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Archive for July, 2006

Again With the Countermobilization Myth

[ 0 ] July 10, 2006 |

While I was away, any number of conservatives who either honestly or passive-aggressively oppose gay marriage tried to sell the idea that the New York Court of Appeals’ upholding of New York’s discriminatory marriage law was really a victory for the side that lost. This argument is familiar from Roe v. Wade, about which it is frequently argued that it would be better for reproductive freedom if abortion was banned in a couple dozen states rather than legal in all 50 because…look, it’s Halley’s Comet! In addition to Roe, the false friends of gay rights are also bringing Brown v. Board into it. As Amanda says, this is silly:

The NAACP tried the legislative route before they started the lawsuit strategy when they tried to get Congress to pass anti-lynching laws, which Congress didn’t do until like last year, when they could be sure it would be only a symbolic gesture. If court decisions seems to cause more social chaos, it’s only because the courts are often the only branch of the government that can really lead the way in securing rights.

Right–the argument that Brown v. Board was counterproductive is transparently wrong in two respects. First of all, it’s not that civil rights litigators wouldn’t have preferred that Congress pass civil rights legislation, but with the Senate effectively fulfilling its designed historical role of giving an effective veto to Southern white supremacists, strong civil rights legislation wasn’t on the table. They went to the courts because that was the only option. (What are you going to do, lobby the Alabama legislature?) And second, it’s silly to treat Brown and the Civil Rights Act as independent events. Without the violent resistance engendered by Brown, which slowly made the willingness of moderates to accommodate Southern apartheid untenable, the Civil Rights Act would never have been passed. Some institution had to force the violent nature of Jim Crow into the open, and it was the courts or nothing.

And there’s an additional glaring contradiction in this argument. J-Pod et al. are arguing, remember, that winning victories in the courts means a huge setback for the cause that wins. But less than five years after Brown Congress passed its first civil rights legislation since Reconstruction, and within a decade the CRA had been signed into law. I’m not sure exactly what the Supreme Court’s intervention slowed down. (Do these people think that without Brown, Dwight “southerners were not bad people, just concerned lest their sweet little girls be seated alongside some big black bucks” Eisenhower would have rammed comprehensive civil rights legislation through Congress?) If this is the pace of progress we could expect in light of a backlash to court decisions protecting gay rights, I’ll take it.

And finally, this juxtaposition should remind us why reactionaries have such a large stake in the erroneous assertion that Roe led to realignment and the creation of the New Right, when in fact the passage of the Civil Rights Act was the decisive event. (It wasn’t 1976 when the Deep South first went Republican.)

Pierce further shreds J-Pod’s revisionist history. The extent to which people are willing to distort history to prop up the countermobilization myth is really quite remarkable, and it’s especially obvious with civil rights because (unlike with abortion) most people know the basic history.

Thug Fight!!!!!

[ 0 ] July 9, 2006 |

Speaking of thugs, Dority vs. Turner has to be the most entertaining bit of television I’ve seen all year.

…although Alma vs. Ellsworth gives it a good run. What a great show.

Penalty Kicks?

[ 0 ] July 9, 2006 |

Congratulations to Italy. What a crappy sport.

Copyright and CleanFlix

[ 0 ] July 9, 2006 |

Nathan and Matt are 100% correct about the badness of the recent decision [actually, I think this is the wrong way of putting it; see update] holding that CleanFlix–a company that sells versions of movies cleansed of all the stuff they warn you about when a movie is starting up at HBO–is engaged in illegal behavior. As Matt says:

Artists and so forth who think their interests are being served by pushing a strong-IP doctrine on this front are essentially dupes. The people who control the existing distribution channels for film have a very serious interest in using the new-style super-strong IP rules to insulate themselves from the winds of technological change. So, in essence, they’re pushing forward on all fronts, stomping on various totally non-harmful cases of putative infringement and attempting to radically curtail people’s ability to do what they want to do with content they’ve purchased.

Matt is also right that it’s important not to be diverted by distaste for the CleanFlix enterprise. First of all, what the company is doing is not terribly unusual; various forms of content that the mass audience might find objectionable are systematically removed to show movies on broadcast TV and airlines(*), for example, and the former further bowlderizes films to fit time slots and include commercials. Being a snooty civil libertarian aesthete with no kids, I find all of this silly, and in fact I pretty much never watch movies on broadcast TV or airlines, do not think that random bad words or stray nipples on TV present a massive cultural crisis, think that film would probably benefit from more nudity and eroticism (although probably could do with less movies about blowing stuff up) etc. etc. But the puritanism of CleanFlix is also essentially harmless–as opponents of puritan busybodyism often note, nobody’s forcing you to watch their products–and of course ex post facto changes are infinitely preferable (for both artists and audiences) to preventing the work from being done in the first place. Instinctive hostility to middlebrow “family values” groups shouldn’t compel one to fall into the trap of advocating terrible copyrights laws. It’s also worth reiterating that where Congress’ copyright powers are concerned, consequentialist analysis is not merely useful but required; the Constitution specifically does not hold that copyrights are a sacrosanct abstract right, but are designed to advance the public interest, which decisions like this manifestly fail to do.

*American airlines, I should say. Another reason to cheer for France against Team WATB today is that Air France gives you a menu of entirely unedited movies, some of which–violating what seem to be the formal requirements of the American airline industry–are actually good. A seven hour flight goes a lot more quickly if you can screen Crimes and Misdemeanors II Match Point and Brokeback Mountain, both of which if anything I underrated. Alas, on the way back was King Kong, in which virtually every scene felt painfully distended despite the pretty much the ideal context for a long movie. (Another complexity of art and commerce: although Jackson’s leisurely pace and love of technical gadgetry worked in the LOTR movies–my understanding is that its big fans actually prefer the longer director’s cuts–this one would have actually benefited from a philistine cigar-chomping boss telling Jackson that while it might be really cool to create these lengthy scenes with computerized dinosaurs watching it is really boring.) Much better was the new Chabrol/Huppert film–I’m guessing they’re not showing this on United–the kind of minor but tight and entertaining and well-acted movie that studios should theoretically be able to churn out by the dozen but for some reason rarely do.

UPDATE: Some good counterpoints in comments. I should clarify that by “bad decision” I don’t mean that it was incorrect as an application of copyright law; indeed, the way I framed it is wrong, since if anything is wrong it’s the law rather than its application. With respect to that, I’m still skeptical that existing copyright law is, on balance, in the public interest, but after reading the decision more carefully I will concede that this is a much tougher case than my cavalier opening made it sound; given that the company in question was burning DVDs without permission, there is at least a plausible case that protecting it is in the public interest. On the other hand, I think the only question is whether the policy will lead to the production of more art, and I don’t think there’s much evidence that it will.


[ 0 ] July 9, 2006 |

A further note on deterrence theory; the most common critique (but not, as I have argued, the correct critique) is that deterrence theory cannot answer the problem of “madmen”, leaders who are presumably clinically insane and cannot be relied upon to make the rational calculations necessary to make deterrence work. As John Judis (via Matt) points out, the trope of the madman seems to have found purchase in American political debate, apparently undeterred by the fact that it is supported by virtually no empirical evidence.

It is hard for me to think, off the top of my head, of a genuinely suicidal leader. Hitler certainly does not qualify; he estimated correctly (over the assessment of his generals) that France could be conquered, then estimated incorrectly (but with the assent of his generals) that the Soviet Union could be conquered. It’s unfortunate that, instead of identifying the real problems with deterrence theory, policymakers and talking heads feel the need to discuss foreign policy problems in terms of mental illness. I suppose it makes sense rhetorically; the low level stability consequences of deterrence theory are kind of hard to explain, treating other countries as if they have reasonable interests and complaints almost smacks of treating others as actual people, and a calm discussion of interest leaves “hawks” without a bludgeon to bash people with.

"I prefer the personal touch you only get with hired goons"

[ 0 ] July 9, 2006 |

Matt of the Tattered Coat channels the question “Who are your favorite Film Thugs of all time?” Matt’s answers come from film noir; Chinatown and the Set-Up. Here are some of mine. The definition of “thug” would seem to me to be a physically imposing henchmen of the Big Bad, but not the Big Bad himself. I suppose, by this definition, even Darth Vader would be a thug. Anyway:

  1. The Good, the Bad, and the Ugly: Mario Brega as Corporal Wallace, the sadistic assistant of Angel Eyes, has always struck me as the archetypal thug. Cruel, violent, greasy, and probably smelly, you can’t help feeling warm and fuzzy when Eli Wallach bashes his head in with a rock.
  2. Lock, Stock, and Two Smoking Barrels: Vinnie Jones was born to play thugs. Enough said.
  3. The Limey: I don’t know why this one sticks in my memory, but I like not only Peter Fonda’s thuggish security chief, but also the hit men that the chief hires to kill Terence Stamp. They have a no-nonsense professionalism about them that helps cover for the fact that Fonda is in completely over his head.
  4. The Road Warrior: It’s hard to stand out when everyone is a thug, but Vernon Wells manages. He conveys nothing so much as a love of brutality, and while you can imagine the Humungous surviving in civilized society, Wez has obviously found his element.
  5. Sexy Beast: This little flick improves every time I see it, in no small part because I am more impressed than ever by Ian McShane after watching his work in Nine Lives and Deadwood. I have had friends get up and leave during a viewing because they can’t handle the stress that Ben Kingsley puts on Ray Winstone and his crew at the beginning of the film. Intimidation is, of course, the purpose of a thug.

Sunday Battleship Blogging: HIJMS Kaga

[ 0 ] July 9, 2006 |

In the wake of World War I, the Imperial Japanese Navy decided to pursue the “8-8″ program, designed to provide Japan with eight modern battlecruisers and eight modern battleships. Because of the 1922 Washington Naval Treaty, only two of these ships (Nagato and Mutsu) were completed as designed. The follow-up Japanese designs included the Amagi class battlecruisers and the Tosa class battleships.

As designed, Kaga was to carry 10 16″ guns in 5 twin turrets, displace 40000 tons, and make 26.5 knots. Her most likely opponents would have been the American South Dakota class, which was more heavily armed and armored but much slower. Because of the intervention of the Treaty, however, construction on Kaga was suspended. The terms of the Treaty allowed the United States and Japan to convert two ships into aircraft carriers in order to match Royal Navy conversions. The Americans converted the battlecruisers Lexington and Saratoga, and the Japanese intended to convert the battlecruisers Akagi and Amagi. Kaga and her almost complete sister Tosa were slated for destruction.

At 11:58am on September 1, 1923, a massive earthquake struck Japan. The magnitude of the earthquake measured at least 7.9. Fires broke out all over Tokyo, and it is thought that over 100000 Japanese died in the earthquake and the ensuing chaos. In the wake of the earthquake, rumours spread that Korean gangs were looting the wreckage of downtown Tokyo. In spite of the protection of the Japanese Army, nearly 2000 Koreans were murdered by Japanese mobs. Amagi, in the process of conversion to an aircraft carrier, was damaged beyond repair. Kaga won a reprieve.

The aircraft carrier Kaga displaced 32000 tons, could make 28 knots, and carried about 90 aircraft. Along with Akagi, she formed the core of Japan’s interwar aircraft carrier force. In November 1941, Kaga proceeded with Akagi, Hiryu, Soryu, Shokaku, and Zuikaku on a secret mission to attack Pearl Harbor. Her aircraft helped sink West Virginia, California, Nevada, and Oklahoma on December 7. Following the Pearl Harbor raid, Kaga helped attack Australia, Rabaul, and other Allied targets.

In May 1942 the Japanese high command decided to launch an operation to seize Midway, a small island sort of near Hawaii. Akagi, Soryu, Hiryu, and the bulk of the strength of the Japanese Combined Fleet were also committed to the operation. American codebreaking revealed the Japanese force, and three USN carrier intercepted the invasion attempt. Although Japanese fighters defeated an attack by American torpedo bombers, a group of dive bombers from Hornet, Yorktown, and Enterprise found the Japanese carriers and attacked. Kaga was hit by four bombs, which started uncontrollable fires on her flight and hangar decks. Kaga’s crew was evacuated, and the ship sank a few hours after the attack. Soryu, Akagi, and Hiryu were also destroyed at the Battle of Midway.

Trivia: Part of the purpose of the Iowa class battleships was to chase down and destroy the Kongo class battlecruisers. What class of ships served as partial justification for the reactivation of the Iowa class?

Searchers Redux

[ 0 ] July 8, 2006 |

Matt wonders what I think about Stephen Metcalf’s trashing of the Searchers. I generally (but not unreservedly) like Metcalf, although he certainly does often fall into the Slate contrarian-for-contrarian’s-sake model of writing. Metcalf really doesn’t care for The Searchers, and blames academia for its reputation:

Its reputation lies elsewhere, with two influential and mutually reinforcing constituencies: critics whose careers emerged out of the rise of “film studies” as a discrete and self-respecting academic discipline, and the first generation of filmmakers—Scorsese and Schrader, but also Francis Ford Coppola, John Milius, and George Lucas—whose careers began in film school. The hosanna chorus for The Searchers is impossible to imagine, in other words, without the formalized presence of film in the university curriculum. The question, then, is: Why did the curriculum attach so intensely to so obviously flawed a movie?

Metcalf also points out that neither Pauline Kael nor Roger Ebert particularly care for the film.

I’m not entirely hostile to Metcalf’s argument. He’s right that The Searchers is a difficult film to watch, and right that there seem to be some glaring problems (most notably Ford’s need to clumsily provide the occasional comic relief). In some sense, The Man Who Shot Liberty Valance, for example, holds together better as a movie. Even on this point I don’t think that Metcalf is completely fair, however. The frequent cuts to the homestead serve to illustrate the passage of time, and the finale (where Scar apparently decides to stop running and leave himself open to cavalry attack) makes more sense that I think Metcalf would allow. Metcalf also feels the unfortunate need to point out that Ford was an unlikable cuss who probably wouldn’t have enjoyed a film studies class, but while true this is pointless and irrelevant.

The problem I have with Metcalf is that he seems to think that because The Searchers leaves open questions that can be talked about, it’s a failure as a movie. Again, the comparison with Liberty Valance is instructive; the hero and narrative in the latter are far more conventional, understandable, and in some sense enjoyable. But there’s something to be said for a film that includes as intractable a hero as Ethan Edwards and as many iconic sequences as The Searchers. There’s often a trade off in evaluating film between a movie that holds together very well and one that combines some extraordinary scenes and performances with some weakeer segments. It’s not surprising, I suppose, that film students prefer and idolize the latter rather than the former. A similar comparison from Spielberg would be the difference between Catch Me if You Can, which is solid throughout, and Saving Private Ryan, which combines some indelible sequences with a lot of long, slow, boring, and conventional scenes.

So the question is partially one of preference, and I can understand Metcalf’s position. It’s too bad, though, that he feels he needs to conform to the Slate “snarky contrarian” style of writing, because it makes him sound like a damn wanker.

UPDATE: J-Pod has helped me reaffirm my love of the Searchers. Also see Bryan McKay.

Missile Deterrence

[ 0 ] July 8, 2006 |

It’s unclear why Jon Wolfstahl thinks that a deterrent posture on the part of the United States can convince North Korea to give up its missile program; as Bill Petti notes, the deterrent relationship is two-sided. The North Korean leadership undoubtedly believes that a reliable and vigorous missile program is necessary to deter a US attack, and thus that testing the occasional missile is critical to national survival. The problem of obscure intentions is covered, I believe, in Realism 101. This hardly reduces the utility of a deterrent strategy, however, because the point of such a strategy is not to prevent North Korea from launching missiles, but to prevent NK from launching missiles at American, Korean, and Japanese cities.

I’m a big fan of deterrence, but it can’t solve everything. It is commonly accepted among international relations theorists that a deterrent posture can maintain high level stability while creating low level instability. In other words, North Korea is unlikely to invade the South or attack Japan, but nuclear weapons and missile programs may allow North Korea to get away with all kinds of small provocations. The cost of total war makes it unlikely that the United States will respond forcefully to such provocations and risk open conflict. Thus, in addition to maintaining the deterrent relationship, Pyongyang hopes that missiles and nukes will allow North Korea a wider latitude in foreign policy options.

This is precisely what worries, and what ought to worry, the United States about the Iranian nuclear program. While it’s exciting and scary to talk about how Iran is run by a crazy guy and will try to erase Israel, the real concern is a nuclear Iran, potentially immune to attack, will feel free to increase support for terrorism or intimidate Iraq or fiddle with oil prices or whatever. North Korea can bother the United States in any number of ways, but its status as a missile technology proliferant are most worrying. To the credit of the administration’s foreign policy brain, I suspect that they worry more about what will happen if deterrence succeeds than if deterrence fails, and that these concerns make them reluctant to embrace deterrence as a strategy.

Unfortunately, the administration seems unwilling to deal with problems that can’t be “solved”. The best we can do with North Korea and Iran is management, and deterrence is probably the best strategy we have. Like all policies, it has costs as well as benefits. Given that, deterrence is still a pretty wide umbrella that can allow the use of many different tactics; there are ways of reducing the chance of North Korean proliferation or Iranian support for terrorism, just as there were ways to manage Soviet behavior within the general deterrent relationship.

Men Overboard

[ 3 ] July 7, 2006 |

[This article originally appeared in the July 2006 edition of The American Prospect.]

The confirmation of two conservative Supreme Court justices and the passage of a draconian abortion ban in South Dakota have again thrown the precarious state of reproductive rights in the United States into sharp relief. It’s a serious moment — which makes the continued preference for clever counter-intuition and abstract debates shared by many of the nation’s prominent, avowedly pro-choice pundits all the more troubling.

It is difficult to know when a “contrarian” idea has been repeated so much as to become the new conventional wisdom. At least in prominent liberal media outlets, however, the argument that pro-choicers would be better off abandoning Roe v. Wade has probably crossed the line. In The Atlantic Monthly, Bejamin Wittes’ 2005 article asserting that Roe v. Wade “has been deeply unhealthy for abortion rights” was followed up by a similar (although more detailed and nuanced) article in the June Atlantic by Jeffrey Rosen, also a prominent Roe critic in The New York Times and The New Republic. Richard Cohen opined in the pages of The Washington Post (after sniffing that he “no longer see[s] abortion as directly related to sexual freedom or feminism”) that liberals should “untether abortion rights from Roe.” Slate’s William Saletan took to the Post op-ed pages also to argue on behalf of “moving beyond Roe” and to dismiss the decision as “obsolete.” The argument usually contains an added political component — that overturning Roe would prove a boon to Democrats by waking a majority–pro-choice electorate from its apathetic slumber.

The claim that overturning Roe would be no big deal for reproductive freedom and a boon to progressive politics may be ossifying into strange center-left conventional wisdom, but it’s still wrong. These arguments are almost certainly too optimistic about the legal framework likely to emerge if the decision is gutted or overturned. And, not surprisingly given the extent to which affluent men safely ensconced in liberal urban centers dominate the liberal pundit class, the arguments also greatly understate or ignore the stark class and geographic inequities in abortion access that would inevitably manifest themselves in a post-Roe world. All the while, they greatly overstate the alleged political benefits of turning abortion into 51 fierce battles at the state and federal level.

* * *

The Impact on Reproductive Rights

In its strongest form, the anti-Roe, pro-choice argument holds that ending constitutional protections for abortion would have little effect on access to it. Rosen, in his recent Atlantic article, suggests that “access to abortion wouldn’t necessarily become less widely available than it is now.” The implication of the argument is that support for legal abortion has become sufficiently well-entrenched that it will (with the exception of a handful of regional outliers where abortion is already all but de facto banned) easily survive the overturning of Roe.

Stated this way, the argument is transparently incorrect. According to data compiled by the Center for Reproductive Rights, were Roe overturned, abortion would immediately become illegal in 13 states, and there would be significant risk of new abortion bans in 20 other states. Obviously, to go from abortion being legal in all 50 states to a situation where abortion is illegal in 15 to 30 states cannot be seen as anything but a significant blow for reproductive rights. The question is not whether overturning Roe would be bad for reproductive rights, but how bad it would be.

The somewhat weaker claim is that while overturning Roe would be suboptimal, the effects on abortion access would be very modest, and legislative outcomes would represent a stable compromise that pro-choicers should be able to live with. This argument is premised on a number of fundamental errors.

Although one can quibble about how optimistic to be, Roe’s centrist critics are right that a significant number of abortions will continue to be performed even if the decision is overturned. Roe wasn’t terribly important to affluent women, who, as scholars such as Mark Graber have demonstrated, either had the connections necessary to obtain abortions on the gray market or the resources to travel to states where abortion was formally legal. Affluent women in urban centers have access to safe abortions under any legal regime. But for poor women, especially those in rural areas, Roe matters a great deal.

Because it did not contain a guarantee of state funding, Roe has often been portrayed as conveying meaningful rights only to the middle class. But according to the most recent data compiled by the Allan Guttmacher Institute, in 2000 57 percent of women obtaining legal abortions lived at less than twice the federal poverty level — showing that even the “negative” right declared in Roe significantly bolsters access for poor women. While it is difficult for poor women to get abortions in some states, this difficulty has sometimes been exaggerated, and the fact that regulations in the post-1992 era of Planned Parenthood of Southeastern Pennsylvania vs. Casey already significantly restrict abortion access in various places is a compelling argument against the further gutting of judicial protections, not in favor of it. While a few states (including, as Rosen emphasizes, South Dakota) currently have a relatively small number of abortion clinics, the difference between having three abortion clinics in a state and none is a distinction of actual significance. The erosion of abortion access that has taken place should not be used to bootstrap arguments that make much more erosion inevitable. Whether conservative states respond to the overturning of Roe by banning abortion outright or passing draconian regulations, the outcome would be the same: little effect on affluent women, but severe effects on poor women lacking the knowledge or resources to find doctors who can interpret the law in a favorable manner.

Abortion centrists generally see formally legal but highly regulated first-trimester abortion as an acceptable (and, in some cases, desirable) compromise. Rosen claims that “when the dust settles, in five or 10 or 30 years, early-term abortions would be protected and late-term ones restricted.” His prediction demonstrates the extent to which abortion centrists have uncritically accepted the rhetorical frames of the anti-choice lobby. Most abortion regulations, in fact, have nothing to do with the age of the fetus, and Roe and Casey permit late-term abortions to be regulated (with a health exemption) anyway. More typical abortion regulations include such impediments as waiting periods, parental consent and notification, and restrictions on abortion clinics. All of these regulations compound inequities inherent in any legal restrictions on abortion, and they have undesirable effects even if they don’t result in women being thrown in jail.

It is regrettably true that under Casey’s vague “undue burden” standard, such regulations have already begun to proliferate. But removing any legal restrictions on the ability of states to regulate abortion would make things worse, not better, and would allow creative anti-choice legislators to devise regulatory schemes that have the same effect in practice as abortion bans. Ohio, for example, passed a regulation requiring clinics to obtain a “written transfer agreement” from a surgical hospital in the case of an emergency; the state denied a waiver to a Dayton abortion clinic that couldn’t obtain one and ordered it to close. Though the neutral justification for such a regulation is farcical, the 6th Circuit Court of Appeals remarkably claimed that the regulation did not constitute an “undue burden.” To preserve any meaningful reproductive rights against such tactics, courts will have to become more, rather than less, vigilant.

Currently, legislatures are prohibited from passing laws (such as the spousal notification provision struck down in Casey) transparently designed to limit abortion access rather than serve some legitimate state interest. If Roe is overturned, courts will no longer be able to strike down such laws — and it is precisely these kinds of regulations that must be the focus of any productive assessment of the consequences of overturning Roe. Moreover, contrary to the oft-heard but bogus claim that overturning Roe would “return the issue to the states,” it’s also possible that Congress could enact federal versions of such measures, rendering universal the chilling effects of arbitrary abortion regulations.

It’s also worth noting that the centrist pro-choice position is (to borrow O’Connor’s famous phrase) on a collision course with itself. Saletan and Rosen extol the virtues of regulating late-term abortions as the centerpiece of an abortion compromise. But the most common and popular abortion regulations in fact make first-trimester abortions considerably harder to obtain, by compelling women to navigate an irrational regulatory obstacle course. (In Mississippi, second-trimester abortions among women relying on in-state providers increased more than 50 percent after the state enacted a waiting period requirement.) The contrarian anti-Roe position contains internal contradictions its adherents never resolve.

These pundits cite public opinion polls showing support for their pet compromise policy — legal first-trimester abortions — as evidence against worrying about Roe’s disappearance. One baffling aspect of this debate is the extent to which people who should know better assume that legislative outcomes represent unmediated manifestations of popular opinion. In fact, American legislatures are majoritarian in neither theory nor practice (indeed, although public opinion about abortion in 1973 was essentially the same as it is today, abortion was illegal in 46 out of 50 states). And it is likely that several aspects of legislative politics will skew outcomes toward an anti-choice position. First, the de facto exemption from abortion laws that affluent women enjoy means that the women with the highest stake in the outcome of the debate have the least political clout. Second, anti-choice activists can take advantage of the paradox in public opinion, where majorities oppose the outright criminalization of first-trimester abortions but also favor regulations that collectively have the same impact as an outright ban. And third, because smaller, more rural states are more likely to have culturally conservative legislators, federalism will tend to make legislative outcomes more anti-choice than national opinion surveys would suggest.

* * *

The Political Impact of Overturning Roe

The claim that overturning Roe would not be a significant blow for reproductive freedom, therefore, is plainly wrong. But there is another element to the pro-choice, anti-Roe argument: Overturning it will be good for Democrats and progressives. For millions of pro-choice voters complacent in the knowledge of abortion’s constitutional protection, so this argument goes, the overturning of Roe would suddenly make abortion a voting issue. Moreover, Roe’s fall would, in Rosen’s words, “put pro-life legislators in an agonizing position,” forcing them either to deliver uncompromising abortion bans to base voters or to incur their wrath through appeals to swing voters. Though this argument has a surface plausibility, balancing the relevant factors suggests against abandoning Roe for political reasons.

Arguments about the immense political benefits to be reaped if Roe is overturned tend to be premised on vastly overstating the effects of abortion on voting behavior. Voters cast ballots based on a complex matrix of issue positions and personality heuristics; the difference that any particular issue makes is often very small. The idiosyncrasies of American politics would, moreover, mitigate any post-Roe electoral bounce for Democrats. The states in which Roe’s overturning would be the most clearly unpopular are also the states where the Democrats are already dominant. It’s far from clear which state the Democrats lost in 2004 that they would win if Roe were overturned. The congressional situation is similar. The Senate’s gross malapportionment overrepresents states where overturning Roe would do little damage to the GOP, and sophisticated computer gerrymandering along with the other advantages of incumbency in the House of Representatives make for very few contested seats no matter which issues are in play. In other words, overturning Roe might help the Democrats in generic national polls, but much less so in terms of taking back control of federal institutions.

Speculations about the political benefits of overturning Roe also assume it would be overturned in a forthright manner. This is, however, a highly questionable assumption. Much more likely is what we’ve already seen happen: a brick-by-brick dismantling that produces virtually the same policy effects without even the modest Democratic political benefits to be derived from the popular reaction to a single dramatic decision. The championing of allegedly “reasonable” regulations of abortion by centrist pro-choicers has handed a loaded weapon to opponents of abortion rights, who can regulate Roe to death while keeping the political backlash to a minimum.

Another commonly heard argument is that Roe has been bad both for choice and for the Democrats because judicial interventions into contested political issues produce a much greater backlash than legislative interventions. Wittes, for example, says that “since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion” and that “legislative compromises tend to be durable, since they bring a sense of resolution to divisive issues by balancing competing interests; mustering a working majority to upset them can be far more difficult than rallying discontent against the edicts of unelected judges.” Both sides of the abortion debate regularly make this argument, and its only flaws are that there’s no compelling theory and no empirical evidence to support it.

Consider, first, the theoretical premises underpinning Wittes’ argument. He makes a claim — also famously made by Ruth Bader Ginsburg — that Roe created a backlash because of its poor judicial craftsmanship. This is, to put it mildly, implausible. In general the public ignores legal reasoning and evaluates judicial opinions based on results; Roe in particular has always had a similar degree of public support as the legalization of first-trimester abortions. Wittes also has — as do most proponents of the countermobilization hypothesis — a romanticized vision of the legislative process and a reductionist conception of how judicial review operates. The modest abortion liberalization reforms enacted by a minority of state legislatures before 1973 are better described as logrolling among legal, medical, and legislative elites than as painstaking deliberative compromises. Judicial policy making, meanwhile, often involves balancing competing interests rather than absolutist rights claims — Planned Parenthood v. Casey is a paradigmatic example of this. And there is no reason to believe that religious and ethical arguments about abortion are any less “divisive” than legal arguments.

But, ultimately, the proof of the pudding is in the eating. The pre-Roe period in state legislatures does not in any way comport with the romantic myths now being peddled by anti-Roe centrists. Far from being satisfied with legislative compromises, anti-choice activists were so well-mobilized in response to a few legislative reform laws that liberalization at the state level was essentially dead by the time Roe was handed down in January 1973. Debate in the state legislatures was divisive: In New York, Governor Nelson Rockefeller had to veto a 1972 re-criminalization bill that passed after a rancorous debate featuring an anti-choice legislator waving a fetus in a jar on the assembly floor. Neither women’s groups nor anti-choice groups were happy with the common compromise legislation. The National Review wrote more about abortion in the three years before Roe than in the three years after. Meanwhile, the Canadian Supreme Court created the most liberal abortion regime of any Western democracy and yet, despite that judicial intervention, abortion is not a particularly salient issue in Canadian politics. The evidence is overwhelming that abortion is a divisive issue in the United States because it is divisive, not because of procedural objections to the methods by which policy has emerged.

Abortion centrists appear to take cultural conservatives at their word when the latter say they’d be mollified if only the courts stepped out of the debate. But cultural reactionaries employ anti-elitist rhetoric against any and all institutions they are hostile to, not just against “activist judges.” Consider the anti-gay constitutional amendment in Colorado struck down by the Supreme Court in Romer v. Evans, which was passed as a response to the protection of gay rights by democratically elected city councils. Affirmative action and the recent eminent domain decision in Kelo are also instructive examples: Conservatives are able to mine fury against courts that refuse to overturn the policies of democratically accountable officials. Arguments against “judicial activism” are equally applicable against “elites” and “Congress” and “those bureaucrats down at the state capital.” To believe this resentment would go away if only the courts gave up protecting abortion is to be stuck in a dream-like state in which politics functions as it does in bad sixth-grade civics textbooks.

A related argument is the claim that the use of litigation has made pro-choice groups lazy and complacent about reproductive freedom, and that returning abortion to the legislatures would mobilize pro-choice voters and toughen the movement. To the extent that this argument relies on claims about the demobilizing effect of litigation, the evidence is scant. Recent legal and political science scholarship has convincingly rebutted assumptions that litigation and other forms of political activism exist in a zero-sum struggle for resources; in fact, one often positively builds on the other. Nor is the argument persuasive in the specific case of abortion. Bill Clinton’s veto of legislation banning “partial-birth abortion” — legislation that was both very popular and likely to be struck down by the courts anyway — was hardly a sign of a movement lacking in political clout. Abortion was one of the few issues that Clinton never crossed his base on, a fact that ill supports the notion that Roe has weakened the pro-choice movement.

Arguments about the political benefits of overturning Roe ultimately prove too much. By the same logic, one can argue that allowing Social Security to be privatized would create tensions in the conservative coalition and a backlash that might help Democrats politically. This is hardly good reason to hope that it happens. The fact that commentators making the political case for abandoning Roe never apply the same logic to other issues reflects a general tendency to take women’s rights less seriously. That same unseriousness is revealed by the fact that pundits searching for issues on which Democrats can appeal to social conservatives are more likely to cite abortion than, say, church-and-state issues, where the liberal position is far more unpopular and compromises would have far less direct impact on people’s lives. Ultimately, to call these contrarian arguments “pro-choice” is a non sequitur. They’re only compelling if the value of protecting a woman’s right to choose is accorded almost no weight.

Indeed, what is finally most intolerable about the new anti-Roe consensus is just this willingness to sacrifice the fundamental rights of others while patting oneself on the back for making noble compromises. It is certainly easy for men living in blue state urban centers — who know that no woman in their family or social circle will ever be denied a safe abortion — to casually dismiss the importance of the rights of poor women in the two dozen states at high risk of banning or severely restricting access to abortion in a post-Roe world. The legislative “compromises” celebrated by the contrarians involve sacrificing the rights of those women and allowing legislators to severely restrict abortion without paying a significant political price. This is an outcome that should not be acceptable to any progressive. Core rights are not a field where expediency should trump principle, and a moment like this is no time for elite commentators — if they really do support reproductive rights — to waste ink on cute debating games.

Like Mickey Kaus Is A Democrat

[ 0 ] July 7, 2006 |

Shorter Ann Althouse: As a feminist, I believe that publicly funded hospitals should be able to deny contraception to women almost as strongly as I believe that Sam Alito should be appointed to the Supreme Court to uphold every conceivable legal regulation (and criminalization) of abortion.

The most important part of Jane’s post is her response to Althouse’s bizarre projection of her views onto the Connecticuit electorate:

By a 78 – 17 percent margin, including 74 percent of Catholics, voters would support a law requiring all Connecticut hospitals, including Catholic hospitals, to provide emergency contraception to rape victims.

I can almost understand why some people erroneously believe the pro-choice position to be unpopular. But anyone who thinks that the anti-contraception position–which is enormously unpopular among Catholics–is popular has been immersed in reactionary talking points for so long they can’t see their past their own nose. Lieberman’s belief that medical professionals can interpose their moral preening between patients and necessary medical care is not merely wrong on the merits, but utterly inconsistent with the beliefs of his constituents.

On Defending the Indefensible

[ 0 ] July 7, 2006 |

Elton summarizes a pathetic pro-Lieberman Los Angeles Times editorial: “It would be a shame if Connecticut voters force a loyal Democrat like Joe Lieberman to run against his own party’s nominee.”

And if the primary challenge is all about Holy Joe’s foreign policy views, where’s the movement to oust Hillary Clinton? Could it be that it’s not support of the war but his claims that it’s illegitimate to criticize the President that are the issue?

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