Tag Archives: abortion

A Link And A Prayer…

Tonight, Monday, October 4, at 7:30 p.m. I will be on a panel (via Zoom–link below) discussing the impending threats to reproductive choice, from Texas to Mississippi.

https://us06web.zoom.us/j/96415122645

Here’s the description, and for those who want to “attend,” the information for RSVPing:

Rabbi Dennis Sasso hosts a conversation regarding reproductive rights after the controversy related to the abortion laws in Texas. Rabbi Sandy Sasso will moderate the conversation and share the Jewish perspective with guests Dr. Leigh Meltzer, Obstetrics & Gynecology Physician at IU Health, and Emerita Professor of Law and Public Policy Sheila Kennedy. R.S.V.P to jgoldstein@bez613.org or (317) 253-3441.

For those who would like to see the discussion but can’t make tonight’s Zoom presentation,I’m told the session will be recorded, and will be available on the Congregation’s You Tube channel. (Who knew congregations had You Tube channels!)

My brief introductory remarks mostly reiterate points I’ve previously made on this blog, but in case any of you have missed my “take” on Texas, etc., I’m pasting a rough draft below. I anticipate a fairly lively discussion following the introductory remarks from the three of us.

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There are three things we need to understand about the context of today’s legal debates over abortion—one philosophical, one historical, one sociological.

Liberal democracies are grounded in the libertarian premise that we are all entitled to make our own moral choices unless we are harming the person or property of someone else. In order to be considered legitimate in a diverse liberal democracy, legislation banning or requiring certain behaviors on moral grounds should reflect widespread public consensus—That’s why the First Amendment’s religious liberty clauses, properly understood, forbid government from imposing the religious beliefs of some Americans on others.

When it comes to abortion, that consensus does not exist.

Historically, the “pro life” movement was not, as popular mythology suggests, a reaction to Roe v. Wade. It wasn’t until 1979—a full six years after Roe—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.” Objecting to abortion was seen as “more palatable” and more likely to motivate religiously conservative Christian voters than the actual motivation, which was denial of tax exemptions for the segregated schools established following the decision in Brown v. Board of Education.

Those origins persist. Sociological research confirms that Whites who score high on measures of racial resentment and racial grievance are far more likely to support strict limits on abortion than whites who score low on these measures. Research also confirms that people active in the “pro life” movement are much more likely to be committed to a patriarchal worldview in which control of reproduction, and female sexuality in particular, is important to the maintenance of the gender hierarchy they support.

The history and research go a long way toward explaining why it is so difficult to have evidence-based, logical discussions about abortion and birth control with anti-choice activists. The issue isn’t really abortion.

What is far less well understood, however, is that the consequences of upholding Texas’ law—if, in fact, the Court eventually does that—would be devastating, and would extend far beyond the issue of abortion. (Thus far, as you know, the Court has simply punted—it hasn’t ruled on the constitutionality of the law.)

A decision to allow the empowerment of culture war vigilantes would achieve a longstanding goal of so-called “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the interference of the federal government.

Such a decision would effectively approve a federalism on steroids, and—I am not engaging in hyperbole here—the effective unraveling of the “United” States.

I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protections against unreasonable search and seizure..

Texas’ law strikes a terrifying blow against that principle.

Let me explain why this law created private vigilantes. The idea is that by enlisting private citizens to enforce the law the state can avoid challenges to the bill’s constitutionality. The theory is that, since the state itself won’t be directly involved in enforcing the law, state officials won’t be proper defendants to a lawsuit.

Why does that matter?

What far too many Americans don’t understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors. If there hasn’t been state action–government action– there hasn’t been a constitutional violation.

Allowing this gambit to succeed would do much more than leave the most restrictive anti-abortion law in the country in place; it would encourage other states to employ similar tactics–and not just for abortion, but for all sorts of culture war issues and from all political perspectives. As Lawrence Tribe recently warned, California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

This ploy shouldn’t pass constitutional muster. In law school, I remember studying a 1948 case involving racially-restrictive deed covenants. Those covenants were between private parties, but the Court found state action present because those private deed restrictions could only be enforced with the participation of judges, clerks and other state officials. That case is still good law.

The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

The bottom line is that, if successful, this effort would empower zealots of both the right and left.  This is probably not what the idiots in the Texas legislature had in mind, but it would be an almost-certain consequence. Even a more conventional overruling of Roe –a distinct possibility in a case pending from Mississippi—would invite unintended consequences. We can discuss those during Q and A.

Finally, as many of you know, my longstanding preoccupation has been with civic literacy—with the failure of so many Americans to understand their own government. The pandemic has given us a glaring illustration of that ignorance; we have officials and pundits insisting that they have the right to control their own bodies, that government can’t tell them to be vaccinated. Ironically, most of the people making this argument are anti-choice—in other words, they are claiming a right for themselves that they are unwilling to extend to others. But it isn’t only the glaring hypocrisy; they are also wrong. Government has a duty to prevent citizens from harming others, and the Court has recognized the right to mandate vaccination for at least 100 years. A woman who aborts is not a threat to her neighbors; a citizen who refuses to wear a mask or be vaccinated is such a threat–and the law recognizes the distinction even if too many Americans don’t.
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When The Issue Isn’t Really The Issue

Thanks to the effort by Texas to totally ban abortion, the issue of reproductive choice has once again taken center stage in America’s interminable culture war.  But as Thomas Edsall has recently pointed out, a purported issue isn’t always, or necessarily, the real issue.

I always read Edsall’s essays in the New York Times, because he draws on both the history of whatever issue he is exploring and on a wide range of scholarly research in order to craft his conclusions. This particular piece is no different. As he tells us,

As recently as 1984, abortion was not a deeply partisan issue.

“The difference in support for the pro-choice position was a mere six percentage points,” Alan Abramowitz, a political scientist at Emory University, told me by email. “40 percent of Democratic identifiers were pro-life, while 39 percent were pro-choice. Among Republican identifiers, 33 percent were pro-choice, 45 percent were pro-life and 22 percent were in the middle.”

By 2020, of course, that situation had changed, with 73 percent of Democrats taking the pro-choice position (only 17 percent were “pro-life”–the other 10 percent were in the middle). That year, 60 percent of Republicans claimed to be pro-life; 25 percent were pro-choice, and 15 percent were in the middle.

If Edsall was commenting only on the growth of the partisan divide, that would be interesting but hardly surprising. What was surprising was the association between opposition to abortion and–wait for it–racial attitudes.

Whites who score high on measures of racial resentment and racial grievance are far more likely to support strict limits on abortion than whites who score low on these measures. This is part of a larger picture in which racial attitudes are increasingly linked with opinions on a wide range of disparate issues including social welfare issues, gun control, immigration and even climate change. The fact that opinions on all of these issues are now closely interconnected and connected with racial attitudes is a key factor in the deep polarization within the electorate that contributes to high levels of straight ticket voting and a declining proportion of swing voters.

I have previously posted about the origins of the anti-choice movement. Historians of religion have located those origins in conservative rage over the denial of tax benefits to the Whites-only academies that had been established to avoid integration. They had politicized abortion in order to motivate Christian conservative activism while dodging the less-palatable race issue.

There are other, less surprising associations: according to one scholar cited by Edsall, people who are active in the “pro life” movement are more likely to be committed to a patriarchal worldview in which control of reproduction, and female sexuality in particular, is important to the maintenance of  the gender hierarchy they support.

Women have noticed…

Edsall offers historical evidence that the issue of abortion has “evolved”–lending credibility to the claim that it is a proxy for a worldview that encompasses far more than religious convictions about reproductive choice.

Fifty years ago, the Southern Baptist Convention meeting in St. Louis approved what by the standards of 1971 was a decisively liberal resolution on abortion:

Be it further resolved, that we call upon Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.

Edsall cites historian Randall Balmer for an observation often made by people critical of the anti-abortion movement: “the beauty of defending a fetus is that the fetus demands nothing in return — housing, health care, education — so it’s a fairly low-risk advocacy.” As pro-choice folks frequently point out, what is called a “pro-life position” is often merely “pro-birth,” since so many of the people espousing it are uninterested in feeding, clothing and educating the child once it emerges from the womb.

And of course, there’s the recent spectacle of anti-choice folks claiming “my body my choice”as justification for refusing vaccination. (Not only is that hypocritical inconsistency infuriating,  a woman exercising reproductive choice isn’t infecting her neighbors…a distinction that clearly eludes them…)

Edsall’s essay explains what, for many pro-choice advocates, has been a conundrum: why are opponents of abortion not seeking wide accessibility to birth control? Surely they should want to avoid  the unplanned, unwanted pregnancies that lead to abortion, so why are some of the most fervent “pro-lifers” actually opposed to birth control?

Edsall and the scholars he cites have provided support for the answer many of us have suspected. For far too many of these “warriors for life,” the issue isn’t really the issue.

 

It’s Always About Race

Tomorrow’s blog accidentally published early. So nothing in the morning…

It was finally the election of Barack Obama that signaled the end of my comforting naiveté. 

I came to that election with the very incomplete history education that–I now understand–was fed to pretty much every White kid for more years than I can count, and I was delighted: America was overcoming the pockets of racism that still lingered.

I’ve been wrong about a lot of things in my life, but rarely have I been as wrong as I was about the implications of that election.

True, the fact that America elected a biracial President was evidence of considerable progress, and we should definitely celebrate that progress. But what I totally missed was the hysterical backlash and the re-animation of the racism that remained–a racism far more pervasive than I had ever imagined.

Since that election, I’ve read lot of the history I hadn’t been taught, and I’ve followed the increasing amount of social science research that is “unpeeling the onion” and demonstrating the extent to which ostensibly race-neutral policies are actually based on racial animus.

Take the “pro-life” movement. Most Americans believe that the genesis of anti-abortion politics was Roe v. Wade. I have previously cited Randall Balmer–an eminent scholar of Evangelical Christianity–for the actual history of that movement.

Balmer reiterated that lesson in a recent essay for the Guardian.

Although leaders of the religious right would have us believe that the Roe decision was the catalyst for their political mobilization in the 1970s, that claim does not withstand historical scrutiny. What prompted evangelical interest in politics, in fact, was a defense of racial segregation.

Evangelicals considered abortion a “Catholic issue” through most of the 1970s, and there is little in the history of evangelicalism to suggest that abortion would become a point of interest. Even James Dobson, who later became an implacable foe of abortion, acknowledged after the Roe decision that the Bible was silent on the matter and that it was plausible for an evangelical to hold that “a developing embryo or fetus was not regarded as a full human being”.

Balmer writes that he first began researching the origins of the religious right after a meeting he attended in 1990. The meeting included what he identifies as a “veritable who’s-who of the religious right,” –he notes Ralph Reed of Christian Coalition; Donald Wildmon from the American Family Association; Richard Land of the Southern Baptist Convention; Ed Dobson of the Moral Majority; Richard Viguerie and Paul Weyrich. (He notes that no women were present–not a surprise.)

Weyrich reminded the group that the religious right had not come together in response to  Roe v. Wade. Instead, the motivation was the IRS effort to rescind the tax-exempt status of Bob Jones University because of its racially discriminatory policies.

Balmer later questioned Weyrich to be certain he’d heard correctly.

He was emphatic that abortion had nothing whatsoever to do with the genesis of the religious right. He added that he’d been trying since the Goldwater campaign in 1964 to interest evangelicals in politics. Nothing caught their attention, he insisted – school prayer, pornography, equal rights for women, abortion – until the IRS began to challenge the tax exemption of Bob Jones University and other whites-only segregation academies.

Indeed, in 1971 the Southern Baptist Convention had passed a resolution calling to legalize abortion. When the Roe decision was handed down, some evangelicals applauded the ruling as marking an appropriate distinction between personal morality and public policy. Although he later – 14 years later – claimed that opposition to abortion was the catalyst for his political activism, Jerry Falwell did not preach his first anti-abortion sermon until February 1978, more than five years after Roe.

As Balmer notes, it wasn’t until the early 1980s that opposition to abortion became an evangelical battle cry. As a strategy, “it allowed leaders to camouflage the real origins of their movement: the defense of racial segregation in evangelical institutions.”

It isn’t only abortion, of course. Scholars have linked the right’s constant drumbeat against “socialism” and its adamant opposition to efforts to strengthen America’s social safety net to that same tribalism; in order to prevent “those people” from benefitting from programs like national health insurance, significant numbers of White people are willing to go without those benefits. It’s like the episode reported by Heather McGhee in The Sum of Us, about the Southern town that filled in its municipal swimming pool rather than integrate it. And so nobody got to swim.

Un-peeling onions makes me cry.

 

 

Oh Texas…

In the years before 2016, when I needed an  example of a really stupid policy for my graduate Law and Public Affairs classes, I always could count on Texas. (Of course, once Trump was elected, bad federal policies were so plentiful I didn’t need to look to the states for examples.)

As the Biden Administration moves to reverse many of the damaging, corrupt decisions of its predecessor, Texas legislation is once again filling the “what the shit?” gap. Some bills are just “Texas-sized” versions of current GOP efforts to suppress the vote, while others–like the recent effort to turn citizens into agents of the state authorized to report and punish abortion– are something else altogether.

As Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck recently wrote in the New York Times, Texas’ version of anti-abortion legislation is “especially worrisome.”

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

All of that would be problematic enough, but enlisting private citizens to enforce the restriction makes it very difficult, procedurally, to challenge the bill’s constitutionality in court. A lawsuit filed in federal court in Austin last week tries to get around those roadblocks. We believe that it should succeed. But if it fails, not only would that leave the most restrictive anti-abortion law in the country impervious to constitutional challenge, it would also encourage other states to follow Texas’ lead on abortion, as well as on every other contested question of social policy.

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

The op-ed noted a crucial difference between this legislation and the private attorney general laws that in many states allow people to help enforce certain laws. As they point out, in those situations, citizens are supplementing government enforcement.

The Texas law, by contrast, leaves private enforcement as the only mechanism for enforcing the broad restrictions on abortions after the sixth week of pregnancy. It specifically precludes the state’s attorney general or any other state official from initiating enforcement. Under this new law, private enforcement supplants government enforcement rather than supplements it. If this seems like a strange move, it is. And it appears to be a deeply cynical one, serving no purpose other than to make the abortion ban difficult to challenge in court.

The reason for that difficulty is that, when the state itself is not directly involved in enforcing a law, none of the state’s executive officers are proper defendants to a lawsuit. (What far too many Americans do not understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors.)

That said, I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive covenants in property deeds, in which the Court found that private deed restrictions could only be enforced with the participation of judges, clerks and other state officials. The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

As the essay concludes, success in this effort by the state of Texas would set “an ominous precedent for turning citizens against one another on whatever contentious issue their state legislature chose to insulate from ordinary constitutional review.”

This year, the Supreme Court is scheduled to hear what’s likely to be its most important abortion case since 1992, when it considers Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. But the legal dispute that began in Texas last week is, in our view, the far more important one. Not only is the Texas ban a frontal assault on Roe v. Wade; it’s an assault on our legal system and on the idea that law enforcement is up to the government, not our neighbors.

Texas has often tried to secede from the Union. Failing that, it’s attacking the legal framework that defines us as a union.

How Do You Spell Despicable?

One of the most telling accusations against self-proclaimed “pro life” activists is that they aren’t really pro life, they are pro birth. If they were really concerned about protecting life, they would support feeding hungry children, and oppose everything from dangerous pollution to gun violence to the death penalty. Instead, their concerns magically vanish once the fetus emerges from the womb.

A report from the Guardian underscores that observation.

At least 10 US states have siphoned millions of dollars from federal block grants, meant to provide aid to their neediest families, to pay for the operations of ideological anti-abortion clinics.

These overwhelmingly Republican-led states used money from the federal Temporary Assistance for Needy Families program (Tanf), better known as welfare or direct cash aid, to fund the activities of anti-abortion clinics associated with the evangelical right. The clinics work to dissuade women from obtaining abortions.

In all cases, the states used these funds even as Covid-19 caused the worst economic upheaval in nearly a century, left one in four families without enough to eat, and resulted in mass layoffs that had a disproportionate effect on low-income and racial minority Americans.

Among the states that have diverted dollars from feeding hungry children in order to line “pro life” pockets are Indiana, Louisiana, Michigan, Missouri, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania and Texas.

Despicable is too nice a word.

These 10 states funneled the money through “Alternatives to Abortion” programs, part of state budgets established by conservative legislatures and often run through state health departments. They not only send millions in federal welfare funds, but also state taxpayer dollars to such centers.

The article details other measures imposed by the states that effectively prevent TANF and other social welfare funds from reaching their intended beneficiaries. A number of those measures are demonstrably racist, but they all begin with the assumption that poverty is evidence of moral failure; the resulting legislation is thus punitive, rather than ameliorative.

Back in 2017, I reported on a survey that found religion to be a significant predictor of how Americans perceive poverty. Christians, especially white evangelical Christians, are much more likely than non-Christians to view poverty as the result of individual moral deficit.

The article cites Missouri as an example of the results of that view:

“We’ve created a new class of Missourians,” Glenn Koenen, a hunger adviser with the left-leaning group Empower Missouri, said at the time the reforms were passed. “We now have legislated that some of our neighbors are too poor to get help from anti-poverty programs.”

Between 1 January 2016, when the reform went into effect, and April 2021, more than 71% of beneficiaries dropped off Missouri’s program. That included 28,643 children and 16,942 families.

Missouri then spent funds not paid to families on other programs, among them the Alternatives to Abortion program. Since 2017, it has sent $26m to anti-abortion clinics, according to state budgets. The average monthly benefit for a Missouri family is $256.

Evidently, the Missouri legislature was perfectly okay with punishing 28,643 children for their parents’ perceived moral deficiencies.

The article proceeds to document the medically-inaccurate “facts” and outright lies routinely told by these “Crisis pregnancy” centers to the women who visit them, and it reports on the religious indoctrination to which they must submit in order to get the minimal help–diapers and milk, for instance–that the centers offer. It also points out that nationally there are far more such centers than there are abortion providers– more than 2,500 ideologically focused, anti-abortion clinics, compared with just 800 abortion providers.

There are a lot of adjectives we might use to describe a refusal to feed and clothe living children in order to force women to give birth. Pro-life is definitely not one of them.