• Baby Jane, Victim Zero of the New Abortion Era, More to Come

    August 22, 2022 // 3 Comments »

    It was sad to see the glee with which pro-choice advocates welcomed the news the ten-year-old rape victim was real. Surprisingly she lacks a nom de guerre yet, something like Victim Zero, Baby Doe or Child Jane. She went from victim to martyr to symbol within a news cycle or two. The story just received new life as Indiana has voted to ban most abortions.

    We know now an illegal alien who should never have been in the United States (his status never to be talked about again of course as outside the narrative) twice raped the ten-year-old. He had been cohabitating with the child’s mother, pregnant with his child, who defended him (never to be talked about again of course as outside the narrative) as innocent even after an alleged confession. The child ended up at a local Columbus, Ohio physician right around the time the Supreme Court overthrew Roe. That’s when the exploitation of the child really began.

    The local doctor never challenged Ohio’s “health of the mother” abortion exception, choosing instead to pass the case to an Indiana colleague whose first duty was not do no harm but report to the media. It is clear alerting the media that the Perfect Case had arrived by stork on her doorstep was a priority. Never mind privacy (the core of Roe v. Wade, ironically) never mind outing the victim would eventually lead to exposing her identity as the press went about their ghoulish work, what was important was to call attention to Ohio’s strict six-weeks-heartbeat-limit on abortions (the initial physician near-magically predicted the victim was six week and three days pregnant) just as Ohio codified its post-Roe laws, and draw attention to the issues of cross-state border procedures.

    The victim became a political football kicked back and forth. No coincidence this case broke into the public eye just as Indiana lawmakers were poised to further restrict or ban abortion. The Indiana General Assembly convened in a special session July 25 to discuss restrictions, voting to ban most abortions.

    Alongside the obvious question of why no one challenged Ohio’s “health of the mother” exception (a ten year old body would never be able to carry a baby to term safely) was the way the victim was used as an almost literary device to conjure up other post-Roe horrors. After Joe Biden mentioned the then-unconfirmed case in a speech, calls rang out for him to declare a public health emergency over abortion, a formal federal designation like a state of disaster than frees up additional funding as well as — more importantly — making headlines.

    Even after Ohio’s Republican Attorney General said the child victim would have been eligible for an abortion to save her health, WaPo argued maybe she would not have been, unwilling to let a good horror story pass and allow Ohio to appear properly concerned about just the type of case its law was written for. Baby Jane would be an example, the progressives said, but not that kind of example. A bad one, you know, one showing evil not compassion. Confirming the theory, the New York Times stated the case was a “predictable result of an abortion ban” and devoted a full article to a victory lap scolding conservative media who initially doubted the veracity of Baby Jane’s case, concluding crudely “surely right-wingers, who love to accuse their enemies of pedophilia, understand that children are raped in America.”

    Not discussed: just one percent of abortions are the result of rape, and less than half a percent of incest. Another survey suggests the actual numbers were 0.3 percent in cases of rape, and 0.03 percent in cases of incest. Even with underreporting, exceptions truly are just that, though you would not know it given the media surrounding the current case. The proof is the 99:1 ratio of stories about the abortion, not the rape, in Baby Jane’s case. And ectopic pregnancies, which account for between one and two percent of pregnancies and are never viable, are legally abortable in all states. Meanwhile, despite the noise about extending abortion limits, nearly half of abortions happen in the first six weeks of pregnancy, and nearly all in the first trimester. How much, really, changes post-Roe?

    But as is required these days tragedy must morph into absurdity, and the most progressive commentators see the 10-year-old as a perfect excuse to warn soon crossing a state border for abortion services was likely to become illegal. Apart from the Constitution’s clear and unambiguous support for interstate commerce and movement, the House recently passing legislation affirming interstate travel for abortion, and no state has any such law on its books. Of course no one from Ohio is arrested for gambling coming home from Vegas, either. Criminalizing activities done out of state, or preventing interstate travel, is basically prevented by the Constitution’s Privileges and Immunities Clause, which holds a citizen of one state is entitled to the privileges in another state, from which a right to travel to that other state is inferred.

    There’s also Bigelow v. Virginia which dealt directly with the issue of out-of-state abortion pre-Roe. The Supreme Court concluded “a state does not acquire power or supervision over the affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state… It may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state.” Nonetheless, the fear mongering persists.

    One 2022 commentator wrote “this whole notion of preventing interstate travel for abortions idea is complete lunacy. How about Amtrak? Or airports? Before the train or plane leaves a red state….what? A bunch of state troopers get on board and yell “PAPERS, PLEASE,” and then look for baby bumps?” A Blue Check on Twitter added “Or they could just say women can’t travel at all…” Others chimed in “I drove from Ohio to Illinois alone yesterday. A trip I’ve made 100s of times. But yesterday I thought “I’m afraid I wont always be able to do this. What if the police stop me thinking I’m looking for an abortion since they’re illegal in my state?” and “Belly fat might get you questioned? Detained? Tested? Sniffed?”

    Why stop there when it is possible to build whole arguments out of quotes from a work of fiction (or is it…?) Handmaidens Tale. A near decade after Snowden, someone is shocked to just realize “Retailers are already able to identify pregnant women by what they look at on line. Once a woman is flagged as pregnant, her whereabouts can be tracked by Google. If she starts heading for the state line the highway patrol can be notified.” But Team Progressive can fight back. One Hero of the Resistance writes “as a post menopausal woman, I can search for pregnancy related stuff every day and muddy up their data. Men can do it too.”

    Don’t laugh. The Guardian reports “Many American women in recent days have deleted period tracking apps from their cellphones, amid fears the data collected by the apps could be used against them in future criminal cases in states where abortion has become illegal.” Planned Parenthood created a period tracker which only stores data locally, on the phone, where it is easily deleted, as an impediment to law enforcement seeking out persons of the future who can get pregnant.

    The pattern is clear, that fear and paranoia will drive the discussion, not rational thinking. This could not come at a worse time for pro-choice advocates, just as many states are beginning the debate over their post-Roe abortion laws. Rather than base changes on carefully thought-out arguments, the arguments will be crazy all-or-nothing screeds, science fiction fears, and exploitive cases dressed up as the new norm for others to grimace sadly at and dismiss. Fears about period trackers and state lines have no more credibility than demonstrators massing around Justices’ homes in hopes of harassing them into compliance with the mob, or AOC on TV screaming people are going to die, or those collecting a million signatures thinking it will cause Justice Thomas to be impeached.

     

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Other Ideas

    Marbury v. Madison v. Joe Biden v. Abortion

    August 6, 2022 // 1 Comment »

    Joe Biden doesn’t have the the guts to do what people are suggesting he do, be the first president to stare down a Supreme Court ruling and refuse to abide by it. It wouldn’t matter anyway.

    Abortion in American should never have been allowed to turn into the judicial and moral circus that it is here and nowhere else on earth. Women even under Roe faced 50 different sets of rules and laws, abortion clinics tried to hide what they did, religious child help centers tried to pretend abortion was an option they offered, and the scene was full of protesters and clinic escorts and dozens of other things which separated a woman from her doctor and possibly her clergy in a regulated environment in which to make a very difficult decision. But that was the world we created out of professed concern for women and for the unborn. It was a system which said the fight would never really end, just change as the Supreme Court changed and saw things differently from 1972 to Roe and Doe in 1973 to Dobbs in 2022 to…

    The clarity of Dobbs is unfair to the mess which followed: the Court was very clear, abortion regulation was to be decided on the state level, not the quasi-federal level of Roe and Doe. You know how that works; New York allows third trimester abortions when necessary and Ohio prohibits any abortion past fetal heartbeat, even in cases of rape or incest, and so forth. Dobbs was not intentioned to set off a round of how can we detour around what the Court really said and give abortions in National Parks.

    The biggest change since Roe is chemical abortions. Already pre-Dobbs over 50 percent of all abortions were done chemically, with the mother taking one or two medicines to provoke a miscarriage. While typically done under professional supervision (miscarriages can result in dangerous bleeding, and incomplete miscarriages can be fatal to the mother) a single pill taken by a woman on her own will in most cases provoke a safe miscarriage. This is what will replace the horrible “coat hanger” abortions of the pre-Roe days according to many advocates.

    If America is good at anything, it is smuggling drugs across state lines, and so certainly “abortion pills” will be readily available to many woman in non-abortion states, albeit illegally the same way other drugs smuggled across borders are illegal and occasionally even prosecuted. In the crudest of practical terms, it is unclear how many women will not have access to an abortion post-Dobbs. However, Biden is being pushed to do something more. He is being pressed to refuse to abide by the Supreme Court.

    Joe Biden’s White House is considering executive action to make abortion pills accessible nationwide despite state laws restricting the drug. The administration may seek to use executive power granted under the Public Readiness and Emergency Preparedness (PREP) Act to declare a public health emergency to allow abortion providers and pharmacists to distribute chemical abortion pills, even in states where abortion is heavily restricted.

    Senators Cory Booker and Elizabeth Warren, along with 16 of their colleagues, urged Biden to take such action in a July 13 letter. “While it is impossible to immediately undo the damage inflicted by the Supreme Court’s repeal of Roe v. Wade, the Biden-Harris Administration must use every tool within its power to fight back,” the letter said. “We urge you to declare national and public health emergencies over Americans’ access to reproductive care.” Technically, powers available under the PREP Act would shield doctors, pharmacies and others from liability for providing abortion pills to people across the country. The exact same law was just used with broad popular support to shield manufacturers of Covid drugs and treatments from legal liability in order to get vaccines deployed expeditiously. The use of such law to expand presidential power past a decision by the Supreme Court to the exact contrary, however, would be devastatingly controversial.

    If Biden were to take such a decision, it would put him in immediate legal conflict with those states that choose to regulate chemical abortions and more importantly, the Supreme Court itself, which just ruled this was a states’ right to do, not a Federal one. No president has ever previously directly denied the Supreme Court. Nixon resigned rather than follow or resist the Court’s order to hand over incriminating evidence during Watergate. While many worried Trump would refuse to obey the Court in this situation or that, in the end the Cassandras were wrong, again, and the fight never happened.

    The first draft of America circa 1789 or so did not grant the Supreme Court this power of review. Marbury v. Madison, arguably the most important case in Supreme Court history, was the first U.S. Supreme Court challenge to apply the principle of “judicial review” — the power of federal courts to void acts of Congress in conflict with the Constitution and declare other government actions “unconstitutional.” Written in 1803 by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive.

    The actual facts surrounding Marbury are irrelevant to the abortion discussion. Relevant, however, is even though the instant case found Secretary of State James Madison had acted unconstitutionally, the underlying matter was resolved without a head-to-head conflict between the executive and judicial and the doctrine stood. With Marbury a new tool in governance, there exist only three ways to fight back against a Supreme Court decision: Congress can pass a new law (in this case legalizing abortion across the states), the Constitution itself can be amended or the Court can overturn itself, as it just did with Dobbs.

    That means should Biden try for option four, executive action, his quest will be Quixotic. Sitting in some Texas government official’s outbox is no doubt a completed challenge to any such action ready to file, meaning a lower court would almost immediately stay Biden as things got sorted out (that is what happened to some of Trump’s early immigration legislation, the so-called Muslim Ban, giving the false impression of early victory to progressives angrily hanging around airports in that instance.) The challenge to Biden would quickly find its way back to the Supreme Court, which would correctly uphold itself. The same result is likely should Biden try some sort of clever end-around, such as abortion clinics on Federal land. The use of PREP would also invite a legal challenge over the point of public health emergencies, and post-Covid utterly politicize what’s left of public faith in public health.

    As an aside, despite the noise, there is no likely path toward prohibiting interstate travel for abortions, say a pregnant woman driving from Texas to New Jersey and thus nothing there for Biden to worry over. Crossing a state border for abortion services is not likely to become illegal. Apart from the Constitution’s unambiguous support for interstate commerce, the House recently passed legislation affirming interstate travel for abortion, and no state has any opposing law on its books. And of course no one from Ohio is arrested for gambling coming home from Vegas, either.

    Criminalizing activities done out of state, or preventing interstate travel, is basically prevented by the Constitution’s Privileges and Immunities Clause, which holds a citizen of one state is entitled to the privileges in another state, from which a right to travel to that other state is inferred. There’s also Bigelow v. Virginia which dealt directly with the issue of out-of-state abortion. The Supreme Court concluded “a state does not acquire power or supervision over the affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state… It may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state.”

    That a gesture like declaring a PREP emergency accomplishes nothing practical does not mean it would not appear politically attractive to Democrats as they head into what promises to be a very rough midterm election. Biden, however, does not seem like the kind of guy who wants to go down in history as the only president to thumb his nose at the nation’s highest court, and all that for no actual gain. Biden knows any action he could take would simply be struck down by the very court that put him in this place. It is called “checks and balances,” Joe, look it up, and it works well in these cases.

     

     

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    Posted in Democracy, Other Ideas

    Wanna Be an American Idiot?

    July 25, 2022 // 3 Comments »

    American idiot and Green Day lead singer Billie Joe Armstrong said he is going to renounce his U.S. citizenship and move to England because he is so upset over the Supreme Court overturning landmark abortion case Roe v. Wade. The singer made the comments to a crowd at the band’s show in London, specifically “F*ck America, I’m f*cking renouncing my citizenship. I’m f*cking coming here.” He called the justices pr*cks and said “f*ck the Supreme Court of America.” Can he do that? Does it make any sense?

    As for making any sense, Armstrong should first check on what abortion laws look like in Great Britain. Assuming he understands the difference, Great Britain is composed of Scotland, Wales, England, and Northern Ireland. If the singer is headed toward the England, Scotland or Wales part, he’ll find most abortions limited to the second trimester, less than in seven U.S. states. In Northern Ireland, abortion is generally limited to first trimester, same as in 18 U.S. states. The case through which the Supreme Court overturned Roe, Dobbs v. Jackson, set the limit to 15 weeks, longer than Northern Ireland. So it is unclear how much moral ground Billie Joe will gain moving to the UK. He’ll need to watch out in Scotland, where clinics in Glasgow that offer reproductive health services are the focus of regular and long-running protests by anti-abortion activists, partly funded and supported by U.S. groups. You can run, Billie Joe, but you can’t hide.

    But can Billie Joe simply renounce his American citizenship and move to the U.K.? You can’t just renounce your citizenship, on stage or elsewhere. You can’t tear up your passport, burn the flag or write a manifesto. It’s done by appointment only. The American government must approve your renunciation of citizenship and can say no, no matter how loudly you say yes. Of course, there are forms to be filled out.

    To begin Billie Joe would need to make an appointment at the nearest American embassy or consulate. You can’t begin the renunciation process in America (sorry, purple haired radicals) but Billie Joe is already apparently in London. At the embassy Armstrong will fill out some forms. He can Google and complete, but not sign them, ahead of time if he wants one of his roadies to help: DS-4079, DS-4080, DS-4081, and DS-4082. Most of the requested information is pretty vanilla stuff, and is largely to make sure the singer understands what he is doing and the consequences of doing it.

    The reason for making sure of all that making sure stuff is two-fold. One, the State Department, who handles all this, has been sued by people in the past who claim they were tricked or mislead and did not know what they were doing, and want their citizenship back. The other reason is that barring certain highly-specific situations, renouncing citizenship is a one-way street. The U.S. government considers it a permanent, unrecoverable, irrevocable, decision. Billie Joe can’t come home should some future iteration of the Supremes restore Roe.

    At the embassy, one or more staff will fawn over Armstrong, then he’ll swear to and sign everything. At larger embassies, as in London, renunciations (for tax purposes) are frequent, regular parts of a day’s business, and are handled in most cases almost mechanically. The overall feeling most renunciants encounter is that of a bureaucrat more concerned with getting his paperwork in order than really caring about your life-altering decision. It is rare that the embassy official will actively try to dissuade you. There’s also a bunch of IRS stuff to do. Until it is over, you’re still an American, chappie.

    After your brief appointment at the embassy all the paperwork goes off to Washington, where your renunciation is approved or denied. The embassy can but is not required to write a memo regarding your case. Those memos, when written, usually argue against approval. In an extreme version, such a memo might say “Mr. Roberts appeared unorganized in thought, and was unable at times to focus on the documents in front of him. He referred often to a Swedish dog who was guiding his actions, and stated his goal in renunciation was to assume the Swedish throne.” It happens.

    No one at the embassy can approve or deny your application to renounce. That is done by someone you will never meet, located in Washington, DC. Without that approval, you remain an American citizen. Approval is formally made by issuing a DS-4083, called the CLN, Certificate of Loss of Nationality. Think of this document as an “un-birth certificate.” CLNs are processed slowly; it can several months or more for yours to be approved or denied. They are usually mailed to you. Oh, yes, one more thing. Billie Joe will have to pay a processing fee. As the world’s exceptional nation, the U.S. also has the highest fees in the world to renounce citizenship, a cool $2,350 per case, with no family discounts. By comparison, Canada charges it’s soon-to-be-former citizens only $76; for the Japanese and Irish it is free.

    If Billie Joe is denied his renunciation and forced to remain an American, it would typically be for his own good, to avoid him becoming stateless and thus deportable (to where?) from the U.K. Renunciation only means as of a certain moment Armstrong stops being an American citizen. It does not automatically make him a citizen of anywhere else (that’s naturalization, done country-by-country and Britain has its own complex set of laws on becoming one of them.) With his American passport gone, Armstrong has no passport. He is thus at that moment illegally in Britain and subject to deportation. Since he is not an American (or a Greek, or a Lithuanian, or a…) he has nowhere to go, a literal man without a country. In many cases the U.S. will deny renunciation to someone who does not already possess another country’s passport and citizenship. Billie Joe, sadly, could be forced to remain an American.

    This article is not legal advice for Billie Joe Armstrong or anyone else. Persons angry about Roe or otherwise considering renunciation should consult an attorney. Opinions expressed here are the author’s personal beliefs and do not represent those of any former employer.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Other Ideas

    Democracy is Doing OK

    // 1 Comment »

    It was the July 4 holiday which brought out the worst of it, those claiming our democracy is in danger, failing, or in some cases, failed. But the holiday was just an excuse for our daily dose of doom. The blight of articles followed a familiar path, starting with some event (January 6 was the clear leader) and explaining how it was the start of fascism, comparing it one of the few historical examples allowed quotable by progressives, usually something to do with the Reichstag, and then growing that image to say, Trump standing over Lady Liberty, that kinda grin on his face.

    Actually, our democracy is doing just fine. Things are working more or less exactly as they are supposed to.

    The runner up to January 6 as the last gasp of democracy is the recent set of Supreme Court decisions. Centerpiece is the overturning of Roe v. Wade, a sign of democratic failing because it fully strips women of their rights and shows the Court has no respect of precedent and could overturn anything. Usually this means the end of same-sex marriage as another Democratic emote-o-point, but in some screeds reaches as far as banning inter-racial marriages and contraception. Any day now!

    Slow down, kids. If you go too fast you’ll miss the scenery, in this case things working about normal. Perhaps it is necessary to remind our “democracy” is sort of like sharing crayons in kindergarten, sometimes you have to use the yucky brown one and let the other kids use the preferred red and orange. Progressives, with a lock hold on the Supreme Court for many decades, never mind the media, advertising, entertainment, and academia, grew too used to getting their way, too used to defining democracy as “expansion of rights that I favor and shrinking of those you favor.” So expanding the Bill of Rights automatically meant ignoring the Second Amendment and dilating the 14th to loop in abortions. It was easy to see it all as progress when for the most part it was just you always getting more of what you wanted.

    But a real democracy shares nicely, and as voting patterns (remember when Ohio used to be a well-contested purple state? Florida always up for grabs? John King zooming the CNN Magic Map practically into voters’ backyards?) and national moods change so does the makeup and decisions of the Court. Remember back in 1896 when the Court decided in Plessy v. Ferguson separate rail cars for whites and blacks were equal enough as required by the 14th Amendment, that race was constitutionally a way to judge people? The upshot was constitutional sanction to laws known as Jim Crow (the name comes from a popular minstrel character of the time) designed to maintain racial segregation by means of separate public facilities and services.

    Then in 1954’s Brown v. Board of Education the Court ignored a whopper of stare decisis and ended separate but equal as an unjust albeit long-held societal standard. Race was not constitutionally a way to judge people. Nobody is keeping score but it was 59 years of separate but equal, and 49 of Roe. People said a lot of things in 1954 when the Brown decision was handed down, but it is hard to find a genre of “end of democracy.” Indeed, enforcing Brown, even to the point of deploying Federal troops to do so under the Insurrection Act everyone was afraid of on January 6, is often cited as a high point of democracy. WHen tested, the system worked.

    January 6 should be a semi-holiday, like 9/11, something worth noting every year as an example of democracy working exactly as intended. Let’s look for the undemocratic element: 1) American holds an election and not everyone agrees who won (nothing new, where do you think all those complex presidential election rules came from but past instances of disagreement?) 2) Lawful protests take place at the Capitol; 3) When a minority of protestors start trespassing, law enforcement steps in and after one terrible fatality on the ground in Ashli Babbitt, the crowd disassembles. 4) Delayed a bit, the Vice President ignores any background noise and simply carries out his Constitutional duty in the ceremonial certification of electors selected earlier. With the possible exception of the cops gunning down the unarmed Babbit, everyone did their duty, and another peaceful transfer of power took place. No tanks on the White House lawn.

    To create the same climate of fear progressives more or less successful maintained during the four years of the Trump administration without blaming Joe Biden for some of the highest inflation and gas prices, and lowest stock vitality in years takes some clever word play. It exists in abundance. The Supreme Court judges (the bad ones!) become right wing extremists, not jurists. Their decision on Dobbs is based somehow on only rights that existed in 1868, and so forth. Taking away the EPA’s unilateral power to make climate change rules without full and open debate and returning that authority to Congress is somehow twisted to be both undemocratic and a sign of the apocalypse. Even Left Wing Extremist Sotomayor (exaggeration is fun!) wrote of Dobbs that the majority decision “undermines the court’s legitimacy” as if such a thing happening in a democracy — the majority carrying the day — was something extraordinary and particularly rare in its evil. But just saying things are true does not make them so.

    Of course George Soros had to weigh in since we’re talking about the threat to our democracy. “There is only one way to rein in the Supreme Court: throw the Republican Party out of office in a landslide. That would allow Congress to protect through legislation the rights that had been entrusted to the protection of the Supreme Court. It is now clear that doing so was a big mistake. Congress must act.”

    Now we’ll leave aside the part about Congress not acting on abortion, same sex marriage, inter-racial marriage, contraception, the EPA, and a lot of other supposed threats to democracy for decades, including when Democrats held majority power in both houses, the Court, and the Executive.

    But Soros still sees a problem: “When it comes to organizing a landslide victory against the radicalized Republicans, opponents face almost insuperable obstacles. Republicans have not only stacked the Supreme Court and many lower courts with extremist judges. In states such as Florida, Georgia, and Texas, they have enacted a raft of laws that make voting very difficult.”

    We’ll take Texas as an example. You can register to vote there online, which does not seem too hard given anyone who can borrow a cell phone and do it from a parking lot. You do have to present one of seven forms of ID to register and to vote, including a drivers license, a handgun permit, military ID, or others. You can’t have a decent adult night out without one of those, and several are issued by the Federal government well outside the hands of racist old Texas. In certain circumstances a utility bill or a cashed check can suffice. Not clear what’s so hard; 17 million people in Texas are registered so far, which sounds like alotta democracy is working just fine. Now, showing the same photo ID (and a vax card) just to sit down and eat a burger, that has some undemocratic overtones to it…

    Soros aside, no one clings to the “democracy is dying” meme like a convert named Max Boot. Covering the gloom beat for WaPo, Boot warns “we’re in danger of losing our democracy.” He is stirred by Americans coming together to support Ukraine’s “fight for freedom” (better there then on the beaches of Santa Monica, eh Max?) “But it is dismaying,” he writes, “to see that there is no similar consensus on defending democracy at home.” The solution is simple, vote for Democratic candidates only, even if you don’t agree with them, because what could be more democratic then being told who to vote for and asked to not think about your choice. “Panic,” Max writes, “…is sometimes warranted.”

    Boot supports one of the most undemocratic things possible, to demand the end of democratic institutions when their call has not gone your way. Don’t like Dobbs? Support packing the Supreme Court (what happens when Republicans regain power and re-pack it?) Don’t care for the electoral system? Demand the Constitution be damned and the popular vote given precedence. Max Boot, again, declares with the straight face of someone who must have failed eight grade civics class “There is no justice in a political system that gives Republicans six of nine Supreme Court seats even though a Republican has won the popular vote for president only once in the past 30 years. So, too, there is something deeply amiss with a Senate that gives California (population 39.3 million) the same number of seats as Wyoming (population 581,348).” “The Founders never envisioned such an imbalance between power and population,” wrote Boot in a multi-Pulitzer-winning newspaper.

    Um, they actually did. It was the Founders who created our proportional representation system precisely to balance the power of big states and small ones.

    Keep in mind there is a reason progressives are trying to keep people in a state of fear. Fearful people are easy to manipulate; you need only scare them to the point where they demand relief, and then provide them the way out as the final solution. A standard trick of any demagogue. “Democrats need to lean into the politics of fear,” says the NYT. So it is a natural extension of “Trump is Putin’s boy” to “let’s have a war against Putin.” Or from “some states ban abortion” to “next is a national abortion ban enacted by a Republican Congress.” Historically fear has driven any number of crusades and Crusades. The solution of course is not to be drawn in, to stop and ask yourself if something is true (“it’s hard to vote in Texas”) and react out of intellect and not emotion. Heck, if half of Germany would have thought through the Reichstag fire and not bought into fear mongering, George Soros, et al, would need a whole new go-to bad guy as they try and pre-defeat Trump in 2024.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Other Ideas

    Abortion, Propaganda, and Cynicism

    July 11, 2022 // 3 Comments »

    A doctor in Ohio decided to become an abortion propagandist, assisted by journalists who decided to become abortion propagandists.

    You must have seen the horrific story, reported out of Ohio. A ten-year-old child became pregnant through sexual abuse. Under the new post-Roe abortion laws she is ineligible for a termination because she was found to be six weeks and three days pregnant. The unnamed doctor called a named abortionist in next-door Indiana where abortions can currently be performed past six weeks and began the process of arranging the abortion. Someone took the story to the press, where it quickly became a front-page Handmaidens Tale-level news item, the near-perfect example of everything wrong with overturning Roe v. Wade. Almost too good (too evil?) to be true.

    The victim was very young, below the average age of menses. She was pregnant via child abuse, the act itself horrific, with suggestions in the press the attacker was a relative. Ohio had just revised its laws following Dobbs (a month earlier and none of this would have been national news) and the kicker, the girl was six weeks and three days pregnant via abuse, just that 72 hours past Ohio’s deadline, all at obviously no fault of her own. Her only hope was an out-of-state abortion in next-door Indiana before it changed its own laws.

    No current technology can calculate pregnancy to the day. Instead a standard estimate is used, calculated from the first day of the person‘s last period. The key term here is estimate; only a tiny percentage of babies (about four percent) are born on the exact due date calculated off that last period, assuming a ten-year-old abuse victim would know the first day of her last period precisely. The articles about the child don’t mention it, but the period date is usually adjusted by an ultrasound scan, where another estimate is made, based on the size of the fetus, with practice being if the two “due dates” differ by a week or more, the scan is taken as the more accurate measure.

    The critical point is no one in the world could say that child was exactly three days past Ohio’s six week abortion deadline. The original doctor, sympathetic, could have easily consulted an ultrasound and come to the conclusion that she was instead five weeks and four days pregnant, for example, and eligible for an abortion. Ohio allows a complex exception for abortions even now when the mother’s life is in danger, clearly an option given the unlikelihood that a ten-year-old body would be able to successfully mature and birth a baby without injuring severely the child-mother.

    The broader point is none of this was discussed in the articles pointing out the horror Ohio was visiting on an abuse victim. None of the media asked the original doctor why he did not see the fetus as less than six weeks old, or why he did not seek to invoke the exception for a mother’s life at stake. Instead, he and the abortionist in Indiana worked hand-in-hand with the media to shape the narrative as ammunition pro-choice advocates would be able to use. It was all too perfect.

    Newly-restored to Twitter, I voiced some of these ideas. The story was obvious propaganda, albeit apparently true on its basic facts if not fudged on its presentation and omissions. As propaganda it seemed worth talking about. But in America we can’t talk about abortion it seems.

    The first wave of comments from anonymous women (I am unsure enough of  the mechanics of Twitter to not know how non-followers ended up seeing my Tweets) included some personal insults but were more in line with claiming I wanted to make the story about me (for having a questioning opinion as a man) and not about the “woman.” These were followed by many more anonymous women criticizing me as a male for not knowing much about women’s bodies because I asked some pointed questions about how much faith the doctor in question put in judging the pregnancy at six weeks and three days. Could someone really make a life-or-death decision for one of his patients based when a period had occurred? Someone whose bio says she is a doctor and activist seemed to lead the charges against me, calling me a whiner for wondering why this anger was directed at me and not maybe at some people in Ohio. And why was it impossible to find out anything about the attacker, such as if he was in jail?

    In the end I was told to “Just tweet, ‘I’m a twatwaffle who doesn’t know anything about women’ and save us all some time” and that seemingly ended the discussion.

    The Ohio case has become a test for politicians forced to show they are sensitive to the needs of women and girls in the face of growing restrictions on abortion. Republican governor Kristi Noem of South Dakota, mentioned as a potential running mate for Donald Trump, was pressed on the Ohio case on CNN, though no mention was made that South Dakota, like Ohio, allows abortions when a mother’s life is in danger. Instead the situation was visioned as “child rapist gets away with horror because abortion laws are too restrictive.” Noem replied: “I don’t believe a tragic situation should be perpetuated by another tragedy. There’s more that we have got to do to make sure that we really are living a life that says every life is precious, especially innocent lives that have been shattered, like that 10-year-old girl,” she said.

    It is a gross coincidence this playbook has been run before. In May 2019 as Ohio was considering its fetal heartbeat law, the press came up with an 11-year-old girl has been raped and impregnated by a 26-year-old man who had sex with her on multiple occasions as someone who might be forced to carry to term by the new law. The heartbeat law passed anyway.

    And by no small accident the Indiana General Assembly will convene in special session later in July to discuss what restrictions to abortion policy it will implement post-Roe as Indiana law did not immediately change when the Supreme Court issued its Dobbs decision. The state currently allows for abortions in the case of rape or incest. One wonder on the effect propaganda will have on all that, with the insertion of an already victimized 10-year-old into that process. Was the timing of the Ohio-referred-to-Indiana case really that cynical?

    Thinking to go on Twitter and call me cynical? Remember I’m not the one exploiting an already abused child for political purposes of getting my state to include a rape and incest exception, just writing about it.

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    Posted in Democracy, Other Ideas

    Five Important Things About the Abortion Decision

    July 6, 2022 // 6 Comments »

    — Abortion rights are guaranteed by the Constitution.

    In 1973 the Supreme Court handed down a judicially creative interpretation of the 14th Amendment to the Constitution in the case Roe v. Wade to claim abortion was like other privacy-based rights (such as the right to contraception, right to same-sex marriage, right to adult sexual acts with consenting partner, and right to interracial marriage); that is, unenumerated rights, rights inherent in the Constitution but not listed by name like the right to free speech and the right to bear arms.

    — So that’s it. The current decision is illegitimate. Abortion is constitutional!

    The Supreme Court in its decisions creates precedents, meaning judgement they’re supposed to follow in the future. That’s the doctrine of stare decisis. But the Court is also allowed to revisit itself and overturn what it felt was a bad decision. Some of these are famous, for example, Plessy v. Ferguson, which said separate but equal was the law of the land, leading to black kids going to one school and white kids going to another supposedly equal school. Plessy held stare decisis for nearly 60 years, until the case of Brown v. Board of Education in 1953 overturned it. Like Roe, society was structured around Plessy and decisions were made keeping with it, until it was no longer the law of the land. Today almost everyone sees Plessy as something that discriminated against blacks, but that does not change the principle, just how we feel. Bottom line: respect for precedent does not preclude the Supreme Court from overturning its past rulings, even if that means big changes like societal desegregation.

    — I’m still stuck on how the 14th Amendment could say something to one group of justices, but not to another group of justices.

    Because the Constitution was written mostly in the 18th century, a lot could not be anticipated by the Founders. So the Supreme Court exists to interpret the meaning as one of its jobs. The 14A was ratified in 1868 and extended civil and legal rights to everyone, specifically formerly enslaved blacks, granted citizenship to all persons born or naturalized in the United States, ensured rights to those in states where discriminatory laws were in place, and said the right to due process of law and equal protection of the law applied at both the federal and state levels of government. The 14A says “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    The Court found in 1965 in that text the right to privacy, specifically the right of married couples to get contraceptive advice from their doctor. The Court said that even though the Constitution did not explicitly lay out a right to privacy, “We deal with a right of privacy older than the Bill of Rights, older than our political parties, older than our school system,” so it there without needing to be written out like with free speech or bearing arms. This is where the 2022 Dobbs decision draws its line “the inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”

    Then in 1973 amid a national debate over abortion, the Court found a woman’s right to an abortion was implicit in the right to privacy. At the same time it also acknowledged the state’s interest in protecting the “potential of human life” and so Roe’s trimester-based system for abortion restriction was created. As with same-sex marriage, since the right was in the Constitution, America needed a Federal-level decision on how that would be broadly carried out, with a compromise of leaving room for states’ interpretation.

    In 1992, the trimester system was reviewed in Planned Parenthood v. Casey. The justices reaffirmed a woman’s right to abortion but gave states more leeway in regulating it as long as the states did not create an “undue burden.” For example, some states legally implemented a 72-hour waiting period and mandatory counseling

    In 2022 Dobbs v. Jackson the Court changed its mind. It said abortion was not a Constitutional right, and thus the Constitution does not prevent state legislatures from banning abortion. Since abortion is not a Constitutional issue, they concluded, and because the issue is contentious, it requires states’ debate and create their own laws.

    — So can’t the Court now go back and do away with our rights to contraception, same-sex marriage, interracial marriage, deciding variously that those are not unenumerated rights?

    Technically yes, in reality hardly likely. While Justice Thomas wrote separately that other “substantive precedents” decided by the Court should be re-examined, no other justice agreed. More importantly, Justice Alito, who wrote the 2022 opinion, specifically cited those rights and said the instant decision had nothing to do with them. Among other reasons, abortion stands alone in that the government has an interest in protecting the “potential of human life.” And even Justice Thomas did not place interracial marriage (Loving v. Virginia) on the chopping block, even though it has many of the same judicial roots as the other unenumerated rights. Justice Alito wrote plainly “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.” That would make citing Dobbs as precedent to overturn say same-sex marriage nearly impossible.

    — So blah-blah, bottom line is the Supreme Court says women cannot have abortions.

    The Court did not make abortion illegal. Instead, the Court said abortion (already regulated by Roe’s trimester system) would instead be regulated by each state individually. This is to acknowledge the lack of consensus in America on what is morally right. Seven states, for example, have no plans to change their laws and allow for up to third trimester abortions, among the most liberal globally. These include populous states like California and New York with huge metro areas, so that a majority of women will live in states where surgical abortion is accessible (the majority of abortions even pre-Dobbs took place in Blue states.) Other states, such as Mississippi, which pre-Dobbs had only one abortion clinic, have made the procedure illegal though at little overall change. Some 13 states will make abortion illegal, and the change to women in those areas who cannot travel may be more significant. The point is for each state to consider what is right for itself.

    Potential harm to women will be mitigated by “abortion pills,” which did not exist in 1973 and will help eliminate so-called coat hanger abortions (there is no case in America of a woman being prosecuted for seeking an abortion since 1922.) Even before the recent decision, over 42 percent of abortions were “medical abortions,” by pill. While there is no way to downplay the significance of Dobbs, it does not create a black or white landscape for reproductive rights its critics try and paint.

     

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    Posted in Democracy, Other Ideas

    Sotomayor and End of Roe v. Wade

    December 20, 2021 // 11 Comments »


     

    I don’t know the right answer on abortion. I do know based on the oral arguments recently heard by the Supreme Court regarding Mississippi’s abortion law that our country has problems that cut deeper into our national fabric than the specifics of any abortion law.
    The out-of-the-box role the Founders had in mind for the Supreme Court, basically a check the other branches of government were consistent with the blueprint laid down in the Constitution, did not last long. Almost from the get-go the Court claimed additional authority for itself to strike down laws (Marbury v. Madison, 1803,) the doctrine of judicial review.
    In the years since the Court has used its power to wrestle with Americans over how their country should work. The Court once confirmed slavery (Dred Scott v. Sanford, 1857), later pulled a reluctant public by the ear away from segregation (Brown v. Board of Education, 1954 but only after it had earlier endorsed segregation in Plessy v. Ferguson, 1896 ) and trailed public opinion on same-sex marriage only to finally confirm it (Obergefell v. Hodges, 2015.) As for precedent mattering, the underlaying laws supporting slavery and marriage had been in place much longer than Roe‘s 48 years and in their time were more broadly supported.
    But whether leading public opinion or trailing it, the Court assumed a role unthought of by the Founders, one in the absence of common agreement and/or laws passed by Congress, to decide how Americans would live with one another. Should we be a slave-owning nation? Should our schools be segregated? Should same-sex partners be allowed to marry? In case after case the Court took it upon themselves to determine a solution to a social issue, seeing the need for a nation-wide answer to a contentious question once left to each state.
    And that leads us to abortion. Abortion exists at the raw edges of human existence. It is a religious issue, it is an issue intimately tied to liberal and conservative politics. It can decide elections. In cases of rape, incest, or the health of the mother, it is a moral issue. It is a states rights issue. It is women’s health issue and a societal burden issue. It is a socio-economic issue, with the population of women who seek abortions skewed by economics and race. It is healthcare or murder.
    The Court tried in 1973 to pry Americans from one another’s throats over abortion via Roe v. Wade. When the case was first heard, 30 states had complete bans on abortion. Sixteen states had full bans except for rape, incest or the mother’s health. Three states allowed most abortions, but only for residents. Only New York allowed abortions for out-of-state women, but capped them at 24 weeks unless the mother’s health was in danger.
    With Roe the Court took it upon itself to create a kind of compromise out of all that: during the first trimester a state cannot regulate abortion beyond requiring the procedure be performed by a licensed practitioner. During the second trimester a state can regulate abortion if the regulations are reasonably related to the health of the pregnant woman. And during the third trimester, the state’s interest in protecting the fetus outweighs the woman’s rights, so a state may prohibit abortions unless an abortion is necessary to save the life or health of the mother. Roe v. Wade did not legalize abortion per se. What it did was change the way states can regulate abortion.
    Roe also said abortion was a constitutional right, a claim which forms the basis for many who claim the case was wrongly decided. Critics acknowledge while the Court tried to do its best with an impossible problem, nowhere does the Constitution say anything close to abortion being a right, alongside say freedom of speech or due process. They argue the Court should never have essentially written via Roe the law Congress would not. The basis of the right to abortion seems to rest in the 14th Amendment, which otherwise is concerned with equal protection for freed slaves. This bastardization, which allowed the Court in 1973 to create an abortion policy for the entire nation without any democratic input, may prove the basis for Roe‘s undoing. Even one of the Court’s greatest liberal justices, Ruth Bader Ginsburg, knew Roe was bad law, writing “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
    Roe‘s other shortcoming is in saying states could not outright ban abortions in the first 24 weeks of a pregnancy. The number was something of a compromise; Justice Harry Blackmun, the author of the majority opinion in Roe, once called the line arbitrary. The question of where to draw the line for abortion, at Roe‘s 24 weeks or Mississippi’s 15 weeks begs the question of why a line exists; aren’t the legal interests (aside from religious/moral ones) basically the same throughout a pregnancy?
    In subsequent cases, Planned Parenthood v. Casey, 1992 and Whole Woman’s Health v. Hellerstedt, 2016, the Court modified Roe in response to many states imposing laws trying to limit abortions by making the process too complicated, expensive or cumbersome. The Court said in the cases above “such laws could not impose an undue burden,” defined as one having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
    For all that is unclear, three things are clear: 1) Roe always allowed for regulation; it was never abortion without restriction; 2) if the Court can reverse itself on the issues of slavery and segregation it can reverse itself on abortion, and 3) almost no one thinks Roe forever settled the issue of abortion in America. America will ask, and answer, the question anew.
    The current vehicle for asking and answering is Dobbs v. Jackson Women’s Health Organization, which concerns a 2018 Mississippi law banning almost all abortions after 15 weeks. Its version of regulation is a direct challenge to Roe‘s (Texas’ latest attempt to restrict abortion, SB8, will be heard separately.) The Court heard oral arguments on Dobbs in late November. A decision will be announced in 3-6 months, and will likely have more affect on the midterm elections than any other factor.
    The Court can decide to keep Roe as it is and tell Mississippi to get with the program, it can accept Mississippi’s version (i.e., no abortion after 15 weeks) and upend Roe, or it could ignore Mississippi’s version and re-write Roe to create new rules for each trimester. Any of the three would be consistent with the way the Court has acted for some 220 years.
    What is troubling are some of the statements made during oral arguments by the so-called liberal judges, particularly Justice Sotomayor. Sotomayor went as far as to question whether the legitimacy of the Court itself would endure if it overturned abortion rights. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” She accused Mississippi of moving forward with abortion restrictions only “because we have new justices,” referring to the three Trump appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. “If people actually believe that it’s all political, how will we survive?” Sotomayor continued.
    The other liberal justices, Stephen Breyer and Elena Kagan, were equally vehement in their support for abortion as a constitutional right. Alongside Sotomayor, they continually claimed that Roe was “settled law” and was thus somehow above being re-examined. It was left for Justice Kavanaugh to point out to any first year law students in attendance the long line of celebrated cases in which the Supreme Court overruled precedents. If the court had adhered to stare decisis in those cases, he says, “the country would be a much different place” (to include segregation and slavery.) Kavanaugh finished his lecture by noting every current member of the Court has voted to overrule constitutional precedents in various past cases.
    I don’t know the right answer on abortion. Since Congress has steadfastly refused for decades to legislate on the issue, the Court has been left to glean the boundaries among religion, public policy, and individual rights. The compromises and weaknesses in Roe are because of what Congress has avoided doing. Any decisions the Court has made in the past, and the decision they will make in the instant case, will be imperfect. But that’s only the beginning.
    The deeper problem is the Court has taken such an overtly political, partisan turn. Sotomayor in particular embarrasses herself with a fan-fiction quality take on settled law, and her claim that a decision which does not fit her political beliefs will destroy the legitimacy of the Court. She believes in precedent when she agrees with it and does not believe in it when that suits her better. She has suggested the last president’s appointments to the Court are somehow wrong because their mere presence allows Mississippi to challenge Roe. Americans have been trained to claim anytime a court decision or an election goes against their personal preference that means the system is unfair. Shame on Sotomayor for fanning those flames by suggesting her fellow judges are biased and she alone is not.
    Sotomayor is a zealot who sees politics above justice. In that sense it is unclear Sotomayor actually understands how the Supreme Court works. If Roe falls, its supporters may wish to re-examine their champion’s role in so poorly defending it.

       

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    Posted in Democracy, Other Ideas

    Mississippi Cares More about the Politics of Unborn Children, than Unborn Children

    May 10, 2014 // 4 Comments »

    As conservatives attempt to criminalize a broader range of actions in attempts to grant legal personhood to unborn children, and thus create a stronger argument against safe, legal abortion, a case in Mississippi is at center stage.

    Prosecutors there charged a 16 year old unwed mother with the crime of “depraved heart murder” because she allegedly ingested cocaine at some point in her pregnancy. The child was stillborn. The sentence that hung over the 16 year old mother was life in prison.

    The Facts

    “Depraved heart murder” is a unique crime that requires murder committed with a “callous disregard for human life.” The mother allegedly used coke at some point in her life. Prosecutors never proved exactly when, or how much, of the drug was used. There was no proof that coke had anything to do with the child being stillborn– experts who examined the medical records concluded the child’s cause of death was the umbilical cord wrapped around her neck. The state’s medical examiner came to a different conclusion after tests turned up traces of a cocaine byproduct in the baby’s blood, and declared her death a homicide, caused by “cocaine toxicity.” There was presented no scientific proof that cocaine can cause lasting damage to a child exposed in the womb. No cocaine traces were found, simply a by product that could have been introduced by coke usage.

    The judge unfortunately only dismissed the charges on a legal technicality, and so prosecutors plan to try the case again with slightly different charges. And why not? The taxpayers of Mississippi have funded this pseudo-legal conservative push to establish “personhood” for fetuses as part of a broad-based strategy to weaken abortion laws for seven years. The mother was charged in 2006, and the case took until now just to reach what some might call a mid-point.

    Not Unique

    Sadly, the case in Mississippi is not unique. A National Advocates for Pregnant Women study identified hundreds of criminal and civil cases involving the arrest and detention of pregnant women since the decision in Roe v. Wade was issued in 1973. State authorities have used post-Roe measures including feticide laws and anti-abortion laws recognizing separate rights for fertilized, eggs, embryos and fetuses as the basis for depriving pregnant women – whether they were seeking to end a pregnancy or go to term – of their liberty.

    Broader Issues

    This case also brings up equally serious issues. African Americans, who suffer twice as many stillbirths as whites (the Centers for Disease Control report that infant mortality rates in Mississippi were 7.07 percent for white children but 13.82 percent for black children), could once again in Mississippi find themselves disportionately prosecuted.

    In the larger picture, even as Mississippi spends taxpayer money on prosecutions such as this, the state has one of has one of the worst records for maternal and infant health in the U.S., as well as some of the highest rates of teen pregnancy and sexually transmitted disease. Factors that have been proven to cause stillborns and infant deaths, such as poverty, poor nutrition, and lack of access to healthcare, remain unchecked in favor of legal actions against teen mothers. Indeed, Mississippi has both the highest poverty rate, and the highest infant mortality rate, in the United States. The state also has the highest premature birth rate in America.

    It’s almost as if Mississippi cares more about the politics of unborn children, than unborn children.




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    Posted in Democracy, Other Ideas