Supreme Court: Roe Is About to Go

Today the Supreme Court is hearing arguments in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion law case. Mark Joseph Stern reports for Slate:

Give this to the Supreme Court: It did not leave us in suspense. During oral arguments on Wednesday in Dobbs v. Jackson Women’s Health Organization, five Republican-appointed justices made it abundantly clear that they are prepared to abolish the constitutional right to abortion established nearly 50 years ago in Roe v. Wade. Perhaps the most surprising aspect of the morning was how little Justices Brett Kavanaugh and Amy Coney Barrett concealed their desire to overrule Roe. While Chief Justice John Roberts fruitlessly sought out a compromise, Kavanaugh and Barrett showed their cards: Both justices believe the court has an obligation to let states (or Congress) decide the abortion question. Neither showed any appetite for incremental steps or half-measures. They are eager to greenlight complete bans on all forms of abortion at every stage of pregnancy. And they are ready to do it now.

Anti-abortion fanatics don’t know the meaning of “compromise.”

Regarding the Mississippi case, I wrote a few months ago,

Dobbs simply puts a gestational limit on elective abortion at 15 weeks. The Roe v. Wade guidelines allow states to ban elective abortions, but not before the gestational age at which a fetus might be viable (then as now, 23 weeks). After that, the states must provide exceptions for “life and health of the mother,” and physicians had some discretion about what that meant.

There is a little fudging in the medical literature about the 23-week threshold for viability, but 15 weeks is way outside fudging range. As I understand it, if the Court allows the 15-week limit to stand, Roe is overturned. And if Roe is overturned, a whole lot of states will ban all or most abortions overnight. It may be that the justices could uphold the 15-week ban but include language in their decisions that salvages some parts of Roe, but I wouldn’t expect them to do that.

SCOTUS doesn’t necessarily have to specifically proclaim that Roe is overturned. The Roe decision argued that the state’s interest in protecting a fetus doesn’t begin until the fetus reaches a gestational age at which it might survive outside the womb. Then as now, this is generally considered to be after 24 weeks. And, of course, Roe gives physicians broad discretion to terminate pregnancies after that time to preserve “the life and health of the mother.” If states can reset the point at which elective abortions can be banned at any point in pregnancy, Roe is effectively overturned even if nobody says so. And right-wing politicians of late have shown they don’t give a hoo-haw about the life and health of the mother and are perfectly happy to let women die in the name of “life.”

Kavanaugh, Barrett, Alito, and Thomas, IMO, are nothing but right-wing political hacks; Gorsuch and Roberts aren’t much of an improvement. I’m giving Gorsuch a bit of a break only because of McGirt v. Oklahoma. Roberts is no friend of abortion rights, but he seems to understand that striking down Roe v. Wade would stir up a backlash that could damage the Court and the Republican Party.

Mark Joseph Stern wrote that Roberts repeatedly argued that the Court might simply allow states more flexibility to determine when elective abortions could be banned but leave in place some constitutional protection for abortion. Stern continued,

But Roberts had no takers. This fact became clear when Kavanaugh asked Mississippi Solicitor General Scott Stewart an absurd question: “To be clear, you’re not arguing that the court somehow has the authority to itself prohibit abortion?” Of course, no partyasked SCOTUS to ban abortion, and few seriously claim that the Constitution disallows abortion. Asking such a ridiculous question allowed Kavanaugh to frame overruling Roe as the true compromise in a comment aimed at the public rather than anyone in the courtroom. “The Constitution’s neither pro-life or pro-choice on the question of abortion,” he said, “but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.” He added that if Roe goes, some states “would continue to freely allow abortion.” (At points, Kavanaugh did not even pretend to frame these thoughts as a question rather than a comment.)

So, yeah, the right-wing hacks on the Court are most likely going to toss out the gestational age rule and let states do what they want.

See also Amy Coney Barrett Suggests Forced Pregnancy Is Fine Because of Adoption at Daily Beast. Ghastly. As Paul Waldman wrote today, the only question about the eventual decision is whether the Mississippi law will be upheld by five votes, or six.

Eugene Robinson wrote,

Roe v. Wade is an important piece of the duct tape that holds this fractious nation together, and it would be a grievous error for the antiabortion majority on the Supreme Court to rip it away. …

… Like all of our constitutionally protected freedoms, the right to choose can be restricted, but not taken away. That has been the status quo for nearly five decades, and the nation has muddled through. But if Roe is reversed — if the court rules, as its most conservative justices have argued, that no protected right to reproductive choice exists — then the political cold war over abortion will flare immediately into a roaring blaze.

Given that the justices plan to be in recess from July through September, we’ll probably get the decision in May or June. Expect the conflagration to consume the midterm election campaigns. Most not-right-wing editorialists think the backlash will hit the Republican Party a lot harder than its members seem to anticipate now.

See also Alexandra Petri, Woman savoring last few hours before getting turned back into vessel.

And do watch this segment from last night’s All In With Chris Hayes. In brief, Sen. Chris Murphy has had it with Republicans who like to praise “the sanctity of life” but won’t do anything about school shootings. “I’m at my wits end about why Republicans’ concern for life seems so limited when the choices we could make to try to protect our kids are so obvious, are so politically popular, are so possible.”

Abortion rights advocates and anti-abortion protesters demonstrate in front of the US Supreme Court in Washington, DC, on December 1, 2021. (Photo by OLIVIER DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)

The Price of Complacency Is Too High

The SCOTUS is hearing argments on the Texas vigilante abortion ban today. Kate Riga at TPM reports that the Texas law has sent “shockwaves” through neighboring states, as Texas women seek abortions.

Clinics in Texas’ neighboring states, already few in number due to sustained state-level efforts to heap restrictions upon them, are being overrun with patients further along than the six week threshold currently allowed under state law. That’s before many women know they’re pregnant, and precludes 85 to 90 percent of procedures done in Texas, according to lawyers for the clinics in court documents.

“We saw over 300 Texans last month just in our Oklahoma facilities,” Wales said. “We saw just a little more than that throughout all of last year.”

All of the neighboring states have significant abortion restrictions also, including waiting periods and a limited number of clinics.

Oklahoma requires an ultrasound and 72-hour waiting period. Kansas has a 24-hour waiting period and both private insurance (without an additionally purchased rider) and plans in the state’s health exchange only cover the procedure in cases of life endangerment. Arkansas has a 72-hour waiting period that only begins after an in-person, state-directed counseling session aimed at dissuading the patient from having the abortion.

Women, many of limited means, not only have to travel but have to remain near the clinic for a few days. Expect a robust underground network to develop in response to this. There’s also an ulcer medication that can induce abortions and which can be purchased without a prescription in Mexico. It would be fairly easy to set up a black market of the stuff in Texas. Such a black market could spread throughout the country if Roe v. Wade were reversed. If Roe goes down, legal abortions would be available on the West Coast, the northeast, and Illinois, but possibly no where else.

Whatever happens in the Court, tomorrow Virginia will elect a new governor. The polls are a toss-up. The Republican, Glenn Youngkin, downplays his “pro life” position somewhat, but he does support “fetal pain” laws. Those are laws that ban abortion after the point in gestation at which a fetus might feel pain. Medical science says that a fetus cannot feel pain until the third trimester, which begins at the 27th week of gestation. But abortion criminalizers are certain that threshold is 20 weeks. Or maybe 15. Or 6. Because they just know. They saw it on YouTube.

So one would think that most women in Virginia who haven’t reached menopause would want to be very, very sure Youngkin doesn’t get elected. But somehow complacency may win out. SCOTUS wouldn’t really overturn Roe. Would they?

Oh, hell yes, they would.

Youngkin also seems to be getting traction over the bogus Critical Race Theory issue, in which white bigots demans the right to censor school curriculum so that little white children don’t find out what their ancestors really did. You may have heard about this ad:

And, of course, the “horrible” book was Toni Morrison’s masterpiece, Beloved. Further, the son was a senior in high school who read the book as part of an AP English curriculum. One would think that every voter in Virginia who cares that schools teach the truth about slavery would want to be sure Youngkin is not the next governor. I understand that Terry McAuliffe is not the most inspiring candidate the Dems could have nominated, but there was a primary, and McAuliffe won it. It’s him or Youngkin. Will Black voters save the Democrats’ ass, one more time?

There is no time for complacency. Not tomorrow, not ever.

 

Roe May Be Dead; Republicans Hope We Don’t Notice

I got tickled at Dave Weigel’s column today. The intro — “The only newsletter that isn’t about Joe Manchin today, this is The Trailer.”

Many people are pissed at Manchin, who is acting up again. He wrote an op ed for the Wall Street Journal saiyng that Democrats should “hit the pause button” on the $3.5 trillion reconciliation package. This is especially infuriating at the very moment the nation is suffering from fires in the West and a super storm in the South and East. Climate change, bro. But Manchin doesn’t want to spend money addressing it.

Just see Joe Manchin’s Dirty Empire by Daniel Boguslaw at The Intercept. Manchin is corrupt as hell. See also Joe Manchin’s new threat to destroy Biden’s agenda is worse than it seems by Greg Sargent at WaPo and Joe Manchin Has Put Biden’s Presidency in Mortal Danger by Jonathan Chait at New York.

Dave Weigel goes on, ignoring Joe Manchin:

Donald Trump’s victory five years ago created, and later fulfilled, the possibility of a 6-3 conservative majority on the court. That emboldened conservatives, especially antiabortion activists who favored so-called “heartbeat” legislation — ending legal abortion at six weeks, when they say first flutter can be detected in embryos. And after Ginsburg’s death, while conservative activists had never felt closer to the end of Roe, Republicans in competitive races said Democrats were overhyping the potential effect on abortion rights.

“I think the likelihood of Roe v. Wade being overturned is very minimal,” Sen. Joni Ernst (R-Iowa) said in a debate days after the justice’s death and one day after Trump nominated Amy Coney Barrett to replace her. “I don’t see that happening.” In his first debate with Biden, Trump scoffed at the idea that Roe was “on the ballot,” telling the Democrat that he didn’t know how the potential justice — who yesterday joined the majority in the Texas case — would rule.

And we all remember Sen. Susan Collins assuring us that Kavanaugh believed Roe v. Wade is “settled law.” This is the line Republicans have walked for a long time. They’ve promised their base they would criminallize abortion while reassuring the public at large that they wouldn’t.

Even given the events of this week, the conservatives on the Supreme Court seem to want to maintain the fiction that they are not hardline ideologues.

Mary Ziegler, The Atlantic:

The justices who allowed Texas’s law to go into effect hardly seem to love the thought of that backlash. Their order tried to reassure the public by spelling out what was not being decided—and tried to signal that the Court takes all of this very seriously. And even before this particular question arose, during their confirmation hearings, Brett Kavanaugh and Amy Coney Barrett repeated that when it came to Roe, they would keep an open mind. After all, they are neutral arbiters of the law, not pre-committed ideologues.

The justices desperately want the public to believe that is true, even though similar procedural hurdles did not stop the Court from blocking COVID-19 stay-at-home orders that affected in-person worship, and even though the Court’s overnight order made a laughingstock of what is still supposedly a constitutional right. The message was clear: Texas wanted to pass a legal-consequence-free abortion ban, and the Supreme Court wanted to find a political-consequence-free way to uphold one. …

… The Supreme Court may want to reverse Roe, but it is afraid of what will happen when the decision is gone. This fear makes it attractive to hem and haw, to deny and obfuscate. Clarence Thomas may not miss a chance to denounce Roe, but his colleagues are less keen to do so.

They don’t seem to be fooling anyone, however. So Democrats are mostly speaking out and vowing to fight the Texas law. Given their narrow hold on Congress there doesn’t seem to be much they can do, but we can hope it will help inspire a big turnout in the midterms. Republicans, though, are being strangely quiet and pretending that Roe v. Wade isn’t really dead.

Fetus Vigilantes Are Unleashed in Texas

I have long believed that abortion is an effective wedge issue for Republicans as long as Roe v. Wade stays in effect. Polls going back years show a reasonably comfortable majority of Americans support Roe and don’t want it overturned. The criminalizers will always vote for politicians promising criminalization. But if states really did criminalize abortion, I suspect the criminalizers would face a backlash they are not now expecting.

Well, that theory may be about to be put to the test.

The Texas law that went into effect today bans abortions very early in pregnancy, with no exceptions for rape or incest. According to Paul Waldman, the law bans abortions six weeks after the first day of a woman’s last period, which in an average cycle would be only four weeks after conception. Many, possibly most, women don’t know they are pregnant at that point.

Worse, the law “establishes a system of legal vigilantism whose purpose is nothing less than terrorizing and financially ruining not just abortion providers but also anyone who helps any woman get an abortion,” Waldman writes.

It allows anyone to sue not just an abortion provider but someone who “aids or abets” an abortion. So for instance, if you give your friend a ride to the abortion clinic, any random person in America could sue you for a minimum of $10,000. Even if you won the case — say, because your friend managed to get in her abortion five weeks after her last period, or because you never gave anyone a ride anywhere — you’d still have the legal bills to contend with.

 

Weird, huh? Summer Concepcion writes at Talking Points Memo,

As The Intercept’s Jordan Smith notes, typically in civil litigation, the individual suing must have been harmed in some way.

Not only does the law put abortion providers at risk, but also generally anyone who could be classified as “abetting” the act — such as a rideshare driver who takes someone to an abortion clinic, a counselor, a friend who helped pay for it, etc.

Therefore, the law is designed to evade federal court challenges by allowing private individuals, rather than state authorities, to sue the so-called “abettors.”

at Vox also writes that the law was drafted to prevent courts from reviewing it.

The way it’s written, a Texan who objects to SB 8 may have no one they can sue to stop it from taking effect.

For one, abortion rights plaintiffs can’t sue their state directly. The ordinary rule is that when someone sues a state in order to block a state law, they cannot sue the state directly. States benefit from a doctrine known as “sovereign immunity,” which typically prevents lawsuits against the state itself.

But they also can’t really follow the same path that most citizens who want to stop laws do. That path relies on Ex parte Young (1908), a decision in which the Supreme Court established that someone raising a constitutional challenge to a state law may sue the state officer charged with enforcing that law — and obtain a court order preventing that officer from enforcing it. So, for example, if Texas passed a law requiring the state medical board to strip all abortion providers of their medical licenses, a plaintiff could sue the medical board. If a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state’s police force.

Part of what makes SB 8 such a bizarre law is that it does not permit any state official to enforce it. Rather, the statute provides that it “shall be enforced exclusively through . . . private civil actions.”

Under the law, “any person, other than an officer or employee of a state or local governmental entity in this state,” may bring a private lawsuit against anyone who performs an abortion after the sixth week of pregnancy, or against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in such suits shall receive at least $10,000 from the defendant.

SB 8, in other words, attempts to make an end run around Young by preventing state officials from directly enforcing the law. Again, Young established that a plaintiff may sue a state official charged with enforcing a state law in order to block enforcement of that law. But if no state official is charged with enforcing the law, there’s no one to sue in order to block the law. Checkmate, libs.

Naturally, Texas Right to Life set up a website for people to report anonymous tips of illegal abortion activity. Naturally, since going online, the site has been robustly trolled.

The U.S. Supreme Court refused to grant a request to block the law, so now it’s a law. Still to be decided is a Mississippi abortion case I wrote about several weeks ago. That case is a direct challenge to Roe also. But knowing wingnuts, I do not doubt a whole lot of chubby white men in state legislatures are looking closely at this Texas law and planning to introduce a similar law in their own states. This could get very messy.

SCOTUS Really Might Overturn Roe This Time

The SCOTUS announced today it will hear Dobbs v. Jackson Women’s Health Organization, a case about a Mississippi law that outlaws elective abortion after 15 weeks’ gestation. There is real concern that this could be the Big One that overturns Roe v. Wade, mostly because now that Amy Comey Barrett is on the court, the conservatives don’t need Chief Justice John Roberts’s vote to make a majority.

It’s also the case that the law being challenged in Dobbs is more straighforward than some of the recent laws the court failed to overturn (mostly because of Roberts). For example, last year the Court failed to overturn a Louisiana law that applied burdensome regulations to abortion providers to discourage them from performing abortions. Roberts voted with the liberals on that one.

But Dobbs simply puts a gestational limit on elective abortion at 15 weeks. The Roe v. Wade guidelines allow states to ban elective abortions, but not before the gestational age at which a fetus might be viable (then as now, 23 weeks). After that, the states must provide exceptions for “life and health of the mother,” and physicians had some discretion about what that meant.

There is a little fudging in the medical literature about the 23-week threshold for viability, but 15 weeks is way outside fudging range. As I understand it, if the Court allows the 15-week limit to stand, Roe is overturned. And if Roe is overturned, a whole lot of states will ban all or most abortions overnight. It may be that the justices could uphold the 15-week ban but include language in their decisions that salvages some parts of Roe, but I wouldn’t expect them to do that.

I personally think this comes under the heading of “be careful what you wish for.” The most recent polls I could find found a significant majority, about two-thirds, of Americans support Roe. Multiple polls have found the percentage of Americans who want abortion outlawed in all or nearly all circumstances to be in the neighborhood of 24 to 27 percent. Abortion has been an effective wedge issue for Republicans because those against it are really against it; they are strong single-issue voters. The rest of the electorate has other priorities.

But Republicans might be setting themselves up for a significant national backlash if Roe is overturned. Maybe that’s what it’s going to take to get some peace on this issue — let the fanatics have their way and let them get slapped down for it.

Some states may accept an abortion ban for a while, but we’ve seen in other places that banning abortions opens many cans of worms that the fanatics haven’t thought out. The Mississippi law makes exceptions for post-15 week abortions for “medical emergency or in the case of a severe fetal abnormality,” but people are going to disagree about what constitutes an emergency and which fetal abnormalities are severe enough. If any. States that ban abortions will soon find themselves dealing with a black market in abortion pills and the return of back-alley abortionists.

It has to be said that there are some civilized nations that have banned elective abortions even earlier, at twelve weeks’ gestation. But in most of those same countries (for example, Denmark) women can get their elective first-trimester abortions free of charge, courtesy of the public health system, and without any hassles. It works for Denmark.

See also: Do see Dear White Christian Pro-Life Friends, a series of open letters by Brian D. McLaren, who identifies himself as a pastor and “public theologian.” He does a masterful job of summing up the recent history of the anti-abortion movement and its effects. Worth reading. See also Abortion Law: Why Cruelty Is the Point from May 2019.

The Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

How Democrats Need to Talk About Abortion

Jonathan Capehart praised Pete Buttigieg’s Fox News appearance (which I didn’t see), and in particular praised Buttigieg’s answer to an abortion question.

“Do you believe at any point in pregnancy,” Wallace asked, “whether it’s at six weeks or eight weeks or 24 weeks or whatever, that there should be any limit on a woman’s right to have an abortion?” The back-and-forth between Buttigieg and Wallace was instructive, especially the mayor’s initial response.

This part is a transcript of the Fox conversation:

Buttigieg: I think the dialogue has gotten so caught up on where you draw the line that we’ve gotten away from the fundamental question of who gets to draw the line, and I trust women to draw the line when it’s their own health.

Wallace: So just to be clear, you’re saying that you would be okay with a woman, well into the third trimester, deciding to abort her pregnancy.

Buttigieg: Look, these hypotheticals are usually set up in order to provoke a strong emotional—

Wallace: It’s not hypothetical, there are 6,000 women a year who get abortions in the third trimester.

Buttigieg: That’s right, representing less than 1 percent of cases. So let’s put ourselves in the shoes of a woman in that situation. If it’s that late in your pregnancy, then it’s almost by definition, you’ve been expecting to carry it to term. We’re talking about women who have perhaps chosen a name. Women who have purchased a crib, families that then get the most devastating medical news of their lifetime, something about the health or the life of the mother that forces them to make an impossible, unthinkable choice. And the bottom line is, as horrible as that choice is, that woman, that family may seek spiritual guidance, they may seek medical guidance, but that decision is not going to be made any better, medically or morally, because the government is dictating how that decision should be made.

I’ve seen worse answers, but I’m still not satisfied with that. Here is what (I would like to think) I would have said.

(Hypothetical conversation follows.)

Wallace: Do you believe at any point in pregnancy, whether it’s at six weeks or eight weeks or 24 weeks or whatever, that there should be any limit on a woman’s right to have an abortion?

Me: I support the Roe v. Wade guidelines that have been the law of the land for 46 years. That decision protects a right to abortion for any reason until the fetus is capable of surviving outside the womb, which medical science tells us is at about 23 weeks’ gestation, or late second trimester. The Roe decision said that states may restrict abortions after that point except when necessary to preserve the life or health of the mother.

So when people opposed to abortion create these fantasy scenarios in which women close to term waltz into an abortion clinic to end the pregnancy and destroy the fetus for no good reason, they are talking about something that already is illegal and isn’t happening in the real world. Let’s talk about what is happening in the real world.

Wallace: There are 6,000 women a year who get abortions in the third trimester.

Me: That’s right, representing less than 1 percent of cases. So let’s put ourselves in the shoes of a woman in that situation  (etc.; the rest of Buttigieg’s answer was okay).

(End hypothetical conversation.)

Why is it so hard to actually explain what the law is now? Why don’t people do that? Nobody, not even NARAL, is fighting for elective abortion in the third trimester. Why is it somehow forbidden to say that?

The most recent polling on Roe. v. Wade (from April 2019) says that 65 percent of adults nationwide support Roe v. Wade and don’t want it overturned, as opposed to 32 percent who want it overturned. That’s a healthy majority.  Stand with Roe v. Wade. Why do we allow ourselves to be put on defense?

See Paul Waldman, On abortion rights, time for Democrats to go on offense. See also Why I Don’t Give Money to NARAL.

Abortion Law: Why Cruelty Is the Point

The current epidemic of medieval abortion laws being passed by state legislatures has inspired a lot of people to explain why such laws are cruel. See, for example, Rape victim who had illegal abortion at age 13 calls Alabama’s law ‘an abomination’ at USA Today. I support anyone who speaks out about such painful experience. But as gut wrenching as these stories are, they won’t change the minds of people who support abortion bans.

Yes, the bans are cruel. The cruelty is the point.

Let’s step back and look at where this anti-abortion fanaticism is coming from.

Abortion wasn’t always the subject of such fanaticism. Until the latter part of the 19th century it was a common thing that may not have been discussed in polite company, but it was openly practiced and few seemed to care. Under English common law adopted in the states, abortion was not illegal until “quickening,” or the point in pregnancy at which fetal movement could be felt, which is at about 15 weeks’ gestation, give or take. And abortion was mostly considered women’s business, unimportant to men.

But in the 19th century male physicians began to take over childbirth, which previously had been tended by midwives, and thus pregnancy met the patriarchy.

The [American Medical] association’s efforts were led by Horatio Storer, an obstetrician often called the father of American gynecology. Storer didn’t want the medical profession to be associated with abortion, and considered women’s desire to terminate their pregnancies to be tantamount to insanity. He felt that a woman’s biological role was to be a wife and mother, and that to disrupt that path was not just to commit a social crime, but murder.

“We are the physical guardians of women,” read the group’s 1859 report on what it called “criminal abortion.” “The case is here of life or death—and it depends, almost wholly, upon ourselves.”

The group made a concerted effort to delegitimize the work of the women who previously held the majority of knowledge about childbirth and pregnancy, and to prevent women from becoming obstetricians.

Storer was also keenly interested in making sure “civilization” was spread in the West by white Americans.

 “Shall” these regions, he asked, “be filled by our own children or by those of aliens? This is a question our women must answer; upon their loins depends the future destiny of the nation.” Hostility to immigrants, Catholics, and people of color fueled this campaign to criminalize abortion. White male patriotism demanded that maternity be enforced among white Protestant women. … Regular medical men had entered the debate about sexual politics by attacking the female practice of abortion as immoral, unwomanly, and unpatriotic.

You get the picture. By the 1870s a handful of states had banned all abortions, and by 1910 or so abortion was illegal in all states. Of course, that didn’t mean abortions weren’t being performed.

Making abortion illegal never meant abortion didn’t happen. For the entire century of criminalized abortion, women of every class, marital status, religion and race still obtained them. Before Roe, hospitals had entire wards for patients experiencing sepsis after shoddy or self-­induced abortions. Chicago’s Cook County Hospital had 5,000 patients annually in the abortion ward — women who were bleeding, infected and sometimes dying.

The push to decriminalize abortion began in the 1950s. By the 1960s, the legislatures of several states were under pressure to change the law. In anti-abortion folklore it’s said that no one was arguing about abortion before Roe v. Wade was decided, but that’s nonsense; it was heating up as a source of contention even as we were all at each other’s throats over Vietnam. In 1967 California passed a law that allowed “therapeutic” abortions when a pregnancy endangered a woman’s life. In 1970 first Hawaii, and then New York, decriminalized elective abortion. And then, of course, Roe v. Wade was decided in 1973.

When Roe v. Wade was decided the Catholic Church already was opposed to abortion, although it hadn’t always been. But in 1973 abortion wasn’t a big issue among conservative Protestants and Evangelicals

In fact, it wasn’t until 1979—a full six years after Roe—that evangelical leaders, at the behest of conservative activist Paul Weyrich, seized on abortion not for moral reasons, but as a rallying-cry to deny President Jimmy Carter a second term. Why? Because the anti-abortion crusade was more palatable than the religious right’s real motive: protecting segregated schools. So much for the new abolitionism.

In brief, the same right-wing whackjobs who had opposed desegregation finally realized they had lost, so they seized on criminalizing abortion as their new holy cause.

Please also see How abortion unified Catholics and evangelicals to become a power on the right. This describes a debate in the California legislature in 1967:

Back then, many abortion opponents were Catholic Democrats, while many conservative Republican Protestants wanted nothing to do with the issue, viewing it as the province of Catholics, their theological adversaries.

Despite Beilenson’s plea, the Catholic Church fought hard against the bill, which would allow abortions when the pregnancy endangered the life or health of the woman or if she was the victim of rape or incest. Cardinal James McIntyre compared it to Herod ordering the slaughter of “Holy Innocents” in Bethlehem. But the legislature passed the landmark bill, which was then signed into law by the new governor, Ronald Reagan. Within a few years, some 20 states would follow.

The evangelicals’ ambivalence on abortion, an issue they now consider to be at the sacred heart of their morality, is striking. Francis Schaeffer, an evangelical professor who later became a major anti-abortion activist, at first refused to get involved. After his son, Frank, pushed him to join the anti-abortion movement, Schaeffer exasperatedly blurted out, “They’re Catholics!”

“How can you say you believe in the uniqueness of every human being if you won’t stand up on this?” the son yelled.

“I don’t want to be identified with some Catholic issue. I’m not putting my reputation on the line for them!” Francis shouted back.

But right-wing political operatives succeeded in getting conservative evangelicals and Catholics to form a political coalition around the abortion issue to help win the elections of right-wing Republican politicians. And that coalition is still a powerful force in today’s political landscape. Indeed, the evangelicals appear to have become even more fanatical than most Catholics in opposing abortion, which has brought them to the ignominy of being Donald Trump’s strongest base of support. Because, literally, nothing else matters to many of them them but stopping abortion. They have become full-bore, barking mad fanatics about it.

You’d think Jesus would have said something about abortion if it were that important to Christianity, but it doesn’t appear that he did. And yes, there were abortions in those days, too.

The Roots of Fanaticism

So now let us step back and consider where this newfangled anti-abortion fanaticism is coming from. There are many comments today on social media about “Talibama” and comparing the Alabama abortion bill to Sharia law. In truth, all reactionary religious conservatism, whether you call it “fundamentalist” or “extremist,” ends up looking pretty much alike. Religious extremists tend to be authoritarian and patriarchal. And they tend to subjugate women and treat them as sexual appliances.

So you see Islamic extremists punishing women for not being properly dressed in burquas, and we see right-wing polygamist sects in the U.S. keeping women in long, modest “pioneer” dresses. There are two purposes here. One is to deprive women of individuality. But the other is to cover any traces of women’s sexuality, which apparently is something religious whackjob men loathe and fear above all things.

Trent Nelson | The Salt Lake Tribune Eldorado – Attorney Rod Parker advises a group of FLDS women as they prepare to speak to the media after being separated from their children Monday, April 14, 2008, at the YFZ “Yearning for Zion” Ranch.

The practices of forcing young girls into marriage and keeping women covered up in way too much cloth are common to religious extremist groups of many traditions around the globe. The men in these groups want to use women for sex, but it has to be entirely on their terms. They are too afraid of women to give them any free will or individuality. And yeah, they’re just about the sickest puppies on the planet.

Now, which came first — the sexual pathology or the religion? I’d say it’s some of both, but more the first factor than the second. These men are not afraid of women because they are religious; they cling to authoritarian religion because they are afraid of women. They use religion, or their own cherry-picked version of religion, to justify the fear and ugliness clanking around in their ids.

Now, I don’t believe the male legislators who are passing the abominable abortion laws are marrying little girls or keeping their wives wrapped in sheets, but their difference with the polygamist cult leaders is one of degree rather than kind. They are deeply conflicted about sex, which is why they are so obsessed with writing laws regulating sex. They are deeply insecure about their own sexuality, which is why they need to keep women under control. And they have more in common with most rapists than they’d care to admit. Rape can be an expression of hostility to women. Anti-abortion laws also are an expression of hostility to women, with the added advantage that the perpetrator can feel self-righteous about it.

And if you understand that, you understand why the legislators who write these  women-controlling laws are more interested in punishing abortionists than rapists:

If [Alabama’s] HB 314 is enacted, a first-time offender who is accused of raping, say, an intellectually disabled woman or a 13-year-old girl could potentially serve less prison time than a doctor providing an abortion.

Note that Alabama is also considering a law that would make it a crime to bring a false rape allegation. Now, I’m also opposed to false rape allegations, but rape is difficult to prove, and convictions can be hard to obtain, and a lot of rapists get off. If this bill is passed, a woman who really was raped will be punished if her rapist isn’t convicted, which commonly happens. If this law passes, it’s pretty much telling the women of Alabama that if they are raped, that’s their problem. Don’t bother the criminal justice system about it.

Alabama hasn’t gotten to the point that the woman accuser is stoned to death, but like I said — it’s only a difference of degree.

No wonder the anti-abortion cause became so central to these men’s lives. It feels good. It lets them act out their inner ugliness, without compunction. And too many women go along with it because they are conditioned to submit to the patriarchy and to measure their self-worth by the approval of men.

Cruelty Is the Point

I wrote in 2015 about evangelical support for Donald Trump,

On other words, the extrinsic [religious] orientation is mostly about social and cultural conditioning and group conformity dressed up as piety. … Their religion is not something they keep in their hearts and minds; it’s the uniform they wear. It’s the banner they carry.

That the “religion” some evangelicals manifest may have little to do with the teachings of Jesus shouldn’t take anyone by surprise, because it doesn’t. It’s mostly their culturally induced biases shoved into a Christian (or whatever) package. And an authoritarian figure who promises to smite those they are biased against is just too compelling. Who cares if he doesn’t know Presbyterian from popcorn?

Last October Adam Serwer wrote an essay called “The Cruelty Is the Point.”

The Trump era is such a whirlwind of cruelty that it can be hard to keep track. This week alone, the news broke that the Trump administration was seeking to ethnically cleanse more than 193,000 American children of immigrants whose temporary protected status had been revoked by the administration, that the Department of Homeland Security had lied about creating a database of children that would make it possible to unite them with the families the Trump administration had arbitrarily destroyed, that the White House was considering a blanket ban on visas for Chinese students, and that it would deny visas to the same-sex partners of foreign officials. At a rally in Mississippi, a crowd of Trump supporters cheered as the president mocked Christine Blasey Ford, the psychology professor who has said that Brett Kavanaugh, whom Trump has nominated to a lifetime appointment on the Supreme Court, attempted to rape her when she was a teenager. “Lock her up!” they shouted.

Ford testified to the Senate, utilizing her professional expertise to describe the encounter, that one of the parts of the incident she remembered most was Kavanaugh and his friend Mark Judge laughing at her as Kavanaugh fumbled at her clothing. “Indelible in the hippocampus is the laughter,” Ford said, referring to the part of the brain that processes emotion and memory, “the uproarious laughter between the two, and their having fun at my expense.” And then at Tuesday’s rally, the president made his supporters laugh at her.

Serwer goes on to say that this cruelty, and the group enjoyment of cruelty, is the true basis of Trump’s support. The cruelty is the point. People who feel dissociated from the larger culture can find identity and meaning in Trump and communion with those who are derisive of everyone else. Please see “This Is What Evil Looks Like.”

So don’t expect the anti-abortion legislators  to be sympathetic to the child who was raped and faces pregnancy and childbirth. She is a sexual female, and must be punished for it. After all, the fetus she carries is “innocent life,” which is precious, even though these meatballs don’t give a hoo-haw about the sky-high infant mortality rates in their states. Expanding Medicaid is socialism. Spending tax money to provide prenatal and infant care isn’t fair to rich people. Or whatever.

There is no negotiating with such people. They must be vanquished. Utterly.

What Kevin Williamson Doesn’t Get About Abortion in France

Kevin Williamson is still miffed about being dismissed from The Atlantic almost immediately after having been hired. He was flushed from the magazine because someone unearthed a twitter exchange from 2014 in which Williamson said that abortion should be punished like any other homicide. “I have hanging more in mind,” he tweeted.

Today he writes for the Washington Post that the tweet doesn’t necessarily represent his opinion. What he proposes is that the U.S. adopt the same abortion laws as France.

France, like many European countries, takes a stricter line on abortion than does the United States: Abortion on demand is permitted only through the 12th week of pregnancy. After that, abortion is severely restricted, permitted only to prevent grave damage to the mother’s health, or in the event of severe fetal abnormalities. France is not a neo-medieval right-wing dystopia.

The law in France imposes penalties on those who perform illegal abortions, ranging from forfeiture of medical licenses for doctors to fines and, in some cases, incarceration (for providers, not for the woman obtaining the abortion) ranging from six months to 10 years. Those sanctions seem reasonable to me. Why not start there and see how it works?

Williamson leaves out some stuff. One, for French citizens abortions are entirely paid for by the French national health care system. Abortions don’t have to be delayed so that the woman can scrape up the money to pay for them, nor do they have to get on a waiting list or travel great distances to get to the one or two clinics in the state performing them.

Amanda Marcotte wrote for Slate in 2013:

Subsequently, while a lot of these nations have abortion laws that formally reflect Christian paternalism about reproduction and women’s roles, in practice, abortion is much easier to get than it is in the United States. You may have to provide a reason for your abortion in many nations, but it’s simply a formality, a box checked and not an obstacle. More importantly, the abortion providers aren’t being hounded out of existence and in many cases, the cost of the abortion is paid for by the state health care plan. Katha Pollitt recently elaborated in The Nation:

Here’s what’s really different about Western Europe: in France, you can get an abortion at any public hospital and it’s paid for by the government. In Germany, you can get one at a hospital or a doctor’s office, and health plans will pay for it for low-income women. In Sweden, abortion is free through eighteen weeks.

Note that contraceptive services also are free for French citizens, and I doubt le Parlement français is perpetually attempting to pass laws defunding those services. There is no surer way to reduce rates of abortion in a population than use of contraceptives.

Regarding fetal abnormalities, when severe fetal abnormalities are diagnosed in France, apparently the system applies a lot of pressure on the woman to abort. Refusal to abort is considered a problem resulting from “magical thinking.” Here in the U.S., abortion rights advocates have had to fight tooth and nail to keep later medical abortions legal for those who choose them.

A 12-week  gestational limit for elective abortion is standard in most European countries, with only a couple of exceptions, and I’m not hearing a lot of complaints about it.  In theory, that ought to be workable here, too. According to the CDC, in the U.S.,

Women in their twenties accounted for the majority of abortions in 2015 and throughout the period of analysis. The majority of abortions in 2015 took place early in gestation: 91.1% of abortions were performed at ?13 weeks’ gestation; a smaller number of abortions (7.6%) were performed at 14–20 weeks’ gestation, and even fewer (1.3%) were performed at ?21 weeks’ gestation. In 2015, 24.6% of all abortions were early medical abortions (a non-surgical abortion at ?8 weeks’ gestation).

However, without easy access to abortion services that are convenient and free (as in paid for by tax dollars) at least to poor and middle-income women, poor women are going to be driven to do-it-yourself and back-alley abortions, which is already happening in places like Texas.

Susanna was young, single, broke and pregnant in southern Texas where, thanks to the state’s strict laws, her chances of getting a surgical abortion at a clinic were slim to none.

So she did what an estimated 100,000 women or more in Texas have done – had a self-induced abortion.

With the help of a friend, some online instructions and quick dash across the Mexican border for some pills, she addressed the issue of unwanted pregnancy in a state where women are finding abortion services too expensive and too far away.

I also propose that it’s possible recent reductions in abortion rates reported in the U.S. are partly the result of increasing do-it-yourself abortions that are off the radar.

Getting back to Williamson,

The French model does not represent an ideal final settlement. It would, in fact, leave untouched the vast majority of abortions, about 90 percent of which happen during the first trimester. It would, however, represent a welcome advance — one that would establish a post-Roe v. Wade legal framework for incremental reform. Whether to restrict abortion at the 12th week or the eighth week is a very different discussion than the one we are presently having.

Already we see the problem. He and the rest of the Fetus People — so called because their brains are undeveloped — will not rest until that limit is pushed down from 12 weeks to 8 weeks to 6 weeks — a lot of women don’t know they are pregnant at six weeks — to maybe below that. If they can get it under ten days, they’ll have closed the window before a pregnancy can be diagnosed.

And, of course, abortions will need to be paid by taxpayer dollars and available in all communities, not just in one clinic per state that is surrounded by mobs of brain-eating anti-choice zombies.

Abortion is an absolute evil

Forcing a woman to go through pregnancy and childbirth against her will is an absolute evil.

The question for abortion opponents is this: Shall we act on our desire to punish, or on our desire to stop the killing? These desires do not necessarily lead in the same direction.

Well, yes, and this is something I’ve trying to explain to Fetus People for decades now. I am not alone. We know how to reduce abortion rates. The way is to make birth control readily available and to persuade people to actually practice it. Criminalizing abortions, however, does not reduce abortions at all. If anything, nations that criminalize abortions often see higher rates of abortion than countries that keep it legal.

In a new study published Wednesday, researchers from the World Health Organization and the Guttmacher Institute examine abortion and contraceptive access throughout the world. The report, in the British medical journal The Lancet, highlights major disparities in trends for women in wealthier nations compared with those in poorer countries.

The researchers looked at country data on abortion prevalence, contraceptive use by method, and unmet need for contraception in order to analyze trends across every major region and subregion between 1990 and 2014. They came to several illuminating conclusions:

Strict abortion restrictions didn’t necessarily lead to a significant decrease in the rate of abortion: For example, the study’s authors note that across the 53 countries where abortion is completely illegal or only permitted to save a woman’s life, the rate of abortions is 37 per 1,000 women. In the countries where abortion is legal, the rate is 34 abortions per 1,000 women. That’s in part because women living in countries with more restrictive abortion laws are also more likely to have an unmet need for contraception. “This adds to the incidence of abortion in countries with restrictive laws,” the Guttmacher Institute’s Dr. Gilda Sedgh, the lead author of the study, said in a statement.  …

…”The obvious interpretation is that criminalising abortion does not prevent it but, rather, drives women to seek illegal services or methods,” wrote Diana Greene Foster, a professor at the University of California, San Francisco, in a commentary responding to The Lancet study.

But Greene Foster also points out in her commentary that some of these findings don’t provide the full picture. “This simple story overlooks the many women who, in the absence of safe legal services, carry unwanted pregnancies to term,” she writes. “As a consequence of increased rates of unintended pregnancy and unsafe abortion, such women face an increased risk of maternal mortality and bear children that they are not ready to care for and often cannot afford.”

See also:

New Study: Anti-Abortion Laws Don’t Reduce Abortion Rates. Contraception Does.

Making Abortion Illegal Does Not Reduce Number of Women Having Terminations, Study Concludes

Banning Abortion Doesn’t Actually Reduce Abortion Rates at All

And, finally,

Amid new talk of criminalizing abortion, research shows the dangers of making it illegal for women (Washington Post, April 5, 2018)

The idea of criminalizing abortions is not new, but a push has emerged recently among some antiabortion advocates for enacting strict penalties against women who have the procedure, and not just doctors and clinics that provide abortions.

Research over the past decade, however, casts significant doubt on whether criminalizing abortion would reduce abortion rates. And data from countries where abortion is outlawed suggests it could have serious consequences on women’s health and safety….

…The study revealed that abortion rates had fallen significantly in the past 14 years in developed countries where laws tended to be more lax, but largely stayed the same in poorer countries with more restrictive laws. The study’s authors concluded this was likely because the countries with the most rules against abortion also tended to offer less access to modern contraception, sex education and family-planning services.

“The evidence is clear that the most effective way to reduce abortion rates is to prevent unintended pregnancies through modern contraceptives,” said Heather Boonstra, public policy director at the Guttmacher Institute. …

… The other key data point that has emerged from research over the years is the relationship between abortion laws and safety: In countries where abortion is most restricted, the procedure is much more dangerous for women.

In a report last year, the World Health Organization found that in countries where abortion is completely banned or permitted only to save the woman’s life or health, 1 in 4 abortions was safe. By comparison, in countries where abortion is legal, nearly 9 in 10 abortions were performed safely. The WHO researchers found that 45 percent of abortions worldwide were unsafe, endangering about 25 million women each year.

Laws against abortion have additional consequences for women. In El Salvador, for example, abortion is illegal with no exceptions. Women found guilty of getting an abortion can face years in prison. In February, one Salvadoran woman who had spent almost 11 years in prison was freed after the Supreme Court commuted her sentence. Suicide is the leading cause of death among pregnant teenagers in that country. [emphasis added]

So there we are. And none of this information is really new. The World Health Organization study being discussed in the articles above is from last year, but if you look you can find other studies by many other organizations going back more than a decade — probably a couple of decades — saying the same thing. Criminalizing abortion doesn’t stop it. Punishing women and their doctors doesn’t stop it. Nothing actually stops it — there have always been abortions, throughout human history — but rates can be dramatically reduced if sexually active people have easy access to contraceptives and actually use them. That’s a big reason why some portions of of western Europe (where abortion is legal) consistently have had the lowest abortion rates on the planet for many years — these places also have the highest rates of contraceptive use, including among teenagers.

So why are we still talking about this? Oh, I remember. Williamson and the rest of the Fetus People really just want to punish women.

Anyway — so the deal is, call off the zombies. Make abortion and contraceptives free as part of a taxpayer-funded national health service, and enable abortions to be performed in any hospital or doctor’s office. And then we can talk about lowering the gestational age, but not below 12 weeks. And then we’ll be just like France.

Update: From Scott Lemieux at Lawyers, Guns and Money:

OK, sure, let’s try France’s abortion regime! I’m glad to see Williamson endorsing free abortions being made available to women at any hospital, and making first trimester abortions unregulated!

We’ve been through this before on multiple occasions , but this move of abstracting one particular formal aspect of a European abortion law while ignoring the broader political and cultural context is useless and misleading argument. (Cf. also “Singapore uses private savings accounts!”) A 12-week limit obviously functions very differently in a country where free safe abortions are easily available and a country where many states are making it enormously difficult for many women to obtain abortions. And how often are women who ask for abortions after 12 weeks in France actually denied them?

I don’t know the answer to that last question, but a couple of weeks’ gestation are easy to fudge. And, of course, if abortion is a “homicide” at 13 weeks, why isn’t it one at 12 weeks? What has changed (nothing medically significant)? Seriously we could talk about an earlier gestational age for elective abortion than the current 23-24 weeks, but there’s no compromise that will satisfy the zombies. So there’s no point.

Stuck on Stupid on Steroids

The wingnuts are gloating because they think the Planned Parenthood shooter is a trans woman. Seriously.

Um, guys, did you look at his photo?

This came about because the Dumbest Man on the Internet® found Robert Dear’s voter registration and saw that the “female” box had been checked instead of “male.” This couldn’t possibly have been a careless mistake, of course. Or else he’s the biggest trans fail ever.

A herd of rightie bloggers are celebrating their giant gotcha. Ted Cruz called Dear a “transgendered leftist activist.”

That’s not all. You’ll love what Carly Fiorina, who has irresponsibly hyped such over-the-top lies that even the people creating the hoax “baby parts” videos couldn’t back her up, said today:

On the charge that anti-abortion rhetoric contributed to the shooting, Fiorina said, “This is so typical of the left to immediately begin demonizing a messenger because they don’t agree with the message.”

these people have no shame.

War on Women Update

Gail Collins on House Republicans versus Planned Parenthood:

The House Judiciary Committee has been investigating the matter with lawyerly precision, starting with a hearing titled: “Planned Parenthood Exposed: Examining the Horrific Abortion Practices at the Nation’s Largest Abortion Provider.” In a further effort to offer balance and perspective, the committee did not invite Planned Parenthood to testify.

(Coming soon: The House Committee on Energy and Commerce prepares to welcome Pope Francis with a hearing on “Papal Fallibility: Why He’s Totally, Completely and Utterly Off Base About Global Warming.”)

Yesterday the House voted, mostly on party lines, to defund Planned Parenthood. That was a move meant to mollify the Scorched Earth crowd, who are determined to force another government shutdown on the issue.

Republican leaders don’t want such a shutdown, possibly because a recent poll showed that 71 percent of Americans don’t want another shutdown over Planned Parenthood. Even a small majority of Republicans don’t want it. Government shutdowns are a well-trodden path to Loserville for Republicans. So the vote was supposed to let the fire-eaters vent by voting for a bill that won’t become law. Whether this will settle them down remains to be seen.

We should brace for an uptick in women’s health clinic violence, which will not be limited to abortion clinics:

A summer of increasingly hysterical rhetoric aimed at Planned Parenthood culminated over the weekend in what appears to be a terrorist attack on a clinic in a small town in Eastern Washington. At 3:30 a.m. on Friday, the Planned Parenthood of Pullman—subject to a huge protest recently—caught fire in what investigators are deeming an arson. The damage was extensive enough to close down the clinic for at least a month. A federal anti-terrorism task force has been called in to investigate.

Anti-abortion terrorism is nothing new, of course, but at this point, it’s worth asking if “anti-abortion” is too narrow a term. After all, the clinic in question did not offer abortion. Nor was the Aug. 22 protest at the clinic, which drew an estimated 500 people, really about abortion. The protesters, who were part of a nationally organized series of actions against Planned Parenthood, were demanding the end of funding for contraception and other nonabortion service

 They’re really against health care for women. Compare/contrast to the Taliban in Afghanistan awhile back, which infamously cut women off from health care by declaring women could not be examined by male doctors while banning female doctors from their practices. Pry this hysteria down to its root, and you’ll find fear and loathing of female sexuality.

One of the Right’s favorite fictions is that if funding were cut off from Planned Parenthood, all kinds of other health care providers would step up to replace them. Experience is not showing that to be true. Gail Collins again:

Jindal cut off $730,000 in Medicaid reimbursements to his state’s two Planned Parenthood clinics, even though neither offers abortion services. They do, however, provide thousands of women with health care, including screening for sexually transmitted infections — a terrible problem in some parts of the state.

No big deal. When the issue went to court, Jindal’s administration provided a list of more than 2,000 other places where Planned Parenthood’s patients could get care.

“It strikes me as extremely odd that you have a dermatologist, an audiologist, a dentist who are billing for family planning services,”responded the judge.

Whoops. It appeared that the list-makers had overestimated a tad, and the number of alternate providers was actually more like 29. None of which had the capacity to take on a flood of additional patients.

I liked this bit:

When Planned Parenthood leaves town, bad things follow. Ask the county in Indiana that drove out its clinic, which happened to be the only place in the area that offered H.I.V. testing. That was in 2013; in March the governor announced a “public health emergency” due to the spike in H.I.V. cases.

And the clincher:

Sara Rosenbaum, a professor of health law and policy at George Washington University, studied what happened when Texas blocked Planned Parenthood grants and tried to move the money to other providers. Even when there were other clinics in an area, she said, “they were overbooked with their own patients. What happened in Texas was the amount of family planning services dropped. And the next thing that happened, of course, was that unplanned pregnancies began to rise.”

At least, the American Taliban won’t put women in burqas. More likely they’ll mandate modest calico dresses and sunbonnets.