Personal Autonomy – Page 4

What Is Government For?

As readers of this blog know, I spent 21+ years teaching Law and Public Policy, mostly to students intending to go into either public management or the nonprofit sector. The faculty of our school was heavily engaged in imparting skills–budgeting, planning, human resource management, policy analysis.. But my classes tended to be different, because these practical subjects didn’t emerge from a void; they are inextricably bound up with our constitutional system, and that system in turn is the outgrowth of great philosophical debates about the proper ordering of human communities.

The great questions of political theory involve the nature of government. What should government do? What actions by the state are legitimate? What is justice? What is public virtue?

The American experiment was heavily influenced by the philosophy of the Enlightenment and emerging theories about the proper role of the state, especially the principle that Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

The primary role of government so conceived is to prevent some citizens from harming others. (Granted, there are inevitable arguments about what constitutes harm to others, and what degree of harm is needed to justify governmental intervention.)

The Bill of Rights expressly limits the ability of government to regulate activities that are purely personal. What we read, whether we pray, our politics and beliefs and life goals are matters for individual decision.

It is that basic American principle of governance that is now at issue.

The decision in Dobbs wasn’t simply about abortion; it attacked a jurisprudence that had become increasingly protective of maintaining that line between individual rights and the legitimate exercise of government authority.

What too many Americans fail to understand is that the question posed by Dobbs isn’t whether a woman should or should not abort. It’s also whether citizen A should be able to marry someone of the same gender, or whether citizen B should bow her head and participate in a public prayer.

The issue is: who gets to make such decisions?

We are properly concerned these days about the functioning of democracy, and whether our lawmakers are reflecting the will of their constituents when they vote on the numerous matters that government must decide. But the arguably radical Justices on today’s Supreme Court have raised a more fundamental issue, because the Justices are authorizing government to legislate matters that government in our system is not supposed to decide.

The Bill of Rights draws a line between state power and individual rights. Legislators don’t get to vote on your fundamental rights: to free speech, to pray to the God of your choice (or not), to read books of your own choosing, to be free of arbitrary searches and seizures, to cast votes in elections…

Even when lawmakers are reflecting the will of the majority, in our constitutional system they don’t get to deprive people of fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that in a free society, certain decisions are not properly made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions that government in a free society has no business making.

As I’ve argued before, the ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into all aspects of our private lives. Its “reasoning” would allow other fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that an individual’s right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by government is no different from giving lawmakers the right to dictate my choice of reading material, or your choice of religion.

The issue isn’t what book you choose–it’s your right to choose it. It isn’t whether you’ll marry person X or Y, it’s your right to choose your marriage partner. And it isn’t whether you abort or give birth–it’s about who has the right to make that decision.

Government paves streets, issues currency, imposes taxes…it has plenty to do without upending America’s foundational philosophy.

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Why Women Will Save America

A million years ago, when I was in law school, I wasn’t a committed feminist. I didn’t become a lawyer so that I could challenge the rules keeping women second-class citizens; rather, I wanted to be a lawyer, and to the extent existing rules got in the way, I opposed them.

Over the (many) ensuing years, I’ve become increasingly opposed to anti-woman social norms–and laws based upon those norms. They aren”t just outdated. They’re unjust, unAmerican–and stupid. (Denying women equality is unjust and unAmerican because such measures ignore differences between individuals in favor of imposing disabilities based on group identity. They’re stupid because they keep women from contributing to the general welfare.)

Over the past decades, as women, African Americans, LGBTQ citizens and other marginalized folks have improved their status in society, the White Christian males who view that improvement with alarm–seeing it as a loss of their own paternalistic primacy–have increasingly resisted.

A couple of recent examples:

Southern Baptists are rebelling against the very notion that women might be pastors in that denomination. In our recent book, Morton Marcus and I explored the immense role played by fundamentalist religion in keeping women subservient and defining “women’s place” as necessarily and permanently subordinate. The linked article, published on June 13th, reported:

Southern Baptists will have the opportunity to vote on a measure that would enshrine a ban on women pastors within the denomination, the Southern Baptist Convention Executive Committee decided Monday.

The decision by the SBC Executive Committee ahead of the 2023 SBC annual meeting doesn’t guarantee the eventual passage of the measure, which is a proposed amendment to the SBC constitution. The amendment is one of several major decisions facing Southern Baptist voting delegates, called messengers, that will permanently affect the status of women pastors in the SBC.

The vote was triggered by appeals from two congregations that had been ousted for having women pastors. (Update: women lost that vote. Resoundingly.)

Then there’s the radical Right organization, Turning Point USA. Turning Point recently sponsored a truly bizarre “Women’s Leadership Summit.” (Speaking of bizarre, the conference offered “bejeweled” guns for sale….pictures at the link…)

Speakers like TPUSA influencer Alex Clark, Fox host Laura Ingraham, and The Daily Wire’s Candace Owens both covertly and overtly discouraged the audience of young women from pursuing high-powered careers,” she reports. Clark railed against the young women in the audience for using birth control, blasted “day care,” and take-your-pick.

Clark claimed, “The feminist movement is in large part to blame for the fracturing of the traditional home, where women were coerced outside of their natural roles as mothers into the workforce.” She went on: “The feminist movement gave way to the notion that a woman could have her cake and eat it too. You can have the career you want and you can raise your children in a positive, educational environment, aka day care.” She described it as “a lie to tell women that we can have it all.” Just because day care is “normal or common doesn’t mean it’s right,” according to Clark

Fundamentalist podcaster Allie Beth Stuckey opened day two of the conference. She, unsurprisingly, struck a notably more pointed Christian extremist tone than the other speakers, though religious rhetoric was ubiquitous throughout the conference. “I can tell you what your highest calling is,” she said. It’s not to have a career, “it’s not even to be a wife and a mom, as wonderful as those things are. Your highest calling is to glorify God.”

Her version of God, of course…

This “summit” provided unambiguous evidence of the real purpose of contemporary assaults on reproductive choice. If women can choose if and when to have babies, they will be tempted to pursue “callings” that are inconsistent with “Godly” subservience to men.

Over the last 100 years, women have made remarkable progress—from laws that essentially made them the property of their fathers or husbands, to today’s almost-equal legal parity with men. In the years since I was in law school, that progress has increasingly infuriated the White Christian “culture warriors” who see women’s advancement toward equality as an existential threat to their social dominance–a dominance they have convinced themselves is divinely ordained.

The elections of 2024 will decide many important issues, arguably including the continued viability of American democracy.. Our constitutional democracy requires (among other things) the right of American women to bodily autonomy–something men have long enjoyed.

Women’s civic equality is impossible without that autonomy–and women know it.

In 2024, electoral choices about choice will be clear. Republicans at the municipal, state and federal levels are all committed to the GOP’s anti-choice position, while Democrats are pro-choice.

Which is why I predict women will vote Blue and save America.

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Another “Great Migration”?

It’s a truism that reasonable policymaking requires a familiarity with history, and the ability to apply the lessons of history to current issues. That’s one of the many reasons that the current Rightwing efforts to label a major part of American history as (that dreaded) “CRT”, and dispense with its study, is so misguided.

There are lessons to be learned–and legislators in several states (including Indiana) rather clearly haven’t learned them.

Even before the current efforts to eliminate America’s mistreatment of Black and Indigenous people from school textbooks, those texts glossed over the “Great Migration.” That’s a shame, because the legal and social realities that drove Black Southerners North should warn Red state legislators about the likely consequences of imposing disabilities on women.

A recent essay drew that parallel:

As soon as Black Americans had the ability and resources to leave the Deep South after the Civil War, they left…. More than six million Black Americans moved from the former Confederate states to the Civil War-era Union states between 1910 and 1970….

Jim Crow laws were America’s shameful version of apartheid, resulting in racial inequality and state-sanctioned terror. Jim Crow laws restricted every aspect of life for Black Americans, making it nearly impossible for Blacks, or for that matter white Americans, to reach their human potential. But while whites suffered from the contagious disease of racism, they also benefited at the expense of their Black neighbors.

The same states that practiced the most pernicious forms of Jim Crow are also the states that today restrict the health care rights of women. The lesson of the Great Migration of Black Americans is that people can and arguably should vote with their feet. Women — by the millions — must be at least contemplating leaving these states and moving to states where their rights are duly respected.

As of this week, 15 states have passed total bans on abortion since the Supreme Court’s overturning of the Roe v. Wade decision. These 15 states do not include Georgia, which recently passed a ban after six weeks, but they do include Texas, Mississippi, Alabama, Arkansas, Tennessee, Kentucky, West Virginia, Missouri, Oklahoma, Wisconsin, South Dakota, North Dakota, Idaho and Nebraska. The female population in these states is approximately 60 million.

The essay was written by Fred McKinney, a co-founder of BJM Solutions. BJM is described as “an economic consulting firm that conducts public and private research since 1999.” McKinney is also the emeritus director of the Peoples Center for Innovation and Entrepreneurship at Quinnipiac University.

The essay echoed an argument I’ve made on this blog and in the book I recently co-authored on women’s progress: women will choose to attend universities, take jobs and raise families in states that respect their fundamental rights.

Legislatures passing these retrograde laws have failed to appreciate their inevitably negative economic impact. Businesses understand that women’s choices–where to attend a university, where to accept a job– aren’t abstractions. They are a reality, and employers are highly likely to factor that reality into their own location decisions–decisions that are already heavily influenced by the availability of a talented and skilled workforce.

It won’t just be women who exercise their choice to settle in fairer states; there are plenty of men who share women’s political and medical concerns. And as the essay points out, the people leaving backward and restrictive states will largely be those who possess the greatest drive and skills, those who can most easily relocate.

There are also those recent travel advisories issued by the NAACP, Equality Florida, and the League of Latin American Citizens–precursors of other advisories affecting tourism. The economies of a number of states, not just Florida, are heavily dependent on tourism.

These realities will depress economic conditions in Red states like Indiana–an obvious consequence that our truly terrible and unrepresentative legislators have failed to comprehend.

The last Great Migration had an enormous impact on American society. As the Smithsonian Magazine explains:

By leaving, they would change the course of their lives and those of their children. They would become Richard Wright the novelist instead of Richard Wright the sharecropper. They would become John Coltrane, jazz musician instead of tailor; Bill Russell, NBA pioneer instead of paper mill worker; Zora Neale Hurston, beloved folklorist instead of maidservant. The children of the Great Migration would reshape professions that, had their families not left, may never have been open to them, from sports and music to literature and art: Miles Davis, Ralph Ellison, Toni Morrison, August Wilson, Jacob Lawrence, Diana Ross, Tupac Shakur, Prince, Michael Jackson, Shonda Rhimes, Venus and Serena Williams and countless others.

Women’s “great migration” is next.

Red states’ continued social and economic decline can be traced to legislatures that refuse to learn the lessons of history.

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No Equal Rights For You!

In case you consider the concerns addressed in the book I promoted yesterday to be exaggerated, allow me to offer the following evidence that that the GOP is indeed waging war on women–that the Republican Party is working overtime to ensure that we females remain decidedly second-class.

The “Grand Old Party” is focused on denying us bodily autonomy, and in case we missed getting the message, has recently reinforced the message by refusing to extend the deadline for passing the Equal Rights Amendment.

The ERA passed Congress in 1972, having been first proposed in 1923. Constitutional amendments, under U.S. law, must be ratified by three-quarters of all state legislatures, meaning 38 states.

In 2020, Virginia became the 38th state to ratify the ERA, but it did so after the 1982 deadline to ratify the amendment had passed.

The Senate resolution would have removed the deadline so that the ERA could become the 28th Amendment. Sen. Ben Cardin (D-Md.) and Murkowski were the resolution’s lead co-sponsors.

Murkowski and Collins were the only Republicans to support the extension. The vote was 51 to 47 to invoke cloture on a motion to proceed, falling short of the 60 votes it it needed.

This would be a good time to reiterate my opposition to the filibuster as it is currently employed. In its current iteration, it bears little or no resemblance to the original rule.

A filibuster used to require a Senator to actually make a lengthy speech on the Senate floor–unlike today. In its current form, it operates to require government by super-majority, and it has become a weapon routinely employed by extremists to hold the country hostage.

The original idea of a filibuster was that so long as a senator kept talking, the bill in question couldn’t move forward. Once those opposed to the measure felt they had made their case, or at least exhausted their argument, they would leave the Senate floor and allow a vote. In 1917, when filibustering Senators threatened President Wilson’s ability to respond to a perceived military threat, the Senate adopted a mechanism called cloture, allowing a super-majority vote to end a filibuster, and in 1975, the Senate again changed the rules, making it much, much easier to hold the Senate hostage.

The new rules allowed other business to be conducted during the time a filibuster is (theoretically) taking place. Senators no longer are required to take to the Senate floor and publicly argue their case. This “virtual” use has increased dramatically as partisan polarization has worsened, and it has effectively abolished the principle of majority rule. It now takes sixty votes to pass any legislation, and has brought normal government operation to a standstill.

Operating together, gerrymandering, the Electoral College and the current iteration of the filibuster have allowed a minority party to exercise unwarranted power and throw sand in the levers of government.

In this case, a majority of Senators voted to assure the equal rights of America’s female citizens–but that majority vote was blocked by the members of what I have come to call the “anti” party–anti-woman, anti-Black/Brown, anti-Gay, anti-“woke.”

Anti-modernity.

I still remember long-ago arguments with what were then fellow Republicans about the necessity or advisability of the Equal Rights Amendment. Those who opposed its passage tended to rely on the language of the 14th Amendment, arguing that women could achieve legal equality under that language, and that a separate amendment was unnecessary.

In the wake of the Dobbs decision, which upended fifty years of 14th Amendment jurisprudence, that argument no longer passes the smell test.

Passage of the Equal Rights Amendment would establish gender equality as a fundamental constitutional right–something that, thanks to Justice Alito, we now know the Constitution doesn’t explicitly guarantee.

It would also bring the United States into compliance with international standards for human rights. (Granted, those standards are widely disregarded, but the United Nations has recognized gender equality as a fundamental human right.)

It took a hundred years for women to win the right to vote–and we have now fought (thus far, unsuccessfully) for an Equal Rights Amendment for exactly that long– it has been proposed and supported by feminists for nearly a century. (A representative of the National Women’s Party, Alice Paul, was the person who first introduced the Equal Rights Amendment to Congress in 1923.)

Currently, an overwhelming majority of Americans (81%) support passage of the amendment. The White Christian Nationalist cult that now controls the Republican Party disagrees.( Actually, it disagrees with pretty much anything promising equality for non-whites, non-Christians or non-males…)

Congress will not reflect the desires of the majority of Americans–and women will not have equal rights– until and unless we reform the systems that have turned our country into a failed democracy: gerrymandering, the Electoral College, and the current iteration of the filibuster.

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A Pyrrhic Victory

I never thought I would view Justice Alito’s deeply dishonest opinion in Dobbs as a gift, but I’ve come to that conclusion.

Whatever one’s position on abortion, it is impossible to ignore the political effect of that Supreme Court decision. Some (male) strategists insist that Democrats’ continued emphasis on the issue is risky or misplaced, but I respectfully disagree. Absent the presence of some other massively salient issue, GOP candidates now look a whole lot like the dog that caught the car. (Furthermore, two of the most salient issues these days are gun control and democracy–both of which also favor Team Blue.)

As Michelle Goldberg recently wrote in the New York Times,

Having made the criminalization of abortion a central axis of their political project for decades, Republicans have no obvious way out of their electoral predicament. A decisive majority of Americans — 64 percent, according to a recent Public Religion Research Institute survey — believe that abortion should be legal in most cases. A decisive majority of Republicans — 63 percent, according to the same survey — believe that it should not. When abortion bans were merely theoretical, anti-abortion passion was often a boon to Republicans, powering the grass-roots organizing of the religious right. Now that the end of Roe has awakened a previously complacent pro-choice majority, anti-abortion passion has become a liability, but the Republican Party can’t jettison it without tearing itself apart.

Back in September of 2021, I wrote:

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….

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.

In her Times column, Goldberg enumerated the the multiple, continuing GOP assaults on abortion rights at both the state and federal levels, including but not limited to the following:

In the last Congress, 167 House Republicans co-sponsored the Life at Conception Act, conferring full personhood rights on fertilized eggs. In state after state, lawmakers are doing just what the R.N.C. suggested and using every means at their disposal to force people to continue unwanted or unviable pregnancies. Idaho, where almost all abortions are illegal, just passed an “abortion trafficking” law that would make helping a minor leave the state to get an abortion without parental consent punishable by five years in prison. The Texas Senate just passed a bill that, among other things, is intended to force prosecutors in left-leaning cities to pursue abortion law violations. South Carolina Republicans have proposed a law defining abortion as murder, making it punishable by the death penalty.

Goldberg’s column preceded the decision by the Trump-appointed federal judge in Texas, suspending FDA approval of mifepristone, one of the two drugs commonly used for medication abortions, despite its demonstrated safety over the past 20 years–a decision certain to raise the stakes–and the immediacy– of the abortion debate.

I agree with Goldberg that Republicans “are adopting a self-soothing tactic sometimes seen on the left”–blaming messaging. They insist they’re losing elections because they’ve failed to communicate clearly, not because their position is unpopular.

“When you’re losing by 10 points, there is a messaging issue,” the Republican Party chairwoman, Ronna McDaniel, said on Fox News, explaining the loss in Wisconsin.

But you can’t message away forced birth. Republicans’ political problem is twofold. Their supporters take the party’s position on abortion seriously, and now, post-Roe, so does everyone else.

As Alex Shepard wrote in The New Republic, the problem Republicans face is both simple and unsolvable, because an idealized middle ground that would be palatable to the diehards in the GOP base simply doesn’t exist.

In Dobbs, Justice Alito gave the Republicans something they had long claimed to want–a complete victory on an issue that the GOP had used for fifty years to motivate its base and generate turnout.

Sometimes, victories are pyrrhic.

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