Tag Archives: reproductive freedom

Ah, Federalism…

One of this country’s ongoing struggles has been with the concept of federalism. Which rules should be nationally-imposed, and which should be left to those “laboratories of democracy” lionized by former Supreme Court Justice Brandeis?

Students who have been taught the actual history of the United States are aware of the multiple problems the country experienced under the Articles of Confederation; those problems were severe enough to prompt the replacement of the Articles with our current Constitution. In the (many) years since, however, we seem to have forgotten about the very negative consequences of government fragmentation.

Certainly, not all policy needs to be nationally uniform–there are plenty of areas where local control is appropriate. Questions about who is entitled to fundamental rights–and what those rights are–isn’t one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully.

The application of the Bill of Rights to state and local governments was meant to establish a floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

Over the 200+ years of American statehood, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission. The Commission drafts and promotes state enactment of uniform laws in areas of state law where uniformity has been recognized to be both desirable and practical. Probably the best-known uniform law is the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. It has national application, but it isn’t a federal law–it was uniformly adopted by each state’s legislature.

As the Commission’s website explains,

Uniformity of law is essential in this area for the interstate transaction of business. Because the UCC has been universally adopted, businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every American jurisdiction. The resulting certainty of business relationships allows businesses to grow and the American economy to thrive. For this reason, the UCC has been called “the backbone of American commerce.”

Obviously, commerce isn’t the only area where uniformity is “desirable and practical.” Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks.  Last March, Talking Points Memo addressed the disastrous results of Trump’s decision to leave COVID response to the states.

From the very start of the Pandemic in the first weeks of 2020 the Trump administration consistently sought to disclaim responsibility for things that would be genuinely difficult and could have challenging or bad outcomes. Push the tough tasks on to others and if it goes badly blame them. This frequently went to absurd lengths as when the White House insisted that states short on ventilators at the peak of the spring surge should have known to purchase them in advance of the pandemic. Over the course of the year Trump spun up an alternative reality in which the US was somehow still operating under the Articles of Confederation in which individual states were responsible for things that have been viewed as inherently federal responsibilities for decades or centuries.

It is not hyperbole to suggest that a more co-ordinated, federalized response wouldn’t just have saved lives, but in all likelihood would have cut short the period of most vulnerability.

No serious student of governance believes that, in a country as large and diverse as the United States, all decisions should be made at the federal level. The question with which we should be grappling is “which responsibilities are properly federal and which matters are properly left to state or local governments?” (Someone needs to tell Indiana Senator Braun that interracial marriage is not one of those…).

What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms?

I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to fundamental rights, not so much…



Indiana’s General Assembly–the Gift (to Bloggers) That Keeps On Giving

Doug Masson, one of the most thoughtful bloggers around, follows our legislature rather closely. Recently, he described one of the (many) stupid/scary bills that might actually become law, given the collective acumen of that not-so-august body.

You’d think the General Assembly that caught so much crap for trying to define pi would be a little careful with its definitions, but HB 1136 has a reckless swagger about its medical definition. Specifically, it says that “”Fetus” means a
human being produced by a human pregnancy from fertilization through birth, including a zygote, blastocyst, and fetus.”

The inaccuracies are part of a bill requiring Doctors to “talk to” women, to ensure that we sweet, dumb little things understand what we’re doing.

All in a day’s work for the men who think they were elected to be obstetricians.

Let’s acknowledge Masson’s point that the definitions used in HB 1136 have no scientific validity; fetus, zygote and blastocyst are not interchangeable terms, nor are any of them “human beings” in any meaningful sense of the word.

Far more annoying than this added evidence of legislative ignorance, however, is the persistence of efforts to control women’s bodies, to insert government into what should be personal and family decisions, and to make some people’s religious beliefs (no matter how uninformed, unscientific or unrepresentative) the law of the land.

We live in a state that ranks at the bottom of many indices: civic health, education, job creation, child poverty. Rather than making an effort to improve the lives of Hoosiers–including children already born–rather than enacting measures that would feed hungry children, rather than providing (or even regulating the safety of) daycare facilities, our elected officials are focused like lasers on controlling women’s “lady parts.”

News flash, autocrats: that Constitution you’ve never studied says that directing my most intimate personal decisions is not part of your job description.

Knowing the meaning of the words you use probably is, though.


Deja Vu All Over Again

For reasons only sociologists will understand, Americans have chosen this particular time to revisit issues about the status of women that I thought we’d settled decades ago.

There are a lot of parallels with racism. We elected a black President, but–faced with that stark evidence of progress–the not-inconsiderable numbers of remaining bigots crawled out from under their rocks. So this President “isn’t American” “wasn’t really born here” “is Muslim”  and must be defeated at all costs, even if that means opposing measures that are demonstrably good for the country.

Here in Indiana, gubernatorial candidates have each selected a woman running-mate. At the federal level, our Secretary of State is a woman; when the Democrats controlled the House of Representatives, a woman (gasp!) was Speaker. Everywhere you look, there’s evidence that women really have “come a long way, baby”–a long way from the days I still remember. When I went to law school, women couldn’t even have credit ratings separate from those of their husbands, there were still cultural barriers to women entering the workforce, and young women had few if any role models if they wanted to be anything other than wives and mothers.

Equal pay for equal work? Forget about it!

Family planning? Well, there was the rhythm method and condoms….

What really set women free, what really opened opportunity and set us out on a road to equality was an invention called the Pill. When women had access to reliable contraception, when we could control our reproduction, the world changed.

But just as the election of a black President horrified the throwbacks still clinging to white privilege, women’s steady progress has infuriated the throwbacks clinging to male privilege. (Not that the two categories are mutually exclusive.) There is no other explanation for the eruption of legislation aimed at rolling back the clock. That legislation has attacked women’s rights on multiple fronts (including, unbelievably, equal pay laws), but it is no accident that most of the assault has aimed at our ability to control our reproduction. That ability is the foundation of our equality, and the old men who resent that equality know it.

In this morning’s New York Times, Maureen Dowd takes on the Bishops of her own Catholic Church over their claims that HHS regulations requiring health insurers to provide birth control violates their religious liberty. The column is well worth reading, but her final sentence really sums it up:   “And the lawsuit reminds the rest [of us] that what the bishops portray as an attack on religion by the president is really an attack on women by the bishops.”

Jefferson was right: liberty requires eternal vigilance. Those of us who thought the fight for women’s rights had been won had better go dig out our battle gear.