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Four Things To Remember When Reading Gonzales v. Carhart

[ 0 ] April 18, 2007 |

As an antidote against the inevitable chorus of fake moderates arguing that today’s abortion case is no big deal, four things to keep in mind as you ponder today’s decision:

  • Don’t take assertions by the Court about whether they’re overturning precedents or not at face value. What matters is the substance of the ruling, not how the Court characterizes past precedents. (The Court went out of its way to avoid saying that they were overturning Plessy in Brown, and then applied it as if it meant exactly that.) Moreover, the Roberts/Alito strategy of quietly gutting precedents–epitomized in this case–is much worse for those who oppose their legal goals than the Thomas/Scalia willingness to overturn precedents directly and honestly. The result of this type of case is a sharp restriction in the reproductive freedom of women without the political benefits of an outright reversal.
  • Making it much harder to successfully strike an abortion statute on facial grounds, as the Court has just done, may seem like a mere technicality but is a big deal. I explain why here. Not only will this change in the standard applied by Casey make litigation to protect a woman’s reproductive freedom much more expensive and difficult, but it will have the perverse effect of making the fact that abortion regulations almost invariably have much more impact on poor, rural women an argument in their favor.
  • The next time someone claims that overturning Roe would “send the issue back to the states,” make sure to point out that they don’t have any idea what the hell they’re talking about.
  • And finally, let’s also remember the underlying gender assumptions of those who support the power of the states and the federal government. Ann has already noted this powerful passage in Justice Ginsburg’s brilliant dissent: “Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from ‘[s]evere depression and loss of esteem.’ Because of women’s fragile emotional state and because of the bond of love the mother has for her child,’ the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women’s place in the family and under the Constitution ideas that have long since been discredited.” Given Alito’s assumption that the state has the same interest in regulating married adult women as it has in regulating children, that he would vote to uphold this ban isn’t exactly shocking.

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Scienticians!

[ 0 ] April 18, 2007 |

Steven Hayward, Senior Fellow at the Pacific Research Institute and Weyerhauser Fellow at the American Enterprise Institute, has a documentary out that claims to refute the “overall pessimism” in Al Gore’s An Inconventient Truth.

As always, the source matters. The Pacific Research Institute is one of dozens of groups receiving money each year ($175,000 from Exxon since 1998) to “discredit” global warming in much the same way creationists attack evolution — by claiming that it is “just a theory,” by using inconsistencies to undermine an complex body of scientific research, and by accepting money from powerful groups whose interests are contrary to the entire notion of empirical validity and intellectual honesty.

Redbeard had a fine thumping of the awful Times piece on this film, but it’s worth reminding ourselves again that Hayward and friends are contemptible hacks. Two years ago, Hayward offered this gem in the National Review Online:

It is a great myth that SUVs are greater polluters. True, they use more gasoline, but they now have the same emissions standards as all other automobiles, so replacing your old clunker with a new SUV will actually help clean up ozone smog in America. Because they use more gas, they do emit more carbon dioxide, but remember, carbon dioxide is not a noxious pollutant, but plant food.

Yes, and while eight glasses of water a day might be a good idea for maintaining decent health, overhydration can kill your ass. In their attitudes toward war as in their beliefs about ecology, the notion of proportionality is foreign to these people.

We might also look at this. Signed by two dozen industry-funded critics of the “global warming” thesis, this 2002 letter chided Bush about that year’s Climate Action Report, which Bush himself dismissed as a product of “the bureaucracy.” Not satisfied with just bitching about the report, Hayward and others recommended that heads be severed and mounted on pikes:

We therefore urge you to withdraw Climate Action Report 2002 immediately and to direct that it be re-written on the basis of sound science and without relying on discredited products of the previous administration. As production and release of this report demonstrates, pursuing your global warming and energy policies effectively will not be possible as long as key members of your administration do not fully support your policies. We therefore also urge you to dismiss or re-assign all administration employees who are not pursuing your agenda, just as you have done in several similar instances.

No word yet about whether this letter wound up in Gonzo’s hands, but I suppose a good idea is a good idea….

Elections Have Consequences

[ 0 ] April 18, 2007 |

As Bean notes below, the Supreme Court has upheld the Federal “Partial Birth” abortion ban, which as I have argued in detail was 1)inevitable with Alito’s appointment to the Court and 2)very bad. It was, I suppose, inevitable that it would come down while I’m on the road, and I therefore haven’t finished reading the decision yet. In the meantime, I note that almost everything that needs to be said about the constitutionality of these laws was said by Justice Stevens in his concurrence in Stenberg v. Carhart, which the Court (despite its disingenuous claims to be following precedent) effectively overrules today:

Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade, has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U. S. Const., Amdt. 14.

Upholding ludicrously arbitrary legislation that puts women’s health at risk without furthering any legitimate state interest, while signalling that the “undue burden” standard will be interpreted to uphold virtually any abortion regulation short of a ban sets an extremely dangerous precedent. I’ll have more later.

Oh Justice Kennedy, How You Have Failed Us.

[ 0 ] April 18, 2007 |

The decision is in. The Supreme Court today upheld the late-term abortion ban Congress passed after the Court struck down a similar ban a few years ago. Congress, if you remember, passed the bill after making findings that a late term (falsely labeled partial birth by conservatives) abortion was never medically necessary. Which is BS. Of course. Anyone with half a brain knows that.

But apparently not Justice Kennedy, who provided the crucial fifth vote to uphold the ban and who wrote the friggin’ majority opinion. Given that he’s now the swing vote on the court (since O’Connor stepped down), this does not bode well for women’s rights under the Roberts SCOTUS.

Kennedy wrote in the opinion that the opponents of the act ”have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases.” Which makes little sense to me at first blush. Just because in the majority of cases a law is not unconstitutional as applied means that it does violate the rights of some. Backwards logic if I ever saw it — a failed attempt to justify an obviously political decision that is bound to do damage to the Constitution.

I’m sure Scott will have more.


update: At least Ginsburg’s got some brains:

Ginsburg, in a lengthy statement, said “the Court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman’s health.” She said the federal ban “and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women;s lives. A decision of the character the Court makes today should not have staying power.”


update 2: Today’s decision brings to bear the real – and devastating – impacts of Justice O’Connor’s retirement.

(also at AB&B)

The Face that Launched A Thousand Ships

[ 0 ] April 18, 2007 |

It’s an old trope. In 1590′s Doctor Faustus, Christopher Marlowe wrote of Helen of Troy, the woman over whom the Trojan Wars were fought:

Was this the face that launch’d a thousand ships
And burnt the topless towers of Ilium?
Sweet Helen, make me immortal with a kiss.

Ah yes, the trope of the beautiful woman who drives men to violence over her.

And it only took a day for it to reappear. Which it did with utter lack of taste in yesterday’s Daily Telegraph (an Australian paper).

The headline of the article reads: “Was Gunman Crazed over Emily?” And the lede, next to a big picture of a beautiful teenage girl:

THIS is the face of the girl who may have sparked the worst school shooting in US history.

The speculation, of course, is about whether the Virginia Tech shooter, who killed this young woman and the RA who tried to help her first, was set off on his violent rampage because of some unrequited love for her. If that’s true — and it seems from the news reports that the shooter did have a history of stalking — then it’s terrible. But it’s also not right or appropriate to say that she sparked the shooting. She was murdered. The blame for this atrocious act cannot be placed at her feet.

(via WIMN’s voices)

also here.

Over Two Million Served

[ 0 ] April 18, 2007 |

That’s about 1.9 million more hits than I expected the blog to get. Thanks to all of our readers and to all the bloggers who have supported us.

Today in "WTF?"

[ 0 ] April 17, 2007 |

Wow. Here’s what I stumbled across the other day while researching General John DeWitt’s infamous (and unoriginal) “a Jap is a Jap” remark from WWII. I really was stricken mute by this image, to say nothing of the shop’s name:

Because I was genuinely curious about the back story on this place, I actually called and spoke with the owner-manager for about five minutes this afternoon. It was one of the more unusual conversations I’ve had in quite some time. I introduced myself and explained what I do, and I contextualied the call by pointing out that I’ve been writing off and on about the use of World War II memory in American politics and culture. I was “interested,” I explained, in knowing why the Japanese imperial flag appeared as part of the shop’s logo — and why the name of the business would boast such an obvious racial pejorative.

Among other things, the chap clarified that the owners aren’t Japanese-American, nor do any “Orientals” work there. The shop has been called “Happy Jap’s” for 19 years now, and the name and the logo “just kind of happened, just seemed to fit” with the fact that the shop worked on Japanese cars. He added that his father — a World War II vet — has always hated the fact that his son works on Hondas and Subarus, because they remind him of “some hard times” that he prefers not to discuss. The father evidently bears some “resentment” toward the Japanese, sixty years after the fact.

After getting through the preliminaries, I gingerly wondered if the shop had ever received any complaints about the name or the logo (which I could imagine might be offensive to a variety of Asian-Americans who might not want to be reminded of Japan’s imperial — and also racially chauvinistic — expansion during the 1930s and 1940s). The owner insisted that the only people who were ever offended were “Anglo-Saxons,” never “Orientals.” Sure, he conceded, some people might raise an eyebrow or two, but once they saw the kind of work they do in the shop, they understood that the name was inconsequential. At that point, I resisted the urge to ask if he’d be equally comfortable owning a business called “The Happy Darkie” or “The Happy Redskin.”

He asked me if I found the name offensive, and I explained that yes, as a historian I see nothing redeemable about the term “Jap” and that I discovered his website while searching for information on the internment of 120,000 innocent people who had been scapegoated for the crimes of the Japanese government. I added that the epithet was once a casual feature of white conversation but that we rarely hear it used any more — and for good reason.

That was pretty much the end of the conversation right there. We exchanged our closing pleasantries and left it at that. He had cars to fix and “Orientals” not to offend, and I had some serious head-scratching to do.

What? I Thought Congress Was Full of Traitors…

[ 0 ] April 17, 2007 |

Via Drum:

….”The debate in Congress … has been helpful in demonstrating to the Iraqis that American patience is limited,” Gates told Pentagon reporters traveling with him in Jordan. “The strong feelings expressed in the Congress about the timetable probably has had a positive impact … in terms of communicating to the Iraqis that this is not an open-ended commitment.”

Who knew that democracy could have a “positive impact”?

The Other 600

[ 0 ] April 17, 2007 |

Defense News:

There are roughly 130,000 contractors in Iraq, said [Barry} McCaffrey; about 4,000 of them have been wounded and 600 have been killed, he said.

It’s unclear whether McCaffrey was talking specifically about American deaths or contractor deaths overall, but the comment highlights an oft-overlooked aspect of the chaos in Iraq. While most have focused on American military losses, civilian contractors (including both private security personnel and engineers, etc.) are also taking it on the chin. This has predictably awful consequences, as contractors have the expertise necessary to reconstruction, and a high death rate scares away most and makes the rest far, far more expensive.

Just another facet of the disaster, really.

Unhappy Anniversary

[ 0 ] April 17, 2007 |

April 17, 1861:

An Ordinance to repeal the ratification of the Constitution of the United State of America by the State of Virginia, and to resume all the rights and powers granted under said Constitution.

The people of Virginia in their ratification of the Constitution of the United States of America, adopted by them in convention on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty-eight, having declared that the powers granted under said Constitution were derived from the people of the United States and might be resumed whensoever the same should be perverted to their injury and oppression, and the Federal Government having perverted said powers not only to the injury of the people of Virginia, but to the oppression of the Southern slave-holding States:

Now, therefore, we, the people of Virginia, do declare and ordain, That the ordinance adopted by the people of this State in convention on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty-eight, whereby the Constitution of the United States of America was ratified, and all acts of the General Assembly of this State ratifying and adopting amendments to said Constitution, are hereby repealed and abrogated; that the union between the State of Virginia and the other States under the Constitution aforesaid is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong and appertain to a free and independent State.

And they do further declare, That said Constitution of the United States of America is no longer binding on any of the citizens of this State.

This ordinance shall take effect and be an act of this day, when ratified by a majority of the voter of the people of this State cast at a poll to be taken thereon on the fourth Thursday in May next, in pursuance of a schedule hereafter to be enacted.

Virginia’s voters cast their approval for the secession ordinance a month later. Meantime, the western counties of the state — which overwhelmingly disapproved of secession — prepared to organize their own separate, loyal government in Wheeling.

We often forget the importance of this particular act of secession. In the two months prior to the attack on Ft. Sumter, the debate over the ordinance was intense in the state that viewed itself as the “Mother of the Union.” While the usual nonsense was served up in favor of departure, many convention members and observers countered by arguing that secession would deprive Virginia of its leading role in the US, converting it instead into a “tail” of the cotton states. Those fears aside, Virginia was more than a mere appendage to the Confederacy, which would have been utterly helpless without the advantages Virginia provided — a large population, a major iron works in Richmond, and geographic proximity to Washingon, DC. In defense of a slave-owning society that had been diminishing in the state for about a century, Virginia’s secessionists squandered tens of thousands of lives and enabled the ruin of their own economy. Among the many poorly-conceived decisions made by my home state, secession surely outranks all challengers.

Projection

[ 0 ] April 17, 2007 |

Glenn Reynolds: “If Bush and Cheney were really evil, they’d both resign and stick the Democrats with a Pelosi Presidency for the next two years. The Democratic Party would never recover.” After all, Congress is less popular than Bush.

v. reality: “So people like the Democratic congress better than they like the Republican one. 44/54 is also considerably better than the 35/62 approve/disapprove split Bush gets. Indeed, fully 49 percent of respondents say they strongly disapprove “of the way George W. Bush is handling his job as president” — Bush Derangement Syndrome has gone mainstream. Nancy Pelosi, however, is much more popular than either Bush or Congress generically — earning a 53/35 approve/disapprove split. Ever since she became the top House Democrat, the DC press corps has been insisting that Pelosi is an unpopular figure whose bad for the Democrats. This because she’s the most robustly liberal person we’ve seen in high elected office in over ten years. The evidence, however, doesn’t bare this theory out. In the spring of 1995, Newt Gingrich’s approval numbers were in the thirties.”

Heh. Indeed!

You Got a Problem With That?

[ 0 ] April 17, 2007 |

I shall henceforth be known only by my Mafia Nickname, “Knuckles”. Via Slate.

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