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The Rightness of Roe

[ 0 ] January 23, 2008 |

In honor of it’s 35th Anniversary, here’s my three part series on why Roe v Wade was correctly decided:

Part I

Part II

Part III

The short version is that 1)it’s flatly false to say that the right identified in Roe had no previous doctrinal basis, and 2)properly understood the decision is consistent with the general democracy-promoting tenor of Warren Court-era jurisprudence. See also Douglas in Doe v. Bolton–who draws out the precedential connections more carefully than Blackmun–and Stevens in Thornburgh, who correctly points out that it’s ridiculous to claim that a woman has a fundamental right to avoid pregnancy before the fact but has no reproductive rights at all after the fact.

Finally, for new readers my piece in the Prospect explaining why the preferred High Broderite policy of “compromising” by providing formal protection to the rights of women who least need the protection while throwing the rights of those who do need it under the bus is completely unacceptable.

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"If you can’t fix it, Jack, you gotta stand it. "

[ 0 ] January 22, 2008 |

One commenter was upset about the exclusion of Lust, Caution from the Oscars. Depite being an Ang Lee fan, I’m not really too upset. It’s a very good picture, but my guess is that when I compile a top 10 list it will settle towards the bottom. I didn’t agree with complaints about slack pacing in Brokeback–the sheep herding sequences looked great and were necessary to set the mood–but I did find it problematic here. And the political intrigue wasn’t quite detailed enough for my liking. The period detail was outstanding as always, and the acting very good, but there were other movies this year that I like more.

All of this is a way of bringing the sad news that Heath Ledger has passed away at age 28, in what was most likely a suicide [see update]. He had separated from his partner (partner-on-film Michelle Williams) and their daughter last year. His performance in Brokeback, however, will live as long as people are interested in movies. R.I.P.

Deborah Lipp says in comments that police have not found evidence of suicide, and his survivors do not want it described in that way. My apologies for jumping the gun.

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Silver lining

[ 3 ] January 22, 2008 |

As various elements of the presidential primary frustrate and irritate, let’s take a moment to savor the silver lining. Paul Kiel makes the case here. Whatever happens, we can all take solace that the nation has solidly rejected the most noxious presidential candidate out there resoundingly. It’s especially worth savoring when you consider that Guilliani started out as a frontrunner in the polls. The more voters were exposed to Guilliani’s campaign, the quicker he sunk like a stone. No matter what happens from here on out, things could have been a lot worse.

More from Miss Laura.

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Awards

[ 0 ] January 22, 2008 |

About he best I can say about this award is that winning it might be slightly more prestigious than emerging victorious from a mayonnaise-eating contest.

Perusing the list of some of the finalists, we find the soaring literary contributions of Norman Podhoretz, Michael Ledeen, Hugh Hewitt, Melanie Phillips, and Amity Schlaes — all of whom were unfairly overlooked by the National Book Critics Circle and Pulitzer committees, who seem averse to the disgorgements of noted hacks.

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How Did Taste Get Through the Academy?

[ 61 ] January 22, 2008 |

Maybe I’m forgetting something, but relative to the quality of the year I would be surprised if this isn’t the best selection of best picture nominees of my lifetime. Granted, it’s marred by Schnabel relegated to a Best Director nomination while Atonement takes Diving Bell‘s rightful place in what I assume (although I haven’t seen Atonement yet, so maybe even it’s good) to be the Middlebrow Doorstop spot (although having only one is pretty amazing in itself.) Still, There Will Be Blood and No Country are both excellent-to-exceptional films, Juno very good, and while the enjoyable Michael Clayton is overmatched in this heat (and I would have preferred Lumet/Before the Devil) it’s certainly better than most recent Best Picture winners (Crash, Shakespeare in Love, Beautiful Mind, Gladiator, I Can’t Believe There is Soulessness and Homophobia In American Suburbia! American Beauty, ugh.) It’s an unusually strong collection of pictures. I wonder how it happened?

…looking at the other nominees, Away From Her/Polley also would have been a good choice, although at least Christie got a nomination.

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You Say It’s Your Birthday

[ 0 ] January 22, 2008 |

Blog for Choice Day

So, as you might have heard, today is the 35th Birthday/Anniversary of the Roe v. Wade decision, which was handed down on January 22, 1973. The organizers of blog for choice day have suggested we all write about why it’s important to “vote pro-choice.” While it’s true that it’s important to vote “pro-choice,” I want to write about more than that — why it’s important to vote for someone who really understands what it means to want reproductive justice. In order to understand this, it’s important to know how far Roe got us, and how far we’ve got to go.

Roe was a huge step. It said that the right to abortion was constitutionally-grounded and was too important — to fundamental — to be left to the whims of the state governments or to come and go at the will of the majority. Though the language of the decision had more to say about doctors than about women, the message of Blackmun’s decision was loud and clear: women have a fundamental constitutional right to control their reproductive lives, not to let their reproductive lives control them.

Immediately after Roe, Medicaid funds became available for poor women to have abortions, and the right became a reality for many millions of American women. Since then, however, the times have not been so sweet for reproductive freedom. Facing pressure, violence, and over the top licensing requirements from the states, clinics have closed, leaving women in 87% of US counties without an abortion provider. The Hyde Amendment was passed and continues to bar poor women from receiving Medicaid funding for their abortions, with few exceptions. As Francis Kissling and Kate Michelman, two longtime leaders of the abortion rights movement (Kissling at Catholics for a Free Choice and Michalman at NARAL)
write in this week’s Nation, the US has gone from being a leader in reproductive health access to a laggard.

While Roe was not overturned, it was systematically eviscerated, and long-accepted reproductive health services such as birth control became controversial. These days the United States has one of the most punitive and regressive policies on reproductive health in the developed world. To reverse this turn to the far right, women’s health advocates must seek not only to protect abortion rights but to restore the whole range of reproductive health services, pushing for this broader agenda to be at the center of any progressive platform.

Looking at Europe, we can see how things would be different if reproductive health policy attended to women’s needs rather than the demands of a fundamentalist Christian right. Almost without exception, in Western European countries where abortions are legal, they are included in national healthcare plans. They do not require parental consent or notice for adolescents seeking abortion; contraceptives are reasonably priced, covered by health insurance and often available without prescription; teens and adults have access to emergency contraception in hospitals or over the counter at pharmacies; and abstinence-only sex education is rare.

But as Michelman and Kissling recognize, today (on Roe’s birthday) we need to be clear about the fact that fighting for Roe and fighting for reproductive justice is more than catching up with Europe with regard to healthcare coverage and contraceptive equity, and to maintaining our more liberal abortion policies during the first trimester of pregnancy (a state of affairs Michelman and Kissling fail to mention). We’ve got to do that (including getting rid of abstinence only education, repealing the Hyde Amendment, and refusing to accept state laws that are targeted to regulate abortion providers (so-called TRAP laws)), but we’ve got to do more. We have to respect women who don’t give birth and those who do. As bloggers have often noted, it seems like the anti-abortion forces stop caring about the fetus once it’s born (if they ever really cared about it as something more than a prop). A real reproductive justice agenda can’t do this. When women do give birth, they should have a host of options — all covered by insurance, public or private — including birthing centers, hospitals, at-home midwives. They should receive free or covered prenatal care, no matter what. They should be supported not scolded. And they – and their partners – should receive paid family leave regardless of the size of their employer or how many sick/vacation days they have used/accrued. Oh, and they should have access to subsidized professional daycare in which parents feel comfortable leaving their kids.

All of this said, I hope it’s clear why it’s important to vote for someone who is not just pro-choice, but who is pro reproductive justice, and pro-woman. Pro-choice is not enough if our goal is achieving equality and justice in more than name alone.

It’s important not only to vote for candidates who care about and understand reproductive justice, but also who will be willing to, as Hillary Clinton said last night (on another topic), “go to the mat” for reproductive justice. Who understand that Roe, while important, is little more than a battlecry without a reproductive justice agenda.

Frankly, I’m not sure that such a candidate exists in the presidential race right now. So perhaps the question for us in 2008 should be not why it’s important for us to vote pro-choice or pro-justice, but how we can recruit and elect leaders who understand why it’s important for them to support reproductive justice without compromise.

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On Wingnut MLK Revisionism

[ 0 ] January 22, 2008 |

Rick Perlstein.

good stuff here as well.

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Mitt Romney and the Road to Squaresville

[ 0 ] January 22, 2008 |

In which I am once again deeply embarrassed for Mittens.

Ahem:

As he posed for a picture with a group of young people, the typically old-fashioned Romney was relaxed enough to quote from a popular hit single from a few years back.

“Who let the dogs out?” he called out, as he stood there beaming in his shirt and tie. “Who! Who!”

Who indeed? Who told Mitt Romney that anyone other than white people had ever enjoyed this song?

Next week: Romney turns to supporters at a campaign even and asks, “Whaaaassssaaaaaaaaaaaaaaaaaaaap?”

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McGovern got 6 Million More Votes Than FDR In ’32: It Was the Greatest Campaign in History!

[ 4 ] January 21, 2008 |

I very much want to think that McCain will lose the nomination, and I think a Romney win is plausible. But I have to say that I’m not sure what this data is supposed to prove. McCain’s declining vote share says very little about his chances and a lot more about the banal factthat having 4 serious campaigns in a state plus the unusually well-funded vanity campaigns of Paul and Rudy! tends to depress the vote share of the frontrunners when compared to a campaign with 2 serious candidates. (This would seem to be a variant of the “Bill Clinton never won a majority” argument, as if no Perot voters would have gone to him in ’96.) The argument from raw vote totals is even worse; it is certainly bad news for the Republican Party but says absolutely nothing about McCain’s ability to win future primaries. The latter seems to be a variant of the world-historically specious “Bush got more votes than anyone in American History!!!!What a landslide!!!1ONE11!!11″ argument.

Now, if someone has some evidence that supporters of Thompson and Huckabee or Rudy’s supporter will disproportionately vote for Romney over McCain, or at least a compelling logical argument on behalf of this outcome, then we’ll have something. But I haven’t seen either yet.

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Happy MLK Day

[ 0 ] January 21, 2008 |

This is a good quote from Letter From a Birmingham Jail. My favorite:

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.

Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state’s segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First Amendment privilege of peaceful assembly and protest.

I hope you are able to ace the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

When you read legal scholarship from the 50s, as I’m professionally obliged to do sometimes, it’s striking how much gnashing of teeth there is about the Supreme Court allegedly usurping the prerogatives of Southern legislatures, with virtually no recognition of the fact that these governments were not remotely democratic. The beautifully stated first paragraph about the importance of avoiding self-exemptions from general laws is also a point not made nearly often enough, and is relevant to the pending anniversary of Roe v. Wade.

To be fair and balanced, however, the current employer of Jonah “Liberal Fascism” Goldberg made the case for apartheid police states and argued that MLK wasn’t much of a speaker. But I’m sure this is covered extensively in the book.

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Wire Spoilers etc. etc. etc.

[ 13 ] January 21, 2008 |

Regarding episode 3…

  • The Sun narrative is getting worse; it feels like I’m watching some combination of Shattered Glass and Office Space. Did we really need the “advertising revenues are dropping” speechifying from four different characters?
  • The cop narrative is no good, either. McNulty is getting way too crazy way too fast. I never quite liked how Simon used Freamon as the conscience of the show (we know that a zany scheme will work if Freamon thinks it will), but it really doesn’t appeal here.
  • The street narrative remains quite good; both the Marlo and Omar island scenes were fantastic, and the struggle between Marlo, Omar, and Prop Joe holds a lot of promise.
  • The city hall narrative also holds a lot of promise. We’ve been waiting for the Cedric Daniels corruption question to pay off since the third episode of the first season, and it looks like it’s finally happening. There’s also some nice synergy with the only watchable aspects of the Sun narrative, which suggests that the latter could have worked out well if it had been done more carefully.

…episode 4 is a substantial improvement. Goddamn, Marlo…

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Does that make Fred Thompson "our potential Grover Cleveland?"

[ 25 ] January 21, 2008 |

Kristol is trying to persuade the conservative howler monkeys in the GOP coalition to stop flinging offal at their hilariously unsatisfying presidential candidates. Dismissing the Reagan nostalgia that he helped to animate in the 1990s, Kristol suggests conservatives might be pleasantly surprised one day:

So the conservative commentariat should take a deep breath, be a bit less judgmental about these individuals–and realize that there is not likely to be a second Reagan. They could also learn from liberalism’s history. Liberalism was the most successful American political movement of the first two-thirds of the 20th century. Its three iconic presidents were Theodore Roosevelt, Franklin Roosevelt, and John Kennedy. All advanced the liberal cause while in office. None was a standard-bearer for liberalism before becoming president–though each was inclined in a more or less progressive direction. What it means to be a serious, successful, and mature political movement is to take men like these–one might say to take advantage of men like these–in order to advance one’s principles and cause.

So conservatives might think of John McCain as our potential TR, Mike Huckabee as our potential FDR, and Mitt Romney as our potential JFK.

Except that TR — who by my admittedly unfriendly accounting could never stand as an “iconic” liberal president — was nevertheless loathed by his party masters because he actually took positions contrary to theirs, which is more than we can offer on McCain’s behalf. (I will concede that McCain, unlike Roosevelt, participated in an actual war.) But Roosevelt’s variety of progressivism was pretty well asphyxiated by his own party once he left office to shoot things in Africa, and the Republicans reverted to fiscal sensibilities that would go on to serve the nation so well in the 1920s.

As for the Huckabee and Romney analogies, they are to laugh. Both FDR and JFK were swept into office at the moment their parties either enjoyed (in Kennedy’s case) or acquired (in FDR’s case) massive congressional majorities, something that a Republican presidential victory in 2008 — however unlikely that may be — isn’t going to bring along with it.

With solid historical insights like these, you’d think Kristol would have been offered a slot at the New York Times or something.

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