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Supreme Court Temporarily Prevents Forced Texas Clinic Closures

[ 26 ] October 15, 2014 |


The Supreme Court has temporarily reversed the devastating impact of Texas’s restrictive abortion law, blocking a law that earlier this month had closed all but eight legal abortion clinics in the second-largest state. The immediate result, a rare victory for abortion rights, is the expected reopening of 13 clinics that closed on October 2.

Three members of the court – Antonin Scalia, Clarence Thomas and Samuel Alito – said they would have denied the clinics’ appeal entirely. Either or both Chief Justice John Roberts and Justice Anthony Kennedy appear to have signed on with the court’s liberals; both voted to let an earlier portion of the law to go into effect, which also closed more than a dozen clinics.

It’s important simply because for the time being it preserves meaningful access for many Texas women.  But it provides at least the slightest glimmer of hope that there are limits to how much content Kennedy is willing to let get drained out of Casey. 

Liptak has more.

Thoughts On Affirmative Consent and the Campus

[ 181 ] October 15, 2014 |

I don’t have firm views on the new California standards for consent on college campuses. We should see how they work and if they’re effective. But, particularly in light of Jon Chait’s essay, I did want to emphasize a few points about the affirmative consent standard.

  • Affirmative consent does not mean only verbal consent.  Chait doesn’t make this mistake, but it does seem to come up in some critiques of affirmative consent — Freddie de Boer’s, for example. I do agree that a standard of consent that required verbal consent for every sex act would be silly and unworkable.  But the California standard does not in fact require this.  I don’t know about the proposed Columbia standard, but the New York piece Freddie cites simply asserts that consent must be verbal without backing this up with an explicit evidence from the text.  Consent does not necessarily have to be verbal to be unambiguous.  For this reason, I don’t agree with Ezra Klein that the California law is an “extreme” law perhaps justified by an extreme problem, and I think the alleged ambiguity of consent is vastly overstated.  Jessica Valenti is excellent on this point.
  • An affirmative consent standard does not logically require any particular form of due process.  There are some real potential due process problems when campuses try to enforce sexual assault and misconduct guidelines (although, for reasons I’ll get to in a second, I think they are sometimes overstated.)  I agree, for example, if an appeals process is warranted the appeal cannot be heard by the person who issued the original judgment.  But it’s important to keep these questions distinct.  A traditional consent standard can be enforced with inadequate due process; an affirmative standard can be enforced while granting appropriate due process rights.
  • What process is due is contingent on the nature of the penalty. It’s true, as far as it goes, that the crisis of sexual assault on campus does not justify an illberal abandonment of due process rights.  But it’s also important to remember that what process is due varies considerably depending on the potential consequences. (You have a right to be provided with counsel at a criminal trial, but not at traffic court.)  This is particularly important in this context, because the penalties that universities can mete out are generally pretty limited.  The process that is due to someone facing a 15-year prison term is not the same as the process due to someone facing a one-year suspension is not the same as the process due to someone who is asked to leave a university dormitory.  A regulation that can result in severe sanctions should be narrowly drawn even at this risk of producing significant false negatives, but a student handbook can require more of its students in their sexual practices than the absolute plausible legal minimum.  Students facing severe sanctions should have the opportunity to meaningfully contest charges against them, but nothing in the California law prevents this.

It’s this last point — the relatively small stakes involved here — that I think make the California law worth trying. It may be possible, although I very much doubt it for the reasons previously discussed, that the standard will prove unworkable and produce too many false positives.  It may be — and this is somewhat more likely — that the change in standards will prove ineffectual, not providing any additional protection against sexual assault in practice.  It will ultimately be an empirical question.  But the idea that even in principle “don’t think like a sexual predator” is an excessive burden on students is entirely implausible to me, and I won’t assume that the new standards will fail in either direction ex ante.

Consent Is Not A Particularly Mysterious Concept

[ 123 ] October 15, 2014 |

Sophia Katz’s essay recounting her sexual assault by Stephen Tully Dierks got a lot of attention because of its implications for the Brooklyn literary scene, but it’s an excellent piece of writing on its own terms, showing the various power dynamics Dierks exploited very effectively.

Remarkably, there are people who seem to think there’s some ambiguity about whether Katz was sexually assaulted, which leads us to an equally superb piece of writing by Mallory Ortberg:

I cannot and will not, as Ellen does, pick apart Katz’ motives for going to New York City or staying with Dierks or not “taking responsibility for herself”; I will assume that as the person best qualified to speak on what happened before and during her stay with Dierks, Katz did not board a plane to New York City because she believed she was going to have to continually fight off sexual advances from her host.

If I had a guest coming in from out of town, and I had romantic or sexual designs on them, and I asked if they would be willing to share my bed and their response was “I’ll bring a sleeping bag; I’d like to sleep on the floor,” I would be appropriately chastened (and privately a bit mortified). The message would be abundantly clear. The No is obvious. The No is there.

I would have to be looking for a way to cheat my guest of their clearly stated wishes, were I to abruptly start undressing and caressing them the moment I got them alone. I would have to be looking for a way to wear down or tear down their No into a Fine, I Won’t Stop You.

I do not believe that most women — that most victims of sexual assault — freeze or shut down when faced with the prospect of coercive sex because they don’t really care what happens next, or because they’re excited to push through the moment for the sheer joy of accusing the aggressor of rape after the fact. I believe that these women, these people, have a finely tuned sense for their safety, that when a woman reports having “a feeling that it would turn into an ordeal if I rejected him,” she is not crazy and she knows what she is talking about.


I should not have had to do it either time. The first time I said No, the first time I turned my head away, the first time I crossed my arms over my chest and walked away, the first time I said “What are you doing?”, the first time I displayed a clear and obvious distaste for what was being done to me rather than with me should have been enough. That expectation — that the person saying No should be prepared at any moment to fight someone else off is an undue burden. Pretending that active consent is ambiguous and confusing and difficult to obtain is a pernicious lie that has no basis in reality. It is abundantly clear when someone is eager and ready to sleep with you.

I said No. Sophia Katz said No. Saying No was easy, making the man who wanted to hear Yes listen to me when I said No was the challenge. A man who wants to hear a Yes will find a way to drag it out of you.

Saying No was easy. Getting Shaun and Adam to listen to my No took everything I had.

It should not take everything you have to turn down someone’s offer for sex.

A woman who says “No thanks, I’ll sleep on the floor”; a woman who freezes up and tenses at your touch; a woman who says “I really don’t want to” and “We really shouldn’t” and “We can’t” and “Please at least wear a condom” is not saying yes to you, and if you would like to pretend that that is unclear, you are a liar, you are being disingenuous, you are lying and you know it.

Some of the discourse surrounding affirmative consent standards seem to assume that determining consent is some deep mystery wrapped in several enigmas. The basis for believing this has always been unclear to me. It is generally not difficult to tell when someone is consenting to have sex with you. If you’re unsure, you can ask him or her! If you have any doubt, stop! It’s not terribly complicated. There may be some issues with how to write this into a legal standard at the margin, which I’ll deal with in a subsequent post, but I don’t see any problem in principle with an affirmative consent standard.

Wage Theft and the Supreme Court

[ 37 ] October 15, 2014 |

This amicus brief is not one of the Obama administration’s better moments.

Abortion Green Lanternism

[ 9 ] October 15, 2014 |

Atrios is making sense:

What was especially maddening about Saletan-esque arguments over the years, aside from their clear wrongness, was that he seemed to truly believe that if only pro-choice people would admit it was all so icky and horrible then anti-abortion people would just surrender and go home. It was the position that only a High Priest Of Punditry could take, that the discourse was more important than the policy.

There were a lot of pathologies in the general pundit discourse about abortion in the preceding decade (which, thankfully, seem to be a little less common now.)  But one of the strangest is the idea that there was some rhetorical strategy that could end the underlying conflict. And it’s particularly odd in the context of abortion, where public opinion has been remarkably stable since the issue became politically salient in the mid-60s, all the clever rhetorical strategies of both sides aside.   Framing and messaging are overrated in general, and abortion is a particularly strong case in point even though it’s an issue where people seem to be particularly obsessed with it.

Frivolous Legal Threat of the Day

[ 49 ] October 15, 2014 |

Blake Lively.

Tuesday Links

[ 33 ] October 14, 2014 |

Anti-density restrictions are an incumbent protection racket that work well for the affluent and not so much for anyone else.

Abortion Rights Without Apology

[ 167 ] October 14, 2014 |

Katha Pollitt has a fantastic looking new book about abortion rights coming out. This, in turn, has led to some excellent writing from Laurie Abraham, Hanna Rosin, Lindsay Beyerstein, and Jill Filipovic. I liked Rosin’s open in particular:

I had an abortion. I was not in a libertine college-girl phase, although frankly it’s none of your business. I was already a mother of two, which puts me in the majority of American women who have abortions. Six out of 10 are mothers, which makes sense, because a mother could not fool herself into believing that having another baby was no big deal.

I start the story this way because Katha Pollitt, author of Pro: Reclaiming Abortion Rights, would want it this way. In fact any woman who’s reading this piece and has had an abortion, or any man who has supported one, should go in the comments section and do the same thing, until there are so many accounts that the statement loses its shock value. Because frankly, in 2014, it should be no big deal that in a movie a young woman has an abortion and it’s no big deal. We shouldn’t need a book explaining why abortion rights are important. We should be over that by now.

Much more of this, please. Nuts to the “we should perhaps reluctantly make abortion legal but let’s all admit that it’s icky and immoral” arguments from the Saletans and McArdles. Women should not be required to carry unwanted pregnancies to term, women should not have to navigate an arbitrary obstacle course before having an abortion, these rights should not require any apology or tut-tutting about individual choices, and legal abortion is a positive social good. The end.

Stay Classy, Politico!

[ 25 ] October 14, 2014 |

Mike Allen’s influential newsletter, Pay For Play, gives us careful analysis of Karen Lewis’s brain tumor:

PLAYBOOK WINNER OF THE DAY: Mayor Rahm! Chicago Tribune 2-col. lead, “Lewis bows out … Ailing union chief’s decision eases Emanuel re-election bid,” by Rick Pearson, Juan Perez Jr. and Michelle Manchir: “Karen Lewis, the … combative and charismatic leader of the Chicago Teachers Union, will not run for mayor, significantly boosting Mayor Rahm Emanuel’s chances to win re-election next year.”

I’m tempted to say that Emmanuel must have paid for that, but I’m sure Allen can be that callous for free.

Careful archival research by LGM has uncovered Politico’s daily HOT TAKE from April 15, 1865:

PLAYBOOK WINNER OF THE DAY: Andrew Johnson! Doughface Star Tribune Picayune 2-col. lead, “Lincoln assassinated … national hero John Wilkes Booth challenges federal overreach.” Objective analysis of consequences: “Unity ’64 and No Labels agree: President Johnson should finally bring moderate governance to White House, countering Radical Republicans and their nutty ideas like “the 13th Amendment empowered the federal government to legislate to stop the re-imposition of a slave system” and “black people should have access to public accommodations” and “black people should vote” and “treason should be punished” … Easy re-election win in 1868 expected.”

Impeachment, or Trial For Treason?

[ 24 ] October 14, 2014 |

Shorter Republican Party: The fact that the writing of EPA regulations is not delegated entirely to the coal lobby is a worse scandal than Whitewater and Benghazi put together.

The Obama Administration Has Numerous Failures. The ACA Isn’t One of Them.

[ 194 ] October 13, 2014 |

I agree with some of Sawicky’s critique of Krugman’s Rolling Stone defense of the Obama administration. The point about the kiss up/kick down nature of the criminal prosecutions, in particular, is unanswerable. I don’t agree with the Cornel West argument that he pretended to be something he wasn’t — he strikes me as exactly the moderate liberal Democrat he’s always posed as — but I don’t think anything meaningful or interesting turns on the distinction. The record is what it is, and I think despite some oversimplifications Krugman’s bottom line is correct (only two presidents of the last century could even plausibly claim to have a more substantial record of progressive achievement, which is a successful presidency where I live.)

I can’t say, however, that Max’s attempt at a non-Green Lantern critique of the ACA succeeds:

On the big fucking deal of health care, PK tries to get the best of both sides of the argument. He acknowledges the left criticism of relying on health inscos to fill the coverage gap, then implies that the stupid left doesn’t understand a single-payer plan would not have gotten enough votes to pass. What the not-actually-stupid left really wanted and had a right to expect was the inclusion of some kind of public option, which was arguably not a manifestly disabling feature from a political standpoint. And even if it proved to be so, there is no reason to make a rhetorical virtue in the form of bogus celebrations of “the market” out of a political necessity.

First of all, sad as it is the single-payer argument isn’t a strawman. There are otherwise very smart liberals, not just on the intarwebs somewhere but in the New York Review of Books, that we could have had single payer had Obama only Bully Pulpited the Overton Window Under the Bus on Steroids. (There’s a variant of the argument that concedes that single payer probably wasn’t viable, but Obama should have made it his opening bid, on the theory that if you walk into an Audi dealership and offer $500 for their best car they have no choice but to sell it to you for $1,000.)

But I agree that the more common critique was the failure to include a public option. On that, two points. First of all, a public option was worth trying, but I don’t agree that it was a magic bullet that would have transformed the ACA from hopeless neoliberalism to real progressivism. The public option passed by the House would have had, at best, a minor impact on the exchanges. It was not the road to nationalizing the health care industry. But the policy merits are moot, because it’s pretty obvious that the votes even for the weak House version weren’t there in the Senate. I don’t know how anyone could see how Lieberman acted and still think that it could have gotten 60 votes. Max doesn’t even try to outline what leverage Obama had over the many Senate Democratic opponents of a public option, which given how such conterfactuals tend to go is probably for the best.

The fact that Max doesn’t. even. try. to explain how a public option could have passed suggests that this isn’t his biggest issue with the ACA. The more important one seems to be his objection to Obama “mak[ing] a rhetorical virtue” out of the exchanges. (He’s been even more explicit about this before, conceding that Obama got about as much as could have been expected out of Congress but criticizing him for various alleged Bully Pulpit failures.) The theme continues here:

This problem of turning a practical limitation into a rhetorical virtue afflicted the inadequate stimulus plan as well. Instead of taking what could be gotten but acknowledging the level was insufficient, the Administration acted as if it was all good. It wasn’t. PK again agrees. He can say it but you can’t.

Well, anyone can say it; the question is whether the inadequacy is plausibly Obama’s fault, and Max doesn’t really argue that it is. But leaving aside that I don’t think that presidential rhetoric matters very much, I don’t understand this particular criticism even on its own terms. Obama is supposed to run down the important legislation he signed? I’m not really inclined to urge that presidents demonstrate political incompetence.

On a final point, on the ACA I continue to reject the idea that it reflects “neoliberalism.” As always, missing from these arguments is the Medicaid expansion. As far as I can tell, none of Obama’s critics from the left would disparage the original Medicaid that covered a fraction of a fraction of the poor as “neoliberalism,” and yet a Medicaid that covers everyone within 138% of the federal poverty line is not seen by Obama’s left critics as an accomplishment worthy of any particular note. The focus is on the exchanges, suggesting that had Obama (like Great Society Democrats) just done nothing for the uninsured who don’t qualify for Medicare or Medicaid he would somehow be more progressive than he was because he used more regulated and subsidized markets to insure people. This doesn’t make any sense. If the U.S already had single payer or national health, you could call it “neoliberal” reform. If single payer could plausibly have passed, you could call it “neoliberal.” But given the actually existing status quo ante, it’s not “neoliberal” in any sense. When Obama touts it a a major progressive achievement, he’s not just doing what any politician would, he’s right on the merits.

Not All Local Officials Prioritize Football Over Sexual Assault Victims

[ 57 ] October 13, 2014 |


At least six members of the Sayreville High School football team were taken into custody by police this evening on charges in connection with a series of locker room sexual assaults on four victims, NJ Advance Media has learned.

A seventh player was charged, but not immediately taken into custody. He was being sought by police.

The detentions — on a night the team was scheduled to play Monroe High School for its homecoming game on its home field — came less than a week after its season was abruptly canceled by school officials in the wake of allegations of what was first called “serious bullying and harassment” of younger players.

The parent of one victim later described what occurred as a violent ritual involving anal sexual attacks by seniors who routinely preyed on freshmen.

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