Dobbs – Sheila Kennedy

One More Time

There are numerous reasons to vote straight Blue this November. But forgive me for returning to my argument that reproductive rights tops them all, and not just because women deserve the same bodily autonomy as men.

In a very real sense, Justice Alito threw down the gauntlet in Dobbs. That decision didn’t just eliminate a constitutional right that American jurisprudence had recognized for fifty years–it dealt a potentially fatal blow to the philosophy upon which our entire constitutional edifice rests.

Before I (once again) explain why that assertion is not hyperbole, let me connect the dots between Dobbs and the recent, blatantly theocratic decision from Alabama equating a frozen embryo with a living, breathing child. As Jamelle Bouie recently wrote in the New York Times, key parts of the Republican coalition demand fetal personhood.

There’s no question that the Alabama decision would not have been possible without the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which revoked the constitutional right to an abortion. In doing so, the court gave states and state courts wide leeway to restrict the bodily autonomy and reproductive freedom of Americans, in the name of protecting life.

That the Dobbs decision would threaten I.V.F. was obvious from the moment the Supreme Court released its opinion in June 2022. That’s why, toward the end of 2022, Senate Democrats introduced a bill to protect the right to use in vitro fertilization. It did not come up for a vote.

Bouie points out that the Justices who delivered Dobbs were placed on the Court as part of an explicit transaction in which Trump traded American women’s rights for the support of Evangelical voters.

What’s important, for thinking about a second Trump presidency, is that fetal personhood is the next battlefield in the anti-abortion movement’s war on reproductive rights, and conservative evangelicals are among those groups waving the standard. As one such activist, Jason Rapert of the National Association of Christian Lawmakers, told The New York Times regarding the Alabama court decision, “It further affirms that life begins at conception.”

At least 11 states, The Washington Post notes, have “broadly defined personhood as beginning at fertilization in their state laws.”

It does not matter whether Trump rhetorically supports access to I.V.F. treatments. What matters is whether he would buck the priorities of his most steadfast supporters and veto a bill establishing fetal personhood across the United States.

As we all know, he would not.

A Republican win in November would guarantee further erosion of reproductive rights– but as I have repeatedly argued, it would do far more than that.

Dobbs was a frontal attack on the doctrine of 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.

Constitutional scholars argue that the right to personal autonomy has always been inherent in the Bill of Rights, but it was explicitly recognized in 1965, in Griswold v. Connecticut. Connecticut’s legislature had passed a law prohibiting the use of birth control by married couples. The law prohibited doctors from prescribing contraceptives and 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 recognition of a right to personal autonomy—the right to self-government—is essential to the enforcement of other provisions of the Bill of Rights. Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the terminology “substantive due process” comes from. Wherever it resided–in a “penumbra” or the 14th Amendment—the Justices agreed on both its presence and importance.

The doctrine of Substantive Due Process draws a line 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 in America is who gets to make that decision.

Enabling autocracy–destroying our current system of democratic majorities restrained by the Bill of Rights– requires eliminating substantive due process. Dobbs thus opened a pathway to an enormous expansion of government power.

Outlawing IVF is just a way station…..

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Chasing Those ‘Elitists” Away

Even policies that are adopted after extensive research and thoughtful debate often generate unanticipated consequences, so it shouldn’t be a surprise that a policy based on rejection of relevant evidence and refusal to engage in debate is rapidly degrading access to medical care in Red states.

I’m referring, obviously, to the abortion bans that were enacted (or triggered) immediately after the Dobbs decision overturned Roe v. Wade.

In November, Timothy Noah reported that warnings of an eventual “brain drain” caused by those bans had the timing wrong: it wasn’t “eventual”–it was already occurring. Red state culture wars aren’t only creating medical care “deserts,” they’re driving other college-educated workers— teachers, professors, and more—out as well.

Noah began his article by telling the story of a married same-sex couple, both Ob-Gyns practicing in Oklahoma. They now live in Washington, D.C.–a move that doubled their housing costs and reduced their pay. (It turns out that Red states, which have fewer Ob-Gyns, pay doctors significantly higher wages than states where there are ample practitioners.)

Kate Arnold and Caroline Flint are two bright, energetic, professionally trained, and public-spirited women whom Washington is happy to welcome—they both quickly found jobs—even though it doesn’t particularly need them. The places that need Kate and Caroline are Oklahoma and Mississippi and Idaho and various other conservative states where similar stories are playing out daily. These two fortyish doctors have joined an out-migration of young professionals—accelerated by the culture wars of recent years and pushed to warp speed by Dobbs—that’s known as the Red State Brain Drain.

Abortion restrictions have turbocharged that brain drain, but state laws restricting “everything from academic tenure to transgender health care to the teaching of ‘divisive concepts’ about race” are making these states uncongenial to other knowledge workers.

The number of applications for OB-GYN residencies is down more than 10 percent in states that have banned abortion since Dobbs. Forty-eight teachers in Hernando County, Florida, fed up with “Don’t Say Gay” and other new laws restricting what they can teach, resigned or retired at the end of the last school year. A North Carolina law confining transgender people to bathrooms in accordance with what it said on their birth certificate was projected, before it was repealed, to cost that state $3.76 billion in business investment, including the loss of a planned global operations center for PayPal in Charlotte. A survey of college faculty in four red states (Texas, Florida, Georgia, and North Carolina) about political interference in higher education found a falloff in the number of job candidates for faculty positions, and 67 percent of the respondents said they would not recommend their state to colleagues as a place to work. Indeed, nearly one-third said they were actively considering employment elsewhere.

Here in Indiana, school corporations are experiencing dramatically higher teacher vacancies, and like other Red states, Hoosier rural residents struggle to find medical care–and not just prenatal care. It seems it isn’t just Ob-Gyn practitioners who are abandoning Red states.

Family doctors are also “reassessing” their options–and training availability.

Researchers from the Person-Centered Reproductive Health Program at the University of California San Francisco have found there is reason to be concerned about training for family physicians in ban states as well.

A study published in the November-December issue of the Annals of Family Medicine found that 29% or 201 of 693 accredited family medicine residency programs in the U.S., are in states with abortion bans or significant restrictions on abortion access. The study used publicly available data from the American Medical Association to conduct the analysis, and found 3,930 residents out of 13,541 were in states where abortion is banned or heavily restricted.

For practitioners who remain in those states, the training they are now able to receive deprives them of the skills they need to deal with miscarriages and various problems in pregnancy. Residents in those states no longer have access to comprehensive reproductive health training because they’re not experiencing it within their state context. As the lead researcher explains, “they cannot see abortions, cannot perform them, cannot learn how to care for patients after abortions in the same way they would be able to if they were working in a state where abortion was unrestricted.” As she points out, early pregnancy loss is very common, and the skill set for caring for that and first trimester abortion are very similar.

It bears repeating that the exodus of educated citizens isn’t limited to medical professionals. (MAGA Republicans are actually applauding the exit of the teachers and professors they distrust.) Ironically, the rural folks these MAGA lawmakers disproportionately represent are the ones first experiencing the “unintended consequences” of their misogyny–the absence of teachers and doctors.

It will only get worse…..

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Well, What Do You Know? It DIDN’T Get Worse

Yesterday’s post ended with a gloomy “I don’t know how it can get worse.” Today, the news is considerably brighter.

I have no idea what day it is in the U.S. (Here on board the cruise ship, where we keep crossing the international dateline, the elevators helpfully have carpets that tell us the day of the week–they’re changed daily. Unfortunately, so are the clocks…). Whatever. The day before yesterday (I think), I accessed the results of the 2023 election, and boy do I feel better!

I’m sure everyone who follows this blog already knows what a very good day Tuesday was for Democrats, and for reproductive autonomy.

Ohio voters incorporated abortion rights in that state’s constitution. (They also gave a green light to weed…). In Virginia, where the Republican governor had promised to pass a “moderate” ban on abortion if voters gave him control of the state’s legislature, the Democrats hung on to their majority in the state Senate and took control of the House.

In Red Kentucky, Democrat Andy Beshear defeated a “pro life” Republican to retain the Governor’s office. Less surprising–but still satisfying–Democrats won big in New Jersey.

The news was even good in depressingly Red Indiana.

In Indianapolis, in what has been billed the most expensive Mayoral race ever, Democrat Joe Hogsett won handily over Jefferson Shreve, who put more than thirteen million dollars of his own money into one of the worst and most annoying campaigns I’ve seen–he came across as a creepy guy willing to say pretty much anything to get elected (Issue consistency wasn’t his strong suit.) Given that this will be Hogsett’s third term–and given that he is not all that popular even among Democrats–it should have been closer; as it was, it was just a monumental waste of Shreve’s money.

With the exception of a disappointing loss in Carmel, indiana, where the Republican candidate repeatedly refused to criticize the local Mom’s for Liberty theocrats who’d “accidentally” quoted Hitler, Democrats did surprisingly well around the state: they flipped several mayoral offices from Republican to Democratic, including Evansville, Terre Haute, Lawrence, Michigan City, West Lafayette and Hobart.

Every local election is ultimately about the candidates in that race, but I remain absolutely convinced that Democrats owe a big thank-you to Justice Alito and his profoundly stupid, dishonest and unAmerican decision in Dobbs.

What a significant majority of Americans understand–at least at a visceral level–is that Dobbs isn’t simply about a woman’s right to terminate a pregnancy–important as that right is. It is about the power of the state to dictate our most personal decisions.

Back when I was a Republican, the GOP stood for limiting government interventions to those areas of our common lives that clearly require government action. That is a position that is entirely consistent with the libertarian premise underlying 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 authoritarian, theocratic 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 Christian Nationalist views on everyone else.

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 very dangerous philosophy. The fundamental right of persons to determine for themselves the course of their own lives and the well-being of their families has become the central political issue of our time–and it isn’t an issue that affects only women.

For the last fifty years, the nation’s courts explicitly recognized the importance of drawing a line between decisions government can properly make and decision that–in our Constitutional system–must be left up to the individual. The decision in Dobbs very clearly threatens that fundamental understanding, and at some level, America’s voters recognize that threat and its very dire implications.

For much of the last fifty years, Republican electoral success relied upon turning out single-issue “pro life” voters. So long as Roe v. Wade remained in force, Democratic voters continued to base their votes on a range of issues, confident that the right to choose remained in place.

Then the dog caught the car.

Tuesday’s results bode well for 2024 and a return to American principles.

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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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In Case You Were Wondering…

In case you were wondering whether women will save America, as Morton Marcus and I argued in our recent book, or whether the GOP has radicalized a sufficient number of female voters to prevent a Blue Wave and block necessary reforms…

A few days ago, I wrote about the misnamed “Moms for Liberty,” and noted that the activism of rightwing women isn’t a new phenomenon. And that’s true–a “quick and dirty” list of reactionary women’s organizations would include at least the following:

The Daughters of the American Revolution (DAR), which has historically attracted conservative-leaning women and supported right-wing values.
The National Federation of Republican Women (NFRW), which serves as a grassroots network supporting Republican Party candidates and their increasingly radical policies.
Concerned Women for America (CWA) is a (truly scary) conservative Christian women’s organization supporting a fundamentalist list of “traditional family values”– it opposes abortion, same-sex marriage, and LGBTQ rights, among other positions.
Turning Point USA (TPUSA) isn’t an exclusively female organization, but it has a significant female following. It focuses its efforts on those “liberal” college campuses.

And of course, we now have “Moms for Liberty.”

On the other hand, there is an unmistakable and growing gender gap in American electoral politics: the Pew Research Center’s analysis of nationally validated voter data reported that, in 2020, 57% of women supported Biden, while 42% supported Trump. (I personally find it difficult to understand why any sentient American would support TFG, let alone 42% of women, but facts are facts….)

When it comes to policymakers, the differences between male and female legislators are pretty stark. On the one-year anniversary of the Dobbs decision, the Guardian ran an article–with pictures!–of all state-level legislators who had voted to ban or dramatically restrict abortion, and as the headline pointed out, they were “mostly men.”

To be precise, there were 1292 Republican men, 214 Republican women, 53 Democratic men, 11 Democratic women, and 2 independents.

Those numbers do reflect a considerable gender gap, but one that–I would argue–doesn’t reflect some inherent aspect of gender identity so much as individual experience. If American males had lived under a government that controlled what they could do with their bodies, while allowing women to control theirs, the gap would probably be reversed.

As I have repeatedly argued, Americans aren’t arguing about whether or not an individual woman should be able to abort a fetus. The issue is far more fundamental: What should be the limits of government authority over individual citizens?

“Moms for Liberty” is such a ridiculous title because giving government at any level–school boards or state legislatures or federal agencies–the authority to tell parents what their children can read or learn is the antithesis of liberty.

Giving government the power to force women to give birth, handing over to government the power to overrule the medical judgments of doctors and the considered decisions of parents, allowing government to overrule businesses’ decisions about diversity and inclusion–handing such broad authority to government is the opposite of liberty.

Our government was founded on the libertarian principle that people should be free to make their own decisions about their lives–their goals, their beliefs, their telos–so long as the individual is not harming the person or property of someone else, and so long as they are respecting the equal rights of others.

We can certainly argue about the nature of the harms that justify government interference, but that principle precludes defining “religious liberty” as the privileging of (selected) Christian beliefs. It precludes imposing the policy preferences of legislators on businesses that are otherwise behaving lawfully. It precludes empowering some parents to dictate to others what their children may read or what medical interventions are appropriate. It absolutely precludes forcing women to give birth.

Actual liberty demands a lot of people–first and foremost, the ability to live in a society where people who don’t always agree with you have the same right to personal autonomy that you do.

Women and men who understand the fundamental nature of the MAGA assault on liberty will vote Blue in 2024.

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