Author Page for Scott Lemieux

By the Time You Get To Arizona, Wingnuts Can Deny Contraception To Rape Victims

And, of course, it goes beyond Target–Dr.B notes that in Arizona, pharmacists can continue to get paid while denying morning-after contraception to rape victims. And I think this part of the story she quotes is worth highlighting:

Although it is safe, effective and legal, emergency contraception – the “morning after” pill – can be hard to find in Tucson.

After a sexual assault one recent weekend, a young Tucson woman spent three frantic days trying to obtain the drug to prevent a pregnancy, knowing that each passing day lowered the chance the drug would work.

While calling dozens of Tucson pharmacies trying to fill a prescription for emergency contraception, she found that most did not stock the drug.

Apologists for pharmacists who think they should get paid for not doing their job just like to assume that Plan B will be easy to come by, and if the closest pharmacist happens to be a Leon-Kassesque misogynist you can just go somewhere else close; this is not necessarily true. And, of course, all of this is the result of the Bush Administration using a politicized FDA to prevent a perfectly safe drug from being made available over-the-counter against the advice of most of its experts. (And, of course, this policy will increase the number of abortions, but who cares about protecting fetal life if it interferes with regulating female sexuality?) This power simply needs to be taken away from pharmacists so they can’t keep abusing it.

Target, Religious Freedom and the CRA

Target is now claiming that their allowing pharmacists to interpose their reactionary moralism between customers and their prescriptions is mandated by the Civil Rights Act of 1964, which requires employers to make reasonable accommodations for their employees’ religious beliefs. Fortunately, the intraweb provides us with a lot of sharp law-talkin’ people, and The Happy Feminist and iocaste demolish this nonsense. As The Supreme Court has interpreted it, the CRA requires employers to make only de minimis accommodations; employers are not, of course, required to make accommodations that would impose a hardship on their business. THF makes a useful distinction between a policy that if multiple pharmacists are on duty the one without moral objections fulfill the prescription–which is reasonable and does not affect the business significantly–with a policy that will force customers to go elsewhere, which obviously is not. And, of course, this is pretty obvious; you will not be surprised to find out that, say, companies that test shellfish recipes are not, in fact, legally forced to provide no-show jobs for Orthodox Jews. Again, you do not have a civil right to refuse to perform core functions of your job, and if the CRA were interpreted the way Target claims to it would be self-evidently unworkable.

So, Target cannot hide behind the CRA; its policy is its own. eRobin sees one reason why they may be caving to the wingnuts.

And Don’t Forget How He Embiggened It So Cromulently

Shorter Verbatim Bobo: “..it is nonetheless true that Bush has ennobled and saved American conservatism.”

I’ll bet you’re really aching to spring for that $50 TimesSelect subscription now…

Cohen: The Poor Man’s Bobo

Following up his ridiculous pre-emptive dismissal of the Fitzgerald indictments, Richard Cohen–for whom laziness is even more central than parroting center-right received wisdom–pulls the old “what’s the big deal if Roe gets overturned” routine out of the mothballs. Every fallacious assertion is there: Roe produced a social backlash because of its weak legal reasoning, overturning Roe will just return the issue to the states, choice won’t really be threatened by overturning Roe, and most legislatures won’t ban abortions because public opinion would oppose it. Let me say a bit more about the last two erroneous assumptions.

First of all, even if Cohen’s argument that just a handful of states would ban abortion post-Roe were true, it’s still pretty appalling; as Elton pithily explains, it’s sure easy for some guy sitting in Washington D.C. (or New York or LA) to tell poor women in Mississippi and Texas and Alabama to suck it up and head to the back alleys. It’s always easy to sell out other people’s interests. But, of course, it’s not true. Again, it’s remarkable the way that the abortion debate makes people forget things they should know about American politics, but it’s simply nonsense to assume that favorable public opinion leads straightforwardly to policy outcomes. And the nature of the abortion issue tends to emphasize countermajoritarian outcomes. In 1973, abortion had only been decriminalized in 4 states although public opinion was roughly the same as it is today, and of course a major reason for this is that affluent women already had abortion-on-demand irrespective of the legal situation in their state; generally, they could get a quite abortion from a doctor who would not be prosecuted, or at worst they could just go to a state where abortion was legal. Formally legal abortion matters most to women who have the least political power, which makes it much easier to keep formal abortion bans on the books. (If abortion bans were actually strictly enforced, that would be different, but they weren’t and wouldn’t be.)

But that was 1973–has something changed? Well, one thing has changed for the better: some states formally repealed their abortion statutes, which makes the status quo more favorable. But, still, 17 states would have immediate abortion bans in place, a lot more than Cohen is letting on. And, of course, two things have changed for the worse. First, very conservative Republicans have taken over statehouses, which favors pro-lifers greatly. And second, politicians are more insulated from public opinion, because beating incumbents has become virtually impossible (this is particularly important for the prospects of regulating abortion from the federal level, but matters at the states to.) As Hacker and Pierson point out:

As recently as a decade ago, a quarter or more of congressional seats were genuinely in play in any given election. Today, virtually none are. Thanks to the increasing power of gerrymandering, most house districts are completely safe…and Senate elections are also less competitive than they once were. This leaves favored candidates in to worry almost exclusively about pleasing their partisans. (9)

Incumbency’s power has also been increasing at the state level. In light of this, anybody who thinks that public support for legal first-trimester abortions will make abortion legal in most places has a remarkable naive and unsophisticated view of American politics. The precise number of abortion bans would depend on a number of factors, but in a context of Republican state governments largely insulated from electoral pressure, 15 states passing or maintaining abortion bans after Roe is a conservative, low-end estimate; it could be much higher. And it’s more a question of “how much” rather than “whether” Congress will regulate abortion unless the Dems can take over one or both Houses. But, hey, if you’re a sixty-year old man and most of the women you know live in the most liberal states in the country, what do you care?

Sharpen Up The Forks

Jack Balkin recently discussed Epstein and Segal’s new study of judicial nominations, which suggested that the Miers nomination would be an uphill climb at best. My assumption has always been that the historical data would be of only limited relevance, because of the increasing parliamentarization of Congress (which I’ll discuss further in what will I’m sure be a flurry of posts about the new Hacker and Pierson book.) I figured that Bush would be particularly stubborn about the nomination of his friend, and that he would be able to ram it through. But I think right now that it’s very unlikely. The increasing circulation of minor ethical lapses suggests a number of rationales that could be used to withdraw the nomination; it reminds me of the alleged conflicts of interest that were used to sink Clement Haynsworth (the first of the two Nixon appointees rejected before Nixon appointed Blackmun.) My sense is that a lot of Senate conservatives are making the same calculations I have–forcing Miers’ withdrawal is likely to lead to someone younger, better and more conservative. While, conversely, the defenses of Miers have been so inept and her qualifications so poor that it would be (rightly) difficult for Senate Dems to actually support her, as opposed to passively letting Republicans vote to confirm. Bush is no longer just lame; he’ certainly giving off a pretty ducky odor these days, and it’s not clear if he would have the leverage to get recalcitrant Senators in line. And the remarkably small number of committed Senators is an ominous sign. I think, contrary to my initial assumption, that the nomination is doomed.

I remain convinced that this is likely to be a bad thing for progressives, on balance. I hope I’m wrong about the type of judge that Bush would appoint as a replacement, but it would seem to me that the obvious move for him would be to appease his base. It could get really ugly.

Hacktacular!

Kay Bailey Hutchison on potential indictments in the Plame case:

I certainly hope that if there is going to be an indictment that says something happened, that it is an indictment on a crime and not some perjury technicality.

Hutchison’s statement on the impeachment of William Jefferson Clinton:

(i) The President of the United States willfully, and with intent to deceive, gave false and misleading testimony under oath with respect to material matters that were pending before the Federal grand jury on August 17, 1998, as alleged in Article I presented to the Senate. I, therefore, vote `Guilty’ on Article I of the Articles of Impeachment of the President in this Proceeding.

So, to clarify, perjury as part of a conspiracy to protect someone who burned a CIA operative, with charges brought by a Republican prosectutor–not even worth an indictment. But perjury as a result of a trap set by a rabidly partisan prosecutor: sufficient grounds for impeaching the President of the United States, despite the fact that the perjury had nothing whatsoever to do with his role as President. Okey-dokey! (And this was not ordinary political rhetoric–Hutchison was formally justifying an impeachment vote during a Senate trial.) And I’m sure we’ll be seeing a lot more of this when Fitzmas comes…

…Whoops: Julia, not suprisingly, already had this.

The Tautology That Broke the Camel’s Legs

St. Maggie of the Non-Sequitur:

Imagine you stand in the middle of vast, hostile desert. A camel is your only means of transversing it, your lifeline to the future. The camel is burdened– stumbling, loaded down, tired; enfeebled– the conditions of the modern life are clearly not favorable to it. But still it’s your only hope, because to get across that desert you need a camel.

Now, chop off its legs and order it to carry you to safety.

That’s what SSM looks like, to me.

Like, whoa, man. I didn’t know cultural conservatives had become OK with dropping acid before blogging, but I suppose this may portend some flagging in the drug war.

The thing, though, is that this ridiculous analogy really isn’t any worse than any of her other “arguments”. SSM just feels wrong to her; there’s ultimately nothing else going on here. The core of her non-arguments is feeble claims that since we’ve generally excluded same-sex couples from marriage we have to keep doing it (“History is on my side,” “This would be a major social change”), which have the obvious problem that they’re equally applicable to segregation, female disenfranchisement, and any other historical injustice you can name–in a liberal democratic society, traditions should not be self-justifying. Perhaps recognizing this, she argues that there is a rational reason: marriage is defined by procreation. But this justification fails because 1)it’s false (marriage has many other functions, we don’t exclude heterosexuals who can’t or won’t procreate from marriage), and 2)it wouldn’t logically exclude same-sex marriages even if it was true. So rather than defending this ostensible justification, it’s back to crazy metaphors about camels. And this is what all comes down to: irrational prejudice, a feeling that it would just be icky to let people whose sexual practices some people don’t like to get married. This argument is nothing but a crude tautology, and it’s never getting any better. Maybe I’ve been too hard on Volokh; if he was using Gallagher as a double agent to prove that arguments against SSM are remarkably bad, her guest-posting stint was certainly a success.

Julian Sanchez explains in more detail.

The Positive Effects of Lawrence

It’s obviously good news that the Kansas Supreme Court has ruled that anti-gay discrimination in the state’s statutory rape law is unconstitutional. This would this also seem to mean that Michael M.–which ruled that statutory rape laws that exclude women from punishment are constitutional–is an effective dead letter (unless the Supreme Court overturns this decision) since gender classifications face a higher level of constitutional scrutiny that classifications based on sexual orientation. And that’s a good thing (the discrimination being illegal, I mean, not the fact that classifications based on sexual orientation do not face a higher level of scruitny, which they should.) As Brennan correctly noted in his Michael M. dissent, the law was quite clearly based in “outmoded sexual stereotypes,” and no aspect of criminal law should hand out differential punishments based on irrational discrimination.

There are a couple of other interesting things about the case. The first is to note that the discrimination here is far from minor:

In a case closely watched by national groups on all sides of the gay rights debate, the high court said the law ”suggests animus toward teenagers who engage in homosexual sex.”

Gay rights groups praised the ruling, while conservatives bitterly complained that the court intruded on the Legislature’s authority to make the laws.

The case involved an 18-year-old man, Matthew R. Limon, who was found guilty in 2000 of performing a sex act on a 14-year-old boy and was sentenced to 17 years in prison. Had one of them been a girl, state law would have dictated a maximum sentence of 15 months.

16 extra years in the slammer purely because of your sexual orientation–serious discrimination indeed. The other thing is that we can see in the lower court’s opinion yet more examples of classic cultural conservative illogic, neatly skewered by the KSC’s opinion:

The two appeals judges in the majority offered various justifications for the differing punishments.

One judge, Henry W. Green Jr., said the Kansas law promoted “traditional sexual mores,” “the traditional sexual development of children,” marriage, procreation and parental responsibility. Judge Green added that the law helped protect minors from sexually transmitted diseases, which he said were more generally associated with homosexual than with heterosexual activity.

A second appeals court judge, Tom Malone, endorsed only the final rationale, though he called it tenuous. A dissenting judge, G. Joseph Pierron Jr., wrote that “this blatantly discriminatory sentencing provision does not live up to American standards of equal justice.”

In its decision yesterday, the Kansas Supreme Court ruled that the Lawrence case required reversal of the lower-court decision in Kansas. The State Supreme Court rejected all justifications offered by the appeals court. “The moral disapproval of a group cannot be a legitimate state interest,” Justice Marla J. Luckert wrote for the unanimous court.

Justice Luckert rejected the argument that homosexual sex is more likely to transmit diseases.

“The Romeo-and-Juliet statute is overinclusive because it increases penalties for sexual relations which are unlikely to transmit H.I.V. and other sexually transmitted diseases,” Justice Luckert said, referring to the oral sex in the Limon case and sex involving two women. “Simultaneously,” she continued, “the provision is underinclusive because it lowers the penalty for heterosexuals engaging in high-risk activities,” notably anal sex.

The fit between the law and the rationales offered for it is so poor, she concluded, that it violates the Constitution’s equal protection clause.

The appeals court’s majority, in other words, depended on one judge for whom the public health rationale was the only justification that could save the statute. But this rationale is, of course, transparently unserious. As the KSC pointed out (and as a couple people noted when Eugene Volokh trotted out his own pernicious arguments about homosexuality and public health), if male homosexuality is to be discouraged because it is more likely to lead to STDs, then the state would have to be logically committed to encouraging same-sex intercourse among women, as this is safer in general than heterosexual intercourse, and certainly could not punish relations between women more than heterosexual relations. But the Kansas law didn’t make such a distinction, because of course the arguments about “traditional sexual mores” are doing 100% of the work. And this is not the rational, secular justification that is necessary if the state is going to mete out massively inequitable punishments to different groups of people.

The fact that even in one of the country’s most conservative states judges are beginning to see through this kind of discrimination is a very positive sign, and also shows the importance of overturning Bowers.

Annals of Sports Self-Pity

As Rob’s recent post notes, the presence of one team that hasn’t played in a World Series since its inception in 1962 and another that hasn’t won since the Wilson administration has generated a lot of discussion about cursed sports teams. The greatest pain, however, is not a team that’s really bad–when you have no hope, there’s less to be crushed. This reminds me of a study published in the 1999 Big Bad Baseball Annual ranking teams by their number of close finishes versus their successful seasons. It was listed under the Angels team comment, as the author was sure that they would finish first (evidently, this is no obsolete.) They were third; the Giants second, Milwaukee fourth. (The Cubs, because they won the division the only two years of the 80s their team was better than atrocious, don’t rank particularly high.) The #1 team, however, should have been clear: none other than mes amours, The Expos. And the hard numbers don’t tell the whole depressing take.

The Expos had a formidable talent base in the late 70s and early 80s, but in 1979 and 1980 lost a pennant race on the last weekend of the year to the eventual World Champion (in the latter year, the deciding game was lost when Dick Williams decided to pitch to Mike Schmidt with a runner on and first base open in the top of the 11th with the immortal Pat McCormack on deck. The result is currently orbiting Neptune.) In 1981, they won the mini-series, but lost a deciding game 5 of the NLCS on a homer in the top of the ninth by Rick Monday. (During the strike, they actually played the game on the radio–and I listened. You don’t become an Expos fan without a lot of masochist in you.) They slowly squandered the Carter/Raines/Dawson/Wallach/Rogers years in bitter disappointment, under the hapless direction of Jim Fanning and Bill Virdon, finally recovering under Buck Rodgers but with considerably less talent. In 1987 and ’89, they occupied first place for significant periods but lost (and the latter year was costly, as they traded Randy Johnson as part of the pennant race.) With the hiring of Felipe Alou, they began to build into an excellent team again–Dan Duquette does a lot of dumb things, but he made a series of exceptional trades during this time. (It could be argued in retrospect that my argument that he was wrong to trade Delino DeShields for Pedro Martinez was not sound.) in 1992 and ’93 they again lost pennant races in September. In 1994, of course, they were the best team in baseball…when the World Series was cancelled. After that, Expos history was a long death march as ownership decided to strip-mine the team, although they lost the wildcard on the last weekend again in 1996. And, of course, the team has finally expired, meaning that for the Expos fan the coitus interruptus is permanent. So, to all you other self-pitying fans, I say you’re pikers!

To return to something that at least a small percentage of out readers would actually care about, there’s the question of this World Series. I still have some doubts about the White Sox, but one thing I didn’t take sufficiently into account is that they do have a lot of power. (This is particularly important in the post-season, because the better the pitcher, the harder it is to put together long offensive sequence.) I wouldn’t trust Garland against a really good offense, but the Astros don’t have a really good offense, and otherwise the White Sox’s pitching depth balances out the Astros’ superior front line (although I’d much rather have the ‘stros bullpen.) If Clemens were clearly healthy, I think the series would be dead even; since he isn’t, I’ll say White Sox in 6. That’s fine with me; they’ve probably suffered enough.

Give Me Something To Work With Here

I’m trying as hard as I can to maintain my contrarian stance about Harriet Miers. (And, ultimately, I still maintain it; I still haven’t heard a persuasive argument, in specific and tangible terms, explaining why whatever damage it is that Miers would do could possibly outweigh the bad effects of having a Priscilla Owen on the Supreme Court. Given that the Court’s only sustained period of great progressive jurisprudence hit its stride with people like Sherman Minton and Charles Whitaker and Tom Clark on the Court, it certainly can’t be the case that one mediocre justice threatens the Court’s institutional legitimacy.) But still, I admit that things like her inability to understand basic aspects of equal protection law on her questionnaire does make it difficult to sustain even a passive-aggressive Machiavellian defense. And as Drum said, this is particularly embarrassing for the Bush Administration. As Pamela Karlan says: “Are they trying to set her up? Any halfway competent junior lawyer could have checked the questionnaire and said it cannot go out like that. I find it shocking.” It’s not like it’s the LSAT; it’s pretty embarrassing the Bush can’t get it together enough to find a lawyer who could competently answer the questions for her. See also Dahlia Lithwick’s alternative questionnaire (“4. Is it correct for a comma to appear before a coordinating conjunction linking the parts of a compound predicate? 5. You have named Chief Justice Warren Burger as one of your favorite Supreme Court justices. Is it his devastating intellect, his soaring writing style, or his evenhanded administration of the court that you most admire? Where do Charles Whittaker and James McReynolds rank among your Top 10 Justices? 9. Please name any state Bar Associations from which you have yet to be suspended.”)

In other Miers news, I noted last week that Charles Krauthammer accused anyone who disagrees with him of not doing judicial interpretation at all, while his examples were entirely outcome-oriented. Well, as Dwight Meredith points out, he’s certainly out-hacked himself this week. A few months ago, Krauthammer–not alone among conservative commentators–invented a constitutional obligation for the Senate to give a nominee an “up-or-down” vote. Now that Bush has appointed an ideologically ambiguous crony, however, the Senate’s role has once again been transformed back into something resembling the real one; how surprising. Dwight sums up Krauthammer’s “principles” effectively:

So, let’s see if we can discern the principle Krauthammer applies to judicial nominations. First, he decries the use of a parliamentary maneuver, the filibuster, when it is used to block nominations he favors. He supports the use of a parliamentary maneuver, the nuclear option, when it would result in confirmations of nominees he favors.

He thinks that it is important and, indeed constitutionally required, for a judicial nomination to receive an up or down vote when he favors the nominee. When he opposes a nomination, he calls for withdrawal of the nomination without the need for an up and down vote.

When Democrats use a dispute over the production of documents as an excuse to block a nomination Krauthammer favors, he is prepared to go nuclear. Nonetheless, since he opposes the Miers nomination, he advocates using the excuse of the failure to produce documents as a way to prevent an up or down vote on her confirmation.

Krauthammer’s principle is clear. He is for or against whatever it takes to confirm the nominees he favors and to prevent confirmation of those he opposes. It is the principle of convenience.

100% right.

Judy Under The Bus: Better Late Than Never

Ah, looks like phony First Amendment martyr Judy Miller is finally being abandoned by the Times, although this would have meant considerably more had the Times figured this out a few months ago, or even better when she was destroying the paper’s reputation by acting as a shameless government propagandist in the run-up to a war. (In other words, Keller should be going down with the ship too–he staked his credibility on Miller, and he was wrong.)

Kassism At Target

Media Girl notes that Target is defending its pharmacists when they refuse to fulfill prescriptions for contraception. Great. (It is nice that Kass informed us that female contraception is particularly evil, which explains a lot; somehow I doubt that any of these pharmacists refuse on principle to work at stores that sell condoms.) And the fact that Target is willing to buckle demonstrates that the beliefs of the President’s handpicked bioethics czar about gender and sexuality are far from fringe ones. As MG says: “There are people who believe women must be punished for having sex, and now, in the 21st century, they have corporate and governmental backing, leaving women to fend for themselves when it comes to healthcare.” And, of course, making contraception harder to obtain will increase the number of abortions, but when conflicts emerge between controlling female sexuality and protecting fetal life, we all know which one gets thrown under the bus.

One thing to add about this: while Target’s defenders will talk about the “principles” of the pharmacists who refuse to fulfill prescriptions that may give women more autonomy than they consider appropriate, this issue as about anything but. People are, of course, free, to oppose contraception, despise non-submissive women, etc., if they so choose. And if their professional obligations conflict with their principles, they have an obvious choice: they can resign and find a job consistent with their principles. These people, conversely, want to be able to get paid despite not being willing to do their jobs. That’s pretty much the opposite of standing on principle. But, of course, if they resigned they wouldn’t be able to use their gatekeeping authority to inflict their anachronistic moral principles on people who don’t share them, which one suspects is the more important “principle” here.

Related: another eminent Straussian at a top American university informs us that gender relations would improve if only the 19th century would return.

…UPDATE: Aspazia reminds us (and tells us how) to contact Target and let them know what you think about this.