Should We Ban Abortion For Non-Affluent Women? That Is The Only Question

This is, alas, not from a pessimistic feminist sci-fi novel:

In this new movement toward criminalization, El Salvador is in the vanguard. The array of exceptions that tend to exist even in countries where abortion is circumscribed–rape, incest, fetal malformation, life of the mother–don’t apply in El Salvador. They were rejected in the late 1990′s, in a period after the country’s long civil war ended. The country’s penal system was revamped and its constitution was amended. Abortion is now absolutely forbidden in every possible circumstance. No exceptions.

There are other countries in the world that, like El Salvador, completely ban abortion, including Malta, Chile and Colombia. El Salvador, however, has not only a total ban on abortion but also an active law-enforcement apparatus–the police, investigators, medical spies, forensic vagina inspectors and a special division of the prosecutor’s office responsible for Crimes Against Minors and Women, a unit charged with capturing, trying and incarcerating an unusual kind of criminal. Like the woman I was waiting to meet.

What we have in El Salvador, then, is an actually principled forced pregnancy legal regime. This framework does not have the procedural inequities–vague statutory language and/or arbitrary enforcement–that have characterized American attempts to ban abortion, and which in my judgment gave these laws fatal constitutional defects even before considering substantive violations based on privacy or gender equality. (The El Salvador laws might fail the latter test, but certainly can’t be said to fail the former.) This framework also doesn’t have the fundamental unseriousness of most of the policy proposals of American pro-lifers; it takes the idea that abortion is taking a human life seriously, and actually makes logical attempts to apply the law and is willing to hold women responsible.

And yet, even in this context, what are the substantive effects?

Abortion as it exists in El Salvador today tends to operate on three levels. The well-off retain the “right to choose” that comes of simply having money. They can fly to Miami for an abortion, or visit the private office of a discreet and well-compensated doctor. Among the very poor, you can still find the back-alley world described by D.C. and the others who turn up in hospitals with damaged or lacerated wombs. Then there are the women in the middle; they often rely on home-brewed cures that are shared on the Internet or on a new underground railroad that has formed to aid them.

Even in the in the context of an abortion criminalization far less arbitrary and far more rigorously enforced than any comparable American attempt would ever be, affluent women still have access to safe grey market abortions. With apologies to my long-term readers, let me put it in boldface: the only major question about abortion policy is whether poor women will have the same access to safe abortions inevitably enjoyed by the affluent. Even where abortion laws are not arbitrary in the formal legal sense, they have grossly inequitable effects in practice, full stop. Which is why I believe that one can be a progressive and “pro-life” in the sense of believing that abortion is morally wrong, I don’t believe there’s any defensible progressive argument for attempts to criminalize abortion.

And what of the women forced to rely on the black rather than the grey market?

“Back-alley abortion” is a term that has long been part of the abortion debate. In the United States, in the years since Roe v. Wade, it has come to seem metaphorical, perhaps even hyperbolic, but it happens to conjure precisely D.C.’s experience. And it’s easy in El Salvador to find plenty of evidence that D.C.’s story is neither isolated nor the worst case. A report by the Center for Reproductive Rights offers this grim list of tools used in clandestine abortions: “clothes hangers, iron bars, high doses of contraceptives, fertilizers, gastritis remedies, soapy water and caustic agents (such as car battery acid).”

I’ll probably have more to say later, but needless to say the article is must-reading.

…UPDATE: Conveniently, James Joyner shows us the American pro-life mindset for comparison sake:

Why, how could the United States even think of becoming more like those backward countries? Of course, aren’t Mississippi and South Dakata essentially third world countries, anyway, filled with Jesus loving backwards ass redneck hicks?

Now, granted, there is no move anywhere in the United States to apply criminal sanctions to women who seek abortions. Indeed, even in pre-Roe America (aka, “the Dark Ages”) sanctions applied only to doctors and facilities that performed the procedure.

Shorter Joyner: It’s so unfair to compare American pro-lifers to ones in El Salvador–I swear, we’re completely unprincipled hacks who don’t take the only legitimate rationale for abortion criminalization seriously, and don’t think women are moral agents! It never ceases to amaze me that American pro-lifers think that the illogical construction and aribtrary enforcement of abortion statutes is an argument in their favor.

You have to like the pathetic dollop of red-state ressentiment, which is a nice way of avoiding the fact that the North Dakota and Mississippi legislatures, in fact, have passed or are seeking to pass abortion legislation that would be more reactionary than exists in almost any liberal democracy. You can think this is a good or bad thing, but to imply that it’s pre-emptively unfair to point this out is silly.

Give ‘Em Hell, Harry

Kevin Drum explains the reason the immigration bill failed: Frist was obviously reneging on an agreement to stop House goons from stripping anything decent out of compromise legislation in committee. And while I don’t entirely agree with her optimistic analogies to 1994, I do think this is another piece of evidence for Amy Sullivan’s argument (which I agree with entirely) that Reid has been an outstanding minority leader, a major improvement over his predecessor.

Only 10?

But it’s certainly enough to scare me, at any rate…

Boggled

There’s something mind-boggling about the notion that either a) a sustained bombing campaign will topple the regime in Iran, or b) sanctions will force a revolution in Iran. The mind boggling thing is not that these ideas are absurd, that they have no empirical support, or that they are doomed to failure.

The mind-boggling thing is that these arguments are coming, presumably, from the same people who thought that invading Iraq was a good idea because a) a sustained bombing campaign was unlikely to topple the Iraqi regime, and b) sanctions had failed to force a revolution in Iraq.

Or maybe I’m wrong, and it’s just that the neocons in the administration have been shunted aside by the equally idiotic paleocons. Is that progress?

The Curious Cost-Benefit Analysis of the Conservertarian

Ampersand’s post about the ineffectiveness of diets has generated a lot of discussion. Another responder is Jane Galt, who in addition to some sensible points about the non-immutability of weight gain makes this very strange (although common) argument:

But it may not be a bad strategy for the group. If being more than a few pounds overweight is bad for you (as I believe the evidence does show, particularly with nasty chronic diseases like diabetes), then the social pressure that produces dieting is the same social pressure that keeps people from getting fat in the first place . . . assuming that rich people aren’t genetically thinner, but merely responding to their environment. Fat acceptance, on the other hand, may be good for fat people, but bad for the future people who will become fat if the cultural stigma on high-calorie eating is removed.

The “diseases like diabetes” line is pretty misleading, suggesting a much broader array of effects when diabetes is pretty much it; for the most part, although some of the behaviors that lead to being fat are demonstrably unhealthy, the effect of weight as an independent variable is quite small. In addition to this, however, there are some pretty obvious problems with preserving the stigma on cost-benefit grounds:

• The biggest problem is that her cost-benefit analysis ignores most of the costs. Even if we accept Galt’s (rather contestable, although I realize I’m swimming upstream here) assumption that it’s a useful tradeoff to inflict significant suffering on one group of people so that another group of people will have a marginally reduced risk of getting diabetes, there are a lot of additional effects that she ignores. The stigma against being overweight creates all kinds of additional health problems, especially in young women, even for people who don’t get permanently fat: yo-yo dieting, eating disorders, and psychological traumas being the most important. Perhaps Galt thinks it’s worth creating a lot of Terri Schiavos in order to reduce the incidence of diabetes; I can’t imagine any non-perverse ordering of values in which the benefits of the fat stigma come close to outweighing the costs. But any rate, any useful discussion of its effects has to take these things into account. Utilitarian arguments that ignore significant costs are of no value.
• In addition, it must be noted that the stigma against being fat is a highly inefficient way of achieving public health goals. Not only because some people are overweight but healthy, but because (as Galt acknowledges) many people, especially when they’re young can be sedentary and eat unhealthily but remain thin. The social emphasis on obesity in and of itself is doesn’t make any sense; it makes much more sense to emphasize the importance of exercise and eating a balanced diet.

But, of course, my own cost-benefit analysis is misleading, because it leaves out what’s really driving the discussion: aesthetics. Galt’s post reminds me of the even more transparently spurious invocation of public health concerns by conservertarians attempting to justify their comrades’ stigmatizing of Teh Gay. The public health justifications for the fat stigma are indefensible, but this isn’t surprising because is pretty obvious that they’re primarily an ex post facto justification for what is at bottom an aesthetic reaction. But while the fact that gay people are second-class citizens in many areas of the law makes such a project particularly odious, the thing is that thinking fat people are icky doesn’t require any justification; it’s no more or less arbitrary than any other aesthetic preference. Trying to pretend that these aesthetic judgments are an effective public health “strategy,” however, is both utterly unconvincing as an apologia and completely counterproductive on its own terms.

Drug War v. Civil Liberties III

From Unclaimed Territory.

If we let them have Kaus, will they just leave us alone?

Mickey is afraid that Mexican immigrants are going to rise up and “take back” California.

Heh.

Posts Worth Reading

Erik on heroin in the Espanola Valley.

Redbeard on abortion on Saipan.

Drug War v. Civil Liberties II

Radley Balko has a terrific article about no-knock warrants, which does a particularly good job of outlining the way that the War On (Some Classes of People Who Use Some) Drugs has been used to eviscerate civil liberties. Particularly important is the that the potential for destroying evidence provides an “exigent circumstance” for unannounced searches, which effectively removes any barrier to such searches at all:

As the name indicates, a “no-knock” raid occurs when police forcibly enter a private residence without first knocking and announcing that they’re the police. The tactic is appropriate in a few limited situations, such as when hostages or fugitives are involved, or where the suspect poses an immediate threat to community safety. But increasingly, this highly confrontational tactic is being used in less volatile situations, most commonly to serve routine search warrants for illegal drugs.

These raids are often launched on tips from notoriously unreliable confidential informants. Rubber-stamp judges, dicey informants, and aggressive policing have thus given rise to the countless examples of “wrong door” raids we read about in the news. In fact, there’s a disturbingly long list of completely innocent people who’ve been killed in “wrong door” raids, including New York City worker Alberta Spruill, Boston minister Accelyne Williams, and a Mexican immigrant in Denver named Ismael Mena.

[...]

With those two clauses, Souter effectively dismissed the common-law principle that announcement protects the innocent from an unjustified home invasion and instead instructed police to treat everyone named in a drug search warrant as if they were already guilty. What good is an announcement if police aren’t required to give you sufficient time to answer the door? Under Souter’s reasoning, it’s difficult to understand what purpose the announcement requirement put forth in Wilson serves at all, other than offering a quaint, ceremonial homage to a time when the Fourth Amendment was more than a mere formality.

There’s also a lot of good stuff in the article about the militarization of police forces. Balko also preemptively explains why Glenn Reynolds–in his never-ending quest to establish himself as the blogosphere’s most statist “libertarian”–is wrong to argue that the exclusionary rule should not be used as a remedy in such cases. While it sounds nice on paper, and while I’m all for creating full liability and removing legal immunities in cases of no-knock searches, as Balko points out “monetary damages against police in such cases are unheard of.” By allowing the police to use illegally seized evidence, Reynolds’ remedy would leave large incentives to continue the illegal behavior in place, and given the vanishingly small chance of winning significant damages it’s highly unlikely that innocent victims (who are overwhelmingly likely to be poor, unaware of favorable changes in civil law codes, etc.) will sue the police. Making no-knock (or other kinds of unconstitutional) searches illegal but permitting the state to use any evidence gained from them is functionally indistinguishable from just making them legal.

And for a tragic account of the awful potential consequences of “no-knock” searches, remember Balko’s terrific work on the horrifying case of Cory Maye.

Friday Cat Blogging… Nelson and Starbuck

Drug War Discrimination

Some new data:

The American Civil Liberties Union is accusing federal prosecutors of ethnic bias in a sting last summer in which South Asian owners of convenience stores in Georgia were charged with selling household ingredients that could be used to make methamphetamine, a highly addictive drug.

In a legal filing, the A.C.L.U. said yesterday that prosecutors ignored extensive evidence that white-owned stores were selling the same items to methamphetamine makers and focused instead on South Asians to take advantage of language barriers.

The sting sent informants to convenience stores in six counties in rural northwest Georgia beginning in 2003 to buy ingredients that can be used to make the drug– ordinary household items like Sudafed, matches, aluminum foil and charcoal.

[...]

Documents filed by the A.C.L.U. yesterday include a sworn statement from an informant in the sting, saying that federal investigators sent informants only to Indian-owned stores, “because the Indians’ English wasn’t good.” The informant said investigators ignored the informant’s questions about why so many South-Asian-owned stores were visited in the sting.

Other filings said prosecutors had several tips that more than a dozen white-owned stores were selling the same ingredients, but failed to follow up on them. According to a sworn statement from a witness, law enforcement officials tipped off a white store owner about the investigation and recommended ways to avoid scrutiny.

The War on (Some Classes of People Who Use Some) Drugs: where civil liberties and equal protection go to die.

Eric Muller is also correct in noting the problems with U.S. v. Armstrong. The Supreme Court has created a nice Catch-22. One the one hand, defendants need evidence of individualized discrimination, not just evidence of systematic discrimination. On the other, because of Armstrong, for all but the most deep-pocketed defendants obtaining evidence of such discrimination is made much more difficult. Justice Stevens, in his (shamefully solo) dissent in Armstrong explains:

Finally, it is undisputed that the brunt of the elevated federal penalties falls heavily on blacks. While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack. Eighty eight percent of such defendants were black. During the first 18 months of full guideline implementation, the sentencing disparity between black and white defendants grew from preguideline levels: blacks on average received sentences over 40% longer than whites. See Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? 6-7 (Dec. 1993). Those figures represent a major threat to the integrity of federal sentencing reform, whose main purpose was the elimination of disparity (especially racial) in sentencing. The Sentencing Commission acknowledges that the heightened crack penalties are a “primary cause of the growing disparity between sentences for Black and White federal defendants.”

The extraordinary severity of the imposed penalties and the troubling racial patterns of enforcement give rise to a special concern about the fairness of charging practices for crack offenses. Evidence tending to prove that black defendants charged with distribution of crack in the Central District of California are prosecuted in federal court, whereas members of other races charged with similar offenses are prosecuted in state court, warrants close scrutiny by the federal judges in that District. In my view, the District Judge, who has sat on both the federal and the state benches in Los Angeles, acted well within her discretion to call for the development of facts that would demonstrate what standards, if any, governed the choice of forum where similarly situated offenders are prosecuted.

[...]

The majority discounts the probative value of the affidavits, claiming that they recounted “hearsay” and reported “personal conclusions based on anecdotal evidence.” But the Reed affidavit plainly contained more than mere hearsay; Reed offered information based on his own extensive experience in both federal and state courts. Given the breadth of his background, he was well qualified to compare the practices of federal and state prosecutors. In any event, the Government never objected to the admission of either affidavit on hearsay or any other grounds. It was certainly within the District Court’s discretion to credit the affidavits of two members of the bar of that Court, at least one of whom had presumably acquired a reputation by his frequent appearances there, and both of whose statements were made on pains of perjury.

The criticism that the affidavits were based on “anecdotal evidence” is also unpersuasive. I thought it was agreed that defendants do not need to prepare sophisticated statistical studies in order to receive mere discovery in cases like this one. Certainly evidence based on a drug counselor’s personal observations or on an attorney’s practice in two sets of courts, state and federal, can “ten[d] to show the existence” of a selective prosecution.

This is an important point–the kinds of evidence would evidently not suffice to prove the discrimination in itself, but surely it should be enough to order discovery to see if there is evidence of indvidualized discrimination or not. As Muller points out, making a discovery order contingent on sophisticated regression analysis makes it impossible for the ordinary defendant in a drug case to actually prove discrimination. And, of course, this discrimination is crucial to the continuation of the drug war; if these laws were applied generally and fairly, it would be far more difficult to sustain draconian punishments. Obviously, under the Alitofied Court it’s pointless to talk about Armstrong being overturned, but it’s part of a very serious problem.

Biddle

AG has an excellent review of Stephen Biddle’s excellent book, Military Power. Read the review, and read the book if you get a chance.

AG sums Biddle’s argument up as follows:

His argument is that it is not superior manpower, superior technology, superior firepower, or superior mobility that wins battles – it’s superior force employment. If you’re on the offensive or defensive side, superior tactics and skills are what wins the day.

Which is not quite accurate; Biddle allows that numbers and technology can overwhelem employment advantage in certain cases. In the Desert Storm chapter, Biddle notes that the outcome in 1991 was over-determined, as advanced Coalition technology would likely have won the day regardless of the force employment advantage, and that the two in combination led to the historically low casualty rate of that operation.

One of my students asked an excellent question about this book; how would Biddle explain the performance of the PLA against the US Army in 1950? Force employment and technology clearly favored the Americans, yet they were soundly defeated by a PLA with overwhelming numerical superiority. My initial cut would be a) numbers still matter, b) US Army force employment in 1950 was not what it had been in 1945 and not what it would be in 1990, and c) MacArthur’s Korea strategy put the US in an operationally hopeless situation. Any other thoughts?

Also see Kingdaddy’s commentary on Biddle’s latest on Iraq. Biddle disputes the Malaya/Iraq analogy, and Kingdaddy disputes Biddle.