Abortion

Mississippi Does the Right Thing for Once

Mississippi voted down a constitutional amendment to declare that fetuses are persons as of the moment of conception. Good! Remember, these sorts of things are just all kinds of unconstitutional. Congratulations then to Mississippi’s taxpayers, for avoiding the inevitable, expensive, necessary, but avoidable litigation that would’ve resulted.

Compelled Speech & Abortion: Two Wrongs…

Here’s a “pro-life” victory we can celebrate, even if it inures to the benefit of some of the worst organizations known to man.

A “crisis pregnancy center” is essentially a missionary outpost masquerading as a clinic. Designed to lure vulnerable women — resolved to seek an abortion, or as-of-yet undecided about how to respond to an unplanned pregnancy — CPCs promise to offer counseling, medical references, medical procedures, or some mixture thereof, but instead push one option only. Your fetus is a child; abortion is wrong; carry to term and seek adoption. Functionally, it’s an ideology-motivated bait-and-switch targeted to those most in need of honest, caring advice.

But if CPCs operate in derogation of the laws of nature — “don’t lie!” — they do not necessarily transgress against the laws of man. New York attempted to change that, issuing a law (NY Council Bill 371A) requiring defined organizations to (1) disclose (a) whether the center retained medical personnel on staff,  (b) whether it offered abortions, and, separately, (2) advise women to seek alternate medical advice, as necessary. Essentially the bill guaranteed transparency, by forcing CPCs to expose themselves for the frauds they are.

A laudable goal, but as a New York federal court properly held earlier this month, an unconstitutional one. The state may not compel private groups to toe the party line, and, all agree, it certainly cannot compel groups to  speak against their interest, even by means of a tied grant. Thanks to the Supreme Court, the law of “compelled speech” remains an incomprehensible mess — internally contradictory and based on what are, essentially, distinctions so fine as to be ad hoc, illusory, or deliberately disingenuous — but this is clearly right. CPCs may be monstrous, fraudulent, and abusive, but the First Amendment permits precisely these sorts of monstrosities in the absence of some duty running to the public at large.

What would be nice, though, is if courts would apply the rule across the board. NYC Bill 371A is, essentially, the benevolent inversion of another rule that the Supreme Court previously sustained, under a tortured and incomprehensible case called Rust v. Sullivan. In Rust, the government forbade doctors in receipt of federal funds from performing, discussing, or even providing a reference to women seeking an abortion. Chief Justice Rehnquist upheld the rule against constitutional challenge, and would distinguish it from the instance case by noting that the Rust rule requires neutrality — doctors must simply never mention abortion, positively or negatively – not advocacy of the government’s message. But does it? True “neutrality,” in the context of medical services, would be to take a hands-off approach and let physicians faithfully discharge their duties as medical professionals, without any interference from the government. Isn’t forcing a doctor to squeeze fact-bound medical decisions into an artificial, limiting framework of political neutrality a divergence from substantive neutrality, even if it appears neutral in form?

Yes, obviously. But like physics at the event horizon of a singularity, the rule of  law falls apart whenever it comes into contact with abortion ethics.

Glimmers of Intellect from Mitt Romney

It’s intensely interesting that candidates have to play dumb to get votes in the Republican what-passes-for-a-primary-so-far. But read this statement by Mitt Romney, on why he won’t sign a “pro-life pledge”:

The pledge also unduly burdens a president’s ability to appoint the most qualified individuals to a broad array of key positions in the federal government. I would expect every one of my appointees to carry out my policies on abortion and every other issue, irrespective of their personal views.

Emphasis mine. “Undue burden” is the rubric used by the Supreme Court to evaluate the constitutionality of restrictions on abortion ever since Casey. And, that decision came out well after Mitt graduated law school in 1975. We talk about dog whistle racism, but what about dog whistle intellectualism? Mitt’s a smart guy, we know; maybe this is his nod to supporters that, even though he can’t act smart, he actually knows what he’s talking about. Whether he’d act that way as President, well…

The Agreed-Upon Evil of Targeted Abortion

One of the National Review’s writers goes apoplectic over a television episode where the characters — though avowedly pro-choice — blanche at the prospect of targeted abortion, used to eliminate undesirable traits rather than in general family planning. Apparently there’s some contradiction between supporting “abortion on demand,” but posing moral limits to its application.

In fact, there is none. First, there is no such thing as “abortion on demand.” Although it suits the right to frame the issue that way, since Roe, there have always been considerable limits on the abortion right, and there are certainly even more today. Second, by supporting the notion that women may, with a minimum of government interference, elect to terminate a pregnancy, we nowhere imply that the decision shouldn’t be made with solemnity, and an appreciation for what it entails. That is to say, we agree it  shouldn’t be made freely. We would grant women the discretion to terminate a pregnancy, and hope that discretion is used responsibly.

Revulsion at how and why an individual chooses to exercise a right is not incompatible with the belief that they should have the right in the first place. Our writer’s belief to the contrary is actually quite revealing: contrary to the conservative trope, that government should get out of the way and let us make our own choices, the author apparently assumes that government regulation is the only meaningful way to express some moral limitation on the exercise of a constitutional right.

That is not, and cannot be true. The basis of a free society is the assumption that citizens can be trusted to make the right choices, without requiring the government to authorize their every step. Our Constitution unquestionably grants us important, even dangerous rights — like the right to bear arms, or even the right to raise a family — but all of those rights are circumscribed by duties both legal and moral. We can trust our citizens, and we shouldn’t use laws to secure that trust except where necessary.

Constitutional Decisionmaking: How Roe Undermines the Right’s Attack on Judicial Review

The National Review offers a poll-based rebuke of the position that the Supreme Court’s 1973 decision in Roe v. Wade came too soon, and prevented rather than preceded widespread public acceptance of a woman’s right to choose.

This is actually a popular position on the left, especially in the academy; some others of us, famously Justice Ruth Bader Ginsburg, “rue Roe” for reaching the right result on the wrong doctrine. For those actually looking to set enduring precedent — and that includes us commercial litigators, a lot of the time — doctrine matters.

In any event, NRO says all this to conclude that Roe was a bolt from the blue. Republicans generally assume as much, too, when tying Roe to their wider narrative about “judicial activism.” The benefit of having gone to my law school is that I can conclusively tell you that’s wrong.

As I’ve heard it from those who clerked on the Court while Roe was sub judice, the viciousness of the immediate and continuing public reaction to Roe shocked most of the Justices in the majority, including Blackmun and Brennan, because from their perspective, Roe was a good-faith and obvious expansion of existing doctrine. Because the Court was thinking of doctrine — not politics — when they decided Roe, the majority remained largely unprepared for the immediate public backlash.

In fact, the decision suffers for that. When judges want to protect a decision, they generally do it; think Brown v. Board of Education, where Chief Justice Earl Warren went so far as to beg Justice Vinson, on his hospital bed, to drop his dissent, just to make sure the decision was unanimous. Unlike Brown, Roe shows all the signs of a case decided without a thought for politics; though its doctrinal foundation is clear, it’s weaker than alternative bases for the holding.

Taking the above into account, the Roe reaction stands for a rather different precept than the one advanced by NRO: that given the hyper-politicized background against which the Court exists, good constitutional decisionmaking involves limiting doctrine on the basis of politics. That’s the opposite of the lesson the tea party expects the Court to take, but it’s one the Court follows to this day. It is, for example, the only reason we don’t yet have clear case law on gay marriage. Gay rights are a tough political case to make, but pretty easy on the doctrine.

Conservative voters regularly insist that the Court “follow the law”… and reach conservative outcomes on that basis. But as a construct tied up with notions of equity, and a deep countermajoritarian respect for the socially disadvantaged, the law is actually a fairly liberal beast.

I would ask that conservatives choose between their competing demands — the law, or politics? — but I think their resolution of the matter is pretty clear.

Today in Futility

Ohio, and Mike Huckabee, endorse a ban on abortions keyed to the fetal heartbeat, generally manifesting at six to seven weeks. The only problem? It’s clearly unconstitutional, as it imposes an “undue burden” on a woman’s right to choose.

A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.

Planned Parenthood v. Casey, 505 U.S. 833 (1992).  Casey rejected the trimester framework of Roe v. Wade — under which this first-trimester ban would clearly fail — but early and total bans fare no better under Casey… although the issue hasn’t been tested.

What Boehner’s Caucus Can’t Do

If he can’t do it now, he never will.

The beauty of Speaker Boehner’s cave — agreeing to continue funding Planned Parenthood and “ObamaCare,” as of this 11 PM, early report — is that it describes the parties’ negotiating posture in all other high stakes conflicts likely to arise. Here’s what we know: the GOP couldn’t hold the line. They knew they’d get blamed for a shutdown; the backbenchers couldn’t take the pressure; and for whatever reason, the Democrats held the stronger hand. Republicans do not have the clout to force a shutdown over social issues, healthcare, or over some half-felt concern about fiscal integrity.

Oh, we’ll get a Senate vote on the “ObamaCare” repeal. Cool! Hey, wonder if Obama would veto it?

By the way, do not miss this Fox headline: “Government shutdown not so shutdowny after all.” Yes, really.

It’s Not About the Deficit

Nor has it ever been. It’s about wounding the President, and scoring some culture war victories along the way. Once again, the Republican Party fails to be serious where it really counts.

The Empowerment of Abortion Restrictions: Freedom is Slavery?

Yesterday, I found myself in the bizarre situation of debating abortion (and by extension, the importance of contraception) with someone who’s never had sex. I, uh, have? Without attempting to state a per se rule, it seems like people making decisions about others’ reproductive rights should speak from a place of experience — the more the better — when more often than not, as here, those who do seek to restrict reproductive rights have studiously avoided all relevant life experiences. Take Christine O’Donnell.

Please.

I digress. The argument, building on Congresswoman Jean Schmidt (R-OH)’s remarks of earlier this week, was that banning abortion is, in fact, the feminist position. Referencing early suffragettes like Elizabeth Cady Stanton, Susan B. Anthony, and Alice Paul:

The original feminists were, indeed, against abortion. These women believed that there was power in motherhood and in choosing life. Alice Paul,the author of the original Equal Rights Amendment, said it best: Abortion isthe exploitation of women.

Although it surely has the tactical appeal of turning the pro-choice movement’s rhetoric against it, aside from that, this argument is so flimsy that I’m shocked Congresswoman Schmidt even managed to build a fairly long speech out of it. An individual women may freely believe that terminating her pregnancy would debase her, sure. The essence of feminism, after all, is support for a woman’s right to make individual and independent moral decisions. But, consistent with a belief system premised on individual choice, individual moral judgments cannot be generalized to the systemic level.

Similarly, despite feminism’s focus on integrating women into the professional world, a woman who chooses to stay at home and take care of the kids is making a feminist choice because she is making a choice. Feminism is about options, not outcome. “Choosing life” is a feminist act if it is a choice. But no one woman can take her own choice, force it on the rest of her sex, and call it freedom.

Moreover, I’m unaware of any case where removing the individual’s right to make a choice results in more freedom. This seems axiomatically false. Am I missing something?

Justin Bieber Gets Something Right?

Abbreviated, as still recovering from travel, but the argument went well!

Because you surely care, Justin Bieber, apparently, is pro-life (but for weird reasons) and pro-single payer (but for no discernible reason). It’s not really clear why we should care here, specifically, or about celebrity views on politics, generally. But note this: how often do you see someone with a hard left position (on healthcare), alongside a hard right position (on abortion)? Republican messaging is such that these normally go hand-in-hand as, for example, the healthcare war was largely fought on ideological lines (“socialism!”) rather than anything close to the merits.

Why’s Justin Bieber slipped the line? Here, finally, we might draw something interesting from celebrity punditry.