Category Archives: Personal Autonomy

Words And Deeds

Among the hackneyed adages we all exchange from time to time is the one that admonishes us to Ignore what people say; instead, we’re told to look at what they do. These sorts of standard sayings persist in the culture because they point to a central truth, and this one is no different. Actions really do speak louder than words.

Which brings me to Arizona.

As everyone who reads or listens to the news now knows, the Arizona Supreme Court recently struck down a 15-week limit on abortion, and instead revived an 1864 law banning the procedure–a law so old, it preceded Arizona statehood. The law they revived reads:

“A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.”

Arizona only became a state in 1912.

Given the toxic politics of abortion bans in the wake of Dobbs, Republicans in the state publicly decried the ruling. Even those who had previously supported total bans issued more “moderate” criticisms of the court’s decision. But then–as another hoary phrase might have it–the rubber hit the road. Democrats in the Arizona legislature proposed to repeal the law–and Republicans refused to allow that repeal to go forward.

As the AP reported:

The Arizona Legislature devolved into shouts of “Shame! Shame!” on Wednesday as Republican lawmakers quickly shut down discussion on a proposed repeal of the state’s newly revived 1864 law that criminalizes abortion throughout pregnancy unless a woman’s life is at risk.

The state Supreme Court cleared the way on Tuesday for enforcement of the pre-statehood law. Arizona abortion providers vowed Wednesday to continue service until they’re forced to stop, possibly within weeks.

State legislators convened as pressure mounted from Democrats and some Republicans, including former President Donald Trump, for them to intervene.

House Democrats and at least one Republican tried to open discussion on a repeal of the 1864 abortion ban, which holds no exceptions for rape or incest. GOP leaders, who command the majority, cut it off twice and quickly adjourned for the week. Outraged Democrats erupted in finger-waving chants of “Shame! Shame!”

It is interesting, however, that–despite the candidates’ frequent allusions to their (Christian) religiosity and Right-wing bona fides, none of the ads talk about abortion. And as the media has reported, rather than repeating his frequent previous boasts about being the President who named the Justices who gutted Roe v. Wade, even Trump has tried to “moderate” his position by coming out for a Dobbs-like “states’ rights” position.
What has happened in Arizona should serve as a lesson to voters who might be tempted to believe these GOP efforts to downplay their efforts to end reproductive freedom for America’s women. Once in office, that new not-so-moderate “moderation” will evaporate.
Ignore what they say–and take note of what they do.
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Barefoot And Pregnant

I am hopeful that women–and men who care about women– will save democracy in November. If so, it will be “thanks” to the ideologues on the Supreme Court, especially Justice Samuel Alito. His profoundly misogynistic and intellectually dishonest decision in Dobbs prompted a renewed national conversation over the consequences when judges and legislators presume to over-rule medical professionals.

In November, however, voters won’t just determine the fate of abortion restrictions. Unbelievable as it may seem, there are serious efforts underway to restrict access to birth control.

First, abortion.

Special elections in Red states have uniformly confirmed that–where reproductive rights are concerned–even political identities take a back seat. A large number of polls confirm that support for abortion bans has plummeted in the wake of Dobbs. Although I’d seen a number of polls showing substantial gains in support for reproductive rights, I was surprised to read that a recent Axios-Ipsos poll found 81% of Americans agreeing with the statement “abortion issues should be managed between a woman and her doctor, not the government.” That number included 65% of Republicans, 82% of Independents and 97% of Democrats.

The dilemma for Republicans is very real, because a substantial portion of their base remains extreme on the issue. A Republican candidate who tries to soften the party’s draconian stance on abortion in order to appeal to voters turned off by  intransigence on the issue will be vilified–and deserted–by the party’s zealots. And since those zealots are the voters most likely to turn out for primary elections, Republicans in Red states will run hard-Right culture warriors in November. Here in Indiana, Republican Senate candidate Jim Banks wants a national abortion ban with zero exceptions. (If the woman dies, well, them’s the breaks, baby…) Even in Indiana, that’s not a popular position.

In November, voters in a number of swing states will face referenda on abortion. Democrats promising to codify Roe and explicitly repeal the Comstock Act should get a boost.

Then there’s birth control.

American women should hope the federal government stays in Democratic hands, because forced birth Republicans aren’t going to be satisfied with banning abortion. They’re coming for birth control too.

It may surprise many people that there is a a concerted effort going on quite literally under their noses—on the screens of their smartphones, tablets, and laptops—to sow distrust, uncertainty, and fear of ordinary birth control among this country’s young people and particularly, young women.

In most instances the folks responsible for fostering this distrust are the same people vehemently opposed to abortion. Their failure to see any dissonance in advocating such contradictory positions might be perplexing—if you didn’t take their motivation into account. It’s the natural fulfillment of what they would consider an ideal society: one where men are in control, and women know their place.

Salon has recently tracked a sophisticated and well-financed Rightwing “information blitz” on social media, warning of the hazards of birth control.

Emboldened by the Supreme Court’s decision to overturn Roe v. Wade, they’ve now trained their focus on hormonal birth control, hysterically amplifying its alleged “hazards” to create a narrative of uncertainty ripe for what they see as the conservative-dominated highest court’s next logical step….

Physicians say they’re seeing an explosion of birth-control misinformation online targeting a vulnerable demographic: people in their teens and early 20s who are more likely to believe what they see on their phones because of algorithms that feed them a stream of videos reinforcing messages often divorced from scientific evidence.

One “influencer” candidly shared his motivations:

With fewer women on the pill, more women will become mothers, and some of them will drop out of the workforce and discover fulfillment and happiness as wives and homemakers. This is the real crisis that the Washington Post and the other Left wing rags are worried about. The last thing that the elites want to see is a movement of women fully embracing their own womanhood, and men fully embracing their manhood.

During the fifty years between Roe and Dobbs, most Americans shrugged off the efforts of “pro-life” activists, assuming that the Supreme Court would not overturn a settled constitutional right. Most reasonable people have a similar reaction to warnings that access to birth control will be next. (Those people haven’t read Justice Alito’s decision in the Hobby Lobby case.)

Fanatics who want to take this country back to a time before there were “uppity” women (and gays and Blacks) are a minority. But they are zealous and committed and a lot of them are running for office.

Women aren’t returning to “barefoot and pregnant” status. Voters–male and female– who understand what’s at stake will vote Blue in November. I hope there are enough of them.

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What Is The Comstock Act?

During the recent Supreme Court argument over Mifepristone, Justices Alito and Thomas both raised the possibility that a case brought under the Comstock Act would be stronger than the one being argued. (Legal scholars have noted the multiple deficiencies in the current case, which–had Trump not appointed an intellectually-dishonest extremist to a Texas federal judgeship–would never have reached the Supreme Court.)

What, you may ask, is the Comstock Act?

Back in 1999, I edited “Free Expression in America: A Documentary History” for Greenwood Press. Producing the book required me to identify, reprint and explain documents that told the evolving story of America’s free speech jurisprudence. I began with “Foundations of Liberty”–the Magna Carta, Areopagitica and Cato’s Letters–proceeded through Common Sense, the Virginia Declaration of Rights, the First Amendment and several others, and on through America’s various battles with censorship to the late 1990s.

In a section titled “1900-1950: A Half-Century of Paternalism” I included “Birth Control and Public Morals: An Interview with Anthony Comstock.” I introduced the interview by noting that contemporary readers might come away considering Comstock a caricature. (Even at his most influential, he was widely ridiculed.) Comstock founded the Society for the Suppression of Vice, and he saw vice pretty much everywhere he looked. He campaigned against the publication of “vile books,” which he argued were responsible for “debauching” young men, and it isn’t an exaggeration to say that he considered any publication dealing in any way with sex to be “vile.” He was particularly offended by then-current efforts to provide women with birth control information.

The Act reads as follows:

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—

Is declared to be non-mailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” 

The Comstock Act was passed in 1873, and although it hasn’t been explicitly repealed, most lawyers believe that intervening case law has rendered it unenforceable. 

Justices Alito and Thomas are so intent upon banning abortion they have evidently overlooked the sweep of the Act, which would go far, far beyond preventing abortifacients from being mailed. Comstock was intent upon preventing the dissemination of anything and everything he found “vile,” including, in his own words “intemperance, gambling and evil reading.” He classed contraceptives with pornography, and when questioned about that, replied that “If you open the door to anything, the filth will pour in and the degradation of youth will follow.”

Even during his lifetime, Comstock was widely regarded as an unbalanced anti-sex zealot; his Society for the Suppression of Vice was intent upon censoring books, magazines or other materials describing or touching on sex, very much including medical information and information about contraception. (The Comstock Act at one time prevented the mailing of anatomy textbooks to medical students.)

In Comstock’s fanatic view, “Any indecent or immoral use” covered a lot of ground, much of it misogynistic. There’s a reason a recent biography of him is titled “The Man Who Hated Women.”

Trying to resuscitate Comstock’s “zombie law” will raise some interesting legal questions. Can the anti-abortion provisions be severed from the clearly unconstitutional censorship provisions of the Act? Does the prohibition against use of the U.S. mail extend to Federal Express and other private carriers? 

Are Alito and Thomas so desperate to control the lives and reproductive liberties of American women–so desperate to take us back to a time when women were breeding property– that they’re willing to revive Comstockery? 

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One More Time

There are numerous reasons to vote straight Blue this November. But forgive me for returning to my argument that reproductive rights tops them all, and not just because women deserve the same bodily autonomy as men.

In a very real sense, Justice Alito threw down the gauntlet in Dobbs. That decision didn’t just eliminate a constitutional right that American jurisprudence had recognized for fifty years–it dealt a potentially fatal blow to the philosophy upon which our  entire constitutional edifice rests.

Before I (once again) explain why that assertion is not hyperbole, let me connect the dots between Dobbs and the recent, blatantly theocratic decision from Alabama equating a frozen embryo with a living, breathing child. As Jamelle Bouie recently wrote in the New York Times, key parts of the Republican coalition demand fetal personhood.

There’s no question that the Alabama decision would not have been possible without the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which revoked the constitutional right to an abortion. In doing so, the court gave states and state courts wide leeway to restrict the bodily autonomy and reproductive freedom of Americans, in the name of protecting life.

That the Dobbs decision would threaten I.V.F. was obvious from the moment the Supreme Court released its opinion in June 2022. That’s why, toward the end of 2022, Senate Democrats introduced a bill to protect the right to use in vitro fertilization. It did not come up for a vote.

Bouie points out that the Justices who delivered Dobbs were placed on the Court as part of an explicit transaction in which Trump traded American women’s rights for the support of Evangelical voters.

What’s important, for thinking about a second Trump presidency, is that fetal personhood is the next battlefield in the anti-abortion movement’s war on reproductive rights, and conservative evangelicals are among those groups waving the standard. As one such activist, Jason Rapert of the National Association of Christian Lawmakers, told The New York Times regarding the Alabama court decision, “It further affirms that life begins at conception.”

At least 11 states, The Washington Post notes, have “broadly defined personhood as beginning at fertilization in their state laws.”

It does not matter whether Trump rhetorically supports access to I.V.F. treatments. What matters is whether he would buck the priorities of his most steadfast supporters and veto a bill establishing fetal personhood across the United States.

As we all know, he would not.

A Republican win in November would guarantee further erosion of reproductive rights– but as I have repeatedly argued, it would do far more than that.

Dobbs was a frontal attack on the doctrine of substantive due process, often called the “right to privacy.” That doctrine confirmed the American principle that certain “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception– are none of government’s business.

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 majority recognized 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.

Enabling autocracy–destroying our current system of democratic majorities restrained by the Bill of Rights– requires eliminating substantive due process. Dobbs thus opened a pathway to an enormous expansion of government power.

Outlawing IVF is just a way station…..

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My Cousin’s Intriguing Comparison

I periodically post about insights shared with me by one of my cousins, who recently forwarded a recent blog post of his own, containing an intriguing comparison between America’s battle over reproductive rights and prohibition. With his permission, I’m sharing much of what he wrote.

Prior to 1920, there were few restrictions on the production and consumption of alcohol. But after that, the manufacture, sale, and transportation of alcoholic beverages in the United States was made illegal until 1933 under the terms of the Eighteenth Amendment. Major support for this amendment was provided by groups with strong religious ties that included many Protestants, together with a national grassroots base comprising the Woman’s Christian Temperance Union. Ironically, most of the ardent supporters of prohibition were located in rural areas, and they were, to a large extent, pitted against a majority of urban dwellers.

But most Americans have always objected to the removal of a widely available right, and this resulted in widespread flouting of the law banning alcohol, especially in urban areas. Finally, under pressure from a national majority, the twenty-first amendment permitting alcohol was passed, which then ceded responsibility for alcohol policy to the individual states, and as we now know, this has resulted, with few exceptions, in the widespread national acceptance of alcohol.

From these experiences derived from prohibition, we have learned two important lessons that should attract the attention of all, especially those who are anti-abortion: 1) Americans are loath to give up established rights, and 2) religious groups, even if large in number, cannot impose their will on a reluctant majority for extended periods.

And now we are presented with an eerily similar circumstance: For a half century, the general population was enjoying freedom of choice through rights granted by the Supreme Court (Roe vs Wade), and now this right has been abruptly revoked, and this responsibility was passed on to the individual states. And if history is any guide, the vast majority in most states will press for return to something resembling their previous freedom… 

The rest of his column looked at the likely outcome of allowing individual states to regulate reproduction. I think it is far more likely that Congress will ultimately codify Roe v. Wade–but only if Democrats win control of both houses. 

And that brings me to Indiana, and our open Senate seat.

Marc Carmichael has pledged to work for codification of Roe. (As he frequently notes, he has granddaughters who deserve fundamental rights.) Jim Banks not only supports a national abortion ban with no exceptions–not for rape, incest or the life of the mother–but actively opposes measures that would facilitate or protect access to birth control. He was one of the Republicans who voted against the Right to Contraception Act, a bill intended to “protect a person’s ability to access contraceptives and to engage in contraception, and to protect a health care provider’s ability to provide contraceptives, contraception, and information related to contraception.” 

The Right to Contraception Act was essentially an effort to codify Griswold v. Connecticut. Griswold was a precursor case to Roe, in which the court held that a couple’s decision to use birth control was none of government’s business–that individuals have a constitutional right to personal autonomy, aka privacy.

I’ve linked to the text of the bill, passage of which was blocked by Republicans.

In the wake of the Dobbs decision, GOP operatives hastened to assure voters that the party wasn’t coming for contraception–that, to the contrary, with abortion banned, access to birth control would be expanded. Their actions, however, proved how hollow–indeed, dishonest– those assurances were. Red states rushed to pass “personhood” amendments that enabled the recent theocratic attack on IVF in Alabama. The decision in the Hobby Lobby case continues to allow employers with “sincere religious objections” to deny birth control coverage to employees whose “sincere religious beliefs” differ.

I believe my cousin was exactly right to compare the politics of the Republican war on reproductive liberty to prohibition. In both cases, self-appointed “god squads” have tried to enlist government to impose their views on everyone else.  In both cases, huge majorities of Americans disagree with those views. Those majorities defeated prohibition, and I am confident will vote to secure women’s rights to birth control and abortion.

The battle reminds me of that famous line from Network. To paraphrase, American women are mad as hell, and we’re not going to take it anymore; we’re not going back to being submissive, barefoot and pregnant.  We’re going to defeat Jim Banks and his fellow misogynists and send allies like Marc Carmichael to the U.S. Senate.

I think I’ll go drink to that…..

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