Tag: "reproductive freedom"
The new Virginia abortion bill is terrible legislation, but I don’t think it’s accurate to say that it was the result of pro-choice “blunders.” On balance, given a very difficult political context, pro-choice groups in Virginia if anything achieved more than could have been reasonably expected, helping to get 4 out of 5 proposed bad bills defeated and winning concessions on the one that did pass.
- A pro-choice awakening?
- Which is certainly necessary, because when you meet the new Virginia bill, it’s nearly as bad as the old bill.
- The economic benefits of the pill.
- One of the most inequitable of the common regulations, mandatory waiting periods, keep getting longer.
- Are you a slut? A handy flowchart.
- Pennsylvania continues its record of awful legislation.
In a related story, the set of abortion regulations about to become law in Virginia is still really terrible policy.
…I like this response, although surely to be truly equitable men seeking any kind of reproductive care should be required to undergo a colonoscopy. As Tyler Cowen and Megan McArdle would surely agree, it’s just about being an informed consumer.
So, there was a debate in the World’s Worst Deliberative Body about whether to allow employers the right to deny employees health care coverage based solely on the religious beliefs of the former, an amendment targeted specifically at women. Some men who think that oral contraceptives produce abortions were about to vote on an issue pertaining to womens’ health care.
Dismayingly, but not surprisingly, Joe Manchin, Bob Casey, and Ben Nelson all effectively voted in favor of it. It’s worth noting here that Nelson isn’t running for anything, and voting to table the amendment would hardly be a political liability in Pennsylvania; these guys are just sincere reactionaries indifferent to womens’ rights. Lieberman voted to table it, and between this and DADT he is officially no longer the biggest wanker among quasi-Democrats in the Senate, which is kind of scary. And, for once, good for Landrieu.
Also supporting the “Ew, Women having teh sex!” amendment was Scott Brown; hopefully Elizabeth Warren is getting her campaign ads ready. And, for that matter, Barack Obama, although Mittens may have changed positions again while I was writing this post.
…Obama does, in fact, seem prepared to take advantage of this particular political gift.
Shorter Alana Goodman: I’m a contemporary conservative. Of course I don’t understand the concept of “consent.” For that matter, I don’t know why people get so upset about forced sterilization these days; why, people choose to get vasectomies or their tubes tied all the time!
The one encouraging thing to take from the imminent passage of the mandatory sexual assault law in Virginia is that we finally have an arbitrary abortion regulation that is highly unpopular.
The First Rule of Social Conservatism, of course, is that social conservatism is much more popular when applied to other people than for yourself. (Perhaps we could call this “Newt’s Law.”) There’s a reason that proponents of “traditional marriage” focus on same-sex marriage rather than, say, no-fault divorce. Abortion regulations that apply burdens to women equally are always going to be unpopular unless there’s an obvious way around them.
There are a number of problems with Michael Gerson’s column in the Washington Post arguing that the Obama administration’s application of contraceptive coverage requirements to institutions providing secular services but affiliated with religious groups was an “epic political blunder.” For one thing, the entire premise of the column is wrong. The new regulations are in fact extremely popular, and Roman Catholics support the contraception coverage requirements by the same 2-to-1 majority as the population as a whole. In addition, Gerson alleges that the regulations show that Obama is “willing to trifle with the constitutional rights of religious people.”
The argument that the contraceptive coverage requirements violate the Constitution is not unique to Gerson. Republican politicians — led by Senate Minority Leader Mitch McConnell — and pundits alike have argued that the new regulations violate the Free Exercise clause of the First Amendment. But these arguments are specious. Nothing like the reading of the First Amendment invented to oppose the contraception coverage requirements has ever been adopted by the Supreme Court, for the obvious reason that it would be completely unworkable.
Under existing law, a constitutional challenge to the contraception provision wouldn’t even rise to the level of being frivolous. In the 1990 case Oregon v. Smith, in an opinion written by that infamous radical leftist Antonin Scalia, the Supreme Court held that neutral, generally applicable laws are constitutional even if they incidentally burden religious practice. Only if a law intentionally targets a religious practice does it run afoul of the Free Exercise clause. “We have never held,” wrote Scalia, “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” The requirement that insurance plans cover contraception is a valid secular objective that is not directed at any religious practice per se, and hence is plainly constitutional. If the mandate applied to religious institutions this might be a constitutional problem, but religious institutions themselves are excluded; only religiously-affiliated institutions that serve secular purposes and hire people of multiple faiths are affected.
I believe that Scalia’s logic in Smith is sound, but I would be the last person to argue that everyone should defer to his interpretations of the Constitution, and Smith has certainly always had its share of critics. After Smith, a strange-bedfellows coalition of evangelical conservatives and civil libertarians pushed for the passage of the Religious Freedom Restoration Act, which among other things instructed the Court to apply the more restrictive “Sherbert test” that the Court effectively replaced in Smith. The Court struck down that provision of RFRA, but for the sake of argument let’s assume that Sherbert was correct and Smith was wrong, and that the former should be applied. Would the mandate be unconstitutional? Not even close. I believe that the mandate could easily be defended as narrowly tailored to advance a compelling state interest, especially since religious institutions themselves are not covered by the mandate. But it would not be necessary to even answer that question, because the Sherbert test requires that a law represent a “substantial burden” on a person’s ability to act on a sincere religious belief. Such a burden is noticeably absent here. The religiously-affiliated institutions are not even required to provide the insurance directly. As for Catholic employees, most lay Catholics do not follow the Church’s teachings on contraception; on such employees there is no burden at all. Even more importantly, the regulation does not require any individual to use contraception contrary to their religious beliefs, or even to pay more so that they can be covered. Even under a more restrictive standard than the Court is currently applying, in other words, the contraception regulations are plainly constitutional.
For these reasons, Ed Whelan’s arguments based on RFRA are also wrong, because the required “burden” isn’t there. Religious institutions have been reasonably accommodated, subject to regulation only when performing secular functions with taxpayer money for clients and with employees of multiple faiths. And individuals are not burdened at all.
The Court has not developed a more expansive interpretation of the First Amendment for the very good reason that this would immediately lead to absurd results. Can Quakers be exempt from paying federal taxes as long as the United States maintains a standing army? Should the Amish be exempt from paying Social Security taxes? Are bans on plural marriage unconstitutional because they burden the religious practices of some Mormons? A society cannot function if every religious group or individual is a conscience unto themselves, entitled to an exception to any valid general law that conflicts with their religious beliefs. And unless such a transparently useless interpretation is applied, there is no question that the requirement that medical insurance cover contraception is constitutional.
It is certainly understandable that Republicans would like to frame their opposition to the regulations as an issue of “religious freedom,” given how overwhelmingly unpopular their war on contraceptive access is. But these arguments are unserious, and the public understands this perfectly well.
This Tyler Cowen nonsense is a classic example of a conservative rhetorical technique that is particularly annoying. I’m not sure what to call it — the strawman tu quoque? It’s not quite the same thing as poetic justice as fairness. But it’s remarkable how proud conservative some commentators are of the idea that if you support some state regulations that a conservertarian doesn’t you must presumptively favor all state regulations, given how utterly asinine it is.
Cowen does, however, has to be given credit in a way for choosing an example that makes the silliness of his premise particularly obvious. Yes, indeed, many of the people appalled by Virginia’s reprehensible forthcoming abortion regulations favor other regulations that provide information to consumers. The “contradiction” is not terribly hard to understand if one thinks about it for a tenth of a second or so. On the one hand, the typical consumer regulation does not require consumers to pay substantial direct costs to undergo humiliating and invasive medical procedures without their consent. And on the other hand, the “information” provided to women by the regulation is worthless, since women are generally aware of what pregnancy entails. It’s not very complicated once you leave the Planet Strawman, on which liberals who favor any regulation must favor any other regulation, including those that entail substantial costs while providing no benefits. I’m hoping that Cowen’s twitter feed was hacked by an especially mean parodist…
Irin Carmon’s column on Ruth Bader Ginsburg and the potentially pioneering brief Nixon’s Solicitor General Erwin “why should a mere woman get a law school space that properly belongs to a man?” Griswold prevented her from presenting to the Court is very much worth reading.
Long-time readers will know this, but I should say that I think that Ginsburg’s frequently made argument that the Court should have waited until it had a basis to decide Roe on equal protection grounds is wrong. First of all, I don’t believe in the Roe-backlash argument. And second — and, here, I agree 100% with Gerald Rosenberg — I think this assumes the Supreme Court plays a role in educating the public that I don’t think that it does. What the Court says has much less impact on the protection of rights than the substantive conclusions it reaches.
So, yes, on one level it’s unfortunate that Roe almost exclusively focuses on the rights of doctors, and on the level of discourse the much greater attention paid to the rights of women in the plurality, Blackmun, and Stevens opinions in Casey is a substantial improvement. But the thing is, whatever it said Roe did far more to actually protect the rights of women than Casey did. Under Roe, for example, Virginia’s mandatory rape provision would be plainly unconstitutional, while under Casey it is very likely to be upheld by both lower federal courts and the Supreme Court should it get that far. In theory, given the arbitrary nature and disparate impact of most abortion regulations the “undue burden” standard could provide a fairly robust protection of reproductive freedom. But as the Court actually defined it — especially when it upheld mandatory waiting periods — in practice it allows states and the federal government to do almost anything as long as they don’t ban pre-viability abortions outright. The fact that Casey pays more rhetorical attention to women’s rights is really a pretty hollow consolation. I understand what Ginsburg means when she says in Carhart II that the Court wasn’t taking Casey seriously, and that’s the right argument to make in context, but another way of looking at it is that Kennedy was taking Casey all too seriously.
As soon as Virginia’s Mandatory Rape Law was passed by the House of Delegates, a great column by a particular Virginia resident was inevitable, and sure enough:
This week, the Virginia state Legislature passed a bill that would require women to have an ultrasound before they may have an abortion. Because the great majority of abortions occur during the first 12 weeks, that means most women will be forced to have a transvaginal procedure, in which a probe is inserted into the vagina, and then moved around until an ultrasound image is produced. Since a proposed amendment to the bill—a provision that would have had the patient consent to this bodily intrusion or allowed the physician to opt not to do the vaginal ultrasound—failed on 64-34 vote, the law provides that women seeking an abortion in Virginia will be forcibly penetrated for no medical reason. I am not the first person to note that under any other set of facts, that would constitute rape under state law.
What’s more, a provision of the law that has received almost no media attention would ensure that a certification by the doctor that the patient either did or didn’t “avail herself of the opportunity” to view the ultrasound or listen to the fetal heartbeat will go into the woman’s medical record. Whether she wants it there or not. I guess they were all out of scarlet letters in Richmond.
Definitely read the whole thing,