Category Archives: Personal Autonomy

“Repealing” Roe v. Wade

On 60 Minutes, Donald Trump evidently claimed that “repealing” Roe v. Wade would be a priority.

Among the many, many things our next President does not understand is how government actually works. He may be surprised to discover that Congress–even one dominated by GOP culture warriors–cannot “repeal” a Constitutional right.

That is not to say that Roe is safe, only that it will take several years and some fairly creative judicial legerdemain to completely reverse current case law.

Here is how it will play out.

Trump will have an immediate appointment to the Supreme Court, and may well have one or two others during a four-year term. He has pledged to appoint a social conservative, and that’s a pledge he’s likely to keep. Once a case implicating reproductive choice works its way up to the Supreme Court, that newly conservative Court will take the opportunity to further limit what previous Courts have confirmed: it is a woman’s constitutional right to control her own body. Perhaps the newly constituted Court will reverse Roe outright, perhaps not–but the effect will be the same.

Reversing Roe entirely would leave the legality of abortion up to the individual states. We would go back to the time–a time I vividly remember– when women who could afford to do so traveled to states where abortion was legal, and a significant number of the women who couldn’t afford to do that died in back-alley, illegal operations.

As my friends at Planned Parenthood like to point out, women didn’t begin getting abortions after Roe v. Wade. They just stopped dying from them. 

The only thing prochoice Americans can do to thwart this cynical and theocratic agenda is work tirelessly to prevent their state legislatures from passing new, restrictive measures that are intended to provide the Court with an opportunity to “revisit” the issue. (Here in Indiana, a State Representative has already announced his intention to submit a bill that would criminalize abortions and punish the women and doctors who participated in them. I’m sure theocrats in other states are equally eager to test the anticipated new boundaries.

Given the number of deep red states populated by religious fundamentalists, the odds of defeating all of these throwbacks aren’t good. So while Trump cannot “repeal” reproductive liberty, he can sure eliminate it.

I think the legal terminology is: we’re screwed.

 

 

Loving, Fifty Years Later

It has been fifty years since the Supreme Court struck down laws against miscegenation–interracial marriage–in the case of Loving v. Virginia. At the time the decision was handed down, sixteen states–all in the south–still had such laws on their books. The anniversary of the decision is being marked by various magazine articles, and a movie about the couple at the heart of the case (aptly named Loving) has just been released.

My students tend to think of laws forbidding interracial marriage as part of a bizarre and distant past. They have enough trouble understanding the hysteria that preceded and accompanied recognition of same-sex marriage, and to them 1967 seems as distant as 1867. Many of us in older generations, however, are painfully aware of the stubborn persistence of such laws well into our own adulthoods.

Loving is a great teaching tool, because it squarely addresses the central issue of public administration and political philosophy: what is the proper role of the state? What is government for? What sorts of decisions are appropriately made by legislatures acting on behalf of popular majorities, and what sorts of decisions represent an unwarranted intrusion into realms that should be left to individual citizens?

Despite the fact that our Constitution was based upon a belief in limited government, America’s history is replete with examples of the tensions between the respect for individual liberties that animates the Bill of Rights, and the desire of moralists to use government to control the behavior of their neighbors.

Back in 2007, I wrote a book called God and Country: America in Red and Blue, in which I examined the religious roots of public policy disputes; in it, I posited that a significant number of our most intractable debates can be explained by a conflict  in worldviews originally rooted in religious ways of understanding reality. It is a battle between those I dubbed “modernists” and those I called “Puritans.”

These differences are far more profound than we usually recognize.

Our contemporary Puritans are philosophical heirs of the early American settlers who came to these shores for a version of liberty that most of us would not recognize. The folks who braved the trip across the Atlantic came for the religious “liberty” to impose the correct religion on their neighbors. The notion that each of us should have the right to believe as we wish–let alone live lives based upon those beliefs– was utterly foreign to them. It would be another 150 years until the intellectual ferment of the Enlightenment  changed our forebears understanding of liberty to the more libertarian construction  incorporated in our founding documents.

That libertarian construction is based upon respect for individual autonomy–the belief that people should be free to live their lives as they see fit, until and unless they harm the person or property of another, and so long as they are willing to accord an equal right to others.

It can be very difficult to agree upon the sorts of harms that justify government intervention, and there are many good-will disagreements over the propriety of such things as seat-belt laws and smoking bans. But it really strains credulity to argue that your choice of a non-traditional spouse somehow harms me.

Loving reminds us of the importance of distinguishing between issues that government can properly decide, and areas where government doesn’t belong.

Tomorrow, at the polls, most of our contemporary Puritans will vote for authoritarianism and a government that does not respect America’s Constitutional limits. Let’s hope the Modernists outvote them.

Girls’ (And Supportive Boys’) Night Out

A couple of days ago, I got an email from Periods for Politicians (formerly Periods for Pence), announcing a pre-election rally focused on women’s issues in Indiana. The aim is to highlight all of the measures that caused harm to Hoosier women during the last four years–years that, not at all coincidentally, coincided with Mike Pence’s term as Governor.

“Governor Pence’s policies have done untold damage to Indiana, and this trend cannot continue if Indiana is to remain a healthy place for families and women,” said Sue Magina, Periods for Politicians (P4P) founder. “Pence was not alone in his decision making. Many state politicians supported his policies and their disastrous effects on all women living in Indiana, regardless of political affiliation. We need to revisit these policies and determine together how we can make progress moving forward.” Sue Magina is an anonymous woman resident of Indiana who goes by that fake name for reasons of personal safety.

The rally will be held at 5:30 p.m. on November 2d at the Indiana Statehouse.

If you attend–and if at all possible, I hope you will–here are some of the things you will hear about:

  • · HEA 1337, called the “most restrictive anti-abortion law in the country.”
  • · Continued attempts to defund Planned Parenthood, which provides essential health care to thousands of low-income Indiana women.
  • · RFRA, the Religious Freedom Restoration Act (“protecting” discrimination ostensibly based upon religion.)
  • · The undermining and effective removal of Glena Ritz as School Superintendent, and the diversion of monies meant for public schools to the Governor’s pet voucher program favoring parochial, religious education.

National and local speakers will discuss these and other issues.

Speakers include: Jennifer Weiss-Wolf, named one of the nation’s “badass menstrual activists” by Bustle, and the “architect of the U.S. policy campaign to squash the tampon tax” by Newsweek; Dana Marlowe, founder of the national organization, Support the Girls; Cheryl Laux, local activist from Indiana Moral Mondays; a representative from Planned Parenthood; local singer/songwriter Jen Edds, and more.

The night will close with the first ever public appearance by Sue Magina, who created the brilliant “Periods for Pence” grassroots campaign.

In case you missed hearing about it (despite the fact that the campaign has been featured in the New York Times, NPR, CNN, Yahoo, USA Today, Chicago Tribune, and the Washington Post, among others), Periods for Pence was a response to Indiana’s restrictive and ridiculous abortion law, which the Governor said he “signed with a prayer.”

Among other things, that law required women to “cremate or inter” aborted or miscarried fetuses. Since fertilized eggs can be expelled during every menstrual period without the woman even knowing, the campaign urged women to call or tweet the Governor’s office to inform His Piety of the monthly “visit.”

My favorite tweet: @periodsforpence. Started my cycle today. When will you be by to check my used pads for HB1337 compliance so I know to be home?

The campaign brought national attention to–and censure of– our retrograde Governor and legislature. It became Periods for Politicians when he joined Trump’s ticket.

Women planning to attend the November 2d rally are encouraged to bring sealed menstrual hygiene products and bras for distribution to homeless women and girls throughout Indiana.

Men attendees are encouraged to bring socially responsible attitudes.

 

Startlingly Pertinent

Last night was the first debate in a Presidential campaign that–whatever else you might say about it–offers a stark contrast between a governing philosophy and a will to power.

This semester, I am teaching a course that I “invented” a few years back, titled “Individual Rights and the Common Good.” Students begin by reading political philosophers–Aristotle, Locke, Mill, Rawls–and observers like De Tocqueville, before considering present-day issues. The question we examine is, essentially, government legitimacy: when does government’s obligation to protect the common good justify constraining the liberties of the individual?

In preparation for our class on Mill, I reread the Introduction to “On Liberty.” It had been some time since I’d read it, and I was struck with how relevant it remains.

Mill begins by noting the age-old struggle between Authority and Liberty, and he traces the evolution of “authority” from a “governing tribe or caste” deriving its authority from “inheritance or conquest” to “tenants or delegates” of the people, and “revocable at their pleasure.” He writes that constraints on the first category were seen as necessary to protect those subject to the whims of the rulers; he then says

By degrees, this new demand for elective and temporary rulers became the prominent object of the exertions of the popular party, wherever any such party existed; and superseded, to a considerable extent, the previous efforts to limit the power of rulers. As the struggle proceeded for making the ruling power emanate from the periodical choice of the ruled, some persons began to think that too much importance had been attached to the limitation of the power itself. That (it might seem) was a resource against rulers whose interests were habitually opposed to those of the people. What was now wanted was, that the rulers should be identified with the people; that their interest and will should be the interest and will of the nation. The nation did not need to be protected against its own will. There was no fear of its tyrannizing over itself.

As he proceeds to point out, however, this is fanciful:

It was now perceived that such phrases as “self-government,” and “the power of the people over themselves,” do not express the true state of the case. The “people” who exercise the power, are not always the same people with those over whom it is exercised, and the “self-government” spoken of, is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means, the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power. The limitation, therefore, of the power of government over individuals, loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein. This view of things, recommending itself equally to the intelligence of thinkers and to the inclination of those important classes in European society to whose real or supposed interests democracy is adverse, has had no difficulty in establishing itself; and in political speculations “the tyranny of the majority” is now generally included among the evils against which society requires to be on its guard.

Mill points out that the tyranny of the majority is exercised not just through the law, but through “prevailing opinion and feeling” (something I rather suspect a certain kneeling football player has recently experienced). He then sets out the dilemma which forms the focus of my class:

There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

But though this proposition is not likely to be contested in general terms, the practical question, where to place the limit — how to make the fitting adjustment between individual independence and social control — is a subject on which nearly everything remains to be done. All that makes existence valuable to any one, depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed, by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. What these rules should be, is the principal question in human affairs; but if we except a few of the most obvious cases, it is one of those which least progress has been made in resolving. No two ages, and scarcely any two countries, have decided it alike; and the decision of one age or country is a wonder to another. Yet the people of any given age and country no more suspect any difficulty in it, than if it were a subject on which mankind had always been agreed. The rules which obtain among themselves appear to them self-evident and self-justifying. This all but universal illusion is one of the examples of the magical influence of custom, which is not only, as the proverb says a second nature, but is continually mistaken for the first.

Some rules of conduct must be imposed. True. And arguments over the nature of those rules and the justifications for them will probably continue for as long as “we the people” continue.

Recognizing Reality

The Supreme Court has finally stepped in to say “enough” to the oh-so-clever politicians trying to mask their disdain for women’s autonomy by pretending a concern for women’s health.

The Texas law that triggered the lawsuit was one of a number of similar efforts to cloak anti-choice measures in excessive and onerous “medical” regulations. It required doctors performing abortions to have admitting privileges at nearby hospitals, and imposed a number of physical requirements on clinics, making them meet the standards of ambulatory surgical centers.

Although Texas argued that the measures were aimed at protecting women’s health, Rick Perry was among the political figures who were more forthright about the law’s actual motive, describing it as one step toward an “ideal world” in which there would be no abortion.

Motive aside, as Justice Breyer wrote for the majority, neither of the provisions imposed by Texas “offers medical benefits sufficient to justify the burdens upon access that each imposes.” Justice Ginsberg was more blunt, noting that “It is beyond rational belief” that those provisions actually protected women’s health.

As numerous medical experts have pointed out, abortion is one of the safest of medical procedures. (Colonoscopies and tonsillectomies are riskier, but political figures expressing concern about those operations are non-existent.)

What participants in the ongoing battles over reproductive choice, same-sex marriage, and other “culture war” issues that roil American public debate miss is the actual legal question at the heart of these conflicts. The issue is not whether a woman should terminate a pregnancy or carry it to term; the question is: who should decide what she should do?

Too many Americans fail to understand the purpose of the Bill of Rights, which was to protect individual autonomy—a person’s right to self-government—against government infringement. The Bill of Rights, as I tell my students, is a list of things that government is prohibited from doing. Government cannot tell you what to say, or what to believe, no matter how ugly your speech or deluded your belief. Government cannot tell you whether or how to pray, who to marry, how many children to have, or what career to follow.

Government can’t do these things even if a majority of its citizens wants it to. Just as your neighbors cannot vote to make you an Episcopalian or a Baptist, popular majorities cannot use government to restrict the individual liberties protected by the Bill of Rights.

In short, government cannot tell you how to live your life—how to make what the Court has called your most “intimate decisions.” The rest of us don’t have to agree with the decisions you make, but you get to make them.

The Texas law was one of several transparent efforts by lawmakers trying to do an “end run” around a woman’s right to make decisions with which they disagree.

Fortunately, the Court saw through the dishonesty of that effort.