Personal Autonomy – Page 9

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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Don’t Know Much About History…

It’s not just a song by Sam Cooke…

This Fourth of July, Americans aren’t only fighting over our future; we are also fighting over our past–and the need to learn from it. That requires a clear-eyed encounter with history– accurate history.

Efforts to teach a non-whitewashed ( pun intended) history in the public schools has been met with so-called “anti-CRT” bills, angry parents accusing school boards of blaming today’s children for the sins of the past, and “patriotic Americans” demanding that history classes emphasize the ‘greatness” of the country and minimize or ignore deviations from our Constitutional aspirations.

The Supreme Court was able to count on that ignorance of actual history in its decision in Dobbs v. Jackson.

In that decision overruling Roe v. Wade, Justice Alito relied substantially on a dishonest recitation of American history to justify his result. Few Americans were in a position to point to that dishonesty and set the record straight. I have previously posted on this subject, but let me repeat a portion of what Randall Ballmer, an eminent historian of Evangelical Christianity, has written.

Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

Ballmer tells us that Falwell and Weyrich, who were furious about efforts to tax their segregation academies, were “savvy enough” to recognize that organizing grassroots evangelicals to defend racial discrimination would encounter moral blowback. “Saving babies” was far more palatable.

Another scholar who has criticized the ahistorical tale told by Justice Alito is Geoffrey Stone, who authored “Sex and the Constitution” and teaches law at the University of Chicago. Stone was a Supreme Court Clerk when Roe was decided; as he says,

Americans, almost all, believed at that time that abortion had always been illegal, that it had always been criminal. And no one would have imagined that abortion was legal in every state at the time the Constitution was adopted, and it was fairly common. But people didn’t know that.

The justices came to understand the history of abortion partly because [Justice Harry] Blackmun previously had been general counsel [at the Mayo Clinic] and researched all this stuff. But this history also began to be put forth by the women’s movement. And this was eye-opening to the justices, because they had, I’m sure every one of them, assumed abortion had been illegal back to the beginning of Christianity. And they were just shocked to realize that was not the case, and that prohibiting abortion was impairing what the framers thought to be … a woman’s “fundamental interest.”…

In the 18th century, abortion was completely legal before what was called the “quickening” of a fetus – when a woman could first feel fetal movement, or roughly four and a half months through a pregnancy. No state prohibited it, and it was common. Post-quickening, about half the states prohibited abortion at the time the Constitution was adopted. But even post-quickening, very few people were ever prosecuted for getting an abortion or performing an abortion in the founding era.

This accurate history gives the lie to Justice Alito’s claim that the right to abortion was not ” deeply rooted in the nation’s history and traditions.” Several other historians–notably Heather Cox Richardson–have also disputed Alito’s characterization.

It’s highly unlikely that teaching more accurate history would have included the history of reproductive rights, but it would have–and should have–included those elements of the American past that gave rise to the racial and religious divisions we are experiencing today. Going through school, as I did, without ever encountering the Trail of Tears, the Tulsa massacre, the rise of the KKK and so much else leaves students without important context they need in order to understand today’s political debates. (It’s not just the omissions; we are now discovering that the tales we were told, and told to remember, were often twisted...)

As legal scholar Akhil Reed Amar recently argued, “originalism” needn’t be dismissed as simply a dishonest tactic employed by radically conservative judges. Based on good, accurate history, it can be surprisingly progressive.

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Whose Religious Liberty?

Well, finally! A lawsuit just filed in Florida raises an important and far too frequently ignored aspect of the First Amendment’s religion clauses. What happens when “religious liberty” becomes a code word meaning “Liberty for my particular religion’s doctrine, but not for yours?”

The Supreme Court majority that (according to the leaked draft opinion) will overturn Roe v. Wade within the next few weeks is composed of Catholics who have been very vocal about the importance of protecting religious liberty–as they evidently define it. The problem is, their definition of liberty differs from that held by a very large number of Americans who believe that all citizens are free to follow the doctrines of their particular religions. When applied to the issue of abortion, for example, people whose beliefs prohibit it are protected from measures requiring it, and people whose beliefs allow (or even, in some situations, require) it can follow their beliefs.

In other words, if your beliefs prohibit abortion, you don’t have to have one. If they don’t, you can.

That definition of religious liberty is at the heart of the lawsuit filed in Florida. According to the Religion News Service,

A new Florida law prohibiting abortion after 15 weeks with some exceptions violates religious freedom rights of Jews in addition to the state constitution’s privacy protections, a synagogue claims in a lawsuit.

The lawsuit filed by the Congregation L’Dor Va-Dor of Boynton Beach contends the law that takes effect July 1 violates Jewish teachings, which state abortion “is required if necessary to protect the health, mental or physical well-being of the woman” and for other reasons.

“As such, the act prohibits Jewish women from practicing their faith free of government intrusion and this violates their privacy rights and religious freedom,” says the lawsuit, filed last week in Leon County Circuit Court.

The lawsuit adds that people who “do not share the religious views reflected in the act will suffer” and that it “threatens the Jewish people by imposing the laws of other religions upon Jews.”

The new Florida law has exceptions only for terminations necessary to save the life of the mother or prevent serious injury, or for a fetus with a fatal abnormality. It does not contain exemptions for pregnancies resulting from rape, incest or human trafficking.

The Rabbi of the synagogue that filed the lawsuit was quoted as saying that when separation of religion and government crumbles, religious minorities often suffer. And he noted that DeSantis had signed the law at an evangelical Christian church.

This lawsuit is yet another illustration of an element of the expected decision that has received far too little attention: it goes to the very heart of current constitutional jurisprudence, which is concerned with drawing a line between those matters that government can properly regulate and those that are to be left to the individual. Reversal of Roe attacks the conceptual underpinning of a doctrine known as “substantive due process,” which is focused on where that line must be drawn, and the very simple–and very profound–question: who decides?

In a free country–a country that takes liberty seriously–who gets to decide what prayer you say, what book you read, who you marry, whether and when you procreate?

For the past fifty years, with some hiccups, American law has answered that question by respecting the rights of individuals and religious communities to determine those and similarly personal issues–issues that the Court has dubbed “intimate”–for themselves. I would argue that the right to make our own personal, medical, political and religious decisions in the exercise of our individual consciences is the proper definition of liberty.

(Decisions to forego mask wearing and other decisions that endanger others, not so much.)

America is currently going through a wrenching transition. Religious and racial groups that were once so dominant that minority communities and their beliefs were (at best) marginalized and ignored are losing their cultural dominance, and many members of those groups are hysterical about it. Others are simply clueless–so insulated within traditional ways of understanding the society they inhabit that they are unable to understand the claims of those who differ–as Jewish law differs from much of Christianity on the issue of abortion.

“Freedom for me, but not for thee” isn’t freedom at all. It’s privilege, and privileges can be withdrawn. What’s that observation we civil libertarians love to quote? “Poison gas is a great weapon until the wind shifts.”

Either religious liberty is liberty for adherents of all religions, or it isn’t liberty at all. This lawsuit illustrates the danger of letting government make decisions that favor the doctrines of some religions to the detriment of others.

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Cultural Combat

David Brooks is one of those pundits who just drives me bonkers. Half the time, he comes across as self-satisfied pedagogue. Other times, he can be uncommonly perceptive. You never know what you’ll get.

In a recent essay, both elements were present..

Brooks begins by quoting (approvingly) a conservative writer who faults “progressive elites” for their presumed inability to understand the battle over social issues in American life as “anything other than a battle between the forces of truth and justice on one side and those of ignorance and bigotry on the other.” He takes several subsequent paragraphs to lecture readers on the legitimacy of Republican cultural views–a lecture that would have been defensible “back in the day,” when most Republicans were conservatives rather than White Supremicist QAnon believers.

Brooks’ introductory paragraphs are barf-inducing:

Many progressives have developed an inability to see how good and wise people could be on the other side, a lazy tendency to assume that anybody who’s not a social progressive must be a racist or a misogynist.

This framing carefully avoids defining either the “other side,” or the enormous amount of credible research confirming the transformation of what used to be a normal political party into something very different–and very dark. Pretending that transformation didn’t occur–ignoring the fact that “good and wise” people are leaving the GOP in droves, appalled by what it has become, is simply dishonest.

It’s one thing to criticize strategy–to point out, as Brooks does, that much of progressive elite discourse comes across as preachy as Brooks himself, and can be distinctly unhelpful politically–is fair enough. Insisting that fair-minded, moral people must respect what the GOP has become, however, is to bury one’s head very far down in the alternative-reality sand.

In the second half of his essay, however, Brooks does a very good job of summarizing the rival moral traditions that undergird our culture wars, and summarizing the strengths and weaknesses of each.

Here is how he describes the “moral freedom” ethos:

It is wrong to try to impose your morality or your religious faith on others. Society goes wrong when it prevents gay people from marrying who they want, when it restricts the choices women can make, when it demeans transgender people by restricting where they can go to the bathroom and what sports they can play after school.

This moral freedom ethos has made modern life better in a variety of ways. There are now fewer restrictions that repress and discriminate against people from marginalized groups. Women have more social freedom to craft their own lives and to be respected for the choices they make. People in the L.G.B.T.Q. communities have greater opportunities to lead open and flourishing lives. There’s less conformity. There’s more tolerance for different lifestyles. There’s less repression and more openness about sex. People have more freedom to discover and express their true selves.

However, there are weaknesses. The moral freedom ethos puts tremendous emphasis on individual conscience and freedom of choice. Can a society thrive if there is no shared moral order?

He then describes the countervailing position.

People who subscribe to this worldview believe that individuals are embedded in a larger and pre-existing moral order in which there is objective moral truth, independent of the knower….

In this ethos, ultimate authority is outside the self. For many people who share this worldview, the ultimate source of authority is God’s truth, as revealed in Scripture. For others, the ultimate moral authority is the community and its traditions.

We’re in a different moral world here, with emphasis on obedience, dependence, deference and supplication. This moral tradition has a loftier vision of perfect good, but it takes a dimmer view of human nature: Left to their own devices, people will tend to be selfish and shortsighted. They will rebel against the established order and seek autonomy.

Brooks recognizes the weaknesses of this tradition: it often leads to “rigid moral codes that people with power use to justify systems of oppression” and facilitates “othering — people not in our moral order are inferior and can be conquered and oppressed.”

He also recognizes that the United States has opted for autonomy–legally and culturally.

This is the ultimate crisis on the right. Many conservatives say there is an objective moral order that demands obedience, but they’ve been formed by America’s prevailing autonomy culture, just like everybody else. In practice, they don’t actually want to surrender obediently to a force outside themselves; they want to make up their own minds. The autonomous self has triumphed across the political spectrum, on the left where it makes sense, and also on the right, where it doesn’t.

Nor is he entirely blind to the threat posed by Rightwing Christianist politics:

Consumed by the passion of the culture wars, many traditionalists and conservative Christians have adopted a hypermasculine warrior ethos diametrically opposed to the Sermon on the Mount moral order they claim as their guide. Unable to get people to embrace their moral order through suasion, they now seek to impose their moral order through politics. A movement that claims to make God their god now makes politics god. What was once a faith is now mostly a tribe…

So is there room in the Democratic Party for people who don’t subscribe to the progressive moral tradition but are appalled by what conservatism has become?

I’d rephrase that last question: will American politics ever return to the era of the “big tents,” when conservative Democrats and liberal Republicans overlapped? The answer to that hinges on another, more critical inquiry: will today’s GOP either (1) return to sanity or (2) implode and be replaced by a sane political party?

Because we can’t consider and/or debate Brooks’ philosophical arguments while the barbarians are at the gate..

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One More Time…

Can you stand one more post about the Supreme Court’s attack on our fundamental freedoms?

To begin with, when he was asked to comment on Alito’s draft decision, “Mayor Pete” knocked it out of the park. You need to watch this.

Then, in a Facebook Post, my lawyer friend David Honig pointed to Alito’s deeply dishonest “history.”

May I take a moment to comment on one aspect of the shocking dishonesty of Alito’s draft abortion opinion? It’s just one, but it highlights the rest.

Alito and his ilk claim to be “originalists,” wise jurists who look to the meaning of words at the time the Constitution was written, in 1789, to glean their meaning.
One fact first. The 9th Amendment says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That means there are rights that aren’t written down, rights that people retain. That would include all the rights, according to an “originalist,” that they held in 1789.

So Alito, in his draft decision, spent paragraphs on the sudden explosion of anti-abortion laws in the mid 19th Century, many decades after the writing of the Constitution, to support his position that abortion wasn’t an existing right to be preserved.

Why would he do that? Why would an “originalist” look, not to the time of the writing of the Constitution, but to a century later, for the very core of the originalist argument?

Because he’s a damned liar.

During Colonial times abortion was quite common. The usual method was actually drinking oil of peppermint, or perhpas black root or cedar root, carefully measured to be enough to cause spontaneous abortion, while not threatening the life of the mother. In English colonies, contrary to Alito’s blatant lie that abortion was illegal from the beginning of Common Law, it was legal until “quickening,” when the fetus could be felt moving.

So my point here isn’t to dive headlong into the abortion debate.

My point is to start the discussion with a fact – the opinion coming down is a lie premised on a lie based on lies.

Whatever you think of abortion, this must color what you think of the Court. The United States Supreme Court has been an actor for good and for ill in our nation over time. The same entity that gave us Plessy vs. Ferguson gave us Brown vs. Board of Education.

But today, that Court is giving us lies in favor of a political, and to some extent religious,* opinion, and doing so boldly and without apology. The end justifies the means, even if it means the United States Supreme Court is a filthy den of liars with as much credibility as the three card monty player on a dingy street corner.

As a man who has spent nearly 40 years working for and believing in the rule of law, while recognizing it is imperfect, the indisputable fact that it is now, from its highest temple, not merely imperfect, but dishonest, is crushing.

Finally, in a footnote, David warns us not to underestimate the degree to which the opinion codifies a conservative version of Christianity as our nation’s one true religion and source of law; as he notes, other religions do not hold the same tenets about abortion that Alito privileges in his dishonest diatribe. Jewish law, for example, considers abortion permissible, as do several Christian denominations. This Court prides itself on what it calls “religious liberty,” but–as David points out–it is really protecting and elevating one version of Christianity, while ignoring the liberties of those who hold different religious, beliefs.

It’s America’s version of Sharia law.

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