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What It Means to be A "Pro-Life" Republican

[ 0 ] April 23, 2007 |

The federal GOP’s social and economic model Mississippi, as some of you know, is one of the more than 20 states with latent abortion bans that would come into effect if Roe v. Wade was overturned. (Although, of course, as Ben Wittes points out, going from abortion being legal in all 50 states to being banned in 15-25 states and more heavily regulated in many of the other states would actually be better for reproductive freedom because…I’m not going to lie to you Marge. Well, goodbye!) And should the Court decline to overturn Roe explicitly, it has also been at the forefront of legislation instituting arbitrary regulations used to harass abortion clinics until they close. Via Barbara O’Brien, however, after fetuses become children are born the state’s interest in them seems to wane somewhat. How did the “pro-life” Mississippi GOP respond to increases in infant mortality? I think you can guess:

In 2004, Gov. Haley Barbour came to office promising not to raise taxes and to cut Medicaid. Face-to-face meetings were required for annual re-enrollment in Medicaid and CHIP, the children’s health insurance program; locations and hours for enrollment changed, and documentation requirements became more stringent.

As a result, the number of non-elderly people, mainly children, covered by the Medicaid and CHIP programs declined by 54,000 in the 2005 and 2006 fiscal years. According to the Mississippi Health Advocacy Program in Jackson, some eligible pregnant women were deterred by the new procedures from enrolling.

One former Medicaid official, Maria Morris, who resigned last year as head of an office that informed the public about eligibility, said that under the Barbour administration, her program was severely curtailed.

“The philosophy was to reduce the rolls and our activities were contrary to that policy,” she said.

Mississippi’s Medicaid director, Dr. Robert L. Robinson, said in a written response that suggesting any correlation between the decline in Medicaid enrollment and infant mortality was “pure conjecture.”

Dr. Robinson said that the new procedures eliminated unqualified recipients. With 95 enrollment sites available, he said, no one should have had difficulty signing up.

As to Ms. Morris’s charge that information efforts had been curbed, Dr. Robinson said that because of the frequent turnover of Medicaid directors — he is the sixth since 2000 — “our unified outreach program was interrupted.” He said it has now resumed.

The state Health Department has cut back its system of clinics, in part because of budget shortfalls and a shortage of nurses. Some clinics that used to be open several days a week are now open once a week and some offer no prenatal care.

The department has also suffered management turmoil and reductions in field staff, problems so severe that the state Legislature recently voted to replace the director.

Oleta Fitzgerald, southern regional director for the Children’s Defense Fund, said: “When you see drops in the welfare rolls, when you see drops in Medicaid and children’s insurance, you see a recipe for disaster. Somebody’s not eating, somebody’s not going to the doctor and unborn children suffer.”

Providing further evidence for Barney Frank’s dictum that for Republicans life begins at conception and ends at birth.

(Also at TAPPED.)

Over

[ 0 ] April 22, 2007 |

Ugh. At least it could have been a quick execution, not an ugly 2 overtime job. It would have been a temporary stay with a hearing in front of Scalia on Tuesday anyway; Kiprusoff really deserves a better team in front of him (and coaching staff) than this.

The only good thing is that if Vancouver wins tomorrow I’ll put up a rare 8-0 in my first round predictions, which is better than certain English professors or New Republic writers I could name…

Kennedy’s As-Applied Maze

[ 0 ] April 22, 2007 |

Not surprisingly–given that it’s charged with the task of defending a law that is indefensible under current doctrine–there are many bad elements to Kennedy’s opinion besides its egregious sexism and acceptance of straightforward factual errors. Another weakness is the bizarre illogic of Kennedy’s claim that an “as-applied” challenge to the statute would still be viable. Ginsburg’s dissent identifies the obvious problem:

If there is anything at all redemptive to be said of today’s opinion, it is that the Court is not willing to foreclose entirely a constitutional challenge to the Act… But the Court offers no clue on what a “proper” lawsuit might look like. Nor does the Court explain why the injunctions ordered by the District Courts should not remain in place, trimmed only to exclude instances in which another procedure would safeguard a woman’s health at least equally well. Surely the Court cannot mean that no suit may be brought until a woman’s health is immediately jeopardized by the ban on intact D&E. A woman “suffer[ing] from medical complications,” ante, at 38, needs access to the medical procedure at once and cannot wait for the judicial process to unfold.

The Court appears, then, to contemplate another lawsuit by the initiators of the instant actions. In such a second round, the Court suggests, the challengers could succeed upon demonstrating that “in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used.” One may anticipate that such a preenforcement challenge will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.

[...]

The Court’s allowance only of an “as-applied challenge in a discrete case,” jeopardizes women’s health and places doctors in an untenable position. Even if courts were able to carve-out exceptions through piecemeal litigation for “discrete and well-defined instances,” women whose circumstances have not been anticipated by prior litigation could well be left unprotected. In treating those women, physicians would risk criminal prosecution, conviction, and imprisonment if they exercise their best judgment as to the safest medical procedure for their patients. The Court is thus gravely mistaken to conclude that narrow as-applied challenges are “the proper manner to protect the health of the woman.”

Ginsburg is obviously correct. Clearly, Kennedy cannot be claiming that an “as-applied” challenge would have to start when a doctor is about to begin the surgery and defines a “discrete” circumstance; the judicial process cannot operate that quickly. If the “as-applied” challenge doesn’t mean that, then this litigation would seem as good as any unless the point is to claim that in any situation short of a woman who immediately needs the surgery the suit is insufficiently “well defined” and “discrete.” The correct application of Casey is to tell Congress to come back if it actually obtains serious evidence that the procedure is never necessary, not to put a (nearly impossible) burden of proof on doctors. Waiting for an “as-applied” challenge makes sense in a case where the status quo can be frozen through a stay, but biology makes it completely inappropriate for the abortion context.

Like David Garrow I would like to see doctors perform the procedure when it better protects a woman’s health and go to court to defend their rights. But I can also understand a doctor’s reluctance to do so. First, the doctor would have to hope for a favorable application of a doctrine that is a complete shambles and reflects unremitting hostility towards women and doctors who perform abortions, and can easily be interpreted to make any plausible challenge inadequate. And in addition, doctors may also be aware that a highly politicized Department of Justice will be in charge of enforcing the law. As long as this case remains good law, a chilling effect is inevitable unless doctors are saints.

Appeasing the Unappeasable

[ 0 ] April 22, 2007 |

I don’t really agree with the take of Garance and Ezra on Maureen Dowd’s abjectly horrible column yesterday. The error they’re making, I think, it to assume that these charges have some sort of objective merit to someone, or that there’s some way of avoiding having junior high narratives being developed about you. Consider what similar advice given to Al Gore would look like (and there are many people who blamed Gore for running a horrible, horrible campaign and not adapting to the media.) He wouldn’t be able to wear “earth tone” suits, or casual jackets, or Armani suits, or work clothes…actually, I’m not sure what he could wear. He couldn’t discuss past political achievements because the media would distort them and make them look arrogant. He can’t pass on things a newspaper told him about his friend’s novel because it might not turn out to be fully true. He can’t pay a feminist consultant. And on and on and on. And if he had done all of these things, Dowd, Rich, Connolly, et al. still would have just made stuff up out of whole cloth, as they in fact did. And it’s the same thing with Kerry. If he engages in his actual hobbies, he’s an upper class twit. If he does anything else, he’s a phony. If he talks about NASCAR, Dowd will make him into a phony by lying about what he said. I assume the unwinnable choices and double standards facing Clinton are clear enough that going into detail would be belaboring the obvious.

In other words, I see no benefit to Edwards trying to appease this crowd. If he got a cheap- looking haircut, he would be attacked for that. If he tried to quietly get a mid-price haircut, he would be attacked as a flip-flopper who would really prefer to get expensive haircuts but is being a pandering phony. And then they will attack his suits, and his house, and his teeth, and his previous job, and his decision to betray his wife by staying in the race although she has cancer etc. etc. etc. Precisely because these narratives are 100% vacuous bullshit, there’s no way of avoiding them. If you want to read political significance into ordinary personality traits, a Dowd or a Givhan or anyone else who’s won a Pulitzer for degrading our political discourse will find something. The best strategy is to ignore them, and if they must be engaged the goal should be to point out that they’re clowns who have no business working on major newspapers. Maureen Dowd will be spending the next two years engaging in catty, sometimes dishonest gossip about Democratic candidates, and this will be true no matter what they do. Trying to change your behavior to accommodate this is an inherently futile enterprise.

UPDATE: Since a couple of commenters seem to have misunderstood me, I should clarify that by “ignore” I mean that Democratic candidates should not attempt to change their campaigns in response to these silly narratives; as the Gore campaign demonstrates, this just makes things worse. If the response is to undermine the idiots who make these arguments, I repeat that I support this entirely. See also Matt on how these personality tautologies are part of a larger trap that inexorably tilts towards right-wing outcomes.

Conservative Self-Parody Watch

[ 0 ] April 22, 2007 |

The mass murders at VT were caused by…evil professors! (Well, some of them are professors, some are people the wingnut in question thinks are professors because he’s an idiot.) However, the post seems not to try Cindy Sheehan and Hillary Clinton’s desire to cover up the murder of Vince Foster into the mix, so I can only give it a B+.

The Haircut Wars

[ 0 ] April 21, 2007 |

From Pulitzer Prize winner Maureen Dowd. Somerby has a history of the haircut wars, featuring the ‘WaPo‘s own Pulitzer Prize-winning airhead Robin Givhan, and airhead who probably hasn’t won a Pulitzer but does have his own cable show Chris Matthews. It’s never going away. Shoot me now.

Speaking of Althouse, if you can stomach it in this recent BloggingHeads episode she uses Givhan’s inexplicable Pulitzer (is there a “column submitted to the editor in crayon” division? Maybe a “columns rejected by a second-rate junior high student newspaper for for being too frivolous and gossipy” category? That would explain a lot…) to justify her own vacuity. Then comes the sequence where she explains her conflict with online feminists–I swear I’m not making this up (you can click right on the “intra-feminist debate” link)–because they don’t share her MacKinnonite radicalism. You remember all those op-eds MacKinnon wrote arguing that it was completely irrational for progressives to oppose Sam Alito, right? Hmm, neither do I. But, anyway, if I took anything away from Toward a Feminist Theory of the State it’s that feminists should completely ignore radical opposition to women’s rights instantiated in public law and the United States Reports, and focus on politician’s socks.

…via Garance, I see that Givan has already discussed this pressing public issue.

No Chance

[ 0 ] April 19, 2007 |

I’m frankly baffled by Ilya Somin’s claim that there are plausibly five votes to strike down the PBA Act on Commerce Clause grounds. The most obvious problem with his argument is that it entirely ignores the Raich decision, under which the Commerce Clause issue presented by the Act is plainly insubstantial. Obtaining an abortion is much more clearly a commercial transaction than growing medical marijuana for personal use, and given the dearth of abortion providers in the country abortion is certainly an interstate market. The idea that Scalia and Kennedy, both strongly personally anti-abortion, would switch votes given a more favorable set of facts is implausible in the extreme. It is true that the Court’s personnel has changed, but the two Justices who left the Court were two of the three dissenters in Raich. At best, Roberts and Alito would be treading water, but both are demonstrably hostile to reproductive rights and lack Thomas’s commitment to grand theory, so this strikes me as unlikely in any case.

The only other chance, then, would be if some of the Court’s liberals would act as unprincipled hacks; I don’t think there’s any reason to assume that, as they’ve been entirely consistent on Commerce cases. (Certainly, Stevens’ and Ginsburg’s brief questions at oral argument–which seemed to be much more about tweaking conservatives than about advancing a position–aren’t good evidence.) Similarly, the fact that Scalia joined Thomas’s concurrence means nothing, since it didn’t advance any position on the merits. Thomas, as far as I can tell, is the only likely vote to strike, and there’s no chance at all that there would be five.

Dept. of Corrections

[ 0 ] April 19, 2007 |

This blogger picked the Cleveland Indians to win the AL Central. He did this despite the fact that they were going to be using Joe Borowski as a closer and were managed by Eric Wedge. Lawyers, Guns & Money regrets this egregious error.

Against Unilateral Disarmament

[ 0 ] April 19, 2007 |

It may not come as a shock that I agree with Matt’s conclusion that Roe was correctly decided on the merits. (For those who haven’t seen it, I lay out a three-part case for Roe here, here, and here.) Matt makes another important point about the pro-choice anti-Roe crowd who base their claims not so much on doctrinal analysis as a general claim about whether courts rather than legislatures should decide “cultural issues”:

The primary motive for this, I think, is that people find it odd that such a controversial issue as abortion rights should be decided primarily by the courts. They also feel, intuitively, that it’s weird to leap so suddenly from one stance to another. I tend to agree that this is odd. The oddness, however, is right at the heart of the institution of judicial review as practiced in the United States. I’m of the opinion that this institution isn’t a great idea and that many other countries have found more satisfactory institutional mechanisms for the relationship between courts and legislatures. There’s no question, however, that strong judicial review is the system we actually have and reproductive freedom advocates have every reason to press our case vigorously through America’s actual institutions rather than act in some make-believe universe where the United States has a generally majoritarian set of political institutions.

Like Matt, I am skeptical of judicial supremacy as a normative matter, and I certainly don’t believe that it’s necessary for liberal democracy. But Roe has to be evaluated within the set of institutions the United States actually has, not the one some analysts wish we had. (Moreover, it should be noted that given the Madisionian legislative framework abandoning judicial review would not create reliably more “majoritarian” outcomes.) Liberals shouldn’t unilaterally disarm. And within this framework, Roe is a logical application of long-standing precedents that prevents bad legislation that is often arbitrary in form and in application, and it should be defended vigorously.

The Risk of Legislative Deferral

[ 0 ] April 19, 2007 |

Great point here by Brad Plumer. It’s hard to take Harry Reid’s criticism of the Supreme Court’s appalling decision yesterday seriously given that he voted for it in the first place. It’s a dismaying abrogation of responsibility to score cynical political points by voting for legislation that is not only bad but arbitrary and hope that the Courts will bail you out. (One can say something similar about George Bush signing campaign finance legislation he believed to be unconstitutional.) Not only because the courts have significant discretion that may cause the tactic to blow up in your face, but because it’s inherently wrong. All political branches are bound by the Constitution, and the legislators should not pass (and Presidents should not sign) legislation they consider unconstitutional.

Why Are These People So Happy?

[ 0 ] April 19, 2007 |

For some reason, the forced pregnancy lobby doesn’t understand the well-established contrarian analysis that upholding arbitrary abortion regulations is actually a good thing for reproductive freedom:

Elated and emboldened, anti-abortion activists in state after state are planning to push for stringent new limits on second- and third-trimester abortions in the hopes of building on their victory Wednesday at the Supreme Court.

By a 5-4 vote, the justices upheld a federal ban on a procedure critics call “partial-birth abortion,” which involves partially delivering the fetus, then crushing its skull. The ruling included strong language asserting the state’s “legitimate, substantial interest in preserving and promoting fetal life.”

Advocates on both sides of the abortion debate predicted the ruling would spur a flood of legislation.

“We’re moving beyond putting roadblocks in front of abortions to actually prohibiting them,” said Troy Newman, president of Operation Rescue, a national anti-abortion group based in Wichita, Kan. “This swings the door wide open.”

He and other strategists said they hope to introduce legislation in a number of states that would:

– Ban all abortion of viable fetuses, unless the mother’s life is endangered.

– Ban mid- and late-term abortion for fetal abnormality, such as Down syndrome or a malformed brain.

– Require doctors to tell patients in explicit detail what the abortion will involve, show them ultrasound images of the fetus and warn them that they might become suicidal after the procedure.

– Lengthen waiting periods so women must reflect on such counseling for several days before obtaining the abortion.

Wait–some people think that the Supreme Court permitting wider state latitude to regulate abortion (for some classes of women) makes the greater regulation of abortion more likely? That doesn’t seem very logical! Hopefully Ben Wittes will talk some sense to these people.

Four Things To Remember When Reading Gonzales v. Carhart

[ 0 ] April 18, 2007 |

As an antidote against the inevitable chorus of fake moderates arguing that today’s abortion case is no big deal, four things to keep in mind as you ponder today’s decision:

  • Don’t take assertions by the Court about whether they’re overturning precedents or not at face value. What matters is the substance of the ruling, not how the Court characterizes past precedents. (The Court went out of its way to avoid saying that they were overturning Plessy in Brown, and then applied it as if it meant exactly that.) Moreover, the Roberts/Alito strategy of quietly gutting precedents–epitomized in this case–is much worse for those who oppose their legal goals than the Thomas/Scalia willingness to overturn precedents directly and honestly. The result of this type of case is a sharp restriction in the reproductive freedom of women without the political benefits of an outright reversal.
  • Making it much harder to successfully strike an abortion statute on facial grounds, as the Court has just done, may seem like a mere technicality but is a big deal. I explain why here. Not only will this change in the standard applied by Casey make litigation to protect a woman’s reproductive freedom much more expensive and difficult, but it will have the perverse effect of making the fact that abortion regulations almost invariably have much more impact on poor, rural women an argument in their favor.
  • The next time someone claims that overturning Roe would “send the issue back to the states,” make sure to point out that they don’t have any idea what the hell they’re talking about.
  • And finally, let’s also remember the underlying gender assumptions of those who support the power of the states and the federal government. Ann has already noted this powerful passage in Justice Ginsburg’s brilliant dissent: “Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from ‘[s]evere depression and loss of esteem.’ Because of women’s fragile emotional state and because of the bond of love the mother has for her child,’ the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women’s place in the family and under the Constitution ideas that have long since been discredited.” Given Alito’s assumption that the state has the same interest in regulating married adult women as it has in regulating children, that he would vote to uphold this ban isn’t exactly shocking.

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