Personal Autonomy – Page 6

“Don’t Know Much About History”

That old Sam Cooke tune should be Justice Alito’s theme song.

Distortion–or flat-out lying–about history hasn’t previously been a feature of Supreme Court decisions, although it’s nothing new in political discourse. (Remember the people who argued against same-sex marriage by insisting that marriage “has always been between one man and one woman,” despite the fact that the statement was demonstrably false? Even if you ignore biblical history, more than half of the world still recognizes plural marriage.)

Alito’s recitation of history in Dobbs has been rebutted by historians, and its falsity was recently the subject of a lengthy essay in the Guardian.

As the essay notes, Alito claims that a reversal of Roe v Wade “restores the US to an unbroken tradition of prohibiting abortion on pain of criminal punishment [that] persisted from the earliest days of the common law until 1973.”

This assertion, however, is easily disproven.As historians have exhaustively explained, early American common law (as in Britain) generally permitted abortions until “quickening”, or perceptible foetal movement, usually between 16 to 20 weeks into a pregnancy. Connecticut was the first state to ban abortion after quickening, in 1821, which is roughly two centuries after the earliest days of American common law. It was not until the 1880s that every US state had some laws restricting abortion, and not until the 1910s that it was criminalised in every state. In the wake of Dobbs, social media was awash with examples from 18th- and 19th-century newspapers that clearly refuted Alito’s false assertion, sharing examples of midwives and doctors legally advertising abortifacients, Benjamin Franklin’s at-home abortion remedies, and accounts of 19th-century doctors performing “therapeutic” (medically necessary) abortions.

The essay also emphasized that anti-abortion fervor was not motivated by the moral or religious beliefs generally cited by anti-choice activists.

In fact, the first wave of anti-abortion laws were entangled in arguments about nativism, eugenics and white supremacism, as they dovetailed with a cultural panic that swept the US in the late 19th and early 20th century as a result of the vast changes in American society wrought by the conflict. This panic was referred to at the time in shorthand as “race suicide”

The increasing traction today of the far-right “great replacement theory”, which contends that there is a global conspiracy to replace white people with people of colour, and has explicitly motivated white supremacist massacres in the US, is often said to have originated with a French novel called The Camp of the Saints by Jean Raspail. Published in 1973, the same year that Roe v Wade enshrined American women’s rights to reproductive autonomy, it is a dystopian account of “swarthy hordes” of immigrants sweeping in and destroying western civilisation. But there were many earlier panics over “white extinction”, and in the US, debates around abortion have been entangled with race panic from the start.

As a similar post at FiveThirtyEight.com put it,” the anti-abortion movement, at its core, has always been about upholding white supremacy.”

Historians point to the numerous newspapers, lectures and sermons that led to the original criminalization of abortion by warning that Catholics and other foreign-born immigrants were likely to outnumber Protestant, native-born Americans. The essay cited one representative example– a 1903 editorial pointing out that the Protestant population of the US was increasing by 8.1% while the Catholic population was increasing by 21.8%, and characterizing those statistics as an “alarming condition of things.” The article noted that there were “on the average more than five abortions a month, none of them in Catholic families”. In case the message wasn’t sufficiently clear, the piece was headlined “Religion and Race Suicide”.

When the resurgent Ku Klux Klan paraded in Louisiana in 1922, they bore banners that read “White Supremacy”, “America First”, “One Hundred Per Cent American”, “Race Purity” and “Abortionists, Beware!” People are sometimes confused by the Klan’s animus against abortionists, or impute it to generalised patriarchal authoritarianism, but it was much more specifically about “race purity”: white domination can only be maintained by white reproduction.

The article is lengthy, but well worth your time to read; it contains a meticulous recitation of the thoroughly racist roots of opposition to abortion. My only quibble is that It gives only a nod to the White male patriarchy embedded in the numerous religious dogmas that require the subordination and submission of women. Without the benefit of that moral “fig leaf,” I doubt whether its clearly racist roots would have carried the movement so far.

I do absolutely agree with the essay’s conclusion:

The assault on women’s rights is part of the wider move to reclaim the “commanding place” in society for a small minority of patriarchal white men. And, as Alito’s decision shows, where legal precedent and other justifications cannot be found, myth will fill the vacuum.

No matter how ahistorical that myth…

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Republicans Are Coming For Your Birth Control

In the wake of Dobbs, spurred by a clear threat best articulated in Clarence Thomas’ concurring opinion, the U.S. House of Representatives has passed a bill that would guarantee continued access to contraception.

Actually, that sentence is somewhat inaccurate: the Democrats in the House passed the measure; they were able to garner exactly eight Republican votes.

Think about that.

The measure passed 228 to 195, meaning that almost all Republicans refused to protect an unrestricted right to the purchase and use of contraception. Those eight votes represented only slightly more Republican support than two bills that the House passed the prior week, which would have guaranteed access to abortion. Almost all Republicans united in opposition to that measure.

Worse still, the linked article from the Times reports that the contraceptive bill is “almost certain to fail in the evenly divided Senate, where most Republicans are also likely to be opposed.”

Again–think about that. Today’s GOP wants government to be able to control one of the most intimate decisions citizens can make–a decision that is fundamentally private, a decision that is absolutely none of government’s business

“An extreme G.O.P., an extreme Supreme Court, they want to take away your freedom and your control over your own lives,” said Representative Angie Craig, Democrat of Minnesota. “We are in an absurd time.”

She said before the vote that “quite frankly, I’m appalled that we have to vote on this damn bill at all. This is not an extremist issue. This is an extremist G.O.P.”..

Half of the eight Republicans who broke with their party to support the measure are retiring from Congress, including Representatives Anthony Gonzalez of Ohio, John Katko of New York, Adam Kinzinger of Illinois and Fred Upton of Michigan. The remainder — Representatives Liz Cheney of Wyoming, Brian Fitzpatrick of Pennsylvania, Nancy Mace of South Carolina and María Elvira Salazar of Florida — have sought to appeal to moderates and independent voters to bolster their re-election bids.

In Griswold v. Connecticut–a 1965 case–William O. Douglas’s majority opinion reflected the logic of its conclusion. He wrote “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” The majority found a right to privacy–the doctrine of substantive due process that was explicitly undermined in Dobbs–in the language of several of the amendments, which Douglas noted would be difficult or impossible to respect without the implicit recognition of such an underlying right. In a concurrence, Justice Goldberg found that same right in the Ninth Amendment, and Justices White and Harlan argued that privacy is protected by the due process clause of the Fourteenth Amendment.

Wherever it resided–in a “penumbra” or the 14th Amendment–they agreed on its presence and importance.

The bottom line–a line virtually all Americans have come to rely upon–is that there is a limit to decisions that government may legitimately make. The very language of that libertarian premise I often quote indicates where that line is to be drawn: We the People have the right to live our lives in accordance with our own moral, ethical and religious beliefs, free of government restrictions, so long as we are not thereby harming the person or property of others, and so long as we are willing to grant an equal right to others.

Government, in other words, has the right–indeed, the obligation–to intervene when our behaviors are harming people who haven’t consented to that harm. Government must leave us alone–in Justice Brandeis felicitous formulation–otherwise. In my far less felicitous framing, the question is: who decides? If my beliefs or behaviors aren’t hurting anyone else, the decision must rest with me.

There can obviously be debates about the nature of harm. (Does a refusal to wear a seatbelt threaten others and justify seatbelt laws? how?) But that isn’t what today’s social issue debates are about. Today’s GOP is a White Nationalist Christian cult, intent upon breaching any right to self-determination that is inconsistent with its twisted theology–a theology not shared–indeed,rebutted– by many genuine Christians.

To the Americans who have relied on their right to direct their own lives for the past fifty years–who have pooh-poohed warnings about the Christian Taliban, confident that their right to self-determination was secure–Congress has sent a message. It can happen here.

In fact, it is happening. Right now.

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Another Form Of Rape

Indiana AG Todd Rokita is one of the few politicians in our polarized age who is despised on both sides of the political aisle. His naked ambition has led him into the fever swamps of the far Right, and the most recent example–reported in the linked article from Talking Points Memo–was his effort to smear the ob-gyn who terminated the pregnancy of a raped ten-year-old.

Rokita suggested that the doctor, Dr. Caitlin Bernard, had failed to file mandated reports with the state about the abuse and the abortion. At least, Rokita claimed, he could find no evidence for any reports. Bernard is an “abortion activist acting as a doctor with a history of failing to report,” Rokita told Fox News on Wednesday. “We’re gathering the information, we’re gathering the evidence as we speak and we’re going to fight this to the end, including looking at [Bernard’s] licensure, if she failed to report. In Indiana it’s a crime for … to intentionally not report.”

If Rokita weren’t shameless, he would have apologized after Indianapolis’ Fox affiliate easily ascertained–via a simple public records request– that Bernard had properly filed all required paperwork, and had also reported that the patient was a victim of abuse. (That abuse had also been reported to authorities in Ohio by the girl’s physician there.)

In other words Rokita went forward with a series of defamatory claims and accusations against Bernard and called down a nationwide campaign of harassment and vilification against her apparently without even the most cursory of records checks that were not only available to him as attorney general but members of the public in roughly 24 hours.

Rokita is one of several despicable Republicans who responded to the initial reports about a pregnant ten-year-old with accusations that the incident was manufactured–that the child didn’t exist, and that the rape and pregnancy were inventions of those hated liberals.

Those attacks were really another form of rape.

I never doubted the accuracy of the report, but–like most Americans–assumed that a pregnancy in someone so young was a very rare situation. I was shocked to learn that it is far less rare than I had supposed.

The New York Times recently reported that more than 1,000 girls under 15 seek abortions each year.

An article in The New Republic reported figures from countries with total or near-total bans on abortion.

In Paraguay, where abortion is banned unless it threatens the mother’s life, health officials forced an 11-year-old girl to carry a pregnancy until she could obtain a cesarean section after she was raped by her stepfather in 2015. An 11-year-old girl in Argentina, which had similarly strict laws until recently, delivered a 23-week-old baby by cesarean section in 2019 after officials there refused to allow her to obtain an abortion. The young Argentine girl reportedly attempted suicide twice and begged doctors to “remove what the old man put inside me.”

It’s unclear exactly how often this phenomenon occurs—and even a single instance of it is heartrending—but available numbers suggest it occurs with some frequency. Amnesty International reported last year that in Paraguay, which ranks between New Jersey and Arizona in population, more than 1,000 girls who were 14 years old or younger gave birth in 2019 and early 2020. An analysis this week by The Columbus Dispatch found 50 reports of rape or sexual abuse toward girls 15 years old or younger in Columbus, Ohio, since May of this year. Using data from the Ohio Department of Health, the newspaper also reported that 306 girls who were 15 years old or younger obtained an abortion in that state between 2016 and 2020.

The article went on to quote the truly horrifying reaction to this particular incident by those who have spearheaded the forced birth movement.

Jim Bopp, an Indiana lawyer who serves as the general counsel for the National Right to Life organization, told Politico on Thursday that the model legislation he drafted for Indiana would have required the 10-year-old girl to continue the pregnancy. “She would have had the baby, and as many women who have had babies as a result of rape, we would hope that she would understand the reason and ultimately the benefit of having the child,” Bopp told the news outlet.

It seems like the denialism isn’t really about the 10-year-old girl in question but rather about obfuscating the natural consequences of overturning Roe. By eliminating the constitutional right to reproductive self-government and enacting abortion bans without rape or incest exemptions, anti-abortion activists have implicitly created a new right to take Roe’s place. Rapists can now rest assured that if they impregnate their victim, state and local governments will work tirelessly to ensure that the survivor—even if she is a 10-year-old girl—carries that pregnancy to term.

Welcome to MAGA world.

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Privacy And Diversity

America has always been more diverse than most countries. Initially, that diversity meant different kinds of Christians–Maryland, for example, was Catholic, while the other original colonies were dominated by a variety of Protestant denominations. We are far more diverse these days, thanks to immigration, the splintering of numerous sects, and the explosive growth of the “nones,” Americans without religious affiliations.

We aren’t only diverse in our religious beliefs. Individuals represent different races, different regional cultures and backgrounds and very different political and ideological commitments.

The big question is: what sort of government can serve such wildly different citizens and be viewed as fair across all those differences? (That, of course, is a question that has long preoccupied political philosophers. John Rawls proposed a “Veil of Ignorance”–an intriguing mechanism for determining fairness.)

These days, as columnist Jennifer Rubin has written, an uncomfortable number of Americans are uninterested in fairness; they are interested in dominance. That faction is represented by a right-wing, activist Supreme Court and the Christian nationalists they favor. In their ahistorical vision of proper government, “a sliver of the electorate (White, Christian, male) exploits anti-majoritarian aspects of our democracy (e.g. the filibuster, the electoral college, gerrymandering) to use the awesome power of the government to impose values rooted in the 19th century on a diverse country.”

In that vision, the proper beneficiaries of public policy are mostly White, Christian and male, and elements of modernity like science and expertise, not to mention diversity, are “foreign, elite and alien.”

Rubin uses a speech by retiring Justice Breyer to explain the countervailing, constitutionally-anchored viewpoint–one that, as she says, recognizes the heterodoxy of America.

“This is a complicated country. More than 330 million people. My mother used to say, it’s every race, it’s every religion — and she would emphasize this — it’s every point of view possible. It’s a kind of miracle when you sit there and see all those people in front of you. People that are so different in what they think. And yet they decided to help solve their major differences under law.”

This vision posits that to achieve “ordered liberty” for a diverse, noisy, rambunctious people, we must respect the right to self-determination — to choose one’s family, one’s lifestyle, one’s profession and one’s philosophy of child-rearing. That necessitates restriction on government so as to protect a sphere of private conscience. It’s what Louis Brandeis called the “right to be left alone.”

Poll after poll affirms that a large majority of Americans believe that the “right to be left alone”–the right to direct their own lives, consistent with their own moral commitments –should extend to such matters as contraception, abortion, same-sex marriage, child rearing and lifestyle.

Until the advent of this rogue court, the Supreme Court had largely agreed. As Rubin reminds us, even before Griswold v. Connecticut was decided in 1965, the court had protected the right to send your child to the school of your choice and receive instruction in a foreign language. In the 1950s, the Court affirmed the right to choose your profession; and the right to travel (neither of which is expressly set forth in the Constitution).

The court in 1923 held that “liberty” includes the right “to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

After Griswold, that zone of privacy was extended to interracial marriage, private consensual sex, abortion, the right of grandparents to live with their grandchildren (i.e. how one defines a “single family”) and to same-sex marriage.

The zone of privacy erected by the Court is precisely what a fair reading of the Bill of Rights protects–the right of individuals to make personal decisions without government interference. That is precisely what the MAGA movement cannot abide: it wants government to “control how schools teach race, what teachers say about sexual and gender identity, how parents treat transgender children, and, now, whether women can be forced to give birth against their will.”

In response to the constitutional question “who decides?” the White Christian Nationalists of the MAGA movement respond: “we do.”

At stake right now is the individual’s right to live “free from the tyranny of the government and the mob.” As Rubin says, we need a counter-movement.

In sum, Americans need a counterweight to a Christian nationalist movement that seeks to impose on the majority the set of social beliefs of the minority. They need a movement to defend the myriad ways 330 million Americans engage in “pursuit of happiness” — ways as diverse as the country itself.

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What’s Different This Time? A Lot.

Back in the 60s, Bob Dylan told us that “the times, they are a-changing.” They still are.

I’ve been thinking about about the Supreme Court’s efforts to reverse social change, and the extent to which their targets have become too firmly embedded in the culture to be reversed.

Roe v. Wade was decided in 1973–almost exactly 50 years ago–and we sometimes forget how much American life has changed since then. I’ve been thinking about what those changes may mean for the radical Court decision to overrule the constitutional right of a woman to control her own reproduction.

Consider just a few…

Roe was argued in a void of sorts.Tthere was virtually no public discussion of women’s experiences with abortion, because it had been illegal in many if not most states, and coming forward to publicly explain and provide context to a decision to terminate a pregnancy would have labeled the woman a criminal. As Dobbs made its way through the judicial system, however, women faced no such restraint, and their stories have illustrated the multiplicity of situations women face, and the intensely personal impacts of their decisions.
Columnist Jennifer Rubin has written about one outcome of that public discussion–widespread recognition of the cruelty of forced birth. How do you defend GOP insistence that a 10-year-old girl impregnated by her rapist carry that pregnancy to term? Yet in that very real case, at least two Republican gubernatorial candidates have affirmed their belief that this child should be required to give birth. As Rubin noted, those utterances by GOP candidates weren’t anomalous: Mississippi House Speaker Philip Gunn said that, in his view, a 12-year-old impregnated by incest should be forced to complete her pregnancy. Herschel Walker, the Georgia Republican Senate nominee, insists he wants no exceptions, even to save the woman’s life. Ohio state Rep. Jean Schmidt has called forcing a 13-year-old rape victim to give birth an “opportunity.” Even people with qualms about abortion are likely repulsed by this sick lack of concern for the lives and health of living women.
Poll after poll shows that most people who want to restrict abortion don’t want to ban the procedure entirely. Yet–as The New York Times reports– “There are no allowances for victims of rape or incest in Alabama, Arkansas, Florida, Kentucky, Louisiana, Missouri, Oklahoma, Ohio, South Dakota, Tennessee or Texas.” In Idaho, a woman would have to file a police report to obtain an abortion, something virtually impossible for incest victims and others who live in fear of their attackers.”
As legal observers have noted–and survey research has confirmed--the U.S. Supreme Court is in the midst of a full-fledged legitimacy crisis, worsened by a steady stream of extreme decisions handed down by the conservative supermajority. Opinions about the Court are far more negative than they were in 1973.
The decision in Dobbs, as I’ve previously explained, rests on an analysis that threatens other rights–rights that weren’t recognized fifty years ago (and thus were not “deeply rooted” in Justice Alito’s version of American history) such as same-sex marriage (2015), contraception (1965) and interracial marriage (1967). That threat is widely understood, and it significantly expands the number of Americans who (accurately) view Dobbs as a personal threat.
The media environment today is dramatically different from that of 1973. Whatever their negatives–and I routinely post about those negatives–the ubiquity of the Internet and social media means that very few Americans are unaware of either the Court’s decision or its likely impacts. Digital communication has also made it much, much easier to organize political movements and raise dollars–and we are already seeing a strong political response online to what is being described–again, I believe accurately–as a theocratic and profoundly anti-liberty decision.
Over the past fifty years women have become considerably more empowered.
The percentage of Americans following the dictates of organized religion is at an all-time low.

I’m old, and I remember 1973.

In 1973, my mother–who was considered pretty liberated for her time– was still saying things like “Men won’t buy the cow if they can get the milk for free.” Women who had sex outside of marriage were considered sluts. Women who dared to have both children and careers were “obviously” bad mothers. Women who weren’t married were pitied and called “old maids.” Women who earned more than their husbands were “castrating.” Women who played sports were unfeminine–and the very few women who wanted to report on sports were barred from male players’ locker rooms…It was 1974 before we could even get our own credit cards.

In short, a lot has changed since 1973. As a recent car commercial puts it, “this isn’t your father’s Oldsmobile.”

In 1971, Helen Reddy wrote our anthem..

In 2022, I think women really are going to roar.

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