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Abortion "Contrarianism"–Still Wrong

[ 0 ] April 30, 2007 |

It must be said that Ben Wittes’s inevitable defense of Carhart II is somewhat less objectionable than his typical writing on the subject, if only by virtue of its incoherence. He labels the rank sexism of Kennedy’s opinion “absurd,” and even concedes that “in some respects, it’s a big win for anti-abortion activists.” (Of course, he’s now on the record as claiming that Carhart II might have at least some negative impact on a woman’s right to choose an abortion, while overturning Roe entirely would have a positive impact. I would try explain this, but I lack the ability to make heads or tails of the High Contrarian logic that is desirable if you want to write about abortion for most of the nation’s primary op-ed pages.) Still, his bottom-line claim that the Court’s rejection of a facial claim against Congress’ arbitrary regulation of abortion is likely to prove “constructive” requires evading virtually all of the problematic aspects of the opinion:

  • It’s nice that he calls out the Court for its sexist assumptions, but he then treats Kennedy’s assumptions about the deficient decision-making capacities of women as essentially meaningless dicta, when in fact without them the entire case for upholding the statute collapses. Casey identified two state interests that may be advanced through abortion regulations (so long as they do not constitute an “undue burden” on a woman’s right to obtain an abortion): the protection of fetal life and the protection of a woman’s health. The PBA ban has no connection at all to the former–the government conceded at oral argument that it would not prevent any abortion from occurring–and even if one credulously defers to Congress’ findings that 2+2=13 at best the procedure is neutral to women’s health unless one assumes that women are unable to rationally make this choice for themselves. Kennedy’s sexism isn’t merely incidental–it’s the meat of his argument, and Wittes certainly doesn’t deign to share with us what other connection with a legitimate state interest could make the burden imposed by the state “due.” Worse, if one accepts the premise that preventing women from obtaining abortions is an acceptable means of saving them from themselves, it’s not clear what abortion regulation Casey could possibly proscribe.
  • Wittes’ discussion of the theoretical possibility the Court holds out of a successful as-applied challenge also makes little sense. I’ve discussed the importance of this issue to abortion cases in detail here and here, but Wittes doesn’t sufficiently grapple with a couple of important points. First of all, while it’s true that denying facial challenges before seeing if a statute has unconstitutional applications makes sense in many areas of the law, it’s inappropriate to apply it to abortion cases for an obvious reason: biology prevents the status quo in abortion cases from being frozen legally. Surely, as Ginsburg says, Kennedy cannot mean that a doctor waits until she has a woman in her office ready to perform surgery before she can apply for an injunction, but as Wittes acknowledges Kennedy sheds no light at all on what it could mean. If what is needed is evidence that the procedure is necessary in certain cases, this case is as good as any; at least two Circuit courts have already determined that there is. Are doctors supposed to risk legal harassment and/or prosecution by performing the the procedure when they determine it’s necessary to build a factual case? If not, what abstract evidence is good enough? He also, of course, essentially ignores the immense financial burden having to prove that individual applications of every abortion regulation are unconstitutional on pro-choice litigators, and the burden that will exist (especially on poor women) in the meantime.
  • Moreover, Wittes is asking us to believe that a Court majority whose most moderate member wrote an opinion rife with hostility towards not only abortion but to women in general is likely to adjudicate future as-applied challenges in good faith rather than turning challenges into a Kafkaseque maze in which no challenge is ever quite specific enough. Let’s just say that the next time that Wittes is involved in a high-stakes poker game, I hope he gives me a call.
  • And finally, the opinion concludes by claiming with his trademark argument that the decision “could let some of the air out of the balloon” of the abortion debate. Even leaving aside the question of why a mild attenuation of conflict should be preferred to the just outcome, I remain unable to follow the logic here. Apparently anti-choice groups will be less likely to pursue, and anti-choice legislators less likely to pass, incremental restrictions on the ability of poor women to obtain abortions despite the fact that the Court has signaled that the Casey standard will be almost entirely toothless when evaluating anything short of a ban and that challenging such regulations will be a bewildering, enormously expensive exercise because…look, it’s Halley’s Comet!

So despite the qualifications this remains the same old vinegary contrarian wine in a slightly cleaner bottle. Wittes, again, is asking us to move toward a compromise in the abortion debate by preserving the rights of women who will have access to abortion no matter what while sacrificing the women whose rights are actually at stake. Don’t buy it. He may be fooled by the clever, slow-motion gutting of Roe by the Court’s conservative wing, but you shouldn’t be.

[Also at TAPPED.]

One Out Of Two

[ 0 ] April 29, 2007 |

I must concede that I have absolutely no idea who Kit Carson is. (Admittedly, I grew up in Canada–even my details about the Alamo are fuzzy–but Kieran says that’s no excuse.) On the other hand, I can take a modicum of pride in the fact that I have never gone hiking in a blazer. Although I was traumatized for many years by an arduous cross-country ski trip with my classmates where my backpack kept falling apart every 10 minutes so I was an hour behind everyone else…

Single-handedly Justifying the Blogosphere

[ 0 ] April 29, 2007 |

I’ll grant that the awfulness of today’s comic sections was near the top of the list of the topics I liked to engage in dorm-dinner-table rants about (foreshadowing my inevitable entry into a blogosphere), so I’m a particularly ripe audience. Nonetheless, I think it’s plain that Joe Mathlete Explains Today’s Marmaduke and the Comics Curmudgeon are among the best. sites. evah.

Taking One For The Team

[ 0 ] April 28, 2007 |

One of the most frustrating aspects of being a Yankee-hater (or, in other words, a decent human being) is watching Mariano Rivera put up 200 ERA+s every single damned year. Yes, yes, he’s by far the greatest closer of all time, but throwing 75 innings a year you would think that one year hits would just start to drop; there’s simply no precedent for that many incredible years in a row. (Eckersley and Hoffman did it once; Sutter never did it.) Clearly, there was only one way of solving the problem. So I sucked it up and paid a hefty fee for him at this year’s auction. And:

1-2 0 SV 12.15 ERA

You’re welcome!

But Trent Lott Was Forced To Resign Before Becoming the Second Most Powerful Senate Republican!

[ 0 ] April 28, 2007 |

Seriously, can someone make a case that this isn’t even worse than what Imus did? As Digby reminds us:

Rush is not some misunderstood schlub who just made a few slightly off-color jokes and doesn’t understand why it bothers some people.He’s not even a nasty old racist/misogynist creep like Imus who just thought he could demean anybody he felt like and make big money doing it. Rush Limbaugh a professional cog in the GOP machine who has been helping to set the political agenda in this country for more than a decade. He knows exactly what he’s doing when he plays on racist stereotypes and it isn’t just for the laughs.

Yet in 2000 NBC hired him to do election commentary. ESPN later hired him to do sports. The Republican party defends even the most disgusting of his antics. The president himself appeared on his show just days before last fall’s election.

This flagrant racist is a major part of the GOP. It can’t be emphasized enough. And while one would like to think there’s a better defense available than bizarre homophobic slurs, some appalling racist nonsense about Hillary Clinton and attempts to argue that pointing out someone’s explicit racism is suppressing their “free speech,” let’s be frank: there really isn’t a better defense available.

…it is the crazy season.

More on the Terrorism in Austin

[ 0 ] April 27, 2007 |

From Amie Newman.

Sunstein on Reproductive Freedom and Gender Equality

[ 0 ] April 27, 2007 |

Last week, Bean pointed us to this op-ed by Cass Sunstein, who argued that Ruth Bader Ginsburg’s dissent in Carhart II–which rooted a woman’s right to obtain an abortion on the basis that most attempts to interfere with this right violate a woman’s equal citizenship–may well become the Court’s majority one day. In the long sweep of history, this is probably right, and certainly this provides a compelling doctrinal basis. (Reva Siegel, a pioneer in equal protection theory, argues in the recent book What Roe Should Have Said that such an opinion would have been possible for the Court to advance based on the legal materials available in 1973.) A few random comments about Sunstein’s argument:

  • While I think gender equality is fundamental to a woman’s right to choose an abortion, I don’t agree with Sunstein’s assertion that “[m]uch more than the right to privacy, the ban on sex discrimination is firmly entrenched in constitutional doctrines.” [my emphasis] Whether or not one finds it a persuasive reading of the text, the “right to privacy” is perfectly well-entrenched in precedents that have no chance of being overturned reaching back to the 20s, and the doctrine provides a compelling basis for Roe (at the very least, there can be no serious question that choosing an abortion represents a fundamental right; the only question is whether there is a sufficiently compelling state interest to override it.) Moreover, I think that Sunstein creates a false dichotomy here. As the post-1980 jurisprudence of Blackmun, Stevens, and Ginsburg (and, in the case of the husband notification provision, even O’Connor) makes clear, recognition of a woman’s equality rights can be, and is, an important part of applying “the right to privacy” (a somewhat misleading name applied to a line of cases that are really about a broader right to reproductive autonomy). As Carhart II makes strikingly clear, asserted state interests in regulating abortion almost always embody reactionary gender mores, so gender equality is always relevant no matter what docrtine is being applied.
  • One striking thing about Sunstein’s article is what a radical revision of the “minimalist” position on Roe he had previously advanced it is. One implication of the gender equality argument, as Sunstein seems to accept, is that abortion regulations (the 24-hour waiting period is a particularly obvious example) that might be colorable when applying a due process argument are plainly impermissible when applying a gender equality standard. Resting on equal protection also seems likely to have at least as broad an effect on other areas of the law. I certainly approve of all of this, but it’s a strange position for someone who had previously argued that the Supreme Court’s abortion jurisprudence should rest on the narrowest possible grounds and leave the largest possible space for subsequent legislative regulation to advocate without explanation for the switch.
  • I do think that Sunstein deserves credit for acknowledging that “the sex equality argument will not be convincing to committed opponents of the abortion right.” I like discussing the finer points of abortion doctrine considerably more than the next person, but it’s important to recognize that in terms of the public acceptance of the decision, or subsequent results on the Supreme Court, the weak craftsmanship of Roe is irrelevant. (For one thing, as Carhart II makes depressingly clear, the gender equality argument won’t persuade many opponents of abortion because they’re against gender equality.) Whether Ginsburg’s jurisprudence will secure 5 votes will depend on Presidential and Senate elections, not on it being a more attractive jufiscatory framework.

Strange Justice

[ 0 ] April 26, 2007 |

I like Bill Richardson, and hope that he becomes a viable candidate in the primary. But his choice of “Whizzer White” as his ideal Supreme Court Justice in tonight’s debate is…odd. Myself, I would prefer a justice who was on the right side of (just for starters) Roe, Miranda, and Bowers. (In fairness, he did write one of my favorite concurrences.) The fact that, when informed he was expected to choose a living justice, he chose Ruth Bader Ginsburg while singling out her demolition of the rank sexism of Carhart II makes it all the stranger.

Parental Involvement Laws: A Popular Bad Policy

[ 0 ] April 26, 2007 |

Phoebe Maltz makes a good point about laws requiring that women under 18 obtain parental consent before obtaining an abortion. Why is it a good idea for state policy to increase teen pregnancies? This is particularly true of Brooks, who thinks that pre-viability abortions should be legal. Why on earth would we want to make it harder for the group for whom unplanned children extract the greatest cost to terminate an unwanted pregnancy?

We can argue about whether parental involvement laws should be constitutional (I will concede that they have the strongest constitutional case of the common abortion regulations.) But between the arbitrary application of bypass provisions, the fact that they’re usually superfluous for young women in stable loving families and dangerous to young women with bad family relationships, and the fact that their primary concrete effect is increasing the number of teenage mothers they’re certainly appallingly bad public policy.

Slimy Republican Operative of the Day

[ 0 ] April 26, 2007 |

Smilin’ Joe Lieberman.


It’s remarkable that the newspapers don’t demand a bit more in the way of originality. Back in 2005, Lieberman took to The Wall Street Journal to write, “More work needs to be done, of course, but the Iraqi people are in reach of a watershed transformation from the primitive, killing tyranny of Saddam to modern, self-governing, self-securing nationhood — unless the great American military that has given them and us this unexpected opportunity is prematurely withdrawn.” In fact, it sounds a lot like what he wrote back in July of 2004, when he said, “The successful handover of sovereignty to the Iraqi people last month offers fresh hope for stability and democracy in their country, but it could also mark a turning of the tide in the world war against terrorism.”

And on and on it goes. Every few months, Lieberman pops up to identify this — this day, this hour, this moment — as the turning point in Iraq and warn that withdrawal will impede the improvements. Then the country descends even deeper into civil war, and he picks a new instant when everything is on the upswing and only American will stands in democracy’s way. And, every time, the nation’s newspaper editors let him publish, no new arguments or information needed.

Projection In Constitutional Interpretation

[ 0 ] April 25, 2007 |

Ruth Marcus on Carhart II:

Second, the Father Court Knows Best tone of Anthony Kennedy’s majority opinion. “Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” Kennedy intoned. This is one of those sentences about women’s essential natures that are invariably followed by an explanation of why the right at stake needs to be limited. For the woman’s own good, of course.

Kennedy continues: “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” No reliable data? No problem!

And I thought women were the ones who were supposed to be bad at science.

Kennedy’s opinion doesn’t merely rely on anachronistic gender stereotypes to defend an otherwise arbitrary law; his opinion consistently reflects the assumptions about defective reasoning and decision-making ability that he erroneously attributes to women. I would suggest he get his own house in order before making demeaning generalizations about an entire gender.

Hogging: Second Round Edition

[ 0 ] April 25, 2007 |

Time for a preview of the Western Conference’s second round (and since I was 8-0 in the first round, you can take these straight to the bank.) One’s enthusiasm is always slightly diminished when one’s primary rooting interest, which looked like a serious contender at the beginning of the year, is hopelessly outclassed in the first round. (They really did leave everything on the ice in Game 6, and it was still only because of Kiprusoff that it was even close.) Bard and Michael, who may be linked or appended later, have no (or only half–sorry about Michael’s angry Penguins. Bring back the scarf!) But if one can’t get over heartbreak, one really shouldn’t be a Flames or Expos fan. Onward:

Detroit (1) v. San Jose (5)
This one should be great. In evaluating the Wings , one faces the difficult dilemma: were they really great, or the Flames just really abysmal? A little of both, I guess, but there really is a huge difference between this Wings team and ’04. They’re tough, relentless, gutty, and still have a deep offense, plus Hasek looks healthy. I liked the Sharks more before the season, and you obviously have to love their top-line scoring. They could certainly win. And yet–at times this season they reminded me of the Flames at a higher level of accomplishment, a very good team that should be better. I think the difference will be at the blueline. The Sharks are thin–I still think Hannan is enromously overrated–and not only do the Wings have Lidstrom but Schneider and (amazingly) Chelios played wonderfully in the first round. I wouldn’t bet on the old guys surviving a war with Anaheim, but they’ll win this round. WINGS IN 7.

Anaheim (2) v. Vancouver (3).
A similar thing here: do I admit that I was wrong about Turco, or is the Canucks’ offense is really shitty? Again, a little from column A…anyway, if one wanted to be optimistic about the ‘nucks they could be compared to the ’04 Flames or ’03 Ducks–well coached, underrated defense, ace goaltender. But as of now they don’t have a Kariya or Ignila–the Sedins are good but not that good, and Naslund had that ability but hasn’t actually done it for two years. And the Ducks present the kind of challenge that the Ducks and Flames underdogs avoided–a similar but clearly better team. I don’t think there’s any precedent for a team having arguably the league’s two best defensemen, one a burner one a rock, in peak form at the same time. (The Devils were close, but I think by the time Niedermayer fully matured Stevens had slipped quite a bit.) I hate to say this, because I hate Burke, but as long as the two are healthy I think they’re by far the best team in the NHL, and they’ll win this one easily–Luongo isn’t a huge edge over Giguere, and the Ducks are also better offensively and tougher. DUCKS IN 5.

As for the East, because perfection is boring I’ll pick the Rangers in a 7 game upset–for some reason I think the Sabres are a year away, although they’re very good (and in retrospect trading Lydman instead of Warrener was a huge blow for the Flames.) I’ll also take the Senators in 6 in what will be a definitive series for them; I think the Devils, which no longer have an A defense, will have similar problems to the ones they had against Carolina last year.

…Berube’s hogging is here, complete with some valuable historical information about the guy who played pervo stay-at-home defenseman Moe Wanchuk. (“What did ya shay to him, Reg?”) Hopefully in the next round we’ll get more data on Billy Charles-boys, from Moose Jaw, Sakatchewan…