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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Where Do We Place The Lever?

I was going through some files recently, and came across a Governing essay from last September that echoed my own growing despair over what the author called “the situation.” He’d been invited to a conference that was ostensibly about the future of the Badlands, but during the telephoned invitation, it was suggested that they would also discuss “the situation.”

That phrase triggered his inquiry.

For the rest of the evening, I tried to determine what might be meant by “the situation.” I know, I could simply have picked up the phone and asked a few questions, but I thought it was an interesting exercise. It’s easy enough to get started. America seems to be disintegrating. Our national political system seems to be paralyzed. There is a great deal of anger and distrust awash in the land. Each of the two main tribes (the Right and the Left) declares that the other one is a clear and present danger to the future of civilization. Some tens of millions of people continue to argue, and perhaps believe, that the 2020 election was stolen. We cannot even agree on basic public health measures in the face of the worst global pandemic in more than 100 years.

If–as he assumed–these and other crises we face are what was meant by “the situation,” what could be accomplished in that discussion? As he noted, it’s a lot easier to diagnose “the situation” than to identify a prescription.

More civility? A great and inspiring leader with the idealism of Barack Obama and the oomph of Theodore Roosevelt? Some self-restraint by the 24-7 cable media? A return to the Fairness Doctrine? I can hear one participant saying we’d be just fine if we could only get back to the intentions of the Founding Fathers; and another urging the progressives to terminate the filibuster and pass rafts of reform legislation along the lines of the New Deal and Lyndon Johnson’s Great Society. One person would argue that we must abolish the Electoral College, another that we should pack the Supreme Court.

The fact that his imagined conversation was self-evidently inadequate to the challenge mirrors much of the conversation on this blog: there’s general agreement that America’s society is in crisis and its governance is in thrall to a minority composed of frightened, uninformed  and frequently deranged citizens–but there is no such agreement when it comes to the really important question: what must we do?

The author illustrated the dilemma by quoting Archimedes, who said, “show me where to put the lever and I will move the world.” The question, as he noted, is: where do we put the lever?

After citing research showing that that 43 million Americans (about one in nine) are illiterate, he makes a point that I endlessly repeat:

If American citizens don’t know the difference between an impeachment and an impeachment trial, if they don’t know the difference between an emolument and an embolism, if they don’t understand the constitutional function of the Supreme Court, if they think Obamacare is socialism but Medicare a sacred American right, how can we expect to keep the republic alive? In a letter to Charles Yancey in 1816, Thomas Jefferson wrote, “if a nation expects to be ignorant & free, in a state of civilization, it expects what never was & never will be.”

Ignorance, of course, isn’t the only threat to democracy and stability. The vast and growing divide between the rich and the rest is a clear danger. The author writes that the inability of our government to address climate change is another–and he wrote this essay before the Supreme Court further hobbled government’s ability to do so. He acknowledges the ongoing legacy of slavery, and the racism that is an all-too-obvious motivation of the MAGA crowds. He gives a nod to Eisenhower”s warning about the dangers of an unrestrained military-industrial complex.

Unsurprisingly, the author of the essay doesn’t answer his own question. Instead, he argues (feebly) for a “spiritual renaissance.” I think the reason I haven’t previously written about this particular essay is my instinctive aversion to that cop-out. This often-encountered longing for a “renaissance” rests on a very dubious belief that Americans were once more “spiritual”–a belief uncomfortably close to the “we were once a Christian nation” fantasy. In any event, he is silent on the rather significant question of how the desired increase in spirituality is to be obtained.

So here we are–like doctors who can describe the disease but have no magic potion with which to treat it. We’re left with what is, admittedly, a very good question: where do we put Archimedes’ lever?

It’s a question that suggests another: are our problems far too numerous for a lever even to work?

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Where’s George Soros When We Need Him?

Despite all the accusations prompted by MAGA fever dreamers (George Soros paid for those Jewish space lasers over California!), normal Americans don’t have anything remotely commensurate with the funding sources and highly sophisticated organizational infrastructure of the far Right. That worries me.

A recent report from the Tampa Bay Times began by following just one of the many astroturf groups masquerading as spontaneous grassroots organizations.

This one was “Moms for Liberty.” Much like similarly misnamed organizations (“Patriots for Truth, Justice & the American Way,” or “Grandmas for Cuddly Kittens”), “Moms for Liberty” emerged pretty much full grown during the most recent assault on public education. The author applied a four-part test to determine whether any particular educational group was legitimate or contrived.

The first part of the test is financial: has the organization grown at a pace that only an undisclosed donor’s monetary resources could manage?

Moms for Liberty incorporated as an Internal Revenue Code 501(c)(4) organization, a form that lends itself to dark money political shenanigans. It exploded on the scene with its leaders being guests on Fox News and breaking into the Washington Post. It has a well-developed website and extensive social media reach. Moms for Liberty has formed three federal and one state political action committees, one of which is a SuperPAC able to accept unlimited donations. Its careers page is seeking state coordinators to work with the chapter chair coordinator, and a communications officer.

This “grassroots” group of “just-your-average-mom” members also managed to hold a fund raiser with Megyn Kelly (top ticket $20,000), and to co-host The American Dream Conference featuring former Trump Cabinet secretary Ben Carson. An upcoming national summit (presenting sponsorships for $50,000 are sold out), will feature Ron DeSantis, Carson, Sen. Rick Scott and Betsy DeVos.

Just your average PTA members….

So who is really funding these Rightwing mamas? Here’s a clue: they aren’t getting by on T-shirt sales.

They’ve barely even heard of the Koch brothers! Yet perhaps they’ve heard of the Council for National Policy. Two of Moms for Liberty’s National Summit sponsors, the Leadership Institute and Heritage Foundation are critical members of the Council for National Policy, a secretive network of right wing billionaires and Christian fundamentalist leaders that underwrites and coordinates right wing politics.

When the author looked to see who is really running the operation, he found that one of the two purported “founders” –Tina Descovich –is a communications and marketing professional. The other–Tiffany Justice (surely not her real name)– is a former Florida school committee member. He also discovered a third, “silent” founder, one Bridget Ziegler, whose husband just happens to be vice chairman of the Florida Republican Party and the owner of a political marketing firm. He has boasted that Moms for Liberty will provide crucial ground support for DeSantis’ re-election.

Another part of the test revolves around whether the genuinely grassroots folks suckered into joining the organization have any clue what the organization is  really all about. Moms for Liberty may have “activated and harnessed” actual anger and grievance, but–as the article notes–that doesn’t mean those people understand that they are being manipulation for partisan political purposes.

Perhaps the most telling aspect of the author’s “deep dive” into the bona fides of Moms for Liberty is the identification of the nefarious network of which it is a part:

Then there’s the odd coincidence of so many grassroots parents organizations arising at the same time with similar missions. Parents Defending Education is Koch-connected. The Koch-funded American Legislative Exchange Council claims credit for the havoc wreaked by anti-Critical Race Theory legislation. The Council for National Policy’s Leadership Institute commenced its own program to take over school boards. The Council for National Policy-connected Turning Point USA initiated a School Board Watch List for reporting “woke” school boards.

Reading all this, I vacillated between disgust and grudging admiration. These interlocking astroturf organizations are dishonest and manipulative–but they’re effective. You’ve got to give the Christian Nationalists credit for their success in controlling the narrative, and making it far more probable that America will continue to be dominated by a minority of truly despicable theocrats.

Meanwhile, the people I consider to be “the good guys” are happily forming circular firing squads and scrounging for five-dollar donations on Facebook. If Soros is funding any of them, I’ve missed it.

Have I mentioned that I’ve been hitting the booze more frequently since 2016?

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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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The Trump Court

I’ve been on the email list of the Brookings Institution for a number of years. It was–and is– an excellent source of thoughtful, balanced policy analyses, and it provided me with valuable background for my classes when I was teaching Law and Policy.

Over the years, I’ve become accustomed to the language and style of Brookings publications–very consistent with that of academic discourse and a variety of other highly credible, scholarly resources. (Not like the snark you often get here.) So I was bemused–to put it mildly– by the opening paragraphs of a recent essay. 

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected.” With those chilling words an illegitimately obtained Supreme Court majority tore up the lives of Americans & the Constitution in the Dobbs opinion authored by Justice Samuel Alito. The votes for this opinion were only available because Merrick Garland was wrongly blockaded at the end of the Obama administration and Amy Coney Barrett hypocritically jammed through at the end of the Trump one.

The Alito opinion comes in the midst of congressional hearings exposing the sickness of Trump’s style of governance—Trumpery, as we term it in a new book. The Dobbs opinion also exemplifies Trumpery, and its features provide a useful framework for understanding just how bad the opinion is. The Court should be known from here on out as the Trump Court.

Perhaps the single most defining characteristic of Trumpery is its disdain for the rule of law. The Alito opinion in the Dobbs case has that in spades. A central tenet of Supreme Court jurisprudence is stare decisis, the idea that once the Supreme Court has ruled on something, it is settled law and is entitled to permanence, even if later courts may disagree with it. That is particularly true where you have a decades long established precedent like Roe.

It is certainly true that past Courts have overruled settled precedents when it has become blindingly obvious that they are unjust and/or inconsistent with contemporary science and mores–Plessy v. Ferguson and Bowers v. Hardwick come to mind. But the thrust of the quoted paragraph is accurate; until the elevation of theocratic jurists intent upon the destruction of jurisprudence equating  liberty with a significant degree of personal autonomy, precedents were accorded a high level of deference.

The essay proceeded to compare the current iteration of the Supreme Court to Trump’s incessant assaults on democratic norms– assaults that the January 6th Committee hearings are meticulously documenting.

As we are being painfully reminded in the Jan. 6 hearings, that assault over time undermined and weakened the executive branch and Americans’ faith in it. Alito and the five justices who joined with him are sending the Supreme Court down that same slippery slope.

The authors make a point that I have made repeatedly in the wake of this deeply dishonest decision–it didn’t just take aim at abortion. It was a point that Justice Thomas acknowledged in his concurrence:

“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Americans’ right to contraception, to make consensual choices in the bedroom and to same-sex marriage are all up for grabs. How long before states are also free to re-criminalize premarital sex and interracial relationships?

There are other parallels: Trump was shameless, and the authors point out that–like Trump–Alito displays absolutely no embarrassment about the rampant dishonesty of his opinion, dishonesty that was necessary in order to reach a result he personally favored. Nor does this Court care about the social consequences of a predictably divisive opinion. Alito wrote “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”

Of course, concern about public reaction is one reason for the doctrine of stare decisis, which aims to avoid abruptly upsetting long-settled rules and expectations. Intensifying social divisions was also a Trumpian trademark, and as the authors note, “this opinion smacks of a similar approach.”

It’s hard to disagree with the authors’ conclusion that this decision–one of this term’s string of shocking and damaging departures from settled jurisprudence– will decimate  what is left of the legitimacy of the Supreme Court.

Although it was news to Alabama’s current Senator, the U.S. has three branches of government. Unfortunately, none are currently functional.

We have a gridlocked Congress, immobilized by lawmakers putting fealty  to party over loyalty to country; an Executive whose agenda is obstructed by that Congress; and now, a rogue Court disdained and distrusted by a majority of citizens.

That’s a description of a failed state.

No wonder the language employed by Brookings these days is less restrained.

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