Following Up: Sense and Nonsense in the Abortion Debate

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abortion, abortion rights, birth control, Clarence Thomas, Constitution, contraception, Dobbs v. Jackson Women's Health Organization, Following Up, gay marriage, Ninth Amendmen, Planned Parenthood of Southeastern Pennsylvania v. Casey, privacy, Roe v. Wade, same-sex marriage, Samuel Alito, Supreme Court

Even by the standards of the shameful misinformation- and sheer ignorance-dominated era in which we live, the national abortion debate is noteworthy for the shameful misinformation and sheer ignorance it’s generated, So I thought it would be useful to provide some crucial correctives.

First, the 1973 Supreme Court Roe v. Wade ruling just overturned by six of today’s Justices did not create an absolute Constitutional right to an abortion. That majority opinion specifically stated that

“appellant [Jane Roe, the pseudonym of the pregnant woman who brought the case] and some amici [individuals and organizations that provided supportive “friends of the court” briefs] argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.”

The Roe majority added its agreement with prior federal and state court decisions that, although the right of privacy “is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.” .

Second, as a result, “codifying Roe” through Congressional legislation, as sought by many critics of the Court’s Dobbs v. Jackson [Mississippi] Women’s Health Organization ruling overturning Roe, would not create an absolute Constitutional right to an abortion, either. In fact, the specific legislation offered in the House and Senate would clash violently with both the Roe and the follow-on 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision by preventing the state or federal governments from imposing any limits on abortions “after fetal viability.” as long as “in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”

Third, whatever was contained in legislation establishing national abortion rights, an act of Congress could well wind up providing only the most short-lived of guarantees. For that law would be likely targeted for abolition as soon as anti-abortion politicians gained sufficient control of both Houses of Congress and/or the Presidency (depending of course on whether a majority achieving this goal was veto-proof). And if the Senate filibuster is ended – another goal of many abortion rights backers – scrapping an abortion rights law would be even easier.

Fourth, I wrote on Friday that a Constitutional right to privacy is essential for any political system like America’s that claims to value individual liberties, whether it’s explicitly mentioned in the U.S. Constitution or not. As with all legitimate rights, it can’t be absolute – because in principle and in real life, too many of these can come into conflict. But without an underlying right to privacy, no limits on government’s authority to control individual behavior would exist save those that are explicitly mentioned in the Constitution.

These are numerous and important (like freedom of expression and religion, the right to keep and bear arms, to be protected against unreasonable searches and seizures). And although it’s often overlooked, the Ninth Amendment holds that “certain rights” not enumerated in the Constitution must be “retained by the people.”

But the text of the Ninth Amendment offers no examples or guidance of any kind. And without an underlying right to privacy, it’s not the slightest bit difficult to understand that despite the assurance offered by the Dobbs majority, many other current individual liberties could be endangered. Nor is the evidence limited to Justice Clarence Thomas’ opinion concurring with the Dobbs ruling, which argued that with the right to privacy out of the way, Supreme Court rulings legalizing contraception, same sex marriages, and same sex relationships should be overturned with the same logic.

Even now, politicians in some states are moving to outlaw certain kinds of birth control devices. And it’s surely pertinent to note that Dobbs opinion author Justice Samuel Alito – who insisted that “It is hard to see where we could be clearer” in stating that the majority opposed equating the legalit of abortion and the legality the other forms of intimate behavior mentioned above – himself opposed the 2015 pro same-sex marriage decision using the exact same kinds of arguments he made in Dobbs. So I certainly think he could have been clearer.

But there’s another important reason to prize a right to privacy.  It has to do with the nature of constitutions themselves. Their whole point (unless they’re the phony kind concocted by dictatorships) is establishing limits on government. Why else bother with such exercises? And what set of limits on government is more crucial than those determining how it can and cannot treat private individuals’ behavior? 

These four aspects of the abortion rights debate certainly don’t exhaust the list of  falsehoods and plain old hare-brained ideas warping a controversy that’s otherwise entirely legitimate and necessary. But the sooner they’re recognized and cashiered, the likelier the nation will be to craft (or re-craft, as I’d put it, given my belief that Roe and Casey got the basics right) an abortion consensus behind which Americans can unify.  

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Im-Politic: An Immigration (and Assimilation) Tale

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assimilation, diversity, Im-Politic, Immigration, Open Borders, same-sex marriage, Somalia, tolerance, travel ban, Trump

I’ve long been wary of even using anecdotes in my writing – much less suggesting that they tell us anything useful about trends and developments worth writing about. But my conversation last night with a Somali-born cab driver in Washington, D.C. so strikingly reflected so many of my concerns about immigration and assimilation in America that I can’t help but describe it.

As regulars on this blog know, I’ve long been concerned with the nation’s recent failure to assimilate adequately huge cohorts of immigrants it’s welcomed from countries with dramatically different political, social, and cultural values and practices. As often noted by restrictionists on the political right in particular, many of these newcomers are arriving from societies that either don’t acknowledge or that actively reject the goals of diversity, tolerance, and gender equality that inevitably form much of the framework of the democracy we all cherish.

Today, I won’t be arguing about how these values should or shouldn’t be balanced against other important bases of a free society, but simply relaying the details of last night’s discussion of these matters with my cabbie. Because unless his views are unique in the recent immigrant community, they strongly back the claim that current immigration policies have greatly increased the number of inhabitants of this country who either know nothing of its major organizing principles, or don’t believe them. This fellow’s opinions also indicate that proposals to admit even more immigrants from regions like Latin America and the Middle East, or to legalize those here illegally and thus inevitably attract even bigger numbers, will further magnify the problem.

My ride started uneventfully enough as we pulled out of Union Station in D.C. and I looked forward to getting home after a long day doing business in New York. But soon after I recommended the best route to my neighborhood and he ended a brief phone call, he announced suddenly, “Well, because of this fellow Trump, I’ve decided I’m going home” – which turns out to be Somalia. “Trump just said he doesn’t like Somalia.” I’m sure he was referring to the president’s inclusion of Somalia in his travel ban proposals, but I didn’t want to get into a debate about that (i.e., Somalia’s longstanding lack of a government strong enough to enable satisfactory vetting). And I didn’t want to come right out and ask him if his presence here is legal (in which case, he would have no legitimate fears of any Trump-ian immigration policies). So I just replied that “If your status is OK, then there shouldn’t be a problem.”

We made some non-political small talk for the next few minutes and then out of the blue, he asked me, “What about this man together with man?” After a few moments, I realized that he was talking about same sex marriage. I told him that Americans apparently have decided that such marriages are acceptable – and that this conclusion held for women as well. He expressed surprise that “This just faded from the news” and I responded that it seems to have become very quickly and very widely accepted – save for some regions (like the South) and for many traditionally minded Americans elsewhere. The cab driver repeated his surprise that “All of a sudden, nobody talks about this any more” and I added that the change had indeed been both rapid and dramatic in recent years. Even former President Obama, I observed, had opposed same sex marriage ten years ago.

I added that what’s been more controversial has been the issue of whether Americans’ biological gender or gender identity should determine which restrooms they can access. His reaction was complete disbelief, and I confirmed that the situation is novel and puzzling even to many who broadly accept equal gay and lesbian rights. But I ventured that this debate, too, will likely be decided in favor of chosen gender identity, largely because so many large businesses believe that public opinion has sided with change.

We spent much of the rest of the conversation discussing where he should go if he decides to leave the country. His preference seems to be returning to Somalia, but I suggested that places like Canada and Australia are safer, more promising economically, and overall more welcoming to immigrants than the United States seems at present (after repeating that no one with “the right status” needs to leave the country).

Again, this is only an anecdote. Last night’s cab driver is only a single individual. I didn’t explore other such issues with him (or he with me). As suggested above, obviously many native-born Americans hold socially conservative positions that are as strong or even stronger. More important, I’m sure there are immigrants from these regions that either came here believing in these American-style values.

But the cab driver clearly had been here for quite a few years. It’s reasonable to suppose that his views on, for example, women’s role in society and in families is just as increasingly out of the mainstream as on same sex issues – and perhaps even more dangerously backward. It’s also certain that no systematic effort has been made to introduce him to more inclusive and egalitarian thinking. And it’s just as certain that the numbers of those utterly unfamiliar with or repelled by a critical mass of the civic religion that’s evolved in America – and that continues to evolve – will keep mushrooming unless the blithely come-one-come-all immigration and (non-) assimilation policies of recent decades are reversed.

The greatest irony, of course, is that the more America’s social and cultural identity is reshaped by these newcomers, the further it will move from the kinds of tolerance so dear to so much of the left wing of the Open Borders crowd. How much longer before they recognize that (1) everyone indeed is capable of becoming an American in the only sense that reflects the best of this nation’s history – and that’s still broadly enough supported to justify optimism about its fate; but that (2) to achieve this form of (fundamentally tolerant) assimilation, it’s still necessary to try.

Im-Politic: New Survey Shows Surprising Areas of National Consensus

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abortion, American Values Survey, blacks, China, Democrats, Donald Trump, equal opportunity, family leave, Hispanics, illegal immigration, Im-Politic, Immigration, independents, inequality, Islam, minimum wage, multinational corporations, Muslims, offshoring, parental leave, police killings, polls, Public religious Research Institute, race relations, regulations, Republicans, same-sex marriage, Trade, whites

Just when you think you’re getting a handle on the American public’s mood in these raucous political and social times, along comes some polling data that rock your world. And I’m pleased to report that, in the case of the new American Values Survey published by the Public Religion Research Institute (PRII), the net results strike me as encouraging as they are surprising. Specifically, they indicate that the U.S. public is much less divided on many hot button social and cultural issues than politicians and the national media coverage have been indicating. In fact, the findings of this November survey suggest the gathering of a common sense consensus on these supposedly bitterly divisive matters.

The unexpected areas of agreement start with a subject close to the leading headline-maker of the day – Republican presidential front-runner Donald Trump’s call for a temporary ban on travel by all non-citizen Muslims into the United States. It’s too early for a poll on this specific proposal. But I found it instructive that, according to the PRII, Americans agree by a 56 percent to 41 percent margin that “the values of Islam are at odds with American values and way of life.” In 2011, only 47 percent agreed and 48 percent disagreed.

Moreover, although breaking the results down by political leanings produces differences, even 43 percent of Democrats share these suspicions of Islam. For Republican and independents, the figures are 76 percent and 57 percent, respectively.

The survey shows an even split on the question of whether immigrants “strengthen the country because of their hard work and talents” (47 percent agreed) or “constitute a burden on the U.S. because they take jobs, housing, and health care” (46 percent). But only last year, the “strengthen” option won out by 57 percent to 35 percent. The partisan gap is indeed wide, with 63 percent of Republicans holding such negative views of immigrants and 66 percent disagreeing. But 32 percent of Democrats were focused on immigrant-created economic burdens as well.

Even more suggestive of consensus on this issue, though, are the results for a slightly different question. Fully 45 percent of Democrats agreed that “illegal immigrants are at least somewhat responsible for America’s current economic woes” (as well as 70 percent of Republicans and 53 percent of independents). And check out the racial split: Majorities of white and black Americans (58 percent and 52 percent, respectively) told held illegal immigrants “at least somewhat responsible” for the nation’s economic troubles – along with 40 percent of Hispanic Americans. For good measure, so do 44 percent of the white and college-educated, who often benefit from low-wage illegal immigrant labor.

The PRII survey will scarcely comfort President Obama, Congress’ Republican leadership, or the multinational corporations who all support America’s current trade policies. Breakdowns were not provided, but 86 percent of Americans hold “corporations moving American jobs overseas…somewhat or very responsible for the present economic troubles facing the U.S.” That’s up from 74 percent in 2012. “China’s unfair trade practices” were cited by 73 percent. Not surprisingly, 72 percent of Americans believe the country is still in a recession, a figure that’s remained pretty steady 2012. Keep in mind that the current recovery began, at least technically, in mid-2009.

Large majorities also believed that “the current economic system is heavily tilted in favor of the wealthy” (79 percent); that lack of equal opportunity in America is a “big problem” (65 percent); and that “hard work is no guarantee of success” (64 percent – including 52 percent of Republicans).

And these majorities extended to numerous economic policies. Just over three-quarters of all Americans favor increasing the minimum wage to $10.10 per hour (including 60 percent of Republicans). Eighty five percent support paid sick leave and 82 percent back paid parental leave. And although no questions were asked about desired regulatory policy changes, 69 percent of respondents blamed “burdensome government regulations” for at least some of the nation’s economic predicament.

Signs of common ground were also evident on domestic social issues that are thought to be highly polarizing. For example, relatively few Democrats (36 percent) or Republicans (43 percent) considered abortion important to them “personally.” And the partisan split on same-sex marriage was smaller, and at lower levels of salience – 28 percent for Democrats and 29 percent for Republicans.

Big divides remained on numerous issues, to be sure – like confidence in the federal government, and a $15 minimum wage (lots of Republicans climb off that boat), and police treatment of minorities. Interestingly, in this vein, minority Americans are significantly more optimistic than whites that “America’s best days are ahead of us.”

But it’s hard to finish this latest American Values Survey feeling deeply pessimistic that the nation can’t overcome its differences and create that better future. In fact, one of my biggest reasons for hopefulness is the following finding: “Nearly two-thirds (66%) of the public agrees that, ‘everyday Americans understand what the government should do better than the so-called ‘experts.’ There is broad agreement across racial, generational, and partisan lines.”

Im-Politic: Marriage Equality and the Constitution

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10th Amendment, Constitution, equal protection, gay marriage, Im-Politic, marriage equality, Reserve Clause, same-sex marriage, states' rights, Supreme Court

Yesterday, one of my Facebook friends wrote a detailed response to my post on the Supreme Court’s marriage equality decision that focused on some of the main Constitutional issues raised. I just replied on Facebook and then realized that it’s a subject worthy of a follow-on piece.

My critic made the following arguments:

“Whether or not a judicial decree brings temporary delight to one group or another is not an adequate criterion for supporting the action. While many do not see what is behind the curtain, the real issue involves the relationship between government and the governed. The Supreme Court has taken it upon itself to bring an end to self-government, and the sovereignty of the states in one rogue action. The Constitution grants to no part of the Federal Government any power to redefine marriage as understood for thousands of years. Worse yet, many of the state laws were supported via referendums. 

“The Supreme Court has fashioned itself to be a politburo. Now we will see if any part of government or society has the gumption to tell them to go jump in a lake.”

Here’s my position:

“Without trying to put words in your mouth, it sounds like you’re making the states’ rights argument. As I mentioned in my post, I’m not a lawyer, and its thrust was not Constitutional. But obviously, the issue is critical, so here’s why I find this objection weak.

“First, the states are manifestly not sovereign political entities. They are members of a political union whose supreme law is a federal Constitution. The sine qua non of sovereignty is the absence of any higher recognized authority. Second, what is legitimately left of the states right issue flows from the Constitution’s reserve clause, the popular name for the 10th Amendment. It holds ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’

“This amendment has been long and heatedly debated. But there can be no doubt that it does not say that everything not included among the federal government’s responsibilities is automatically and for all time the purview of the states. And it certainly doesn’t specify that the regulation of marriage is some special province of the states – or any level of government. What it does specify is that any powers assumed by the states need to conform to provisions of the Constitution.

“One of these, of course, is equal protection under the law. So whether marriage regulation is an eternal right of the states or not (and again, I see nothing in the Constitution indicating this), there is no legitimate basis for arguing that marriage can be regulated in ways that discriminate on the basis of sexual preference.

“And as for the referenda point, “the people” don’t have the right to put in place policies that violate Constitutional norms, either. Regarding your point about longstanding notions of marriage, my post did point out that for thousands of years before current traditional marriage emerged, the institution took many different forms. And since no one has a crystal ball revealing what it will look like in the far future, what’s the case for making policy or law or interpreting the Constitution based on traditional marriage’s continued durability?

“Finally, as I made clear at the start of the post, I believe current traditional marriage is the best from the crucial child-rearing standpoint (all else equal, which it rarely is). But as I also made clear, policy-making can’t be about my own individual preference, or anyone else’s. And that goes double for interpreting the Constitution.”

Since I’m hardly the last word on these matters, I’ll be eager to see what further discussion these posts generate.  But a national right to marriage equality has now been established, and to me it looks solidly grounded not only in good – and necessary – public policymaking principles, but in good – and necessary – Constitutional interpretation.

Im-Politic: Why the Court Got Marriage Equality Right

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Christianity, gay marriage, Im-Politic, Judeo-Christian values, marriage, marriage equality, New Testament, Old Testament, same-sex marriage, Supreme Court

I’m not a lawyer, and I’m enough of an oldish fogey to harbor lingering beliefs (prejudices?) that the best formula for child-rearing, all else equal (and that’s a really big qualifier in this instance), is a heterosexual “traditional” marriage. But the marriage equality issue is not about my own individual preferences and hunches – or anyone else’s. More important, the more I think about the issue, the clearer it becomes that what should trump all other aspects of the marriage equality issue that the Supreme Court largely settled yesterday is a consideration that seems largely overlooked.

As made stunningly clear by the reactions of marriage equality supporters, and particularly those in the LGBT population, the Court has just provided the nation with a terrific yardstick for judging public policy: Any government decision that makes this many people so thoroughly overjoyed for all the right reasons boasts a powerful claim to be the law of the land.

This isn’t an argument for authorizing government at any level to satisfy the desires of every individual or group, no matter how numerous or large, whenever political or social or cultural or economic forces line up in their favor. Much less is it an argument for any overriding human right to happiness. It is instead an argument to appreciate the form of happiness the Court has just made possible.

It’s not happiness at the expense of the material possessions or rights of any individuals or groups. It’s not happiness that directly or intrinsically denigrates or insults anyone or any collective or institution. It’s not happiness that rewards hatred or selfishness or shortsightedness or hatred or jealousy or lust or greed or any other sins, deadly or otherwise, that I can think of, on the individual or group level.

Yes, there’s a case that it validates selfishness and shortsightedness – in the sense that it threatens a vital underpinning of any successful (and ultimately, enduringly happy) society. It’s not a case that should be dismissed out of hand, either. But it’s imperative to recognize that it’s a case based on nothing more than speculation. And any intellectually honest invocation of this future possibility must also recognize that the evidence of an outbreak of moral and social decay tied to the legalization of marriage equality where it had hitherto been established is pretty meager, if it exists at all. Such evidence is similarly threadbare at best in those U.S. states where same sex couples have existed for many years even though lacking the new rights and protections created yesterday.

Moreover, on the other side of this ledger must be placed the virtues that the Supreme Court decision reinforces, that the favorable popular reactions celebrate, that exist in the here and now, and that are surely not passing fancies – like love, and strong, stable families, not to mention liberty, equality, and dignity.  In other words, the kind of happiness created by the marriage equality decision is the kind we could use a lot more of.

More specific, and more easily addressed, is the claim that Judeo-Christian values undergirded America’s founding and remain its essential moral lodestars. I actually agree, contrary to libertarian thought, that any successful and decent society, even one that (rightly) prioritizes individual liberty, needs a shared (though necessarily general, given this nation’s size and diversity) moral consensus. And though they aren’t perfect, the evidence abounds that Judeo-Christian values have been an excellent choice. Looking around the world, I don’t seem too many societies not based on these beliefs where I’d like to live.

But it should be abundantly clear by now that the ancient Old and New Testaments have been much better at identifying worthy, and indeed transcendent, guides for individual behavior than at identifying which political and social institutions should be created and maintained. Nor should anyone be surprised. Their teachings originated at a time when democracy or any form of popularly accountable government was barely known, where slavery was common, and where polygamy was often the norm. Indeed, many leading Old Testament figures were polygamists and slaveholders. That’s not the case with the New Testament. But no offense intended to my Christian friends, that isn’t the only Testament, it’s not mine, and it deserves no official status in this country.

Interestingly, I just came across an evangelical website that tries to explain and justify the above Old Testament feature by arguing that all of its bigamists and polygamist ran into some form of major trouble, or their descendants did. Therefore, the Lord clearly disapproved. But here’s what certainly much more important: None of these figures was consigned to damnation or any form of eternal punishment, or even vilification because of how their marriages were structured. Indeed, in my Sunday school classes, they were treated as honorable patriarchs who (of course) displayed some entirely human failings. Why don’t Americans today who also choose to form non-traditional marriages deserve the same tolerance and understanding?

Indeed, that point made by the website, and the Old Testament, about complications, is worth keeping in mind by all sides of the marriage equality debate. There will inevitably be complications, unforeseen consequences, and even counterproductive results. Broad social and economic change tends to work that way. The above interpretation of the Old Testament suggests that the Creator recognized that, and even so was more than willing to continue the story of humanity, and of these individuals.

This Divine decision in fact strongly reminds of a leading view of justice – as involving a weighing of the scales. This concept, which is surely on target, inherently holds that for the most part, an admirable system of justice doesn’t, and perhaps can’t, seek verdicts that achieve perfect results. Instead, it seeks results in which the good achieved exceeds the problems created. The jubilation touched off by the Supreme Court’s marriage equality decision, and the lack of visible, remotely comparable downsides, adds up to compelling evidence that the Justices in the majority got this balancing act right.