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Consent and Censorship

[ 0 ] May 7, 2007 |

There has been a lot of interesting discussion of Garance’s WSJ op-ed about raising the age of consent in the porn industry. I should say that I share Avedon and Roy‘s general libertarian perspective on the issue and probably end up in the same place as they do, but I think they’re being a touch unfair to Garance’s argument. Certainly, I agree (even leading aside the question of whether obscenity should be excluded from First Amendment protection, which has never been very persuasive to me) that if the censorship of porn is necessary it won’t work and if it would work it’s not necessary. Canada’s experience with R. v. Butler–in which a Supreme Court decision permitting censorship of sexually explicit materials only on explicitly feminist grounds was used primarily harass gay and lesbian and feminist bookstores–is instructive. Roy also makes a good point about how “[p]opular R-rated giggle-fests from Porky‘s to the American Pie movies are, to me, dirtier than a typical porn film, because they posit sex as something you get away with, like theft or vandalism,” although as Neil reminds us a lot of porn (which simultaneously celebrates and punishes female sexual expression) has a similar ethos.

Still, while I agree with these arguments on their own terms I think they’re a little unfair to Garance’s argument. She is not, after all, really advocating censorship; even the most hardcore civil libertarian, I think, recognizes the need for an age of consent, and whether this (inherently somewhat) arbitrary line should be drawn at 18 or 21 is surely debatable without threatening a slippery slope to Comstockery. The fact that Garance would exempt people whose images are sold from punishment would avoid the obvious problems that make, say, bans on prostitution so counterproductive. I’m still not convinced by Garance’s argument–I would need to know more about how much more likely 18 year-olds are than 22-year-olds to regret decisions to appear in sexually explicit material, whether it could be effectively and non-arbitrarily enforced (I would definitely oppose the policy change if Garance was right that it would be observed in the breach), and I would also prefer to try to more narrowly regulate coercive commercial exploitation before taking a larger step–but I don’t think increasing the age of consent for commercial use of sexual images is an attack on fundamental civil liberties.

Iraq Is A Big Elephant

[ 0 ] May 6, 2007 |

Henry, I think, has the best take I’ve read on Jon Chait’s netroots article. Chait’s take is actually pretty good in many respects, but is also marred by his unwillingness to believe that people might disagree with the positions of Democratic centrists for substantive rather than political reasons. In particular, Chait’s argument to a remarkable extent ignores the Iraq War, which as Henry correctly notes was “the most egregious example of the echo chamber that I’ve seen in recent history.” Atrios links to a Chait op-ed from 2003 that exemplifies the intellectual errors that Chait seems to attribute to the “netroots.” First, we have some strawman construction amid grossly premature triumphalism:

In the lead-up to the war against Iraq, liberal doves all made pretty much the same point, with some variation: However successful the conflict itself might be, the long-term diplomatic costs of alienating much of the world would outweigh any benefits. This prediction, while questionable, at least had the benefit of playing out over such an extended period of time that it could not be conclusively disproved until its adherents were all long dead. Alas, after the campaign hit a snag, many doves were unable to resist the temptation to crow over the supposed overconfidence of the war plan — and as a result looked silly a few days later when Saddam Hussein’s regime collapsed, to the apparent delight of most Iraqis.

This is quite remarkable. To state the obvious, “the diplomatic costs” are not the only potential costs here, and most critics didn’t doubt our ability to quickly defeat Iraq’s twelfth-rate military and depose Hussein. Rather, the most obvious potential cost was the cost of installing an Islamist quasi-state riven by civil war in Iraq, and the wholly predictable quagmire for American troops and resources (and the net negative for national security) that would ensue. To believe that a more liberal and similarly stable state would result from the invasion requires the belief that the Bush administration was capable of creating such a state ex nihilo from a country riven by sectarian conflict and with little in the way of civic institutions. Evidently, anybody who would trust the Bush administration to accomplish this would trust Lt. Frank Drebin to build a nuclear reactor. Anyway, it’s not just that Chait made an egregious misjudgment, but he wasn’t even asking the right questions, or engaging with anything like the strongest arguments of the critics. “Disarming” Hussein would not serve American security interests if anarchy resulted from the invasion, and so even a defense of the war that didn’t hinge on daydream believing about Iraqi democracy couldn’t avoid questions about Iraqi reconstruction.

Atrios has already highlighted his claim that the lack of evidence of WMDs prior to the war could not be considered a lack of evidence of WMDs. (As I’ve pointed out before, Chait also uses the grossly overinclusive “WMD” category to avoid explaining how, exactly, Hussein possessing some mustard gas would posed a significant threat to American national security.) We’ll return to this shortly. And finally, we have him ascribing motives to opponents of the war straight out of the Republican playbook:

Perhaps the most disheartening development of the war — at home, anyway — is the number of liberals who have allowed Bush-hatred to take the place of thinking. Speaking with otherwise perceptive people, I have seen the same intellectual tics come up time and time again: If Bush is for it, I’m against it. If Bush says it, it must be a lie.

Again, it’s not that people disagreed with Chait on the merits, it’s that they’re blinded by irrational Bush-hatred. He also fails to grapple with the most obvious problem with his assertion: the fact that most American liberal critics of the Iraq War supported the war in Afghanistan, which suggests that the mere fact that Bush supported something was not dispositive. Moreover, the implicit argument here that the competence and honesty of the Bush administration are somehow out of bounds when evaluating a preventative war whose desirability depended on either 1)claims about Iraqi weapons capacity that were not borne out in pre-war inspections or 2)assertions that the Bush administration could make Iraq a pro-American democratic model in the middle east is foolish. To once again return to d-squared:

Fibbers’ forecasts are worthless. Case after miserable case after bloody case we went through, I tell you, all of which had this moral. Not only that people who want a project will tend to make innacurate projections about the possible outcomes of that project, but about the futility of attempts to “shade” downward a fundamentally dishonest set of predictions. If you have doubts about the integrity of a forecaster, you can’t use their forecasts at all. Not even as a “starting point”. By the way, I would just love to get hold of a few of the quantitative numbers from documents prepared to support the war and give them a quick run through Benford’s Law.

Application to Iraq. This was how I decided that it was worth staking a bit of credibility on the strong claim that absolutely no material WMD capacity would be found, rather than “some” or “some but not enough to justify a war” or even “some derisory but not immaterial capacity, like a few mobile biological weapons labs”. My reasoning was that Powell, Bush, Straw, etc, were clearly making false claims and therefore ought to be discounted completely, and that there were actually very few people who knew a bit about Iraq but were not fatally compromised in this manner who were making the WMD claim. Meanwhile, there were people like Scott Ritter and Andrew Wilkie who, whatever other faults they might or might not have had, did not appear to have told any provable lies on this subject and were therefore not compromised.


The raspberry road that led to Abu Ghraib was paved with bland assumptions that people who had repeatedly proved their untrustworthiness, could be trusted. There is much made by people who long for the days of their fourth form debating society about the fallacy of “argumentum ad hominem”. There is, as I have mentioned in the past, no fancy Latin term for the fallacy of “giving known liars the benefit of the doubt”, but it is in my view a much greater source of avoidable error in the world. Audit is meant to protect us from this, which is why audit is so important.

I’m not convinced about the usefulness of generalizing about “the netroots” in general, but certainly any argument that fails to account for the Iraq War and the fact that so many idiosyncratic, independent liberal pundits fell for it because of the same failings they attribute to the “netroots” is inevitably going to have a huge hole in its center.

"It’s come to my attention that some people believe martinis are made with vodka."

[ 1 ] May 5, 2007 |

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Above: A drink that is not a martini.

Who says the Emm-Ess-Emm can’t tell hard, necessary truths?

Before we discuss the findings, though, we need to clear up a little matter. It’s come to my attention that some people believe martinis are made with vodka. I hate to get snobbish about it, but a martini should be made with gin or it’s not a martini. Call it a vodkatini if you must, but not a martini. Gin and vodka have as much in common hierarchically as a president and a vice president. Vodka can fill in for gin from time to time and might even be given certain ceremonial duties of its own, but at important moments you need the real thing. Vodka generally makes a poor substitute for gin in a martini or any other gin cocktail.

Certain truths are self-evident and among them are 1)drinks made with vodka are not martinis, and 2)Americans who pay 11 bucks a shot to drink a deliberately tasteless alcohol straight are wankers. Vodka’s place is solely as a mixer for drinks that don’t taste like drinks. I also like the fact that Asimov gets the minor premises right: if a drink has no vermouth in it, it’s not a martini. If only he had been covering the Iraq War

Legitmate Thee-yater Reporting

[ 1 ] May 4, 2007 |
  • I saw the much-raved-about, almost certainly Tony-winning Spring Awakening last night. The first half was objectively pretty awful–as you would expect based on the composer rather than the reviews, the Duncan Sheik music was third-rate generic mush, the high-density-of-cliches book little better–but for some reason (the will and energy of the cast, just being at the theater in good seats) I wanted to like it. My friend was less optimistic, and her instincts were much more sound. The second half was remarkably dire, featuring an embarrassingly flaccid and pretentious closing ballad and a forced attempt to rock out with carefully enunciated “fucked”s. Any goodwill I had vanished with the old suicide-as-an-inorganic-plot-device scam; like the undertones of sexual violence, it carried no emotional weight at all. It was appropriate that the same two actors played all of the repressive adult figures, since they were all indistinguishable anyway (although New York theatergoers unsure about where they stand on the great healthy sexuality vs. philistine late 19th century German repression question will I’m sure learn a Valuable Lesson.) Seriously, it was like Dead Poet’s Society: The Musical! except (if such a thing is possible) even less soulful and more crudely overdetermined. The puzzle for me is what on earth the slobbering critics saw in this crap. Are they just incompetent? Is there only experience with contemporary music in dentist’s offices and the occasional Starbucks? I don’t get it.
  • Seeing the bizarre gap between review and accomplishment also makes me upset about the lukewarm, imperceptive review the Times gave to Julian Shepard’s Los Angeles, which featured as part of the Flea‘s fine company of actors some obscure blogger. I would have written about it earlier, but I thought I had seen it on the last night; fortunately, is was extended another month, so it seems as if audiences found it anyway. Admittedly, the coke-fueled-decline-in-LA premise is scarcely more original, but it did something with it. Adam Rapp’s direction was imaginiative–Amelia Zirin-Brown’s torch song commentary was a particularly nice touch, and the deconstruction-of-the-Nice-Guy (TM) ending was a nice touch, particularly since endings in art about addiction is always difficult. Katherine Waterston–daughter of Sam–was in every scene, and she will be very interesting to watch. The play was structured as a series of individual scenes with someone who feels protective of the insecure lead character but can’t help exploiting her vulnerabilities anyway–which placed demands on the actor to implicitly provide the information about the character we learned or will learn but wasn’t evident in that particular interaction. She did this very well; Roy told me that her performances gave something more powerful to react to as the show ran on, and I believe it; it was a thoughtful, detailed performance. Seeing this as a tiny TriBeCa theater is certainly a better part of the NYC theater experience than the white elephant musical.

The Problem With the Anti-Choice Ultrasound Policy

[ 0 ] May 3, 2007 |

To follow-up on my recent post about William Saletan running interference for anti-choice ultrasound policies, NTEW explains in further detail why the moral inferences Saletan draws from ultrasounds don’t actually follow, a persistent problem with his arguments on the subject. One is reminded of another recent definitive episode in wingnuttery, in which the fact that Terri Schiavo’s involuntary movements and facial expressions were erroneously treated as evidence of consciousness:

Of course, nothing is morally significant about squirming — ours or the fetus’. What is significant is whether the fetus has a mind like ours. If it has no mind, or a mind of such a primitive level that it can’t even feel pain, there’s no reason to have attitudes of moral concern for it. The neural hardware for pain perception only starts to show up around week 23, and isn’t in place until week 30 of the pregnancy. So having moral concern for a first-trimester fetus on the basis of the squirming you see in an ultrasound is a mistake.


For my part, I think there’s room in the world for paternalism, but if you’re going to be a paternalist you need to be better-informed and more rational than the people you’re trying to impose your paternalistic requirements on. By letting his own squirming get the better of him and push him to support a useless and expensive procedure, Saletan fails this test. Instead of requiring ultrasounds before abortions, perhaps we should require him to reread the medical research on fetal pain before he does any more punditry.

I would also add that if paternalism is to be acceptable, it cannot treat men and women differently as a class, so it should also be common for male-exclusive surgeries (like vasectomies, say) to be subject to a wide array of regulations premised on the idea that most people who obtain them are irrational and should be dissuaded from obtaining the surgeries in question. Needless to say, this is unlikely to happen.

Of course, Saletan claims that he favors only voluntary, state-funded ultrasounds, which are in theory much less objectionable (whether or not Neil or I think that ultrasounds provide useful information, women can certainly look at them if they choose to do so.) But there remain two problems. First of all, he never bothers to ask why these proposed regulations generally don’t come with funding attached, and are also part of a wide array of regulations which make abortions more expensive and time-consuming to obtain and/or provide. (He always seems to accept the good faith of anti-choicers, no matter what the evidence, in ways he would never dream of doing for pro-choicers.) And even if his magical pony plan rather than the regulations that might actually pass were enacted, we still need to know how this fits into the scarce resources of our medical system. What medical services does Saletan propose to cut, or taxes Saletan propose to increase, in order to pay for this very expensive and largely useless information? These are questions to which I’m not anticipating answers.

Buy maybe I’m being too harsh. He has, after all, shown signs of recognizing that when American “pro-lifers” are presented with a conflict between preventing unwanted pregnancies (and hence fetal life) and regulating female sexuality they will almost always choose the latter, even when they’re presented with the innovative pro-contraception policies Saletan originated only 60 years after the founding of Planned Parenthood. Maybe in a year or two he’ll briefly realize he’s being played for a sucker yet again.

Bertha Wilson (1923-2007)

[ 0 ] May 2, 2007 |

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The feminist Canadian jurist Bertha Wilson passed away last week. Wilson was the first woman appointed to the Supreme Court of Canada (by Pierre Trudeau in 1982, the same year the Charter of Rights and Freedoms was ratified.) See also Pithlord and zuzu. I discussed her concurrence in the 1988 case R. v. Morgentaler, which struck down Canada’s federal statute criminalizing abortion here. A quote from the case would seem a fitting epitaph:

Given then that the right to liberty guaranteed by s. 7 of the Charter gives a woman the right to decide for herself whether or not to terminate her pregnancy, does s. 251 of the Criminal Code violate this right? Clearly it does. The purpose of the section is to take the decision away from the woman and give it to a committee. Furthermore, as the Chief Justice correctly points out, at p. 56, the committee bases its decision on “criteria entirely unrelated to [the pregnant woman's] own priorities and aspirations”. The fact that the decision whether a woman will be allowed to terminate her pregnancy is in the hands of a committee is just as great a violation of the woman’s right to personal autonomy in decisions of an intimate and private nature as it would be if a committee were established to decide whether a woman should be allowed to continue her pregnancy. Both these arrangements violate the woman’s right to liberty by deciding for her something that she has the right to decide for herself.


I agree with my colleague and I think that his comments are very germane to the instant case because, as the Chief Justice and Beetz J. point out, the present legislative scheme for the obtaining of an abortion clearly subjects pregnant women to considerable emotional stress as well as to unnecessary physical risk. I believe, however, that the flaw in the present legislative scheme goes much deeper than that. In essence, what it does is assert that the woman’s capacity to reproduce is not to be subject to her own control. It is to be subject to the control of the state. She may not choose whether to exercise her existing capacity or not to exercise it. This is not, in my view, just a matter of interfering with her right to liberty in the sense (already discussed) of her right to personal autonomy in decision-making, it is a direct interference with her physical “person” as well. She is truly being treated as a means — a means to an end which she does not desire but over which she has no control. She is the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life. Can there be anything that comports less with human dignity and self-respect? How can a woman in this position have any sense of security with respect to her person? I believe that s. 251 of the Criminal Code deprives the pregnant woman of her right to security of the person as well as her right to liberty.


The Wittes Primary

[ 0 ] May 2, 2007 |

We have a wiener! Tossing around accusations of intellectual dishonesty while defending Carhart II is a classic Biden moment.

On the same topic, I have a discussion of the Supreme Court’s latest intellectual atrocity in the context of Melody Rose’s book about abortion access in the United States. Amanda has more about the Rose book here.

Have You Noticed That The Milkman Doesn’t Come Every Morning These Days?

[ 0 ] May 2, 2007 |

Everybody’s making fun of the wistful hope that a military coup might come and wash the trash from the sidewalk expressed by Thomas Sowell. I’m amused because it particularly sticks out in what is otherwise a classic example of columns being a sinecure that can apparently never be taken away no matter how often a pundit has said the same uninteresting things and no matter how bad the prose. It wasn’t so much phoning it in as barely raising a finger to signal your servant to phone it in for you. (Call it the Buchwald/Broder rule.) Reading it was like a right-wing version of Norm Macdonald’s classic parody of Larry King’s alternatively banal and crazy observational columns and show segments. (“If you only see one film the rest of your life it should be Mickey Blue Eyes.” “I have no tolerance, gang, for anyone who commits arson.”) I can’t pick out my favorite one–maybe his claim that there have been only two instances of Republicans expressing outrage since Teddy Roosevelt? Or how about “Our education system, our media, and our intelligentsia have all been unrelentingly undermining the values, the traditions, and the unity of this country for generations and, at the same time, portraying as “understandable” all kinds of deviance, from prostitution to drugs to riots.” Thank God a conservative pundit finally got around to expressing that sentiment! I think my favorite example might be this:

The home run records that made Babe Ruth famous have been broken but one of his records will probably never be broken — pitching the longest shutout in World Series history, 14 innings. Few pitchers go even nine innings these days.

I know! Any have you noticed that games are no longer played exclusively in the afternoon by white guys wearing heavy flannel uniforms? They don’t even leave their gloves on the field between innings anymore!

All of this is just an excuse to link to the classic Onion column “In My Day, Ballplayers Were For Shit.”

…oh, and Ruth didn’t even pitch a 14-inning shutout. Instead, in his next column he should talk about how these modern ballplayers will never approach 749 complete games again.

2000 Election and the Smearing of the Florida Courts

[ 0 ] May 1, 2007 |

Like Kevin Drum, I’m going to skip the meta-issues in Jon Chait’s article and instead highlight this important point about the 2000 election:

The 2000 recount is an apt birthing ground for the netroots. It perfectly fits their view of U.S. politics as an atavistic clash of partisan willpower. And their analysis of that episode, while somewhat crude, has a certain truth. The liberal intelligentsia, and much of the Democratic establishment, tried to hold itself above the fray. During the recount, liberal pundits were concerned above all with maintaining civility and consensus, and they flayed Democrats for any hint of partisanship or anger…Elite liberal opinion-makers insisted that their side play fair. Gore, they declared, must allow for the possibility that his opponent could win a fair recount, must renounce street demonstrations, must be intellectually consistent–permitting, say, military ballots that did not fulfill the letter of the law to be counted. Members of the Gore recount team like William Daley and Warren Christopher, seeking to uphold their reputations as statesmen, nervously complied.

The contrast with the Republican side could not have been more stark. The only complaint conservative pundits had with the George W. Bush operation was that it was too soft. (George Will wrote that there was a “ferocity gap”–but, in a classic case of projection, he insisted that Democrats were more ferocious.) Bush never conceded the possibility that he could lose. Nor did he feel any obligation to maintain intellectual consistency. His campaign demanded the letter of the law be carried out in those instances when it suited his side, and it flouted the letter of the law in those (military ballots, illegally submitted absentee ballots in Seminole County) when it did not. It whipped up a mob to halt a recount in Miami-Dade County that at the time appeared potentially decisive. Conservatives celebrated these developments without a hint of dissent. While Democrats in Washington constantly undermined the Gore campaign by telling reporters that Gore should concede, Washington Republicans maintained ranks. Through their greater resolve and partisan discipline, the Republicans triumphed.

One of the most remarkable things about 2000 election is not only that the Bush campaign advanced ludicrously contradictory interpretations of Florida’s election statutes, but that the Florida Courts were relentlessly smeared as partisan although it advanced a perfectly consistent interpretation irrespective of which party it favored. Indeed, Rehnquist’s concurrence in Bush v. Gore–favored by most of the decision’s defenders–literally rested on the premise that that Florida Supreme Court was not engaged in jurisprudence at all. But those (including, to put his opposition of the “judicial activism” of Roe v. Wade into perspective, Ben Wittes) who agree with Rehnquist’s analogy of the FSC to openly lawless opinions of the courts of the Jim Crow South fail to explain why a court determined to nullify Florida’s election statutes advanced a consistent interpretation of the law that favored Bush in 3 out of 5 cases. Were the Florida courts also “writing new law” when they (correctly, in my view) accepted technically deficient absentee ballots? Defenders of Bush v. Gore somehow never say.

For example, let’s turn to the comedy stylings of Harvey C. Mansfield:

The two parties were very much themselves throughout. The Republicans stand for the rule of law, and the Democrats for the rule of the people. And the Democrats, because they stand for the rule of the people, believe that rule should be paramount, and that technicalities are subordinate to that will. Whereas the Republicans believe in doing things properly or legally. It really was a contest of principle between two parties.

Yes, nothing reflects standing for “the rule of law” than 1)purging people from the voting rolls in violation of the Voting Rights Act, 2)creating bourgeois riots to stop vote recounts, 3)arguing that technically illegal ballots should be counted while simultaneously arguing that the Florida courts were undermining the “rule of law,” and then having your claims upheld by 4)a flagrantly lawless and partisan opinion by a bare majority of the Supreme Court. That’s rich! The fact that the Democrats allowed themselves to get rolled by people like this shows that something was deeply, deeply wrong with the party.

It’s Annoying Abortion Contrarian Day!

[ 0 ] April 30, 2007 |

Will Saletan has many of the annoying tics of the blue-state male abortion “centrist” that dominates editorial discourse on the topic, such as viewing national elections as referenda on abortion, and originating policies that prominent pro-choicers have been advocating for decades. His latest entry into the field (via A Bird and A Bottle, which has excellent commentary) returns to one of his favorite tactics, trying to infer unassailable moral premises from scientific facts (or, in some cases, “facts”) that don’t in fact lead to any particular moral conclusion. Today, he defends state-coerced ultrasounds for irrational, capricious women who otherwise just don’t know that abortion is a serious decision:

Pro-lifers are often caricatured as stupid creationists who just want to put women back in their place. Science and free inquiry are supposed to help them get over their “love affair with the fetus.” But science hasn’t cooperated. Ultrasound has exposed the life in the womb to those of us who didn’t want to see what abortion kills. The fetus is squirming, and so are we.

Um, what do you mean “we,” contrarian pundit? One the first point about putting women back in there place, don’t take my word for it; take the Supreme Court’s, and then ask why the ways in which abortion regulations are actually written and enforced are inconsistent with protecting fetal life but perfectly consistent with regulating female sexuality. As for the second point, “science” does nothing to resolve the moral and political debate here. Most women are, I think, aware that fetuses are alive. As for whether this fact means that fetal life should trump a woman’s reproductive freedom, this is neither here nor there. After all, “pro-lifers” have access to the same ultrasound data and are certainly aware that fetuses are alive, and yet most of them aren’t willing to act as if abortion is taking a human life, so I’m not sure what I should. To top it off, Saletan argues that if we force women to obtain ultrasounds we can “trust” women to be rational, which seems to mean “agreeing with William Saletan:”

Now the Supreme Court has echoed that equivocation, ruling that one way to “inform” women of the evil of partial-birth abortion is to criminalize it. But the clash between ultrasound and the partial-birth ban is ultimately a choice between information and prohibition. To trust the ultrasound, you have to trust the woman.

Or, you know, we could “trust” the woman by allowing her to make reproductive choices based on the information she sees fit to use, some of whom might actually reach different conclusions than Sage Saletan. Anyway, my question: I assume in his next column, Saletan will argue that men should have to watch explicit videos of liver transplants before they’re allowed to obtain one? After all, they’re totally gross to watch, which must mean they’re immoral! I would trust that men will do the right thing and not obtain them once given the appropriate guidance from the state.

…UPDATE: More from Jessica and Echidne.

…and Zuzu.

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…