As I’ve mentioned before, another way of seeing just how bad the Supreme Court’s recent campaign finance decision is to compare it to the infamous 1991 case Rust v. Sullivan. In the latter case, the Court upheld the gag order issued by the Reagan administration which prevented medical professionals who receive federal funding from even discussing abortion with their patients. Federal funding, in other words, was used to suppress speech that the government didn’t like, and yet the Supreme Court held that this did not violate the First Amendment.
In the Arizona campaign finance case, conversely, the state engaged in no restriction of speech at all, let alone one that discriminated on the basis of viewpoint. People who opt out of the state’s public finance system are not punished unless you think that wealthy people have an inherent right to keep the floor to themselves. Nobody is ineligible for public funding because they express views that governor disagrees with. With Rust v. Sullivan being good law, this should have been the easiest case imaginable — and yet the Court ruled that it was unconstitutional.
The punchline you can already see coming is that Kennedy and Scalia were part of the majority in both cases, and Roberts wrote a brief in favor of the gag order in his role as Deputy Solicitor General. (I suppose we don’t know how Alito and Thomas would vote on Rust, in the same sense that we don’t know to an absolute certainty if the sun will come up tomorrow morning.) If principle had anything to do with this line of conservative jurisprudence, we could simply assume that Rust v. Sullivan had been overruled — but it doesn’t.
As a sort of mirror image to the centrist contrarians who erroneously believe that Roe is irrelevant because a woman’s right to choose is safe, some progressives argue that Roe is irrelevant because Casey has effectively ovveruled Roe anyway. The latter critique has more going for it than the former, but I still don’t think it’s right.
As I’ve said before, I actually have a little more respect for anti-choicers who reject rape/incest exceptions, because that position is actually more internally consistent. That’s not to say that using state coercion to force a woman to carry a pregnancy resulting from rape to term isn’t barbaric — it is! But that’s because forcing women to carry pre-viability pregnancies to term is barbaric.
Of course, any points that Santorum gets for principle vanish because he believes that women who commit what he claims to be a serious violent offense should be exempt from legal sanction. This position — which is also official GOP policy — indicates 1)gross sexism, 2)a tacit admission that most anti-choicers don’t believe their own rhetoric, or 3)a healthy helping of both.
The terrorist threat that constitutes much more of a present danger to Americans than the kind that compels executive branch officials to ignore the Constitution.
A reader alerted us to this amazingly creepy National Review piece about Steven Tyler’s decision to use
marriage an especially gross grant of legal guardianship to legalize a relationship that otherwise would have been statutory rape, and concludes that he’s a victim because his barely-adolescent bride aborted a male fetus. This was transparently misogynist on so many levels I scarcely knew where to begin. One advantage of procrastination is that sometimes another writer will say what needs to be said as well as it could be said, and Mary Elizabeth Williams does that in this case.
As a follow-up to Dahlia Lithwick’s excellent recent piece about the proliferation of state anti-abortion restrictions, I have a new Prospect column arguing that while in some ways these restrictions challenge the Supreme Court doctrine, the bulk of the regulations are all too consistent with Casey:
But the victory came at a steep price. Casey, as O’Connor had long advocated, replaced Roe’s clear “trimester framework” with the opaque “undue burden” standard. That is, an abortion regulation was now unconstitutional if it unduly burdened a woman’s fundamental right to choose, and the Court held that all but the spousal notification requirement were not so burdensome as to curb rights. In theory, this subjective formulation could provide a fairly robust protection of reproductive freedom. The way the Casey plurality actually applied the standard, however, all but guaranteed that it would not. The Pennsylvania law is now a model for the proliferation of anti-abortion legislation that has followed in its wake.
Particularly problematic in Casey was the plurality’s decision to join the anti-Roe dissenters in upholding a 24-hour waiting period for women who wish to obtain an abortion. Waiting periods would seem to be the definition of an undue burden in at least two respects. First, with the justices’ assumption that women who choose to obtain an abortion may be acting impulsively or irrationally, the waiting period, like the spousal-notification provision, is inconsistent with the Court’s decisions protecting gender equality. Second, waiting periods place a particular burden on poor and rural women, for whom an additional trip to an abortion provider can be prohibitively costly or time-consuming, while urban women with flexible job schedules may have easier access.
I think the last point is particularly crucial. I could have lived with the new “undue burden” if the Court had signaled that it would pay some attention to regulations that had a disproportionately large impact on women who already had limited geographical and financial access to abortion. Instead, starting with Casey it did the opposite. I don’t think it’s a coincidence that the two regulations the Court found unconstitutional under Casey (the ban on D&X abortions and the spousal notification provision) would not have a significantly greater on poor, rural women than women similarly situated to Sandra Day O’Connor.
I don’t know if this means that Daniels is running, but it certainly confirms that he’s an asshole.
Gail Collins. More of this, please.
Dahlia Lithwick has an excellent article about the increasing willingness of state legislatures to restrict access to abortion. The facts are depressing:
Since the start of this year, 916 measures seeking to regulate reproductive health have been introduced in 49 states. According to the Guttmacher Institute, by the end of March, 15 laws had been enacted in seven states. These laws include an expansion of the waiting period in South Dakota from 24 to 72 hours and a requirement that counseling from “crisis pregnancy centers” include scientifically flawed data on risk factors. There are new regulations in Utah and Virginia governing abortion clinics. Legislation has been introduced in 13 states requiring that women have an ultrasound procedure before having an abortion—and in seven of those states, the woman must view the fetus and listen to a detailed verbal description as well. Measures have been introduced in 17 states copying a Nebraska law banning abortion at 20 weeks, on the theory—again based on questionable medical data—that this is when a fetus can feel pain.
As Lithwick points out, some of these regulations — especially ones that ban pre-viability abortions — contradict existing law. But perhaps the bigger problem is that many of these regulations don’t unambiguously contradict the existing law. It’s understandable that Planned Parenthood v. Casey is most commonly remembered today for its refusal to overrule Roe v. Wade; given the personnel of the Court, any ruling that didn’t overrule Roe outright was a pleasant surprise. But by upholding several arbitrary abortions regulations — including waiting periods and parental involvement requirements — that place a particular burden on poor and rural women, Casey also facilitated the piecemeal dismantling of abortion rights. Even the ban on some pre-viability abortions was encouraged by the repudiation Roe’s “trimester framework.”
While Roe set out relatively clear standards for what regulations were permissible, Casey’s vacuous “undue burden” standard makes it unclear (apart from perhaps an outright ban of first-trimester abortions) what regulations are legal and which aren’t. Like any “minimalist” standard Casey is only as good as the judge applying it. And given federal courts dominated by reactionary Republican appointments, in many states we’re returning to the pre-Roe status quo in which affluent women have access to safe abortions and other women are forced to the black market.
In fact, the Republican jihad against Planned Parenthood is about much, much more than that.
Again, you really have to feel sorry for the modern parodist. I expect a plank calling for the overruling of Griswold v. Connecticut in the 2012 GOP platform.