Sunday, June 26, 2022

Sunday Reading

When A Right Is Taken Away — Jeannie Suk Gersen in The New Yorker.

We have known for some time that this Supreme Court’s manifest destiny was to overrule Roe v. Wade. Now it has fulfilled it. In the ruling in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito, writing for a five-Justice majority, eliminated the constitutional right to abortion and handed the states the power to restrict the procedure as they wish. There was little suspense, owing to a leak of the draft opinion last month, from which the Court’s final opinion is not substantially different, but the decision still came down as a surreal shock. The three liberal Justices dissented “with sorrow—for this Court, but more importantly, for the many millions of American women who have today lost a fundamental constitutional protection.”

As expected, Chief Justice John Roberts declined to join his conservative colleagues’ opinion, and concurred only in the judgment to uphold the challenged Mississippi law, which bans most abortions after fifteen weeks. Calling the Court’s overruling of Roe “unnecessary to decide the case,” Roberts would instead have allowed states to ban abortion sometime before fetal viability, but would also have reaffirmed a right to abortion that would “ensure a reasonable opportunity to choose.” That more moderate position might have been the Court’s ruling had Ruth Bader Ginsburg not died during the Trump Presidency and been replaced with Amy Coney Barrett, or had the Senate acted on President Obama’s nomination of Merrick Garland, instead of waiting to install Trump’s eventual nominee, Neil Gorsuch. And, had neither of those events occurred, we would still have a constitutional right to abortion in the United States.

The difference between preserving and eliminating a long-held constitutional right involves a crude reality of political machinations and contingency in filling these seats—which makes it galling to read the Court’s righteous condemnation of Roe v. Wade as an exercise of “raw judicial power,” and its self-portrayal as a picture of proper judicial restraint. It is hard to imagine something more like an exercise of raw judicial power than the Court’s removal of the right to abortion, which is precisely what these Justices were put on the Court to achieve. As the dissent put it, the Court is “rescinding an individual right in its entirety and conferring it on the State, an action the Court takes for the first time in history.”

Some have speculated that last month’s draft-opinion leak was intended to make it difficult for Justice Brett Kavanaugh to defect from the majority and join the Chief Justice’s compromise position. Kavanaugh didn’t defect, but he did write a notable concurrence that seemed to take some distance from the possible perceived extremity of the majority. It confirmed that he is the Justice whom the majority will need to worry about keeping on board if they wish to go further than Dobbs in the future.

Kavanaugh flexed this muscle by addressing questions about decisions that may come after Dobbs. “The Constitution neither outlaws abortion nor legalizes abortion,” he wrote. As a result, “this Court does not possess the authority either to declare a constitutional right to abortion or to declare a constitutional prohibition of abortion,” he proclaimed, and in so doing seemed to indicate that a possible future development—the eventual enshrining of a constitutional right of the fetus—is not something for which he would provide a fifth vote. Similarly, regarding the constitutional rights to contraception and same-sex marriage, Kavanaugh made a point of emphasizing, with italics, that “overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” Additionally, he expressed his view that a state may not bar its residents from travelling to another state for an abortion, because of the constitutional right to interstate travel. To the extent that anyone is grasping for a silver lining, Kavanaugh appears to want us to know that he personally intends to—and can—stand in the way of a post-Dobbs parade of horribles, even if his colleagues might want to go there.

And at least one of his brethren plainly does want the Court to go there. Justice Clarence Thomas’s separate concurrence made crystal clear that he would indeed do away with the entire substantive due-process doctrine on which the right to abortion rested, and that would mean eventually sweeping away the rights to contraception, same-sex intimacy, and same-sex marriage. He referred to the fact that the Court used substantive due process in Dred Scott v. Sandford to affirm the right of enslavers to enslave people, and he concluded that “the harm caused by this Court’s forays into substantive due process remains immeasurable.”

Thomas’s comments contradict the majority opinion he signed, in which the Court claimed that other rights protected by the Court’s substantive due-process precedents are safe, the reason being that only abortion involves an interest in the life of a fetus. The Dobbs ruling’s insistence that the Court should not impede states from making policies in which they weigh the interest in life for themselves, through their democratic processes, is tragicomic, even gruesome, coming the very day after the Court did just that in striking down a New York State gun-licensing law, based on the Court’s expansion of an individual right to bear arms under the Second Amendment.

In Planned Parenthood v. Casey, the plurality that reaffirmed Roe v. Wade wrote that “liberty finds no refuge in a jurisprudence of doubt”—meaning that, if the public is in doubt about whether constitutional rights are in danger of disappearing, that is not liberty. Dobbs leaves no doubt that the federal constitutional right to abortion is gone. And it ushers in an era of grave doubt about the status of liberty in the United States.

Doonesbury — 1-800-SHYSTER

Friday, June 24, 2022

Roe v. Wade Overturned

Not unexpected. Still shameful.

WASHINGTON — The Supreme Court on Friday overruled Roe v. Wade, eliminating the constitutional right to abortion after almost 50 years in a decision that will transform American life, reshape the nation’s politics and lead to all but total bans on the procedure in about half of the states.

The ruling will test the legitimacy of the court and vindicate a decades-long Republican project of installing conservative justices prepared to reject the precedent, which had been repeatedly reaffirmed by earlier courts. It will also be one of the signal legacies of President Donald J. Trump, who vowed to name justices who would overrule Roe. All three of his appointees were in the majority in the 6-to-3 ruling.

The decision, which echoed a leaked draft opinion published by Politico in early May, will result in a starkly divided country in which abortion is severely restricted or forbidden in many red states but remains freely available in most blue ones.

Chief Justice John G. Roberts Jr. voted with the majority but said he would have taken “a more measured course,” stopping short of overruling Roe outright. The court’s three liberal members dissented.

What’s next in terms of overturning precedent?  Brown v. Board of EducationGriswold v. ConnecticutLoving v. VirginiaObergefell v. Hodges?

Women, your body is now owned by the state.

Sunday, May 8, 2022

Sunday Reading

Un-Precedented — Jeannie Suk Gersen in The New Yorker.

The Court Chamber inside the Pantheon-like building of the Supreme Court of the United States is adorned with marble friezes depicting ancient lawgivers, including Hammurabi, Moses, and Confucius. To begin each session of the Court, at ten o’clock in the morning, the marshal strikes a gavel and commands, “All rise!” The audience goes silent and obeys. The nine Justices, in dark robes, then emerge from behind a heavy velvet curtain to take their seats on the elevated mahogany bench, as the marshal announces, “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!” It is the closest thing we have, in the American civic sphere, to a papal audience.

The solemn ritual was supposed to have preceded the Supreme Court’s revelation from the bench of its decision in Dobbs v. Jackson Women’s Health Organization, the case about Mississippi’s ban on abortion after fifteen weeks of pregnancy. It still surely will, later this spring, but it will feel as if we’ve already been behind the curtain in Oz. On Monday, a leaked first-draft opinion by Justice Samuel Alito, writing for a majority, which was apparently circulated to all the Justices in February, was published by Politico. It states that the Court is overruling Roe v. Wade, which declared a constitutional right to an abortion, in 1973, and Planned Parenthood v. Casey, which reaffirmed Roe’s “central holding” under the Fourteenth Amendment’s due-process clause, in 1992.

The leak has launched abundant speculation about the leaker’s motives. Commentators have wondered whether leaking the draft was intended to corner a “squishy” conservative Justice into staying onboard with the majority or, alternatively, to create pressure to jump ship from the majority. It is difficult to fathom. But one effect of the leak is less speculative. At a time when the fragility of the right to an abortion has become synonymous with the fragility of the Court’s legitimacy, such a brazen breach of the Court’s process and decorum deflates its dignified mystery. It evinces contempt for the internal rules of the highest body that hands down rulings. Being unprecedented—I know of no past instance when the full text of an early draft opinion of the Court was made public—the leak seems to mock the current Court’s apparent disregard of precedent. It takes away the Court’s total control over what the public sees of its work. In short, it is like catching the Court in its underwear, before it has had the chance to don the garments that cover, even armor, its deliberations in secrecy. It implies that the Justices have no clothes.

Chief Justice John Roberts, who is reportedly not joining in to overturn Roe, issued a statement on Tuesday that the leak “was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.” He directed the marshal to “investigate the source of the leak.” Perhaps the assault on the Court’s legitimacy through an act that invades its privacy norms, disrespects its dignified process, and disrupts its control over the timing of its decision effectively holds up a kind of perverse mirror to what Alito is doing in the draft: depriving people of privacy, dignity, and control in the important and serious decision to have a child when they are ready.

The content of Alito’s draft is exactly what I would expect of the long-pent-up takedown of Roe that generations of legal conservatives have been fantasizing about for decades. The draft’s account is a standard one, expressed without much restraint: that the Court in Roe arrogantly took the issue of abortion out of the democratic political processes in each of the states, where it belongs, and imposed on the nation a fake constitutional right in an “abuse of judicial authority” and exercise of “raw judicial power.” Alito writes, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. . . . That is what the Constitution and the rule of law demand.”

The bulk of Alito’s draft is devoted to arguing that “a right to abortion is not deeply rooted in the Nation’s history and traditions” and that, to the contrary, “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973,” when Roe was decided. Before Roe, he writes, “there was no support in American law for a constitutional right to obtain an abortion. Zero. None.” He spends many pages describing laws that made abortion a crime, and then dozens of pages in an appendix laying out “statutes criminalizing abortion at all stages of pregnancy in the States existing in 1868,” the year the Fourteenth Amendment was ratified, and another appendix of statutes criminalizing abortion in the District of Columbia and in territories that became states. The appendices even take the trouble to italicize phrases tending to show that abortion was criminal regardless of the stage of pregnancy (though Alito acknowledges that, at the time, abortion before “quickening” was allowed in a number of states). All this is to prove that abortion cannot be a fundamental right guaranteed under the Constitution.

Given what we heard from the Justices at oral arguments in December, it is not surprising that five of them seemingly voted to overrule Roe and Casey. But, in the course of Alito’s argument that our legal tradition prior to Roe did not respect a right to abortion, what is striking is how far he goes to try to establish something more: that there is a strong legal tradition in our nation that has condemned abortion as the destruction of unborn life. By devoting so much of this draft to the view that the criminalization of abortion is deeply rooted in the nation’s history and traditions, Alito is setting up anti-abortion litigants to argue relatively soon that a fetus has a fundamental right to life that is protected by the Fourteenth Amendment’s guarantee that no state shall “deprive any person of life” without due process of law.

The Court has repeatedly said, in prior substantive due-process cases, that a fundamental right is one that is “deeply rooted in this Nation’s history and tradition” and “fundamental to our scheme of ordered liberty.” It is particularly telling that, rather than rejecting substantive due process, which conservatives have long reviled as a liberal invention untethered from the Constitution, Alito’s draft purports to scrap the abortion right as “not deeply rooted” while embracing a version of substantive due process that leaves room for anti-abortion advocates to claim a fetal right to life as “deeply rooted.” Alito also states that the overruling of Roe and Casey does not threaten “precedents that do not concern abortion,” including precedents establishing the right to gay sex and to same-sex marriage. But it is impossible to see how the regressive method he uses, framing “history and tradition” at such a low level of generality, would not have the effect of casting doubt on them.

If four other Justices end up joining this opinion, it will indicate change on the horizon that is far more radical than the overruling of Roe and Casey. Simply getting rid of those precedents would mean that roughly half the states would ban abortion, while the rest of the states would remain free to permit it. But an eventual finding of a constitutional right to fetal life would disallow abortion in every state. Alito’s leaked draft leaves no doubt that an expedited attempt to render abortion illegal throughout the entire nation as the vindication of fundamental—if fundamentalist—constitutional rights can be expected to arrive much sooner than we thought.

Doonesbury — Catching up.

Thursday, May 5, 2022

Does It Matter Who Leaked It?

The right-wing noise machine is carrying on about who leaked the draft of the Alito opinion overturning Roe v. Wade as if that is what’s really important as opposed to returning the country and fifty percent of the population to being uteri with feet.  They are calling for the prosecution of the leaker — something for which there is no law on the books — and hinting broadly that it was from some feminazi who wants to undermine the Court and its integrity… which is hilarious in its own proposition.

But Josh Marshall at TPM has a different theory based on an op-ed in the Wall Street Journal last week.

I guess others clearly had. But I had not seen this April 26th Journal oped about the jockeying on the Mississippi abortion case until now. It’s very, very clarifying.

After Politico’s exclusive on Monday night publishing the draft Alito majority opinion, CNN followed rapidly that same evening with very specific details about Roberts’ position on the case, resisting joining the majority opinion and perhaps trying to lure one of the five Justices to a narrower ruling. When that second story came out so quickly I said that it made me think that the breakdown of secrecy on this case went beyond the leak of the draft opinion. Reading the Journal OpEd from last week makes that basically a certainty.

Read the Journal oped. It walks very clearly through the current deliberations of the Court, including Roberts’ effort to bring at least one hardliner over to a more limited, though still highly restrictionist, ruling.

These three paragraphs stand out, especially in the light of the reporting from Monday night …

But Chief Justice John Roberts tried during the oral argument to find a middle way. He appeared to want to sustain the Mississippi law on grounds that it doesn’t violate Casey’s test of whether there is an “undue burden” on the ability to obtain an abortion. If he pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.

The Justices first declare their votes on a case during their private conference after oral argument, but they can change their mind. That’s what the Chief did in the ObamaCare case in 2012, much to the dismay of the other conservatives. He may be trying to turn another Justice now.

We hope he doesn’t succeed—for the good of the Court and the country. The Chief’s middle ground might be explainable with some legal dexterity, but it would prolong the Court’s abortion agony. Critics on the left would still lambaste the Court for letting Mississippi’s law stand. And states would soon pass more laws with even narrower restrictions that would eventually force the Justices to overturn Roe and Casey or say the precedents stand on solid ground.

I’ve done a bit of this myself in the past. You string out what you’ve learned to be the fact of the matter as a series of hypotheticals and logical deductions. It’s very clear that the jockeying among the six Republican appointees has been shared in the elite GOP legal circles that have a direct line into the Journal oped page. Clear as day. And that tells you pretty much to a certainty what was already seeming fairly clear: that the leak came from determined anti-Roe advocates trying to lock in Alito’s ‘take no prisoners’ elimination of Roe. Clear as day.

It makes sense. It would be far easier to convince the conservatives to circle the wagons and rally to the defense of the indefensible rather than coax some wavering moderate to vote to keep some semblance of Roe and Casey intact. That’s because there are no moderates on the Court, wavering or otherwise, and Chief Justice Roberts trying to control his fellow conservatives is like trying to calm a room full of cats with a squirt gun.

There is no middle way. The Court is, to quote a character of mine, kinda fucked up, and if this opinion stands regardless of the editing that goes on between now and the day in June or July when the opinion is handed down, it doesn’t matter who leaked it or why. The lives of the women and their families and all the rest will be fundamentally altered, and not in a good way.

Wednesday, May 4, 2022

What’s Next

In the opinion of Charles P. Pierce, the end of Roe v. Wade is just the beginning.

The leak of a draft opinion from the Supreme Court to Politico would have been an earthquake beneath the surface civility of Washington in any case. But to have the first such leak be Justice Samuel Alito’s draft opinion demolishing Roe v. Wade was beyond even that. This was not an earthquake. It was Krakatoa. The reputation of the Supreme Court lies in ruins at the bottom of the sea. The lives of millions of American women have been immiserated. The basic topography of the American republic has been rearranged. Again.

You want to see the part of the leaked draft opinion that is the most vivid demonstration of the majority’s bad faith? It’s a reassurance that I wouldn’t trust as far as I could throw Antonin Scalia, and that’s after digging him up. In this, it’s pure Alito. It’s this passage right here.

“We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

God above, what a crock.

They’re coming for Griswold, and for Obergefell, and for Lawrence, and for Loving, for all I know. I have read too many conservative essays concerning the illegitimacy of a constitutional right to privacy, all of them emerging from the same thickly manured intellectual garden that produced at least four of the justices, including all four of the justices who were appointed by presidents who were elected with fewer popular votes than their opponents. None of the four give a rip for the concept of unenumerated rights. (Justice Amy Coney Barrett wouldn’t even defend Griswold as legitimate precedent at her confirmation hearing.) And Alito’s fig leaf is shredded by its own self-contradiction. If his logic in this draft opinion regarding Roe is sound, then none of the decisions based on a right to privacy are legitimate either.

What Alito’s reassurance does remind me of is the claim within the decision in Bush v. Gore that it was “limited to the present circumstances.” As ProPublica pointed out two years ago, Bush v. Gore has been cited as precedent in nearly 200 cases. Even if I had a scintilla of trust in Alito’s reassurance, which only a fool would countenance, he wouldn’t be able to follow through on it if a state, say, wanted to outlaw gay marriage, or restrict the sale of contraception. Not without sounding like the worst kind of political hack. Which he already is anyway.

Remarkably, this blockbuster came at the end of a day that began with a story in the Washington Post about how the anti-choice forces in Congress were already planning to propose a nationwide ban on abortion should the Republicans carry the midterm elections this fall. That’s for any of you who believe that Alito and the apparent majority are sincere about letting the states make up their own minds.

Activists say their confidence stems from progress on two fronts: At the Supreme Court, a conservative majority appears ready to weaken or overturn the Roe v. Wade decision that has protected abortion rights for nearly 50 years. And activists argue that in Texas, Republicans have paid no apparent political price for banning abortion after cardiac activity is detected, around six weeks of pregnancy.

While a number of states have recently approved laws to ban abortion after 15 weeks of pregnancy — the limit established in the Mississippi legislation at the heart of the case pending before the high court — some activists and Republican lawmakers now say those laws are not ambitious enough for the next phase of the antiabortion movement. Instead, they now see the six-week limit — which they call “heartbeat” legislation — as the preferred strategy because it would prevent far more abortions.

Somebody knew something, I’m thinking.

Meanwhile, as I said, I have immense confidence that the leak is legitimate. The reason I have such confidence is that the text is pure Alito. The tone is smug and condescending and nobody does smug and condescending better than Alito does. He contemptuously hand-waves away the political and social consequences of what he’s doing—which is to say, the human consequences of his decision.

We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.

And he has a lip-curling hostility to the authors of Roe and Casey, the decisions that his opinion overturns. In this, his opinion reads like a comment thread on some ridiculous wingnut website.

As has become increasingly apparent in the intervening years, Casey did not achieve that goal [of finally settling the question] Americans continue to hold passionate and widely divergent views on abortion, and state legislators have acted accordingly.

Alito, of course, elides the fact that these laws are being passed through gerrymandered legislatures and signed by Republican governors, and that their position is a minority one all over the country. But Alito has never cared about the little people affected by his legal genius. Women are going to die. Politics is going to get immeasurably uglier. The reputation of the Supreme Court is going deeper into the dumpster. But Justice Samuel Alito, the sole occupant of his own universe, is the smartest guy in the room, so that’s all that matters.

Are we really going back to “When they came for the women, I did nothing…”?

We know how this ends.

Tuesday, May 3, 2022

Not Over Yet

Yes, it is not surprising and yes, it is scary that the leaked first draft of the Supreme Court’s opinion trashing Roe v. Wade takes such a hard-core path to overturning a nearly fifty-year-old precedent.  But there are some points to ponder.

First, it is a draft.  It could be a version of an opinion that was sent around to garner opinions from the other justices.  The other justices may take their own swipes at it — or support it.  But it’s not the final version.  I’m not saying they will flip it back and support the right to abortion, but they may work in some weasel-words to soften the blow.  Cold comfort.

Second, per Balloon Juice, the people most upset about this leak are not the supporters of abortion rights, but the Republicans who are seeing it as some kind of political subterfuge to beat them at the polls in November.  It’s no surprise that they would be more worried about their political prospects than they are about women and their health and reproductive rights.

Finally, as Anne Laurie notes,

Assuming the far-right fetus fetishists’ most fervent fantasies were to be enacted by the end of the summer (they won’t be), we have everything from widespread internet access, to major improvements in contraceptive and post-coital medicine, to the dissemination of information on safe pharmaceutical abortion — not to mention fifty years of lived experience in a post-Roe nation — on the side of women’s rights and human justice.

This is one more battle in the Long War. We all hoped it wouldn’t come to this, but only the most optimistic among us assumed it couldn’t come to this.

The scariest thing to me is that this sets the course for the Court to overturn other rulings such as contraception and marriage equality.

Sunday, April 17, 2022

Sunday Reading

What’s Next? — Jeannie Suk Gersen in The New Yorker on the pro-life movement’s plans after Roe v. Wade.

In 2003, when the Supreme Court held, in Lawrence v. Texas, that criminalizing gay sex was unconstitutional, it insisted that the decision had nothing to do with marriage equality. In a scathing dissent, Justice Antonin Scalia wrote, “Do not believe it.” Then, in 2013, when the Court struck down the federal Defense of Marriage Act’s definition of marriage as being between a man and a woman, emphasizing the tradition of letting the states define marriage, Scalia issued another warning, saying that “no one should be fooled” into thinking that the Court would leave states free to exclude gay couples from that definition. He was finally proved right two years later, when the reasoning on dignity and equality developed in those earlier rulings led to the Court’s holding that the Constitution requires all states to recognize same-sex marriage.

Just as rights can unfold and expand, however, they can also retract and constrict in breathtaking ways, pursuing a particular strain of logic one case at a time. In the forthcoming decision in Dobbs v. Jackson Women’s Health Organization, the Court is widely expected to overturn or severely undermine its abortion-rights cases, Roe v. Wade and Planned Parenthood v. Casey. In fact, following the comments of the six conservative Justices at the oral arguments in December, the strength of this expectation has spurred state legislative efforts to proceed as if Roe were already gone. A handful of states have passed laws, like the Mississippi law at issue in Dobbs, that ban abortion after fifteen weeks of pregnancy, in violation of precedents establishing that abortion cannot be banned before “viability,” at around twenty-four weeks. (On Thursday, Florida became the most recent.) Some of the laws have been blocked by the courts, but, if Mississippi prevails, the states expect to be free to enforce these bans.

Among the more restrictive bills currently under consideration across the country, more than a dozen emulate the Texas “heartbeat” law, which bans abortion after six weeks of pregnancy and allows only private citizens, not state officials, to enforce the ban. That provision insulates the law from being challenged as unconstitutional in federal court. The Supreme Court repeatedly declined to block the Texas ban, but did leave open a possible avenue to challenge it. In March, the Texas Supreme Court closed that avenue.

Idaho became the first state to enact a Texas-inspired law. Idaho’s law bans abortion after about six weeks, and allows family members (including a rapist’s relatives) of the “preborn child” to sue a provider who performs an abortion. The law was passed last month, but Idaho’s Supreme Court has temporarily blocked it from taking effect. Missouri has introduced a bill that allows private citizens to sue an out-of-state abortion provider, or even someone who helps transport a person across state lines for an abortion. Wyoming has passed a law that bans most abortions, which will be triggered if the Supreme Court overturns Roe. The boldest effort thus far, though, has been in Oklahoma, a destination for Texans seeking abortions. Two weeks ago, Oklahoma’s legislature made it a felony punishable by ten years in prison to perform an abortion except to save a woman’s life in a medical emergency. The governor signed the bill last Tuesday; the law is set to go into effect in August.

Overturning Roe would be the culmination of a half-century-long legal campaign singularly focussed on that outcome. And there are signs that, far from being an end in itself, it would launch even more ambitious agendas. In the Dobbs litigation, Mississippi denied that doing away with Roe would cast doubt on other precedents, set between 1965 and 2015, on which Roe rested or which relied on Roe. This series of decisions held that states cannot ban contraceptives, criminalize gay sex, or refuse to recognize same-sex marriage. The state told the Court that those cases are not like Dobbs, because “none of them involve the purposeful termination of a human life.” But all of them involve the question of whether states should be able to make laws that affect some of the most intimate aspects of people’s lives. In recent weeks, in anticipation of the Dobbs decision, various Republican senators have questioned Griswold v. Connecticut, which struck down a state ban on contraceptives; Obergefell v. Hodges, which required states to recognize same-sex marriage; and even Loving v. Virginia, which invalidated a state anti-miscegenation law. Overturning Roe would almost certainly fuel the broader fight to get fundamental moral issues out of the realm of federal constitutional rights and under the control of the states.

A Supreme Court decision overturning Roe would seek to justify itself on the ground that it allows states to resolve the issue of abortion for themselves, through democratic processes, rather than by having a resolution imposed on them. At that point, it will be tempting to echo Justice Scalia’s “Do not believe it” warning. Although the legal arguments against Roe have focussed on returning the issue to the states, for five decades the core moral belief against the ruling has been that abortion is the termination of a human life. Last week, a twenty-six-year-old Texas woman was arrested on murder charges, for “intentionally and knowingly causing the death of an individual by self-induced abortion.” The prosecutor dismissed the case, saying that the Texas law did not apply to it. But the incident suggested a possible post-Dobbs future, in which states pursue criminal charges against people who have abortions as well as against those who provide them.

It may also be only a matter of time, if Mississippi prevails, before pro-life legal efforts turn toward getting the Supreme Court to recognize the constitutional rights of the fetus. These efforts would focus on the same part of the Constitution that was previously held to provide the right to abortion, the Fourteenth Amendment, which prohibits states from depriving “any person of life, liberty, or property without due process of law.” Fetuses are currently not considered to be persons. But Mississippi’s brief repeatedly notes the human attributes of the fetus, in utero, and it may be a precursor to future constitutional arguments to the effect that fetal personhood prohibits abortion.

In the face of such a push, liberals may one day find themselves advocating for leaving the matter to the states, and perhaps even seeking novel methods—like the one Texas concocted—to circumvent federal-court review of state laws protecting abortion access. Whether or not it would take another fifty years or more for a fetal right to unfold, the pro-life legal movement has demonstrated its ability to fight the long fight.

Doonesbury –Writing itself.

Sunday, February 20, 2022

Sunday Reading

Another Risk in Overturning Roe v. Wade — Jia Tolentino in The New Yorker.

January 22nd marked the forty-ninth anniversary of Roe v. Wade—and, likely, the last year that its protections will remain standing. In December, during oral arguments, the Supreme Court’s six conservative Justices signalled their intention to uphold a Mississippi law that, in banning almost all abortions after fifteen weeks of pregnancy, defies Roe’s protections. Most of those Justices seemed prepared to overturn Roe entirely. Without Roe, which prohibits states from banning abortion before fetal viability—at twenty-eight weeks when the law was decided, and closer to twenty-two weeks now—abortion could become mostly inaccessible and illegal in at least twenty states.

Some of the potential ramifications are obvious. The majority of people who get abortions are already mothers, and seventy-five per cent live near or below the federal poverty line. It is the least advantaged of this disadvantaged group who will be unable to cobble together the time, money, and child care required to travel across state lines to determine their own reproductive futures. Some will be able to self-administer abortions through telemedicine and mail-order pills—a safe and increasingly common method for early pregnancies. But, for those who can’t, the long-term consequences could be severe. The Turnaway Study, a research project that tracked a thousand women seeking abortions in the United States in the course of five years, found that women denied an abortion have an almost four times greater chance of living below the federal poverty line than women who were not denied one, as well as an increased risk of serious health problems; and their children are more likely to grow up in an abusive environment.

But there are other severe, metastasizing consequences that could follow Roe’s repeal. Roe rejects the idea of fetal personhood, which is a pillar of the anti-abortion movement. It also repudiates the argument that the Fourteenth Amendment grants equal protection, and consequently equal legal standing, to fetuses. (That claim was used as early as 1971, when a lawyer filed suit against the state of New York over its liberalized abortion law, and it has been resuscitated by organizations such as the March for Life, whose 2022 theme is “Equality Begins in the Womb.”) The Supreme Court remains a distance away from this extremist position—even Justice Antonin Scalia said that the Constitution applies only to “walking-around persons.” Still, anti-abortion groups have been pushing fetal personhood on state legislatures, which have introduced more than two hundred pieces of legislation supporting it in the past decade. Most of the bills have failed; they are unpopular as well as unconstitutional. But, in 2019, Georgia passed a near-total abortion ban that allows a fetus to be claimed as a dependent on one’s taxes. (The same year, a judge in Alabama allowed a man to sue an abortion clinic on behalf of an aborted embryo’s estate.) The Georgia law is currently before the Eleventh Circuit Court of Appeals, awaiting the Supreme Court’s Mississippi ruling. If such laws can no longer be challenged at the federal level, they will surely begin to proliferate in earnest.

Recent events in Oklahoma provide an example of what might follow. Though the state’s Supreme Court struck down a fetal-personhood amendment to the state constitution in 2012, the idea has been affirmed in other ways. In 2015, state law was amended to require that any fetal death past twelve weeks be reported as a stillbirth. The Humanity of the Unborn Child Act, passed in 2016, requires that the state department of health “clearly and consistently teach that abortion kills a living human being.” Since 2017, according to a report by the Frontier, an Oklahoma journalism nonprofit, at least forty-five women in that state have been charged with child abuse, child neglect, or manslaughter because of drug use during pregnancy. In 2020, according to the Frontier, the district attorney for Kay and Noble Counties charged seven women with felony child neglect for using marijuana during pregnancy, even though some of them had medical-marijuana licenses. The charge does not require the state to demonstrate actual harm.

The same year, the district attorney for Comanche and Cotton Counties charged three women—Brittney Poolaw, Ashley Traister, and Emily Akers—with manslaughter after they miscarried at seventeen weeks, twenty-one weeks, and twenty weeks pregnant, respectively. The fetuses were autopsied, as necessitated by the 2015 change in the law, and each tested positive for methamphetamine. As thirteen physicians and researchers recently affirmed in an amicus brief in support of Akers, studies have shown that meth use is associated with issues connected to low birth weight, but not with miscarriage or stillbirth. Traister pleaded guilty and is awaiting sentencing. Akers’s case was dismissed due to lack of evidence, but Comanche County has appealed. Poolaw was incarcerated for eighteen months before being convicted by a jury that deliberated for less than three hours; she was sentenced, at age nineteen, to the minimum sentence of four years.

These cases are not anomalous—they’re part of an intensifying pattern. In the late eighties and early nineties, at least a hundred and sixty women who used drugs while pregnant were charged with child neglect and distribution of drugs to minors. Between 2006 and 2016, according to ProPublica, some five hundred Alabama women were charged with felony chemical endangerment for using drugs during pregnancy, even in cases in which the drugs were prescribed by doctors. One woman, Katie Darovitz, was arrested when her son was two weeks old and healthy; she had controlled a seizure disorder with marijuana after her doctors advised her that her normal medication could be unsafe for pregnancy. (The case was eventually dismissed.)

Every year, there are about a million miscarriages in the United States. Under the doctrine of fetal personhood, these common, complicated, and profoundly intimate losses could become legally subject to surveillance and criminalization. The blame, as always, would fall on individual behavior, not on the chromosomal or placental abnormalities that often cause miscarriage, or the social factors that have been proven to increase a person’s risk of losing a pregnancy: poor nutrition, limited health-care access, night shifts and long hours, exposure to environmental toxins. Poverty and racism pose an unequivocal threat to fetal life and child well-being. In a post-Roe world, poor and minority women would find themselves not protected but targeted for further suffering.

Doonesbury — See yourself…

Tuesday, January 25, 2022

The Absolute Disconnect

Dana Milbank in the Washington Post:

The weekend began with the March for Life. It ended with a march for death.

Anti-vaccine activists decided to piggyback on Friday’s annual antiabortion march in the capital by having a “Defeat the Mandates” rally on Sunday. Combined, the two groups of (mostly) conservative activists engaged in a demonstration of mass inconsistency.

Friday’s crowd invoked the mantra of the pro-life movement: “A child, not a choice.” Sunday’s proclaimed the mantra of the abortion rights movement to oppose vaccines: “My body, my choice.”

Friday’s crowd endorsed the most obtrusive of big-government mandates, laws telling women they can’t make their own reproductive decisions. Sunday’s argued that health decisions must be made by patient and doctor, not government.

Friday’s crowd pleaded for the lives of the most vulnerable. Sunday’s demanded the right to infect the most vulnerable by eschewing vaccines and masks in shared spaces.

It was enough to make one wonder: Does taking ivermectin cause people to lose their sense of irony?

The crowds weren’t the same but, collectively, the two rallies captured the hypocrisy of the right at this moment: Protect the unborn, but feel free to infect — and perhaps kill — innocent people already born, including, er, pregnant women. And yet both movements claim to be operating under the authority of “God’s mandate” and “God’s law,” as the anti-vaccine speakers repeatedly put it. God works in mysterious ways, indeed.

In a rare moment of self-awareness at the anti-vaccine rally, JP Sears, the event’s emcee, quipped that because of his belief in natural immunity to the coronavirus, “I kind of feel like a flat-Earther.”

In a sense, the dual events showed the changing nature of the political right. The March for Life, in its 49th year, is where the right has been; the march for death shows where it is going. The former, held potentially on the cusp of the long-sought overturning of Roe v. Wade by the Supreme Court, was a joyful assembly; the latter was paranoid and rage-filled.

The well-curated March for Life program avoided harsh language about “baby killers” in favor of calls for compassion. “Every life is worthy of our prayer and our protection, whether in the womb or in the world,” the Greek Orthodox Archbishop Elpidophoros said before his opening prayer. “We can and we must make the case for life both born and unborn, by our example of unconditional love. … We march with compassion, we march with empathy, with love, with our arms extended to embrace all.”

Unconditional love? Embrace all? The angry speakers at the march for death didn’t sign up for that. They railed against medical boards, peer-reviewed journals, vaccine and antiviral manufacturers, expertise of any kind. They declaimed enemies seen and unseen trying to deny them their freedom.

There is no reasoning with this sort of mindset: they see the issue of reproductive rights and vaccination in terms of absolutes. And, to quote Jed Bartlet, when there are days like that, they usually end with body counts. In this case, there seems to be no limit to the lengths they will go to in order to enforce their beliefs: killing doctors who perform legal medical procedures, bombing clinics, threatening the lives of the mothers who have made their choice to terminate a pregnancy under the law.  The anti-vaxxers will threaten the lives of scientists and allow their loved ones to get sick and possibly die because of something they read on the internet.  At least a flat-earther doesn’t put a gun to your head, literally or figuratively.

If their tactics were limited only to the people who are true believers and left the rest of us alone, then there would not be a problem: believe what you wish and live your life as you wish.  But when absolute strangers begin to interfere with the beliefs of others, then we do have a problem.

Thursday, December 31, 2020

Looking Back/Looking Forward

I’ve been wondering how I would do this post for a long time.  I even debated doing it at all, sure that everything I predicted for this year would be out the window and over the fence because once I write it, I don’t look at it.  So, let’s open the time capsule and see what’s inside.

Trump will survive impeachment.  The fix is in.  Revelations about his corruption will keep on coming, and yet the Republicans will cower with him.  It will be his big campaign rallying point.

That was an easy one.

I have no idea who the Democratic Party will nominate for president, and neither do you, but whoever it is will beat Trump in November despite the best efforts of the Kremlin.  I hope it is by such a margin that even Fox News will call it a blowout.  Trump will scream and carry on about it being rigged, but by this time in 2020, he’ll be doing everything he can to trash the place on the way out the door with pardons and lame-duck appointments of Nazi sympathizers and pedophiles.  (If I’m wrong on this and Trump is reelected, I’m moving to Montserrat.  It’s safer to live on an island with an active volcano.)

Wow, I’m impressed how I nailed that one.

Obamacare will survive in the Supreme Court but by a 5-4 ruling.

They haven’t ruled on the latest attempt to kill it, but it sounds like it will survive based on the weakness of the case brought by Texas.

There will be more restrictions placed on reproductive rights, but Roe v. Wade will not be struck down.

Still with us. I give it even odds with the new court in the future.

The Democrats will take back the Senate by one seat and all that bottled-up legislation will finally get through in time for the House, still under Nancy Pelosi, to pass them all again and get them signed by the new president.

Close but no cigar. We’ll know the outcome of this one next week.

The economic bubble will burst, the trade deals with China and Europe will screw over the American consumer, and it’s going to look like one of those 19,000 piece domino videos.  Trump and Fox will blame the Democrats for the monster deficit and carry on about how we need to cut more taxes and destroy Social Security and Medicare to save them.

And it did, thanks to Covid-19. More on that later.

Even with the Democrats taking over in 2020, they won’t be in office until January 2021, so I’ll save predictions for what they’ll come up with in terms of health care, gun safety, and climate change until this time next year, assuming my house in the suburbs of Miami at 10 feet above sea level is still on dry land.

See below.

As for me, my playwriting and productions thereof will continue.  I’m planning on my 29th trip to the Inge Festival in May and hope to be invited back to Alaska in June.  As I’m writing this, the novel that I started twenty-five years ago tomorrow is on the glide path to land by the time I go back to work next week.  I can predict that it will never be published because I never meant it to be.

This was a productive year for me as a playwright: 23 new plays written since this time last year: 4 full length, 1 monologue, 2 one-acts, 1 one-minute, and 15 ten-minutes. I compiled 2 anthologies. Four of them were produced via pixels. Covid-19 postponed Inge and Valdez to 2021, and plans are in the works to return with the vaccine swimming in my bloodstream. I signed with Smith Scripts to publish and license seven plays and two anthologies. And I did finish “Bobby Cramer” on January 10, 2020.

As for hopes for the new year, I hope for continued good health and fortune for my friends and family.  I can’t ask for more than that.

I remain in good health, so far. Regular readers know that my father died on May 25 from Covid-19. My mom, aka Faithful Correspondent, is in assisted living and spending a lot of time doing a lot a reading. She passes on her best wishes to her faithful readers.

Now on to my fearless predictions for 2021.

  • Trump will not go quietly; he may even announce his run for 2024 as they give him the bum’s rush, literally or figuratively, as Joe Biden is being sworn in.  But by March, if not sooner, he’ll be old news and as much a distant memory as “Pink Lady and Jeff.” (Look it up.)
  • The Republicans will do as much as they can to throw squirrels in the wood-chipper for President Biden like they did with President Obama, but I have a feeling it won’t happen.  For one thing, Joe Biden isn’t Barack Obama, and second, this country is so fucking tired of noise and fury and discombobulation that the GOP will find little patience for the MAGA noise.
  • Every executive order signed by Trump will be rescinded by President Biden.
  • Relations with Cuba, put on ice by Trump, will resume its thaw under Biden, and los historicos in Miami can lump it.
  • The pandemic will be under control by June — just in time for my trip to Alaska — and the masks and restrictions will slowly and cautiously be going away by Labor Day.  The final casualty count, though, will be over 500,000 deaths.  I wish I could say there will be a reckoning for those who could have prevented it, but I doubt it.
  • Racial and social justice will continue to make strides forward, and it is to be hoped that with an administration that is not actively opposed to it and supporting racism, overt or otherwise, we will be further along than we are now.
  • The economy will slowly recover as the pandemic gets under control and people emerge from isolation.  The Republicans will suddenly remember that they hate deficits, something they never seem to worry about when they’re in the White House.
  • Obamacare will survive in the Supreme Court because the case brought by Texas is flawed.  Even the conservatives on the court seem skeptical during oral arguments in November.
  • Foreign relations will improve now that the bully has been sent packing.  Suddenly France, Germany, and the EU will be more willing to work with us, and although my expertise in foreign affairs is limited, I think we’ll be better off with China and Japan than we are now.  Russia will still try to mess with us, but at least they won’t have an ally in the White House.
  • We will still have soldiers in harm’s way overseas a year from today.
  • On a personal level, I will strive to keep up my writing.  I have made many connections during these uncertain times, and they will grow.
  • As for hopes for the new year, I hope for continued good health and fortune for my friends and family.  I can’t ask for more than that.

I am glad 2020 is over.  But in reality, the date on the calendar doesn’t matter; it’s up to all of us to make this year as good or as bad as we can.  Unpredictable things will continue to happen: a year ago, “coronavirus” was a crossword puzzle clue, “wear a mask” was a Halloween suggestion, social distancing was for introverts, and Zoom was a brand of hot cereal.  Who knows what tomorrow will bring.  I just hope we’re all here to find out.

Sunday, May 19, 2019

Sunday Reading

Charles P. Pierce — It Didn’t Start With Trump.

Joe Biden kicked up a fuss the other day by saying something…un-smart. (Ex-tree! Ex-tree! Read allaboutit!) He suggested that the current president* is a historical one-off and that, once we are rid of him and have fumigated the White House thoroughly, the normal routine of governing the country will resume and everybody can have drinks with each other at the end of the day. If there is one issue that desperately needs litigating in the Democratic Party’s primary process it is this:

Resolved: this presidency* is the logical outcome of 40 years of modern conservatism and its effect on the Republican Party. If it wasn’t this guy, it would’ve been somebody else.

It is pointless for any Democratic candidate to run for any office without acknowledging this fact. We’ve been banging this tin drum around the shebeen here since it opened, but not enough people have embraced the truth of it. (An aside: I really like some of my Never Trump brethren, but they should go back to their own party and clean out the stables. During an election year, and especially during the Democratic primaries, as far as I’m concerned, they all can take a seat.) The problem is the party, and what it’s become.

The party is the problem, because of what it’s become—a vehicle for bigotry, religious fanaticism, rigged elections, retrograde social policies, renegade plutocracy, staggering wealth inequality, scientific ignorance, reflexive stupidity, violent populism, white supremacy, and a view of the American electorate that is all switch and no bait. (Did I miss anything?) Three times since 1981, the Republicans have produced a president who basically embodied all of these things, just to varying degrees. Ronald Reagan played fast and loose with the truth; is that business about trees causing air pollution really any nuttier than whatever it was that El Caudillo del Mar-a-Lago tweeted at 5 a.m. this morning? George W. Bush launched a war on false pretenses and made this a nation that tortures people and is proud of it. Is that any better than what’s going on at the border now? The question isn’t how the Republicans produced this particular disaster of a president*. The question is what took them so long.

And it is a root and branch thing, too. The federal judiciary is salted thick now with judges who will reinforce in the law all that is destructive in conservative politics. That Alabama state legislature that passed that horrific assault on women’s rights? You watch. At least two of those cats will be in Congress within the next decade. These people and these policies have something close to an unbreakable lock on the United States Senate. And there is no sign within the Republican power elite that anyone is willing or able to control what the party has become. There’s no Frankenstein, hauling his ass over the polar ice to chase down the monster that has escaped the lab.

The only possible way to change the Republican Party is to force it to answer for itself, over and over again. One of the biggest mistakes ever made in American politics, as the redoubtable Driftglass reminds us almost daily, was the Democratic Party’s blunder in letting the Republican Party off the hook for the various catastrophes wrought by the administration of C-Plus Augustus. Iraq, Katrina, and the Economic Collapse should have been hung around Republican necks in the same way, and for the same reasons, that Democratic politicians had to talk for 20 years about the mannequin the Republicans made out of George McGovern, whom Bobby Kennedy once called the most decent man in the Senate.

This cannot be allowed to happen again. If a Democrat is elected in 2020, that person should use all the powers of the office to demonstrate once and for all that the prion disease afflicting the Republicans now has reached terminal stage and that the GOP is a mad dog, snapping at phantoms in midair, and endangering the public health and welfare. Mitch McConnell should be made an object of anger and ridicule, and that work should come from the top. The mad dog is at the door.

Can A Fetus Get A Passport? — Carliss Chatman in the Washington Post speculates on the legal ramifications of granting a fetus full personhood.

Alabama has joined the growing number of states determined to overturn Roe v. Wade by banning abortion from conception forward. The Alabama Human Life Protection Act, as the new statute is called, subjects a doctor who performs an abortion to as many as 99 years in prison. The law, enacted Wednesday, has no exceptions for rape or incest. It redefines an “unborn child, child or person” as “a human being, specifically including an unborn child in utero at any stage of development, regardless of viability.”

We ought to take our laws seriously. Under the laws, people have all sorts of rights and protections. When a state grants full personhood to a fetus, should they not apply equally?

For example, should child support start at conception? Every state permits the custodial parent — who has primary physical custody of the child and is primarily responsible for his or her day-to-day care — to receive child support from the noncustodial parent. Since a fetus resides in its mother, and receives all nutrition and care from its mother’s body, the mother should be eligible for child support as soon as the fetus is declared a person — at conception in Alabama, at six weeks in states that declare personhood at a fetal heartbeat, at eight weeks in Missouri, which was on the way to passing its law on Friday, but at birth in states that have not banned abortion.

And what about deportation? Can a pregnant immigrant who conceived her child in the United States be expelled? Because doing so would require deporting a U.S. citizen. To determine the citizenship of a fetal person requires examination of Section 1 of the 14th Amendment, which declares, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The word “born” was not defined by the drafters. Presumably, they intended the standard dictionary definition: brought forth by birth. Our dates of birth are traditionally when our lives begin; we do not celebrate our dates of conception or the date of our sixth week in utero. But in states with abortion bans, “born” takes on new meaning. Now legislatures assign an arbitrary time during gestation to indicate when life, personhood and, presumably, the rights that accompany these statuses take hold. This grant of natural personhood at a point before birth brings application of the 14th Amendment into question and may thus give a fetus citizenship rights — but only in those states. There are no laws that allow the United States to deny citizenship rights to a natural-born citizen merely because they reside with, or in, a noncitizen.

Detaining any person without arraignment or trial violates the Constitution and international human rights laws. A fetus has not committed a crime, not been arraigned or charged, not weathered a trial by a jury of its peers, not had the opportunity to confront its accuser. These laws redefining personhood surely mean that a pregnant woman cannot be incarcerated, as doing so requires confining a second person without due process.

The Alabama state Senate passed the country’s most restrictive abortion legislation May 14 that could set a precedent for other legislative bodies.

If personhood begins in utero, a fetus will need a name and a Social Security number to begin exercising private rights and using public resources. A Social Security number is necessary to claim a child on taxes. It is also a requirement to act on behalf of a child privately, like opening a bank account, buying savings bonds or obtaining insurance coverage. Typically, parents apply for a Social Security number when they obtain a birth certificate, but if states declare that personhood begins at some earlier arbitrary point in time, they will need to provide evidence, perhaps through a life certificate, that this new person exists and resides in their state. Once the life is established, can a mother insure a six-week fetus and collect if she miscarries? Will the tax code be adjusted in these states to allow parents to claim their unborn children as dependents at conception? If so, can a woman who suffers more than one miscarriage in a fiscal year claim all of her children?

Article I, Section 2 of the Constitution requires a census every 10 years to count all persons residing within the United States. If a fetus is granted personhood, it should be included in the count. The census currently asks about the age and date of birth of each household resident. Will it now include the date of conception in select states so that fetuses may be counted? There is the potential to unfairly skew census data and disproportionately apportion representatives and resources to those states.

These questions highlight the unintended and potentially absurd consequences of sweeping abortion bans. At the heart of the issue is how the 14th Amendment’s definitions of personhood and citizenship should be applied. States have been allowed to define the personhood of unnatural creatures — such as corporations — since very early in our nation’s history. In exchange for this freedom, states are not permitted to go back on their deal. In other words, once personhood rights are granted, a state may not deny life, liberty or property without due process, nor may a state deny equal protection under the law. States have never had the right to define the personhood of people. This was a subject — influenced either by place of birth or by complying with immigration and naturalization requirements — for the Constitution and federal law. State grants of natural personhood challenge this norm.

When states define natural personhood with the goal of overturning Roe v. Wade, they are inadvertently creating a system with two-tiered fetal citizenship. This is because Roe and Planned Parenthood v. Casey create a federal floor for access to the right to choose — a rule that some ability to abort a fetus exists in the United States. If these cases are overturned, that eliminates only the federal right to abortion access. Overturning Roe would not prohibit a state from continuing to allow access. In a post-Roe world, in states like New York that ensure the right to choose through their constitutions and statutes, citizenship will begin at birth. In states that move the line to define life as beginning as early as conception, personhood and citizenship will begin as soon as a woman knows she is pregnant.

Trying to define citizenship and personhood based on the laws of each state creates some far-fetched and even ridiculous scenarios. If we follow that logic, we’ll tie our Constitution into a knot no court can untangle.

Doonesbury — House Rules.

Friday, February 8, 2019

Justice Roberts Has A Moment

From the Washington Post:

Chief Justice John G. Roberts Jr. joined with the Supreme Court’s liberals Thursday night to block a Louisiana law that opponents say would close most of the state’s abortion clinics and leave it with only one doctor eligible to perform the procedure.

The justices may yet consider whether the 2014 law — requiring doctors at abortion clinics to have admitting privileges at nearby hospitals — unduly burdens women’s access to abortion. The Louisiana law has never been enforced, and the Supreme Court in 2016 found a nearly identical Texas law to be unconstitutional.

This is not a ruling on the case itself.  It is just a block on the law taking effect while it works its way through the courts.  But it’s a hopeful sign that the hard-core right wing majority may not be so hard core and may not be a majority.

It’s interesting to note that Chief Justice Roberts has come down on the side of sanity in a few recent rulings, including keeping Obamacare intact.  That does not relieve him of the odious rulings he’s sided with such as the decimation of voting rights (“Racism?  What racism?”) in Shelby County v. Holder and the granting of First Amendment protections to a checkbook in Citizens United, nor his dissent on same-sex marriage, but this ruling, for now, indicates there may be some hopeful signs that he’s not a complete dick when it comes to basic constitutional protections.

Monday, December 31, 2018

Looking Back/Looking Forward

Time for my annual recap and predictions for this year and next.  Let’s look back at how I did a year ago.

  • There will be indictments at a very high level in the administration as the Mueller investigation rumbles on.  Plea bargains and deals will be made and revelations will come forth, and by summer there will be genuine questions about whether or not the administration will survive.  But there won’t be a move to impeach Trump as long as there are Republican majorities in the Congress, and invoking the 25th Amendment is a non-starter.

I’ll give myself a B on that since it was pretty much that way a year ago and the gears of justice grind slowly but irresistibly.  No high-level members of the administration were indicted, but shame and scandal did bring down an impressive number of folks who had hard passes to the West Wing.

  • The Democrats will make great gains in the mid-term elections in November.  This is a safe bet because the party out of power usually does in the first mid-term of new president.  The Democrats will take back the Senate and narrow the gap in the House to the point that Speaker Paul Ryan with either quit or be so powerless that he’s just hanging around to collect pension points.  (No, he will not lose his re-election bid.)

I’ll go with a C on that since I hit the nail on the head in the first sentence; I should have just left it there.  But no; I had it backwards: the House flipped but the GOP still has the Senate, and who knew that Paul Ryan would decide to quit?

  • There will be a vacancy on the Supreme Court, but it won’t happen until after the mid-terms and Trump’s appointment will flail as the Democrats in the Senate block the confirmation on the grounds that the next president gets to choose the replacement.

I’ll take an A- on that since I got the timing wrong, but I think Brett Kavanaugh did a great job of flailing (“I like beer!”) before the Senate Judiciary Committee.  The predator still got on the court, though, and we all hold RBG in the Light for at least another two years.

  • There will be irrefutable proof that the Russians not only meddled in the 2016 U.S. election, but they’ve had a hand in elections in Europe as well and will be a factor in the U.S. mid-terms.  Vladimir Putin will be re-elected, of course.

A+ Duh.

  • Raul Castro will figure out a way to still run Cuba even if he steps down as president, and there will be no lessening of the authoritarian rule.

Another A+, but what did anyone expect?  Trump’s half-assed attempts to restrain trade with Cuba, along with Marco Rubio doing his yapping perrito act, only make it more ironic when it’s the administration’s policy to cozy up to dictators like Putin and the Saudis.  If Trump owned a hotel in Havana he’d be down there in a second sucking up to the regime with video to prove it.

  • The U.S. economy will continue to grow, but there will be dark clouds on the horizon as the deficit grows thanks to the giveaways in the GOP tax bill.  If the GOP engineers cuts to entitlement programs and the number of uninsured for healthcare increases, the strain on the economy will be too much.

I’ll take a B on this since I didn’t factor in tariffs and the trade war(s) he’s launched that led to wild uncertainty in the markets, not to mention Trump’s bashing of the Fed chair that he appointed and told him to do what he’s doing.

  • This “America First” foreign policy will backfire.  All it does is tell our allies “You’re on your own.”  If we ever need them, they’re more likely to turn their backs on us.

I get an A on this because it has and they are.

  • The white supremacist movement will not abate.  Count on seeing more violence against minorities and more mass shootings.

Sadly, a very predictable A on that.

  • A viable Democratic candidate will emerge as a major contender for the 2020 election, and it will most likely be a woman.  Sen. Elizabeth Warren is considered to be the default, but I wouldn’t rule out Sen. Kamala Harris of California or Sen. Kristen Gillibrand of New York just yet.  (Sen. Gillibrand would drive Trump even further around the bend.  She was appointed to the Senate to fill Hillary Clinton’s seat when she became Secretary of State in 2009.)

I get a B on this because it was rather easy to spot and I’m already getting begging e-mails from Ms. Harris.

  • On a personal level, this will be a busy year for my work in theatre with a full production of “All Together Now” opening in March and several other works out there for consideration.  I will also be entering my last full year of employment in my present job (retirement happens in August 2019) but I’ll keep working.

This was a great year for my playwriting with a lot of new friends and opportunities out there and more to come in 2019 (see below).

  • People and fads we never heard about will have their fifteen minutes.

Yep.  I’ve already blocked them out.

Okay, on to the predictions.

  • Barring natural causes or intervention from an outside force, Trump will still be in office on December 31, 2019.  There is no way he will leave voluntarily and even with the House of Representatives in Democratic control and articles of impeachment being drafted they will not get to the Senate floor because the Republicans are either too afraid to rile up the base or they’re too enamored of their own grip on power to care about the government being headed by a poor imitation of a tin-pot banana republic authoritarian douche-canoe.
  • The Mueller Report will be released to Congress and even though it’s supposed to be classified it will be leaked with great fanfare and pundit predictions of the end of the Trump administration with calls for frog-marching him and his minions out of the West Wing.  Despite that, see above.
  • There will be no wall.  There never will be.  Immigration will still be a triggering issue as even more refugees die in U.S. custody.
  • There will be no meaningful changes to gun laws even if the NRA goes broke.  There will be more mass shootings, thoughts and prayers will be offered, and we’ll be told yet again that now is not the time to talk about it.
  • Obamacare will survive its latest challenge because the ruling by the judge in Texas declaring the entire law unconstitutional will be tossed and turned into a case study in law schools everywhere on the topic of exasperatingly stupid reasoning.
  • Roe vs. Wade will still stand.
  • With the Democrats in control of the House, the government will be in permanent gridlock even after they work out some sort of deal to end the current shutdown over the mythological wall.  House Speaker Nancy Pelosi will become the Willie Horton for the GOP base and blamed for everything from budget deficits to the toast falling butter-side down.
  • We will have a pretty good idea who the Democratic front-runner will be in 2020.  I think Sen. Elizabeth Warren’s chances are still good (she announced her exploratory committee as I was writing this), as are Sen. Kamala Harris’s, and don’t count out Sen. Sherrod Brown of Ohio, but who knew that Beto O’Rourke, a charismatic loser in the Texas senate race, would raise a lot of hopes?  That said, fifteen years ago when I started this blog, Howard Dean looked like the guy who was going to beat George W. Bush.
  • The economy will continue with its wild gyrations, pretty much following the gyrations of the mood of Trump and his thumb-driven Twitter-fed economic exhortations.  The tax cuts and the tariffs will land on the backs of the people who provide the income to the government and the deficit will soon be out there beyond the Tesla in outer space.  But unlike that Martian-bound convertible, the economy will come crashing back to Earth (probably about the time I retire in August) and Trump will blame everyone else.
  • There will be a natural event that will convince even skeptics that climate change and sea level rise is real and happening.  Unfortunately, nothing will be done about it even if lots of lives are lost because [spoiler alert] nothing ever is done.
  • I’m going out on a limb here with foreign affairs predictions, but I have a feeling that Brexit will end up in the dustbin of history.
  • Personally, this will be a transition year.  My retirement from Miami-Dade County Public Schools occurs officially on August 31, 2019, and I’m already actively looking for something both meaningful and income-producing to do after that.  (E-mail me for a copy of my resume; nothing ventured, nothing sprained.)  My play “Can’t Live Without You” opens at the Willow Theatre in Boca Raton, Florida, for a two-week run on March 30, and I’m planning on returning to the William Inge Theatre Festival for the 28th time, either with a play or most assuredly with a scholarly paper.  I have my bid in for a variety of other theatre events and productions; I think I’m getting the hang of this playwriting thing.
  • I will do this again next year.  I hope.  As Bobby says, “Hope is my greatest weakness.”

Okay, your turn.  Meanwhile, I wish continued good health and a long life to all of you and hope you make it through 2019 none the worse for wear.

Tuesday, March 20, 2018

Tuesday, January 30, 2018

Passing The Cynicism Test

The Senate was unable to pass the proposed ban on abortions after twenty weeks.

By a vote of 51 to 46, the measure fell well short of the 60-vote threshold required for the Senate to break a Democratic filibuster. The outcome was not a surprise, and the vote fell mostly along party lines.

The Senate voted on a similar measure in 2015. At that time three Democrats — Senators Bob Casey of Pennsylvania, Joe Donnelly of Indiana and Joe Manchin of West Virginia — voted in favor of it. All three are up for re-election this year in states that Mr. Trump carried, and all of them voted in favor of the measure again on Monday. Two Republicans — Senators Susan Collins of Maine and Lisa Murkowski of Alaska — voted against it.

The bill, which has the strong backing of the Trump administration, is identical to one that passed the House in October and similar to legislation that has been adopted in 20 states. It would make nearly all abortions after 20 weeks illegal; anyone who performed the procedure could face a potential prison term of five years, fines or both, though exceptions could be made when the life of the mother was at risk, or in cases of rape or incest.

“To those who believe in this issue, we will be back for another day,” Senator Lindsey Graham, Republican of South Carolina and the chief sponsor of the bill, said in advance of the vote. To his colleagues who supported the measure, he said: “You’re on the right side of history. You’re where America will be. It’s just a matter of time before we get there.”

The Senate floor debate offered supporters and opponents of abortion rights an opportunity to speak expansively about Roe v. Wade, the landmark 1973 Supreme Court decision legalizing abortion — and they took it.

“Forty-five years after Roe v. Wade, abortions are safer today than getting your tonsils out,” declared Senator Elizabeth Warren, Democrat of Massachusetts. “A lot of women are alive today because of Roe.” She called the ban “part of a broad and sustained assault by Republican politicians on women’s rights to make decisions about their own bodies.”

It’s no coincidence that the Republicans brought the bill to the Senate floor now, at the beginning of the campaign year for the mid-terms.  They wanted a sound bite for the ads they’re planning to run against Democrats defending their seats in red states such as Indiana and Missouri.

It’s no surprise whatsoever that the GOP would do it.  That’s not the issue.  What is the issue is that they would keep trying to exploit the people who are in the throes of making one of the most difficult decisions in their lives, if not the most personal and private, and hold it hostage to a political campaign.

But in the era of Trump, it’s to be expected.

Thursday, January 25, 2018

Wednesday, October 4, 2017

Sunday, July 23, 2017

Sunday Reading

Legacy of Lies — Ryan Lizza in The New Yorker on Sean Spicer’s record at the White House podium.

Sean Spicer’s resignation, on Friday morning, after six months of routinely lying from the White House lectern and then ending on-camera briefings altogether, once again raises one of the most important questions of the Trump era: What is the red line that Trump must cross for his aides to quit on principle? For Spicer, the answer was a new boss he didn’t like. Trump, over the objections of Spicer and Spicer’s closest White House ally, Reince Priebus, the President’s chief of staff, hired Anthony Scaramucci, a New York financier and frequent Trump surrogate on TV, as his new White House communications director.

The hire is unusual for several reasons. The role of communications director, a job that has been vacant since May, when Michael Dubke, a low-key Republican strategist, resigned from the position, is traditionally reserved for campaign operatives. Scaramucci is a Wall Street guy—he started at Goldman Sachs and later founded his own investment firms—and a former host on the Fox Business channel. Before the Trump campaign, his experience in politics was more on the fund-raising side than on the strategy side. In the Trump campaign, which was small, he took on a broader role as an adviser to the candidate and appeared frequently on TV, where he stood out because he was less ideological than the usual pro-Trump pundits.

More unusual is the way Scaramucci was hired. In a normal White House, the chief of staff is in charge of hiring. For the President to overrule his chief of staff on such an important position is an enormous embarrassment for Priebus. During a briefing on Friday afternoon, Scaramucci tried to downplay the friction between him and Priebus, but for months he has been telling people of his frustrations with the chief of staff. Scaramucci was originally asked to run the White House Office of Intergovernmental Affairs, but Priebus blocked Scaramucci from taking the job, even after Scaramucci sold his investment firm to take it.

Scaramucci then appealed directly to Trump to find him another position. He had three meetings scheduled with the President, and they were all cancelled. Scaramucci believed that Priebus, who is in charge of Trump’s schedule, worked to keep him away from Trump. Scaramucci “had to go over the top and directly to the President,” a source familiar with the episode said. “The problem is that Trump is in such a bubble now, he doesn’t know what the hell is going on.” Scaramucci was offered the ambassadorship to the Organization for Economic Cooperation and Development, in Europe.

If Priebus thought he had rid the White House of Scaramucci, he was wrong. In recent weeks, Scaramucci was a familiar figure at the Trump Hotel in Washington, meeting with reporters and Trump advisers. Ostensibly, he was there because he was working as an official at the D.C.-based Export-Import Bank. But, clearly, something else was in the works.

For Spicer, Trump’s decision to install Scaramucci above him—the press secretary reports to the communications director—was too much to take. Given the highs and lows of Spicer’s time at the White House, this was an unusual choice of hills to die on. Spicer began his tenure as press secretary with a bizarre rant about how Trump’s Inauguration audience “was the largest audience to ever witness an Inauguration, period.” (It wasn’t.) For someone who was never fully inside the Trump circle of trust, the performance had the ring of an eager gang initiate committing a crime to please the boss. Trump, who regularly watched the briefings, which were broadcast live on cable news, reportedly complained about Spicer’s pale suits and later seemed to become aggravated that Spicer was becoming famous, or at least infamous. Spicer’s temper tantrums, ill-fitting suits, and mispronunciations turned him into a pop-culture sensation.

But it was Spicer’s lies and defense of lies that he will be remembered for. Spicer defended Trump’s lie about how there were three million fraudulent votes in the 2016 election. He spent weeks using shifting stories to defend Trump’s lie about President Barack Obama wiretapping Trump Tower. In trying to explain the urgency of the attack on Syria, Spicer explained, “You had someone as despicable as Hitler, who didn’t even sink to using chemical weapons.”

Last week, he lied about the nature of the meeting at Trump Tower in June, 2016, between senior Trump-campaign officials and several people claiming to have information about Hillary Clinton from the Russian government. “There was nothing, as far as we know, that would lead anyone to believe that there was anything except for discussion about adoption,” Spicer claimed, bizarrely, because Donald Trump, Jr., had already admitted that the meeting was about Russian dirt on Clinton. On March 10th, Spicer came to the lectern wearing an upside-down American flag, which is a signal of dire distress.

Despite the repeated humiliations of standing before reporters and saying things he had to know were untrue, what finally made working at the White House intolerable for Spicer was a minor staffing issue. Scaramucci comes to his new job with a good reputation. He is not a conservative ideologue—he is pro-choice, a moderate on gun control, and anti-death penalty—and he is well-liked by reporters. But working for Trump can have a corrosive effect on good people. Scaramucci’s task is to, without sacrificing his own reputation, communicate on behalf of a President who routinely lies. Scaramucci has his work cut out for him.

Saving Planned Parenthood — Becca Andrews in Mother Jones on how an obscure Senate rule may have saved Planned Parenthood.

Planed Parenthood received good news late Friday afternoon: Senate Parliamentarian Elizabeth MacDonough released a determination that says certain provisions in the Republican’s latest Obamacare replacement bill, the “Better Care Reconciliation Act (BCRA),” violate the 1985 Byrd Rule. That means some of the bill’s provisions—including the one to defund Planned Parenthood for one year—cannot pass without a full 60 votes in the Senate. Republicans currently only hold 52 of the Senate’s seats.

The Byrd Rule, named after Democratic Senator Robert Byrd, states that any legislation that directly affects the federal budget by decreasing spending or increasing revenue can be passed through reconciliation, the process that Republicans are using to try and pass their latest health care law. But some of the bill’s provisions don’t appear to qualify: As my colleague Kevin Drum points out, the provision that would prohibit Planned Parenthood from receiving Medicaid funds probably “doesn’t pass muster because it doesn’t affect total spending, only where money can be spent.” “This means that, should the Senate proceed to the bill, these provisions may be struck from the legislation absent 60 votes,” the parliamentarian’s decision explains.

“Targeting Planned Parenthood because we provide abortion is an obvious violation of the Byrd Rule because the provision’s primary intent is clearly political, and the budgetary impact is ‘merely incidental’ to that purpose,” said Dana Singiser, vice president of public policy and government affairs for Planned Parenthood Federation of America.

Other casualties of the bill include the replacement to Obamacare’s individual mandate, which under the BCRA would have meant that anyone who had a lapse in coverage for more than a month and then signed up on the exchange would have had to wait six months for full coverage to take effect. The parliamentarian also stated that the measure in the BCRA to restrict federal tax credits from being used for abortion violates the Byrd Rule.

It’s possible that Republicans will try to overturn the parliamentarian’s decision, but doing so would violate decades of precedent in the Senate.

Sky Faerie — Clay Routledge in the New York Times on defining religion.

Are Americans becoming less religious? It depends on what you mean by “religious.”

Polls certainly indicate a decline in religious affiliation, practice and belief. Just a couple of decades ago, about 95 percent of Americans reported belonging to a religious group. This number is now around 75 percent. And far fewer are actively religious: The percentage of regular churchgoers may be as low as 15 to 20 percent. As for religious belief, the Pew Research Center found that from 2007 to 2014 the percentage of Americans who reported being absolutely confident God exists dropped from 71 percent to 63 percent.

Nonetheless, there is reason to doubt the death of religion, or at least the death of what you might call the “religious mind” — our concern with existential questions and our search for meaning. A growing body of research suggests that the evidence for a decline in traditional religious belief, identity and practice does not reflect a decline in this underlying spiritual inclination.

Ask yourself: Why are people religious to begin with? One view is that religion is an ancient way of understanding and organizing the world that persists largely because societies pass it down from generation to generation. This view is related to the idea that the rise of science entails the fall of religion. It also assumes that the strength of religion is best measured by how much doctrine people accept and how observant they are.

This view, however, does not capture the fundamental nature of the religious mind — our awareness of, and need to reckon with, the transience and fragility of our existence, and how small and unimportant we seem to be in the grand scheme of things. In short: our quest for significance.

Dozens of studies show a strong link between religiosity and existential concerns about death and meaning. For example, when research participants are presented with stimuli that bring death to mind or challenge a sense of meaning in life, they exhibit increased religiosity and interest in religious or spiritual ideas. Another body of research shows that religious beliefs provide and protect meaning.

Furthermore, evidence suggests that the religious mind persists even when we lose faith in traditional religious beliefs and institutions. Consider that roughly 30 percent of Americans report they have felt in contact with someone who has died. Nearly 20 percent believe they have been in the presence of a ghost. About one-third of Americans believe that ghosts exist and can interact with and harm humans; around two-thirds hold supernatural or paranormal beliefs of some kind, including beliefs in reincarnation, spiritual energy and psychic powers.

These numbers are much higher than they were in previous decades, when more people reported being highly religious. People who do not frequently attend church are twice as likely to believe in ghosts as those who are regular churchgoers. The less religious people are, the more likely they are to endorse empirically unsupported ideas about U.F.O.s, intelligent aliens monitoring the lives of humans and related conspiracies about a government cover-up of these phenomena.

An emerging body of research supports the thesis that these interests in nontraditional supernatural and paranormal phenomena are driven by the same cognitive processes and motives that inspire religion. For instance, my colleagues and I recently published a series of studies in the journal Motivation and Emotion demonstrating that the link between low religiosity and belief in advanced alien visitors is at least partly explained by the pursuit of meaning. The less religious participants were, we found, the less they perceived their lives as meaningful. This lack of meaning was associated with a desire to find meaning, which in turn was associated with belief in U.F.O.s and alien visitors.

When people are searching for meaning, their minds seem to gravitate toward thoughts of things like aliens that do not fall within our current scientific inventory of the world. Why? I suspect part of the answer is that such ideas imply that humans are not alone in the universe, that we might be part of a larger cosmic drama. As with traditional religious beliefs, many of these paranormal beliefs involve powerful beings watching over humans and the hope that they will rescue us from death and extinction.

A great many atheists and agnostics, of course, do not think U.F.O.s exist. I’m not suggesting that if you reject traditional religious belief, you will necessarily find yourself believing in alien visitors. But because beliefs about U.F.O.s and aliens do not explicitly invoke the supernatural and are couched in scientific and technological jargon, they may be more palatable to those who reject the metaphysics of more traditional religious systems.

It is important to note that thus far, research indicates only that the need for meaning inspires these types of paranormal beliefs, not that such beliefs actually do a good job of providing meaning. There are reasons to suspect they are poor substitutes for religion: They are not part of a well-established social and institutional support system and they lack a deeper and historically rich philosophy of meaning. Seeking meaning does not always equal finding meaning.

The Western world is, in theory, becoming increasingly secular — but the religious mind remains active. The question now is, how can society satisfactorily meet people’s religious and spiritual needs?

 Doonesbury — House hunt.

Friday, June 30, 2017

Tuesday, May 16, 2017