Personal Autonomy – Page 5

Abortion Politics

Analyses of the midterm elections, and the failure of the anticipated “Red wave” have uniformly attributed that result to the potency of the abortion issue. FiveThirtyEight has reported that in the 38 special elections that followed the midterms, Democrats have over-performed the relevant partisan lean — the relative liberal or conservative history of the area– by an average of 10%. Experts attribute that over-performance to the abortion issue.

A year after Dobbs, a Gallup poll found the issue had lost none of its potency.

A year after U.S. voters attached record-high importance to abortion as an election issue, a new Gallup poll finds it retaining its potency, particularly for the pro-choice side of the debate.

Currently, 28% of registered voters say they will only vote for candidates for major offices who share their position on abortion, one percentage point higher than the previous high of 27% recorded in 2022 and 2019.

A record-low 14% now say abortion is not a major issue in their vote. While similar to last year’s 16%, it is down nine points from the prior low of 23% recorded in 2007.

Results from referenda where voters are faced with a single issue are one thing, but what about the strength of the issue when it is only one element of a candidate’s agenda? Gallup polled that question, too.

Currently, 33% of registered voters who identify as pro-choice versus 23% of pro-life voters say they will only vote for a candidate who agrees with them on abortion. This advantage for the pro-choice side is new since last year.

What accounts for the continued salience of this issue?

For one thing, it’s easy to understand. Republicans and Democrats can argue about the causes and/or levels of inflation, they can debate the effects of “woke-ness,” or the size of the national debt. But debate over who should decide whether a given woman gives birth is straightforward–and it potentially affects every family.

The position of a candidate for public office on the issue is also a recognizable marker for that candidate’s positions on the use or misuse of government power generally.

Back when I was a Republican, the GOP argued for the importance of limiting government interventions to those areas of our common lives that clearly required government action. That position was consistent with the libertarian premise that underlies America’s Bill of Rights: the principle that individuals should be free to make their own life choices, unless and until those choices harm others, and so long as they are willing to accord an equal right to others.

Today’s GOP has utterly abandoned that commitment to individual liberty–it has morphed into a party intent upon using the power of government to impose its views on everyone else. (Actually, if the current ideological battle weren’t so serious, the hypocrisies and inconsistencies would be funny. As a current Facebook meme puts it, today’s Republicans believe a ten-year-old is old enough to give birth, but not old enough to choose a library book.)

As Morton and I wrote in our recent book, the assault on reproductive choice–the belief that government has the right to force women to give birth–is only one element of an overall illiberal, statist and dangerous philosophy. The fundamental right of persons to determine for themselves the course of their own lives and the well-being of their families is the central issue of our time–and it isn’t an issue that affects only women. (According to several reports, even the audience at Republicans’ recent debate failed to show enthusiasm when candidates all supported a federal ban on abortions.)

In the wake of Dobbs, Erwin Chemerinsky wrote:

The central question in the abortion debate is who should decide. Roe v. Wade held that it is for each woman to decide for herself whether to terminate a pregnancy. Dobbs v. Jackson Women’s Health Organization says it is for the legislatures and the political process. The only thing that is certain is that the implications—for women’s lives and for our society—will be enormous and for a long time to come.

We’ve noticed.

Voters may be unaware of the more technical–and worrisome–medical and legal implications of the Dobbs decision, but they clearly understand the difference between candidates who are willing to use the authority of government to impose their own beliefs on those who differ and those who are not. That clarity is the reason the abortion issue has been so powerful a motivator.

Analyses conducted after the midterms and subsequent special elections determined that abortion had been a major driver of turnout in what had historically been low-turnout contests. Whether those increases in turnout will hold in a Presidential election is the question.

The answer will constrain or enhance government power over individuals in areas well beyond reproductive choice.

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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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