Personal Autonomy – Page 4

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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The Stakes II

A couple of days ago, I considered the stakes of this year’s election choices, and speculated about whether and to what extent the abortion issue will drive both turnout and results. What I failed to explain ( thanks to the word limit I have self-imposed for these daily rants) is why the debate about reproductive choice is in reality about far more than a woman’s right to control her own reproduction, important as that is.

The deeply dishonest Dobbs decision struck at a fundamental premise of America’s Constitution, as we have come to rely upon it– the belief in limited government.

When politicians talk about “limited government,” they generally focus on the size of government, but the U.S. Constitution defines those limits in terms of authority, not size. What is to be limited is the power of government to prescribe certain decisions that should be left to the individual. In the original Bill of Rights, the federal government was forbidden to censor speech, prescribe religious or political beliefs, and take other actions that were invasions of fundamental rights–rights for which early Americans demanded recognition.

Over the years, those limitations on federal government power were imposed on state and local government units, and evolving cultural and social norms prompted a fuller understanding of what sorts of decisions individuals are entitled to make without government interference. I frequently cite what has been called the Libertarian Principle, because that principle undergirds America’s particular approach to government. The principle is simple: Individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of someone else, and so long as they are willing to accord an equal liberty to their fellow citizens.

The gender of your chosen mate, your adherence to a non-Christian religion (or your utter rejection of the notion of divinity), your choice to reproduce or not, and a number of other life choices are simply none of government’s business. (As Jefferson is often quoted, such decisions “neither break my leg nor pick my pocket.”)

The Libertarian Principle was central to the original Bill of Rights, and its application has extended as “facts on the ground”–scientific and cultural–have changed. Ever since 1965, when the Supreme Court handed down its decision in Griswold v. Connecticut– informing the Connecticut legislature that a couple’s decision to use contraceptives was none of government’s business–the belief that there are areas of our lives where government simply doesn’t belong has been absolutely central to Americans’ understanding of liberty.

When I was much younger, the importance of limiting government to areas where collective action was appropriate and/or necessary—keeping the state out of the decisions that individuals and families have the right to make for themselves– was a Republican article of faith. It was basic conservative doctrine. Ironically, the MAGA folks who inaccurately call themselves conservative today insist that government has the right—indeed, the duty– to invade that zone of privacy in order to impose rules reflecting their own particular beliefs and prejudices.

It’s critically important to understand that what is really at stake in what we shorthand as the “abortion issue” is that fundamental Constitutional premise. Forcing women to give birth, denying medical care to defenseless trans children or forbidding school children to read certain books are not “stand-alone” positions. They are part and parcel of an entire worldview that is autocratic and profoundly anti-American.

I used to point out that a government with the power to prohibit abortion is a government with the power to require abortion. (As an ACLU friend used to say, poison gas is a great weapon until the wind shifts.)

The issue at the heart of the Bill of Rights–as I interminably repeated to my students–isn’t what decision is made. The issue is who gets to make it. In the government system devised by our Founders, certain decisions are simply off-limits to government. I may disagree with your religious beliefs or political opinions; I may disapprove of your choice of marriage partner or your selection of reading material–but I cannot use the government to countermand your choices and require behaviors more to my liking.

It is that fundamental premise that is at stake in this year’s elections, which will pit the MAGA theocrats and autocrats against those of us who want to preserve America’s hard-won civil liberties and individual rights.

The abortion issue is about so much more than abortion, and I have to believe that, at least at some level, most Americans realize that.

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The Stakes

Bret Stephens is a regular opinion writer for the New York Times. He is a self-described conservative who shares a Monday column with liberal Gail Collins. Stephens is a “never Trumper”–and very clear-eyed about the threat posed not just by Trump, but by the current GOP, and he has a wicked way with words. A few days ago, when Collins asked him what the remaining sane Republicans would do about the immigration bill, his response was dead-on perfect:

So-called sane House Republicans are basically passengers in a car being driven at high speed by a drunk. There’s no getting out of the car. And they don’t dare tell the driver to slow down because who knows what he’ll do then.

As Hoosiers are being inundated with advertisements from the candidates vying for the GOP nomination for Governor, the accuracy of Stephens’ description is evident.

On the one hand, we have the MAGAs. Mike Braun is promising to fix problems that are matters of federal jurisdiction (why not stay in the Senate, Mike, if those are your issues?) and repeatedly reminding voters that he is Trump’s choice. Creepy Eric Doden is quoting the bible, promising to “protect life” and “always back the Blue.” And we have Brad Chambers– the least scary of the lot (which isn’t saying much)–trying to avoid climbing into the drunk driver’s speeding car by focusing on job creation and his “outsider” claims.

I’ve missed ads from Lt. Governor Susanne Crouch and disgraced former Attorney General Curtis Hill–I assume we’ve been (mercifully) spared those due to the lack of zillionaire status that allows the others to spend lots of their own and their families’ money.

All of them support Indiana’s abortion ban. And that raises a question: how much weight will Hoosier voters place on the abortion issue when it is one issue among others on the candidates’ agendas?

Every state that has voted on the issue of reproductive rights in a stand-alone vote has upheld those rights, even deep-red states. Pundits argue, however, that voters will be less likely to vote against candidates whose anti-choice positions are only one position among many. When the issue is separated from a campaign for public office, presumably, it is simpler for voters to understand what’s at stake and to register an “up or down” preference.

That belief may have been what has convinced pro-Trump groups to formulate an “Anti-Abortion Plan for Day One.”

In emerging plans that involve everything from the EPA to the Federal Trade Commission to the Postal Service, nearly 100 anti-abortion and conservative groups are mapping out ways the next president can use the sprawling federal bureaucracy to curb abortion access.

Many of the policies they advocate are ones Trump implemented in his first term and President Joe Biden rescinded — rules that would have a far greater impact in a post-Roe landscape. Other items on the wish list are new, ranging from efforts to undo state and federal programs promoting access to abortion to a de facto national ban. But all have one thing in common: They don’t require congressional approval.

“The conversations we’re having with the presidential candidates and their campaigns have been very clear: We expect them to act swiftly,” Kristan Hawkins, the president of Students for Life, told POLITICO. “Due to not having 60 votes in the Senate and not having a firm pro-life majority in the House, I think administrative action is where we’re going to see the most action after 2024 if President Trump or another pro-life president is elected.”

The Heritage Foundation’s 2025 Presidential Transition Project — a coalition that includes Students for Life, Susan B. Anthony Pro-Life America and other anti-abortion organizations — is drafting executive orders to roll back Biden-era policies that have expanded abortion access, such as making abortions available in some circumstances at VA hospitals. They are also collecting resumes from conservative activists interested in becoming political appointees or career civil servants and training them to use overlooked levers of agency power to curb abortion access.

The linked article details the plans, and makes it very clear that the the right of a woman to choose to terminate a pregnancy will be at the very center of the 2024 federal election. It will also be at the center of Indiana’s election for U.S. Senate–a contest that will likely pit “anti-woke” culture warrior Jim Banks, who supports a national ban with zero exemptions, against Marc Carmichael, who wants to codify Roe v. Wade.

In November’s election, we’ll see whether voters understand that they are choosing between “forced birth” candidates and those who will protect women’s health and equality.

I’m pretty sure they will.

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Not Pretending Anymore #2

These days, I’m sorry to say, very little surprises me–and I’m especially unsurprised by the increasingly insane and inhumane positions being taken by Republican officeholders. (I live, after all, in a state that has elected culture warrior zealots like Banks and Braun…) But I will admit that Ken Paxton, the slimy AG of Texas, has managed to both shock and appall me.

With, I might add, the assistance of the Texas Supreme Court.

I’ll let Jennifer Rubin explain:

As the Texas Tribune aptly put it, “For the first time in at least 50 years, a judge has intervened to allow an adult woman to terminate her pregnancy.” The woman, Kate Cox, was forced to seek relief because Texas’s six-week ban makes an exception only to save the life of the mother. “At 20 weeks pregnant, Cox learned her fetus had full trisomy 18, a chromosomal abnormality that is almost always fatal before birth or soon after,” the Tribune reported. “Cox and her husband desperately wanted to have this baby, but her doctors said continuing the nonviable pregnancy posed a risk to her health and future fertility, according to a historic lawsuit filed Tuesday.”

The judge, confronted with a real person and a specific medical trauma that defied the ideological straitjacket right-wing lawmakers constructed, sided with Cox on Thursday. “The idea that Ms. Cox wants desperately to be a parent, and this law might actually cause her to lose that ability is shocking and would be a genuine miscarriage of justice,” Travis County District Judge Maya Guerra Gamble held. On Friday night, however, the Texas Supreme Court stepped in to order a stay of Gamble’s ruling, throwing Cox into limbo again.

Yesterday, that Court ruled for Paxton and overruled the lower court. Cox is leaving Texas in order to have the procedure she needs.

Calling Paxton’s position–and the Court’s agreement with it– “pro life” is ridiculous. The fetus has been diagnosed with a condition that is terminal, probably while it is still in the womb and certainly shortly after birth. Preventing this abortion will not “save” an “unborn child.” And Paxton (and the Court) clearly care nothing for the life or health or future fertility of the mother, all of which this pregnancy is threatening.

As Rubin accurately points out, this is what happens when lawmakers presume to overrule medical providers. As she says, there are multiple situations involving “fact-specific medical complications for a pregnant woman” that don’t fall neatly into the either-or construct of these laws.

These cannot, without violating our fundamental sense of justice and decency, be predetermined by a bunch of politicians (mostly White, mostly male and many medically illiterate) without regard to the wishes of the woman involved.

This deeply offensive effort to prevent an abortion that the judge of the lower court found to be required by the interests of “justice and simple humanity” should dispel any confusion about the motives of these so-called “pro life” Republicans. They care not one whit about the lives of women or “unborn babies.” They are interested only in protecting legal and cultural paternalism. They are telling all the women in Texas– and if the GOP regains Congress and/or the White House, all women in the United States–that those White, male, medically illiterate men will continue to control women’s bodies.

Rubin notes that Republicans are still in denial about the overwhelming unpopularity of their position, and the likelihood that it will burden their candidates in 2024 “in virtually every race up and down the ballot.”

Yesterday, I argued that the upcoming elections–unlike most past contests–will not be issue or candidate driven; instead, it will present voters with a choice between fundamentally incompatible world-views. Texas Republicans’ inexplicably cruel–and politically clueless–effort to prevent a medically-necessary abortion is a vivid example.

As Rubin writes:

As abortion rights activists predicted, Republicans remained trapped in a dilemma of their own making. Having catered to extreme antiabortion forces and backed extreme and unworkable abortion bans in a slew of states and nationally, they cannot retreat from their stance without infuriating their base. Seeing the political wreckage in the wake of Dobbs, they are unable to step away from a policy that is wildly out of step with a large majority of Americans. They should prepare to reap the political whirlwind in 2024.

The 2024 elections will be decided by the millions of women and men who oppose not just this cruel effort to control women but the rest of a Christian Nationalist agenda fervently supported by these latter-day, profoundly un-American Puritans. Republicans will be defeated–assuming those men and women turn out to vote.

On that assumption rests nothing less than a continuation of the American experiment…

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Women And Politics

“Housekeeping” note: My husband and I are departing today for a two-month cruise to Australia and New Zealand. I will have internet and plan to continue blogging, but I’m not sure when items will post, as time zones will change and we’ll cross the international date line a couple of times, so please bear with me!

Last week, a chapter of the Indianapolis Kiwanis invited me to discuss the book that Morton Marcus and I recently published. This is what I told them (sorry for the length…)

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As I know you are all aware, Morton Marcus and I recently co-authored “From Property to Partner: Women’s Progress and Political Resistance.” When we began working on it, neither of us expected the political tsunami that would be ushered in by the Supreme Court in Dobbs v. Jackson.

Morton and I have been friends for some 30+ years, and he initially approached me about collaborating on a book that would identify and document the scientific and technological changes that had facilitated women’s progress. Morton absolutely bathes in data, and he was determined to share reams of evidence about the effect of things like railroads, bikes, and household appliances on women’s emancipation.

We both understood that genuine biological differences between men and women had shaped human cultures for thousands of years; and we both wanted to track how science and technology had minimized the social impact of those differences—how changes in the job market made physical strength less important and how various inventions reduced the time needed for housework, which is still considered “women’s work.” That sort of thing.

Morton did agree with me that the most important advances, by far, were the ones that allowed women—for the first time in history– to plan, defer or abstain from procreation without the necessity of remaining celibate. Birth control—especially the pill– allowed women to pursue educational and career choices that had formerly been available only to males.

Control of reproduction allowed women to participate fully in economic, civic and political life. No other advance has been nearly that consequential.

But control of reproduction ran headlong into fundamentalist and paternalistic religious beliefs that continue to influence America’s politics and culture. Although religions and denominations within them vary considerably with respect to birth control, abortion and the role of women, fundamentalist theologies support a patriarchy that is deeply rooted in history, politics and privilege. In the book, we explored the teachings of different religious traditions about women—the very different beliefs held by different religions about women’s roles in general, and the very dramatic differences about decisions to terminate a pregnancy.

As some of us are old enough to remember, before the advent of reliable birth control, every sexual encounter carried the risk of pregnancy, and pregnancy generally meant the end of a woman’s economic independence. A pregnant woman was almost always unemployable; for that matter, a married woman in her childbearing years was similarly unemployable, since there was always the possibility of pregnancy and the resulting need to care for offspring, seen as a uniquely female responsibility.

Most women were therefore economically dependent upon the men to whom they were married. (Refusing to marry was no panacea: unmarried women were routinely labeled “old maids,” and were objects of pity.) If her marriage was unhappy, or worse, violent, a woman with children was literally enslaved; given the barriers she faced to participation in the workforce and her resulting inability to support herself and her offspring, she usually couldn’t leave. Absent charitable intervention or inherited wealth—or friends or relatives willing to house and feed her and her children—she was totally dependent on her husband’s earnings.

That reality is why access to reliable contraception –and in situations where that contraception failed, abortion—was thus absolutely essential to women’s independence. If women could plan when to procreate, they could also plan when not to procreate. They could choose to schedule or defer motherhood in order to pursue education and career opportunities. The availability of the birth control pill didn’t just liberate millions of women, its availability and widespread use triggered enormous changes in social attitudes—some of which opened the door to legislation that advanced both females’ economic independence and their ability to more fully participate in the civic life of the nation.

The Dobbs decision, over-ruling Roe v Wade, came down when we had just begun our research for the book; it changed our focus and presented us with an obvious question: how would American women respond? What political consequences would we see to a decision that allowed states to deny women access to adequate healthcare during pregnancy– and also threatened to return them to second-class citizenship?

We knew we were about to see what happens when the dog finally catches the car…and you can probably guess our conclusion from the title of our final chapter: “When Mama Ain’t Happy, Ain’t Nobody Happy.”

So much for our book. I want to conclude with a point that is not widely understood. As politically consequential as the Dobbs decision has turned out to be, most non-lawyers really don’t understand how fundamentally it undermined constitutional rights that have absolutely nothing to do with abortion or the status of women.

For the past fifty years, Americans have relied upon a constitutional doctrine known as 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.

Most constitutional scholars would argue that the right to personal autonomy has always been inherent in the Bill of Rights, but it was explicitly recognized in the 1965 case Griswold v. Connecticut. The Connecticut legislature had passed a law prohibiting the use of birth control by married couples. The law prohibited doctors from prescribing contraceptives and prohibiting 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 a right to personal autonomy—the right to self-government—was necessary to the enforcement of other provisions of the Bill of Rights, which would be difficult or impossible to respect without the recognition of such an underlying right. Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the title “substantive due process” comes from. Wherever it resided–in a “penumbra” or the 14th Amendment—the Justices agreed on both its presence and importance.

As I’m sure you all know, procedural due process protects Americans’ right to a fair process—a fair trial or other government proceeding. Substantive due process distinguishes 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 is who should get to make that decision.

Substantive due process draws a line between decisions government should make and those that must be made by the individual involved. Aside from its other logical and historical defects, the Dobbs decision ignored 50 years of precedents confirming that principle.

Dobbs also changed the focus of our little book, which became much more political than we had originally intended. That said, we had fun collaborating on it—and if you haven’t already bought it, I hope you will!!

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