Personal Autonomy – Page 16

Be Careful What You Wish For

It really is hard to keep up with all of the Trump Administration’s assaults on modernity–its disavowal of science, its attacks on public education, immigrants and poor people, and of course, its persistent efforts to turn back the social clock to “times gone by,” when straight white Protestant men were kings.

One aspect of that relentless attack on equality–what you might call the “Mike Pencification” of policy–is the administration’s current determination to de-fund Planned Parenthood. After all, women who have access to birth control and Pap smears are free to enter the workforce and even the political arena. Their ability to plan their pregnancies even allows them to engage in lustful sex without incurring God’s disapproval in the form of an unplanned child.

Shades of Margaret Atwood. As Michelle Goldberg recently opined in the New York Times,

Donald Trump’s administration turns the Gilead model upside down. Its public image is louche and decadent, with tabloid scandal swirling around the president and many of his associates. This can make it hard to focus on the unprecedented lengths the administration is going to curtail American women’s reproductive rights and enrich the anti-abortion movement.

On Friday, the Trump administration escalated its war on Planned Parenthood and the women who use it. It released a rule prohibiting Title X, a federal family-planning program that serves around four million low-income women, from funding organizations that also provide abortions. Further, the administration instituted an American version of the global gag rule, barring doctors and nurses receiving Title X funds from making abortion referrals to their patients except in certain emergency situations.

The new approach mirrors what Pence did in Indiana–it diverts funding from organizations operating on the basis of sound medical science and sends the monies instead to religious groups, many of which are not just anti-choice, but anti-contraception.

The administration appears to think that religious anti-abortion groups, including those opposed to contraception, will fill some of the gaps. The new regulation jettisons a requirement that Title X clinics provide “medically approved” family planning services. That means that funds that once went to Planned Parenthood could flow instead to anti-abortion groups that promote so-called natural family planning. Unless the courts halt the new policy, struggling women who need refills on their birth control pills could get federally funded lectures on the rhythm method instead.

Goldberg calls this a “move to turn a lifesaving women’s health program into pork for the religious right.” (She’s right on the money; that was also Pence’s motive for Indiana’s voucher program, which takes millions of dollars from the state’s public school system in order to prop up the religious schools that make up 95% of the institutions accepting vouchers.)

The assault on Planned Parenthood joins the successful effort to pack the federal courts–including the Supreme Court– with anti-choice judges, and it doesn’t bode well for the continued viability of Roe v. Wade.

Ironically, sending the legality of abortion back to the states, as a decision to overturn Roe would do, would fall into the “be careful what you wish for” category. Republicans have benefitted greatly from the one-issue voters they cynically created. Should Roe be overturned, the zealots in states that continue to allow abortions would turn their attention to those legislatures, but those would mostly be deep blue states where they would be unlikely to prevail. Anti-choice activists in red states with compliant legislatures would mostly cease to be activists; they would consider their “job” accomplished.

The majority of Americans who support a woman’s right to make her own decisions about reproduction, however, would be highly likely to take their outrage to their polling places. Most of them have been complacent until now, assuming the courts would continue to protect women’s autonomy.

A “victory” for opponents of reproductive rights would be likely to do two things: tamp down the passions of the anti-choice warriors, and “activate” millions of Americans who would rightly see that victory as a theocratic threat. If survey research is to be believed, the latter group is much larger than the former.

Those people vote. And they sure won’t be voting Republican.

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“Ethical Objections” And Women’s Rights

As I have previously noted, Doug Masson is one of Indiana’s most thoughtful and knowledgable bloggers; his essays are particularly helpful when the legislature is in session, because in addition to being a lawyer, he was once on the staff of Legislative Services, the agency charged with drafting bills that will actually do what lawmakers want to accomplish (assuming, of course, that those measures are passed).

Doug recently looked at one of the anti-choice measures that are repeatedly and inevitably introduced in Indiana.

S.B. 201 provides that pharmacists and nurses can’t be required to administer or dispense an “abortion inducing drug” if they claim to have an ethical objection. (Evidently, according to Doug, the statutory definition of an “abortion inducing drug” excludes Plan B, for whatever comfort that might provide.) But analyzing which medications would fall under the bill’s parameters and which ones wouldn’t is really beside the point.

As Doug puts it:

Beyond that, of course, there is the impact on women who want control over their own bodies. And there’s the question of why abortion should be entitled to special pleading when it comes to employee’s ethical concerns over their employer’s operations. What if a health care provider finds drug use immoral and objects to treating addicts? What if a gun store employee objects to selling firearms to guys who abuse their wives? What if a bank employee objects to their employer’s lending practices? Usually we tell employees to go work somewhere else, but this legislation seeks to carve out a special exception for a medical service that, for the time being anyway, remains a Constitutional right.

That is, of course, the crux of the matter. The male legislators who simply cannot abide the notion that a woman should control her own reproduction evidently assume that ethical principles are limited to situations that offend their personal religious beliefs (or threaten patriarchal dominance.)

The Bill of Rights limits the decisions that government can properly make. The issue isn’t abortion. The issue is who has the right to make that decision. In our system, the government doesn’t get to decide what prayer you say, or if you pray at all; it doesn’t get to decide what book you read or what political positions you endorse. Government doesn’t get to decide who you can love, whether you can use contraception, or whether a woman will carry a pregnancy to term.

The real issue is power.

A government that can tell women they can’t abort has the power to tell women they must abort. (See: China) Our system doesn’t give government the authority to make those decisions for individual citizens.

Government also doesn’t get to decide whose “ethical objections” deserve to be honored and whose can be ignored.

If a pharmacist’s religious beliefs interfere with his ability to dispense medications, he needs to find another profession. And if a lawmaker’s religious commitments outweigh his fidelity to the U.S. Constitution (despite the oath he takes when he assumes his position) he shouldn’t be in the legislature.

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Looking For My Inner Pollyanna–Roe v. Wade Edition

Along with all the other legal mayhem we can now expect from the most reactionary Supreme Court in over a century, most observers predict the demise of Roe v. Wade, despite polling that suggests most Americans would strongly disapprove.

If Roe is overruled, there will certainly be some horrendous consequences. But there may also be some unanticipated positives. Bear with me, here.

We have all recognized the intransigence of the “one issue” anti-choice voter. Without Roe, it’s conceivable (no pun intended) that the wind will go out of that sail. (It will be much more difficult to energize a national movement against birth control, which is actually a target of the most rabid anti-choice activists.) Anti-choice voters have been a mainstay of the GOP–and 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 for 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 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.

What the confirmation of Kavanaugh and the de-nationalization of Roe might do–should do–is redirect liberal and pro-choice energies from national to state-level political action. And that could be a huge game-changer.

The current dominance 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 dominance is due primarily to the 2011 gerrymander, and that was made possible because they controlled a large number of state governments. The GOP vote suppression tactics that depressed Democratic turnout and disenfranchised Democratic voters have also been facilitated by state-level control.

The next redistricting will occur in 2021. Between now and then, women, Democrats, liberal-leaning Independents and new voters need to focus their efforts on statehouses around the country. We need to eliminate gerrymandering wherever possible, and we need to put an end to vote suppression tactics.

There will be other strategic decisions necessitated by a rogue Supreme Court. Lawsuits implicating civil rights and civil liberties, for example, may have better prospects in state courts interpreting state constitutions than in the federal system. (When the Supreme Court was less open to arguments from the LGBTQ community, the ACLU and Lambda Legal had some considerable successes in state courts.)

The next few years will be critical. Success will depend upon the “staying power” of those Americans for whom the 2016 election and the travesty of Kavanaugh’s confirmation have been wake-up calls. It’s one thing to post despairing messages to like-minded friends on social media; it’s another thing entirely to continue the day-to-day drudgery of organizing and registering our fellow citizens, and getting out the vote.

If we are going to reclaim the America we thought we had, however, anger and determination are great motivators.

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Asking The Wrong Question

As the Senate “considers” the nomination of Brett Kavanaugh (note quotation marks, since support for this particular nominee is entirely partisan and no genuine consideration of his record is being allowed), much of the focus is on his presumed “pro life” approach to cases involving abortion.

Media framing of this issue highlights the most frustrating element of America’s “pro-choice” or “pro-life” public debate: the persistent refusal to confront the actual question, which is not whether a pregnant woman should continue or terminate her pregnancy.

The question is: who should have the power to make that decision?

As I have repeatedly argued, a government with the authority to forbid abortion is a government with the authority to require it. I usually point to China, where the government has done precisely that, but yesterday, my lawyer son pointed me to a case right here in the good old U.S. of A.– and a judicial decision by none other than Brett Kavanaugh.

As Salon reported,

In 2007, as an appellate judge in Washington, D.C., Kavanaugh was presented with an unusual case involving two women who had wanted to continue their pregnancies but had been forced to have abortions instead. They sued and Kavanaugh ruled against them, denying their claims that they had a right to be consulted about the decision to terminate their pregnancies.

Many Americans, probably most, understand the abortion debate to be about a struggle between the right of women to bodily autonomy and the “right to life” that anti-choicers claim embryos and fetuses have. In reality, as this case shows, the legal debate is really only about autonomy — so much so that an anti-choice judge like Kavanaugh ruled against women who wanted to “choose life,” as conservatives say, rather than allow them a greater measure of autonomy….

The case is a complex one, but the basic story involved three women who received care from the District of Columbia Mental Retardation and Developmental Disabilities Administration. All three women had intellectual disabilities and had been determined legally incompetent. One woman had an elective eye surgery and two had abortions, all chosen for them without any consideration of their wishes. The women argued that they had a right to have their wishes considered, but Kavanaugh ruled against them….

Legal standards regarding who is competent to make medical decisions for themselves are complicated and vary quite a bit from state to state. But Mathis said that even in states that have the fewest autonomy rights for people with certain disabilities, “most courts consider the person’s wishes,” even if they may ultimately rule against them. Kavanaugh, however, “just rejected the notion that there was any reason at all” to ask the women in that case what they wanted.

I emphasized that last line, because it illuminates what is truly at stake in these arguments. The question is not “to abort or not to abort.” The question is: who decides? The Bill of Rights is essentially a list of things that government does not get to decide–what you read, what you believe, whether or to whom you pray. Government officials don’t get to decide to search you (or your “papers or effects”) simply because you look shifty, or out of place, or because the officer “has a hunch.”

As snotty as the faux originalists are about the constitutional “penumbra” referenced in Roe, it is impossible to read through the Bill of Rights without recognizing that the entire document rests on the Founder’s concern to protect personal autonomy and to safeguard the right of individuals to make their own moral and political decisions–including what the Court has subsequently dubbed “intimate” decisions–free of government coercion or interference. The 9th and 10th Amendments make it clear that rights not “enumerated” (that is, not specifically listed) are not to be “denied or disparaged,” and that powers not specifically delegated to the central government are to be retained by the states and the people.

It is an act of intellectual dishonesty to dismiss the limits that the Bill of Rights places on government’s authority to control its citizens’ exercise of self-determination.

The question, I repeat, is not “what shall be decided?” but “who shall decide it?”

The question for Brett Kavanaugh is not whether he fancies himself “pro-life.” It is whether he is willing to acknowledge that the power of government to control women’s lives is limited by our constitution.

His jurisprudence makes it abundantly clear that he is not willing to make that acknowledgement. For that reason (and a number of other very troubling decisions he has handed down), he is unfit to sit on the nation’s highest court.

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Reflections On The Vote In Ireland

When the votes were counted, it was a landslide. Nearly 70% of Irish voters rejected their government’s total ban on abortion.

The Irish electorate understood something too many Americans fail to grasp: the issue is not abortion. The issue is the proper role of government.

There are certain decisions that governments in free societies should not be empowered to make. Anti-choice activists should understand that a government with the power to decide that women may not abort is a government with the power to decide that they must. (Future lawmakers might conclude that controlling population growth requires such measures. Don’t believe it? Look at China.)

According to news reports, the vote in Ireland was influenced by widespread recognition that the decision women face is complicated– a woman who has been raped, a woman who has eight children she is struggling to feed, a woman carrying a fetus certain to die within hours of birth, or a woman whose health will be compromised by another pregnancy–have to weigh very different, and difficult, concerns. Taking the position that there is only and always one “correct” choice–and that the government gets to make and enforce it — flies in the face of human experience. It also defies human compassion.

I’d like to think the vote in Ireland was also influenced by recognition that–despite posters showing bloody fetuses and constant references to embryos as “babies”– framing the issue in that way is dishonest. The question is not whether to abort a fetus or carry it to term. The question is: who should have the right to make that decision?

Those who crafted America’s Bill of Rights understood that the principle at the center of human rights is respect for individual moral autonomy. Handing government the power to prescribe citizens’ moral “dos and don’ts” is the antithesis of genuine liberty. If those in positions of power and authority can prescribe your life choices, and punish any deviation from officially sanctioned conduct, you are a subject, not a citizen–and you definitely are not exercising moral choice.

I keep returning to the wisdom of what has been dubbed the “libertarian principle.” Individuals should be free to pursue their own ends–their own telos–so long as they do not harm the person or property of another, and so long as they are willing to accord an equal liberty to others. That principle undergirds the U.S. Bill of Rights, and its example has been persuasive world-wide.

I realize that some people would confer “personhood” on a fertilized egg and would equate destruction of that egg with the murder of a human being. I am not one of those people. I am equally well aware that the argument about when human life begins is an intractable one. Those who oppose abortion should be free to make their case to women facing these difficult decisions, and of course women who oppose abortions must remain free not to have them.

But in a country where there is a demonstrable lack of consensus on the issue, a country in which different religions have very different theological positions about the moral propriety of terminating a pregnancy, laws requiring all citizens to obey the religious tenets of one segment of the population are both unenforceable and illegitimate.

The Irish don’t have our Bill of Rights, our religious diversity, or our particular legal history. But they clearly understood the importance of limiting the power of the state to force women to give birth . Last week, they voted to return responsibility for moral decision-making to the individuals who must exercise that responsibility and live with the consequences.

The vote was a rare bit of sanity in an increasingly autocratic world.

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