threats to reproductive choice, from Texas to Mississippi.

https://us06web.zoom.us/j/96415122645

Here’s the description, and for those who want to “attend,” the information for RSVPing:

Rabbi Dennis Sasso hosts a conversation regarding reproductive rights after the controversy related to the abortion laws in Texas. Rabbi Sandy Sasso will moderate the conversation and share the Jewish perspective with guests Dr. Leigh Meltzer, Obstetrics & Gynecology Physician at IU Health, and Emerita Professor of Law and Public Policy Sheila Kennedy. R.S.V.P to jgoldstein@bez613.org or (317) 253-3441.

For those who would like to see the discussion but can’t make tonight’s Zoom presentation,I’m told the session will be recorded, and will be available on the Congregation’s You Tube channel. (Who knew congregations had You Tube channels!)

My brief introductory remarks mostly reiterate points I’ve previously made on this blog, but in case any of you have missed my “take” on Texas, etc., I’m pasting a rough draft below. I anticipate a fairly lively discussion following the introductory remarks from the three of us.

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There are three things we need to understand about the context of today’s legal debates over abortion—one philosophical, one historical, one sociological.

Liberal democracies are grounded in the libertarian premise that we are all entitled to make our own moral choices unless we are harming the person or property of someone else. In order to be considered legitimate in a diverse liberal democracy, legislation banning or requiring certain behaviors on moral grounds should reflect widespread public consensus—That’s why the First Amendment’s religious liberty clauses, properly understood, forbid government from imposing the religious beliefs of some Americans on others.

When it comes to abortion, that consensus does not exist.

Historically, the “pro life” movement was not, as popular mythology suggests, a reaction to Roe v. Wade. It wasn’t until 1979—a full six years after Roe—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.” Objecting to abortion was seen as “more palatable” and more likely to motivate religiously conservative Christian voters than the actual motivation, which was denial of tax exemptions for the segregated schools established following the decision in Brown v. Board of Education.

Those origins persist. Sociological research confirms that Whites who score high on measures of racial resentment and racial grievance are far more likely to support strict limits on abortion than whites who score low on these measures. Research also confirms that people active in the “pro life” movement are much more likely to be committed to a patriarchal worldview in which control of reproduction, and female sexuality in particular, is important to the maintenance of the gender hierarchy they support.

The history and research go a long way toward explaining why it is so difficult to have evidence-based, logical discussions about abortion and birth control with anti-choice activists. The issue isn’t really abortion.

What is far less well understood, however, is that the consequences of upholding Texas’ law—if, in fact, the Court eventually does that—would be devastating, and would extend far beyond the issue of abortion. (Thus far, as you know, the Court has simply punted—it hasn’t ruled on the constitutionality of the law.)

A decision to allow the empowerment of culture war vigilantes would achieve a longstanding goal of so-called “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the interference of the federal government.

Such a decision would effectively approve a federalism on steroids, and—I am not engaging in hyperbole here—the effective unraveling of the “United” States.

I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protections against unreasonable search and seizure..

Texas’ law strikes a terrifying blow against that principle.

Let me explain why this law created private vigilantes. The idea is that by enlisting private citizens to enforce the law the state can avoid challenges to the bill’s constitutionality. The theory is that, since the state itself won’t be directly involved in enforcing the law, state officials won’t be proper defendants to a lawsuit.

Why does that matter?

What far too many Americans don’t understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors. If there hasn’t been state action–government action– there hasn’t been a constitutional violation.

Allowing this gambit to succeed would do much more than leave the most restrictive anti-abortion law in the country in place; it would encourage other states to employ similar tactics–and not just for abortion, but for all sorts of culture war issues and from all political perspectives. As Lawrence Tribe recently warned, California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

This ploy shouldn’t pass constitutional muster. In law school, I remember studying a 1948 case involving racially-restrictive deed covenants. Those covenants were between private parties, but the Court found state action present because those private deed restrictions could only be enforced with the participation of judges, clerks and other state officials. That case is still good law.

The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

The bottom line is that, if successful, this effort would empower zealots of both the right and left.  This is probably not what the idiots in the Texas legislature had in mind, but it would be an almost-certain consequence. Even a more conventional overruling of Roe –a distinct possibility in a case pending from Mississippi—would invite unintended consequences. We can discuss those during Q and A.

Finally, as many of you know, my longstanding preoccupation has been with civic literacy—with the failure of so many Americans to understand their own government. The pandemic has given us a glaring illustration of that ignorance; we have officials and pundits insisting that they have the right to control their own bodies, that government can’t tell them to be vaccinated. Ironically, most of the people making this argument are anti-choice—in other words, they are claiming a right for themselves that they are unwilling to extend to others. But it isn’t only the glaring hypocrisy; they are also wrong. Government has a duty to prevent citizens from harming others, and the Court has recognized the right to mandate vaccination for at least 100 years. A woman who aborts is not a threat to her neighbors; a citizen who refuses to wear a mask or be vaccinated is such a threat–and the law recognizes the distinction even if too many Americans don’t.
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When The Issue Isn’t Really The Issue

Thanks to the effort by Texas to totally ban abortion, the issue of reproductive choice has once again taken center stage in America’s interminable culture war.  But as Thomas Edsall has recently pointed out, a purported issue isn’t always, or necessarily, the real issue.

I always read Edsall’s essays in the New York Times, because he draws on both the history of whatever issue he is exploring and on a wide range of scholarly research in order to craft his conclusions. This particular piece is no different. As he tells us,

As recently as 1984, abortion was not a deeply partisan issue.

“The difference in support for the pro-choice position was a mere six percentage points,” Alan Abramowitz, a political scientist at Emory University, told me by email. “40 percent of Democratic identifiers were pro-life, while 39 percent were pro-choice. Among Republican identifiers, 33 percent were pro-choice, 45 percent were pro-life and 22 percent were in the middle.”

By 2020, of course, that situation had changed, with 73 percent of Democrats taking the pro-choice position (only 17 percent were “pro-life”–the other 10 percent were in the middle). That year, 60 percent of Republicans claimed to be pro-life; 25 percent were pro-choice, and 15 percent were in the middle.

If Edsall was commenting only on the growth of the partisan divide, that would be interesting but hardly surprising. What was surprising was the association between opposition to abortion and–wait for it–racial attitudes.

Whites who score high on measures of racial resentment and racial grievance are far more likely to support strict limits on abortion than whites who score low on these measures. This is part of a larger picture in which racial attitudes are increasingly linked with opinions on a wide range of disparate issues including social welfare issues, gun control, immigration and even climate change. The fact that opinions on all of these issues are now closely interconnected and connected with racial attitudes is a key factor in the deep polarization within the electorate that contributes to high levels of straight ticket voting and a declining proportion of swing voters.

I have previously posted about the origins of the anti-choice movement. Historians of religion have located those origins in conservative rage over the denial of tax benefits to the Whites-only academies that had been established to avoid integration. They had politicized abortion in order to motivate Christian conservative activism while dodging the less-palatable race issue.

There are other, less surprising associations: according to one scholar cited by Edsall, people who are active in the “pro life” movement are more likely to be committed to a patriarchal worldview in which control of reproduction, and female sexuality in particular, is important to the maintenance of  the gender hierarchy they support.

Women have noticed…

Edsall offers historical evidence that the issue of abortion has “evolved”–lending credibility to the claim that it is a proxy for a worldview that encompasses far more than religious convictions about reproductive choice.

Fifty years ago, the Southern Baptist Convention meeting in St. Louis approved what by the standards of 1971 was a decisively liberal resolution on abortion:

Be it further resolved, that we call upon 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.

Edsall cites historian Randall Balmer for an observation often made by people critical of the anti-abortion movement: “the beauty of defending a fetus is that the fetus demands nothing in return — housing, health care, education — so it’s a fairly low-risk advocacy.” As pro-choice folks frequently point out, what is called a “pro-life position” is often merely “pro-birth,” since so many of the people espousing it are uninterested in feeding, clothing and educating the child once it emerges from the womb.

And of course, there’s the recent spectacle of anti-choice folks claiming “my body my choice”as justification for refusing vaccination. (Not only is that hypocritical inconsistency infuriating,  a woman exercising reproductive choice isn’t infecting her neighbors…a distinction that clearly eludes them…)

Edsall’s essay explains what, for many pro-choice advocates, has been a conundrum: why are opponents of abortion not seeking wide accessibility to birth control? Surely they should want to avoid  the unplanned, unwanted pregnancies that lead to abortion, so why are some of the most fervent “pro-lifers” actually opposed to birth control?

Edsall and the scholars he cites have provided support for the answer many of us have suspected. For far too many of these “warriors for life,” the issue isn’t really the issue.

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Texas Is About Much More Than Abortion

The angry blowback against Texas’ assault on reproductive rights is eminently justifiable–but as I explained previously, most of the criticism of the law misses the even more ominous threat it poses.

In her newsletter last Saturday, Heather Cox Richardson brought a historian’s perspective to that more ominous reality. She traced the nation’s legal trajectory after WW II, and the resistance to efforts by FDR to use government to regulate business and provide a basic social safety net. And as she reminded readers, racist Southern Democrats furiously fought government’s efforts to ensure racial equality. 

After World War II, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, and Chief Justice Warren Burger, a Republican appointed by Richard Nixon, the Supreme Court set out to make all Americans equal before the law. They tried to end segregation through the 1954 Brown v. Board of Education of Topeka, Kansas, decision prohibiting racial segregation in public schools. They protected the right of married couples to use contraception in 1965. They legalized interracial marriage in 1967. In 1973, with the Roe v. Wade decision, they tried to give women control over their own reproduction by legalizing abortion.

The Supreme Court used  the Fourteenth Amendment to apply the Bill of Rights to state governments as well as to the federal government; among other things, that kept state and local government officials from denying certain individuals the same rights enjoyed by other citizens

From the beginning, there was a backlash against the New Deal government by businessmen who objected to the idea of federal regulation and the bureaucracy it would require. As early as 1937, they were demanding an end to the active government and a return to the world of the 1920s, where businessmen could do as they wished, families and churches managed social welfare, and private interests profited from infrastructure projects. They gained little traction. The vast majority of Americans liked the new system.

But the expansion of civil rights under the Warren Court was a whole new kettle of fish. Opponents of the new decisions insisted that the court was engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. That said that justices were “legislating from the bench.” They insisted that the Constitution is limited by the views of its framers and that the government can do nothing that is not explicitly written in that 1787 document.

This is the foundation for today’s “originalists” on the court. They are trying to erase the era of legislation and legal decisions that constructed our modern nation. If the government is as limited as they say, it cannot regulate business. It cannot provide a social safety net or promote infrastructure, both things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses.

It cannot protect the rights of minorities or women.

The Court’s refusal to enjoin the Texas law is a truly terrifying omen. If the law is ultimately upheld, the precedent would threaten far more than a woman’s right to control her own reproduction. As Richardson notes, such a result would “send authority for civil rights back to the states to wither or thrive as different legislatures see fit…there is no reason that this mechanism couldn’t be used to undermine much of the civil rights legislation of the post–World War II years.”

In 1957, Republican President Dwight Eisenhower used the federal government to protect the constitutional rights of the Little Rock Nine from the white vigilantes who wanted to keep them second-class citizens. In 2021, the Supreme Court has handed power back to the vigilantes.

I am old enough to remember the billboards demanding “Impeach Earl Warren.” The rage of rightwing White Nationalists at decisions that they (correctly) believed would curtail their ability to deny equal rights to Blacks and other disfavored minorities hasn’t abated. Much of it went underground: into the establishment of “think tanks” devoted to justifications of “originalism”and rollbacks of federal regulations, the (now successful) effort to pack the federal courts with ideologues and capture the big prize: the Supreme Court.

Logically, under the last fifty years of legal precedent, Texas’ effort to “outsource” its abortion ban to vigilantes–its effort to avoid “state action”– should fail. The state’s legislature created the law. Enforcement of its punitive and dangerous scheme requires participation by the state’s judicial system. 

What too few of the people arguing for and against this assault seem to recognize is what is truly at stake right now: the entire edifice of current Constitutional law, which rests on the premise that the Bill of Rights applies to all levels of government–that it sets a civil liberties floor below which states may not go.

This fight is about more than Roe v. Wade.

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It Goes WAY Beyond Hypocrisy

While I am on a rant against insanity, can you stand one more diatribe about anti-vaccination, anti-mask hysterics?

There are a number of theories about the motivation of these truly horrible people. (Not everyone who is unvaccinated falls within that category, of course–I’m focusing on the “activists” who are promulgating lies about the vaccines and threatening school board members.)

Paul Krugman recently opined that much refusal is political, pointing to the strong negative correlation between Trump’s share of a county’s vote and vaccinations. As of July, 86 percent of self-identified Democrats said they had had a vaccine shot, but only 54 percent of Republicans did.

He also pointed out that peddlers of quack medicine and right-wing extremists cater to more or less the same audience.

That is, Americans willing to believe that Barack Obama was born in Kenya and that Italian satellites were used to switch votes to Joe Biden are also the kind of people willing to believe that medical elites are lying to them and that they can solve their health problems by ignoring professional advice and buying patent medicines instead.

And those peddlers are making money. Horse dewormer, anyone?

But it’s the sheer lunacy–the extreme cognitive dissonance–that drives me up a wall. 

  • “We don’t  know what’s in it.” There’s a meme going around Facebook, enumerating all of the things Americans ingest without the slightest idea “what’s in it.” Everything from hotdogs to McNuggets to horse dewormer.
  • “Bill Gates has placed a chip in the vaccine to track people”–usually uttered by people carrying cell phones equipped with such chips…
  • “I have a right to control my own body”. This is a particular favorite of mine, coming as it does mostly from men who adamantly refuse to extend a similar right to pregnant women. Or people who disagree with them.
  • “Requiring masks is government overreach.” If the government can’t require a piece of cloth over your nose and mouth, why can it require that you cover your genitals in public? I want to see these “constitutional scholars” at the grocery, shopping naked. (I bet the men have teeny weenies.)
  • Speaking of overreach–these also tend to be the people who want government to drug test poor folks on welfare…
  • “I’m rejecting vaccines because I trust God.” If they truly trusted God, why do so many of them own/carry guns? Do they lock their doors? Buy eyeglasses and/or hearing aids? For that matter, why do they check into hospitals when they’re gasping for breath?
  • Speaking of individual liberty–government mandates seat belts, imposes speed limits, enforces smoking ordinances and issues multiple other rules to protect public safety. According to Hobbes, the original purpose of government was to remove us from the state of nature, in which there is “no arts; no letters; no society; and which is worst of all, continual fear and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.” Government is supposed to keep the strong from hurting the weak, the predatory from taking advantage of the helpless, and the stupid and/or selfish from spreading a deadly disease.

The hypocrisy is stunning. Republicans are suing businesses that require masks. Florida’s insane Governor is fining businesses that require vaccinations. These are the same  Republicans who insist that businesses have a right to refuse service to LGBTQ customers… 

I could go on and on…If COVID is a hoax, why ingest bleach or dewormer to treat it?

Many Republicans encouraging vaccine resistance know better. They just want to hurt Joe Biden politically. Biden promised to defeat the virus, and they’re determined to keep him from delivering on that promise. If lots of their own voters get sick and die as a result–well, them’s the breaks…

Former Republican and sane person David Frum made an interesting point in a recent issue of The Atlantic.

As cases uptick again, as people who have done the right thing face the consequences of other people doing the wrong thing, the question occurs: Does Biden’s America have a breaking point? Biden’s America produces 70 percent of the country’s wealth—and then sees that wealth transferred to support Trump’s America. Which is fine; that’s what citizens of one nation do for one another. Something else they do for one another: take rational health-care precautions during a pandemic. That reciprocal part of the bargain is not being upheld…

In the end, the unvaccinated person himself or herself has decided to inflict a preventable and unjustifiable harm upon family, friends, neighbors, community, country, and planet.

Will Blue America ever decide it’s had enough of being put medically at risk by people and places whose bills it pays? Check yourself: Have you?

I certainly have.

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Be Careful What You Wish For…

Texas, in an excess of zeal to control women’s reproductive choices, has enacted a bill–which, at this writing, has gone into effect–that would essentially undermine America’s understanding of the rule of law.

I’ve posted previously about the analysis of that measure by Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck.

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

As they point out, enlisting private citizens to enforce the law is intended to avoid challenges to the bill’s constitutionality. The theory is that, since the state itself will not be directly involved in enforcing the law (unlike under “private attorney general” statutes, only private citizens can bring these suits), state’s officials will not be proper defendants to a lawsuit. What far too many Americans do not understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors.

No state action, no constitutional violation.

Allowing this gambit to succeed would do much more than leave the most restrictive anti-abortion law in the country in place; it would encourage other states to employ similar tactics–and not just for abortion, but for all sorts of culture war issues. Per Tribe and Vladeck,

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

This ploy shouldn’t pass constitutional muster. I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive deed covenants, in which the Court found state action present because private deed restrictions could only be enforced with the participation of judges, clerks and other state officials.

The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

If successful, this effort would empower the zealots among us, right and left, turning citizens against one another on whatever contentious issues legislators chose. This is probably not what the idiots in the Texas legislature had in mind, but it would be an almost-certain consequence.

However, even a more conventional overruling of Roe invites unintended consequences.

This year, the Supreme Court will review Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. A Court created by Donald Trump is likely to overrule–or eviscerate–Roe v. Wade. If it does so, Republicans may come to rue the day.

Without Roe, the single-issue anti-choice voters that have been a mainstay of the GOP will be considerably less motivated. Pro-choice voters, however, will be newly energized–and polling suggests they significantly  outnumber “pro-life” activists.

The de-nationalization of Roe wouldn’t just mobilize pro-choice voters who’ve relied on Roe to protect their rights. It would redirect liberal and pro-choice energies from national to state-level political action. And that could be a huge game-changer.

If Roe is no longer the law of the land, the issue will revert to the states, and a number of states will opt for reproductive choice. Those of us who care about women’s autonomy will need to do some serious fundraising to help poor women in Red states travel to states 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 “counseling,” and deal with other barriers to the exercise of the currently constitutional right to terminate a pregnancy.

As I have repeatedly noted, the current dominance of the Republican Party doesn’t reflect  American majority sentiments–far from it. GOP membership has been shrinking steadily; some 24% of voters self-identify as Republican (and thanks to vaccine resistance, those numbers are dwindling…) GOP gerrymandering and vote suppression tactics are artifacts of state-level control. With Roe gone, purple states–including Texas–will more quickly turn blue.

If Roe goes, the game changes. File under: be careful what you wish for.

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