Category Archives: Personal Autonomy

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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Just WOW…

It appears that our fearless (okay, feckless) lawmakers have identified a dire threat to America and its children–librarians. The Washington Post recently reported on one of the current allegations–this one by Senator Mike Lee of Utah–

“The goal is to sexualize children — to provide minors with sexually explicit material … and then hide this content from the parents.”

The American Library Association is facing a partisan firefight unlike anything in its almost 150-year history. The once-uncontroversial organization, which says it is the world’s largest and oldest library association and which provides funding, training and tools to most of the country’s 123,000 libraries, has become entangled in the education culture wars — the raging debates over what and how to teach about race, sex and gender — culminating in Tuesday’s Senatorial name-check.

Lee isn’t alone. The increasingly insane Right is intent upon painting the ALA as a defender of pornographic literature for children. MAGA warriors insist that the nation’s libraries, including school libraries, are filled with sexually explicit, inappropriate texts.

Attacks on libraries are part and parcel of what Isaac Asimov called the “cult of ignorance,” a phenomenon that we see in contemporary dismissals of expertise as “elitism”and the cyclical eruptions of anti-intellectualism in the United States. Asimov’s famous quote probably says it best:

There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that “my ignorance is just as good as your knowledge.”

America’s libraries are our intellectual gatekeepers, safeguarding our ability to access practical information as well as hard-won wisdom that has been built up over centuries. Attacking them is an attack on human intellectual progress–a declaration that, as Asimov aptly framed it, ignorance is just as good as knowledge.

We’ve been here before. In a speech in 2014, I argued that libraries as we know them are important protectors of what I call “the American Idea.” I spent six years as Executive Director of the Indiana Civil Liberties Union, and of all the lessons I learned during that time, the most profound was this: the future of western liberal democracy rests on the preservation of intellectual freedom.

That preservation, of course, is the library’s mission.

America’s Constitution is grounded in the Enlightenment concept of the individual as a rights-bearing, autonomous being. That concept is integral to our legal system; it is the foundation upon which our forbears erected the Bill of Rights. The Founders envisioned the good society as one composed of morally independent citizens whose rights in certain important circumstances “trumped” both the dictates of the state and the desires of the majority.….The First Amendment is really an integrated whole, protecting our individual right to receive and disseminate information and ideas, to consider arguments and theories, to form our own beliefs and craft our own consciences.  It answers the fundamental social question– who shall decide? — by vesting that authority in each individual, subject to and consistent with the equal rights of others.

Implicit in the First Amendment is the legal system’s concept of personal responsibility, the University’s commitment to academic freedom, the moral authority of the clergy, the independence of the media, and the legitimacy of the political process.

That exercise of personal responsibility requires untrammeled access to information. For that matter, protection of civil liberties of every kind depends upon  and requires intellectual freedom.

As I noted on this site back in April, the culture warriors out to terrorize Marian the Librarian are seeing considerable success. In an Urban Library Trauma study conducted in 2022, more than two-thirds of respondents reported encountering violent or aggressive behavior from patrons at their library.

Groups such as Moms for Liberty, No Left Turn in Education and Parents Defending Education aren’t the only ones fighting to remove books by Black and LGBTQ+ authors.  Proud Boys have taken to storming into Drag Queen Story Hour events, for instance, causing serious fear for patrons and librarians.

Lest we give these censors the benefit of the doubt, thinking they are identifying mostly trashy books, it’s instructive to consult the AIA’s annual list of the most frequently challenged books. They include Harper Lee’s To Kill a Mockingbird, John Steinbeck’s Of Mice and Men, and Toni Morrison’s The Bluest Eye.

Challenges are overwhelmingly aimed at books by or about LGBTQ+ people, and books critical of racism. (The most censored books of all times are 1984, The Adventures of Huckleberry Finn, The Catcher in the Rye, The Color Purple, The Great Gatsby, I Know Why the Caged Bird Sings and Lord of the Flies.)

The culture war isn’t “just” about democracy versus Christian Nationalism. It’s also about ignorance versus knowledge.

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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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