Category Archives: Supreme Court

Truth Hurts

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A case study in rightie “logic” — Captain Ed writes that “Alito blew Chuck Schumer out of the water on abortion.” Here is the section of Senator Schumer’s questioning to which the Captain refers.

SCHUMER: Does the Constitution protect the right to free speech?

ALITO: Certainly it does. That’s in the First Amendment.

SCHUMER: So why can’t you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?

ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can’t be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.

SCHUMER: Well, OK. I know you’re not going to answer the question. I didn’t expect really that you would, although I think it would be important that you would. I think it’s part of your obligation to us that you do, particularly that you stated it once before so any idea that you’re approaching this totally fresh without any inclination or bias goes by the way side.

But I do have to tell you, Judge, you’re refusal I find troubling. And it’s sort as if I asked a friend of mine 20 years ago — a friend of mine 20 years ago said to me, he said, you know, I really can’t stand my mother-in-law. And a few weeks ago I saw him and I said, “Do you still hate your mother-in-law?”

He said, “Well, I’m now married to her daughter for 21 years, not one year.”

I said, “No, no, no. Do you still hate your mother-in-law?”

And he said, “I can’t really comment.”

What do you think I’d think?

ALITO: Senator, I think…

SCHUMER: Let me just move on.

Just who blew whom out of the water? I think your answer depends on your values. If you value honesty; if you value liberty; if you value the principle that We, the People, rule this country — Schumer wins. If, instead, you value raw power and winning at any cost — Alito wins.

It’s obvious to everyone on both sides — although not to most reporters — that Alito is evading questions. There is only one reason he couldn’t give Senator Schumer a yes or no answer — he doesn’t want the Senate, and the nation, to know what he really thinks. Certainly a nominee shouldn’t answer questions about cases that might come before the bench. But let’s look at how Ruth Bader Ginsburg handled similiar questions [PDF]:


Senator Leahy [D-Vt.]: Senator Metzenbaum had asked you whether the right to choose is a fundamental right. Is there a constitutional right to privacy?

Judge Ginsburg: There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the fourth amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone.

The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life’s course. Yes, I think that what has been placed under the label privacy is a constitutional right that has those two elements, the right to be let alone and the right to make decisions about one’s life course.

….

Judge Ginsburg: [Y]ou asked me about my thinking on equal protection versus individual autonomy. My answer is that both are implicated. The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.

Now, is there any question about what Ruth Bader Ginsburg thought about a woman’s right to choose an abortion? On the other hand, all we get out of Alito is, in effect, It depends on how you interpret the Constitution, but I have an open mind.

Sure you do, son. And I’m Queen Victoria.

The PDF document I cite above as a reference to Ginsburg contains more quotes relating to the infamous Casey v. Planned Parenthood decision, in which Judge Alito played a part. If you compare Ginsburg’s views on Casey to Alito’s, it is obvious that their ideas on what “privacy” actually means — indeed, on what liberty and personal autonomy actually are — are worlds apart. Alito may say he supports a “right to privacy,” but clearly there should be big, prominent warning labels on that assertion — restrictions may apply; void where prohibited.

I’ve written in the past that, IMO, the notion the Constitution does not protect a right to privacy (because, you know, the word privacy just isn’t in there anywhere) misses the whole meaning and purpose of the American Revolution and Bill of Rights —

… the Constitution recognizes all kinds of rights to be “left alone by the government.” Roe v. Wade argues that the First, Fourth, Fifth, Ninth, and Fourteenth Amendments put together protect a right to personal privacy, and that this right had already been recognized by many prior decisions. I’ll paste a part of the Roe decision explaining this at the end of this post.

But for the moment let’s step away from examining clauses under a microscope and look at the bigger issue of political liberty. The whole point of it, and the raison d’etre of the Bill of Rights, is the notion (revolutionary in the 18th century) that citizens of the U.S. were not subjects whose lives and property could be messed with on the capricious whims of the sovereign. The underlying philosophy of our government is that citizens are to be free of interference by government unless government has a compelling reason to countermand the free will of citizens. And even then, government must jump through various hoops–the due process of law thing–before requiring a citizen to do something he or she does not want to do.

You know how it is with righties — they like to talk about freedom, but really, to them, freedom’s just another word. And it’s a word that applies only to them and their agenda. They don’t mean for the rest of us to have it.

Update: See Scott at Lawyers, Guns and Money.

While They Were Sleeping

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The meta-message about Alito seeping through to news consumers is, I’m afraid, that he’s not so bad. Even the usually sharp Keith Olbermann made Alito out to be a moderate who wouldn’t really do all those nasty things people say he might do, like reverse Roe. That memo from 1985 was just something he said to get a job. Now, he says he is “keeping an open mind.”

What the hell does that mean, keeping an open mind? Notice that he hasn’t once said he supports Roe, just that he has an “open mind” about it. I’m told Clarence Thomas said the same thing in his hearings. An “open mind” can be open to the return of the coathanger, people.

Dan Abrams called the hearings “boring.” Is boring the effect the Republicans are going for? (How extreme can Alito be, if he’s boring? How can anyone that mundane be dangerous?)

The word for today, boys and girls, is stealthy: “Marked by or acting with quiet, caution, and secrecy intended to avoid notice.” Yeah, ol’ Sam is a real cautious guy. He and his “open mind” are tip-toeing right past the snoozers.

I am not encouraged. I haven’t watched the hearings first-hand, but the real fight isn’t in the Senate. It’s in the media. And our side is losing. Alito, a mild-mannered dweeb, carefully says what everyone wants to hear, and carefully avoids being pinned down on anything substantive. Journalists dutifully report on the packaging but aren’t looking real hard at the product.

This is the way America ends: not with a bang but a snore.

Some on the Left Blogosphere want to wake people up by comparing Alito to Robert Bork. Hello? This won’t mean anything to anyone but us liberal politics junkies. Your standard not-all-that-interested citizen probably barely remembers who Robert Bork is. And Bork got borked not because of any brilliant maneuvering by the Dems, IMO, but because Bork was an arrogant prick who pissed off the wrong people. Although in fact Bork and Alito may cling to the same twig of the ideological family tree, the lessons of Bork do not apply to Alito.

Personally, I think the only hope we have is if the Dems learn some message discipline overnight (well, a miracle may occur) and march around tomorrow with one word on their lips: credibility. Alito is not being upfront about his opinions. He has fudged answers about past ethical lapses. And the nominee of a president under suspicion for misuse of power had damn well better get his feet held to the fire about his opinions on presidential power. So far, his answers sound alarmingly like John Yoo’s.

Sorry if I sound discouraged. And why is it I keep hearing the Wicked Witch of the West in my head?

And now, my beauties! Something with poison in it, I think. With poison in it, but attractive to the eye — and soothing to the smell! (laughs)

Poppies! Poppies! Poppies!

On a more upbeat note — word is that Senator Schumer’s questioning was particularly good, so I copied it from the transcript and pasted it beneath the fold. Enjoy. Continue reading →

Effing Sam Alito

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Righties have a remarkable capacity for bullshitting themselves, which is why some of them may actually believe Sam Alito doesn’t have an “agenda.” After all, returning women to the same legal status as dependent children is only doing what nature and the Founding Fathers intended, isn’t it?

Last night on cable TV various spokespersons for the Right — such as former Solicitor General Ted Olson on Hardball — mustered their best authoritative tones to declare that ol’ Sam could be counted on to rule on the law, not on his personal opinions.

And what is the law? Whatever the Bush Administration says it is, of course. Perry Bacon and Mike Allen wrote for CNN.com:

[Alito] was part of the Litigation Strategy Working Group, a team of about a dozen officials that Attorney General Edwin Meese appointed to help embed Reagan’s philosophy more deeply into the legal system. In a 1986 memo to the group, Alito proposed to have Reagan issue “signing statements,” defining exactly how the President understood a law’s meaning, when he approved a bill that Congress had passed. Reagan issued such statements occasionally, but the Bush Administration has dramatically expanded their use. In one issued two weeks ago, which infuriated both Democrats and Republicans, Bush suggested he would reconsider a recently passed torture ban if he felt there was an imminent national-security threat.

We’ve also been reassured that Alito is a man who respects precedent. As an appellate judge he even ruled against abortion restrictions because of precedent. And that’s true. In Planned Parenthood of Central New Jersey v. Farmer, where he sided with Planned Parenthood: “Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent.” But that doesn’t tell us what he’ll do when he’s not on a “lower court,” does it?

So let’s just say I’m not reassured.

Dahlia Lithwick provides yesterday’s game highlights at Slate:

There aren’t a lot of other surprises today: Republicans go on and on about how easy it is for judges to know what “the law” is and what “the Constitution” requires, while Democrats rave about the centrist pragmatism of Sandra Day O’Connor. Not one Democrat on the committee, by my count, misses a chance to quote her “blank check” line from the Hamdi opinion. Senators Sam Brownback, R-Kan., and Tom Coburn, R-Okla., stage a little abortion-off, in which each fights to become the Most Pro-Life Man in the World (for anyone scoring at home, Coburn does not actually cry this time, but he does sniffle audibly). Frank Lautenberg, D-N.J., agrees to introduce Alito, which he does graciously, but then stops short of endorsing him. Democrats fret about executive power in wartime, while Republicans are seemingly too worried about the threat of the Imperial Court to be bothered by the reality of an Imperial Presidency.

For liberals, there is no question that Alito should not be confirmed. But we are faced with two other questions: Can we stop the nomination, and if so, how far should we go to stop it?

Jane Hamsher answers question one with a big yes.

Strip Search Sammy is an altogether different beast than John Roberts, and his hearing comes at quite a different time. The public is starting to get their first tastes of the corruption scandal growing like a cancer on the Republican party who are vulnerable just at the time they are the most visible. Despite his bluster, John Cornyn is rightly terrified that the free pass given him by the press in the Abramoff matter will end any day now. He’s not the only one. There is considerable cover for an attack that didn’t exist only months ago.

And Alito himself is personally unappealing. Stiff, humorless, and comes off as a bit of a weirdo. People like Ron Wyden were afraid to go after Roberts because he was likeable, and Joe Biden learned to his peril that shredding the “nice guy” is the wrong place to try and make your bones. There is an opening for Democrats to capitalize on this as they try to tie unpopular Bush measures like the illegal NSA wiretaps to Alito’s tail like a tin can.

And the RNC knows it. Ken Mehlman himself is meeting today with Malkin, Hugh Hewitt, Cap’n Ed, Red State, Political Teen and others to try and control the quite critical message in the blogosphere, and seeding the notion of inevitable failure into the opposition narrative is one of the tricks that plays well for the GOP.

Is the DNC meeting with leftie bloggers? If so, I’m not on the invitation list. But let’s go on … Eleanor Clift argued in November that Democrats should not go to the mattresses over Alito:

Democrats should mount a tough fight and expose Alito and his conservative cheerleaders so the voters know what they’re getting. Highlight the ruling where Alito said Congress has no power to regulate machine guns under the commerce clause of the Constitution. Play the abortion card–but stop short of a filibuster. With President George W. Bush’s approval rating at 35 percent in the latest CBS poll, Democrats have finally sprung to life. That’s a good thing, but a bruising battle over cultural issues is better for Bush than for the Democrats. Rather than risk the filibuster in an unwinnable fight over Alito, Democrats should save it for when and if that awful day arrives when the most liberal member of the court, John Paul Stevens, 85, steps down while Bush is still president.

In other words, Clift calls for a strategic redeployment. One does wonder how bad a nominee has to be before we take a stand, though. We’re gonna redeploy our butts off a cliff one of these days. And what about the F word — filibuster? Via Scott at Lawyers, Guns and Money, Matt Yglesias has switched sides and is arguing against a filibuster. Sam Rosenfeld at TAPPED sounds discouraged:

[I]t’s hard to shake a sense of fatalism here. To state the obvious, the political scene in the last few months has been unusually packed with other issues that have prevented any kind of serious anti-Alito momentum from gathering real head-steam. Democrats clearly feel that they are enjoying quite a bit of momentum at the moment on a number of other fronts and are reluctant to risk losing it in an uphill nomination fight that could merely polarize partisans along familiar and not-particularly-beneficial lines. This isn’t the bravest kind of tactical logic — and of course pointing to the “lack of momentum” in one fight or the other is always a circular way of rationalizing not working to build that momentum — but I still find it pretty compelling. That’s because the Supreme Court “fights” we’ve seen so far in the last half year have already revealed the basic mistake of the longstanding conventional wisdom that post-Breyer nomination fights would inevitably be gonzo partisan battle royals. In fact, we’ve relearned that the presidency enjoys an immense degree of built-in advantage and deference on nominations that makes effective opposition prohibitively difficult, except under very rare circumstances. (This is all particularly true when the opposition party is the minority in the Senate.)

Moreover, the constant refrain that “it all comes down to the hearings” and that the whole dynamic of the fight might change this week seems delusional. The Roberts hearings should have made it abundantly clear that the most disgraceful amount of obfuscation and unjustifiable dodging in no way endangers a nominee’s prospects for confirmation. Roberts’ performance sparked unanimous Democratic grumbling about his giving short shrift to the Senate’s role in the process — and then a bunch of Democrats voted for him. Just because the logic compelling Alito to be forthcoming is even more air-tight and unanswerable doesn’t mean he will, in fact, be forthcoming. Democrats are unlikely to find it a politically compelling proposition to mount a filibuster mainly on procedural grounds, but without that threat there’s no leverage to get Alito to actually say anything.

I’ve heard suggestions that the Bushies want a tough fight against Alito, because it would take attention away from Jack Abramoff and the NSA scandal. On the other hand, the NSA scandal is very much part of why Alito is a frighteningly bad candidate for the SCOTUS. Alito should be compelled to express an opinion on Bush’s “war powers” and whether the 4th Amendment still applies. And I say the Dems should filibuster his ass until he does.

Finally, if the Dems need some new talking points, they should consult the Blogosphere. Via Kos, Michael at AMERICAblog has come up with a dandy:

He is apparently ashamed of everything he’s ever done. Alito boasted on an application for promotion in the Reagan administration about belonging to the racist, Neanderthal-ish Concerned Alumni For Princeton. Now he pretends he can’t remember ever belonging to them at all.

Alito said he wanted to become a lawyer because he was so distraught about Supreme Court rulings that led to “one person, one vote,” a cornerstone of our modern democracy. Now, he says we should ignore his consistent, persistent attacks on affirmative action.

Alito also cannily helped to devise the incremental approach to dismantling Roe v Wade that has been the very tactic the far right has used. Now Alito says to ignore all that.

Alito has repeatedly proven he believes the president is more like an emperor — someone who deserves almost unlimited deference from the Supreme Court, especially during a time of war.

Finally, Alito pledged to the Senate that he would recuse himself under certain situations as a federal judge. He repeatedly broke that pledge. His excuses vary: he forgot, the computers shouldn’t have assigned him those cases in the first place, he never HAD to recuse himself, and finally he never promised he would recuse himself forever. The reasons change, but the fact remains: Alito gave his word and then he broke it. He can’t be trusted.

Since Alito is so clearly ashamed of himself, shouldn’t we be ashamed of him and keep him off the Supreme Court?

Last night on Hardball, the guest-hosting Norah O’Donnell kept trying to get a rightie guest to admit that Alito would turn the court to the Right; I don’t believe she got a straight answer from any of them. What are righties ashamed of (like we don’t know)?

Update: Glenn Greenwald says Dems must filibuster!

Update update: Don’t miss “Bush Wired for Alito Remarks” at Democrats.com!!!

Control

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The New York Times catches on to something I’ve been saying for a while:

For proof that criminalizing abortion doesn’t reduce abortion rates and only endangers the lives of women, consider Latin America. In most of the region, abortions are a crime, but the abortion rate is far higher than in Western Europe or the United States. Colombia – where abortion is illegal even if a woman’s life is in danger – averages more than one abortion per woman over all of her fertile years. In Peru, the average is nearly two abortions per woman over the course of her reproductive years.

In all of our endless fighting over abortion law, one never hears the simple fact that making abortion illegal doesn’t stop it. Indeed, as I argued in this post, we don’t know for sure if the rate of abortions in the U.S. is higher now than it was pre-Roe. Estimates of the number of abortions performed in the U.S. in the 1950s and 1960s put the number as high as 1.2 million per year. That’s the same approximate number of abortions performed annually in the United States right now, and in a larger population.

Studies of contraceptive practices in several nations before and after legalization reveal no indication that abortion replaces contraceptive use, as some anti-privacy activists claim. On the other hand, there is copious data that shows making contraceptives easily (and legally) available does lower abortion rates. (See “Sharing Responsibility: Women, Society & Abortion Worldwide” [Alan Guttmacher, 1999, PDF].)

The New York Times editorial continues [emphasis added],

In a region where there is little sex education and social taboos keep unmarried women from seeking contraception, criminalizing abortion has not made it rare, only dangerous. Rich women can go to private doctors. The rest rely on quacks or amateurs or do it themselves. Up to 5,000 women die each year from abortions in Latin America, and hundreds of thousands more are hospitalized.

According to the Center for Disease Control, in the U.S. 14 women died as a result of complications from known legal induced abortion in 1998 and 1999. The mortality rate related to abortion in the U.S. is <1 death per 100,000 abortions. This is a much lower mortality rate than for pregnancy — in 1999, says the CDC, there were 12 deaths resulting from pregnancy per 100,000 live births.

Every time news media carries a story about an American woman dying after an abortion you can count on the anti-privacy army to march forth screaming that abortions are medically risky and must be banned. This, of course, would make abortion a whole lot more risky, but try to explain that to the Fetus People. Just try. It’s like explaining algebra to spinach.

Back to the New York Times editorial:

Latin American women, who are increasing their participation in the work force and in politics, have also become more vocal. Their voice would be much louder were it not for the Bush administration’s global gag rule, which bans any family planning group that gets American money from speaking about abortions, or even criticizing unsafe illegal abortions. This has silenced such respected and influential groups as Profamilia in Colombia. Anti-abortion lawmakers in Washington can look at Latin America as a place where the global gag rule has worked exactly as they had hoped. All Americans can look at Latin America to see unnecessary deaths and injuries from unsafe abortions.

You aren’t going to budge the anti-abortion lawmakers with sordid tales of maternal mortality, of course, because they don’t care if women die. It’s more important to control women’s behavior and punish them for being sexual than to care about their health and well-being. But the majority of Americans favor keeping abortion legal. And making abortion illegal doesn’t stop it. So, one might ask — what are we arguing about, again?

Here’s what we’re arguing about:

Next week the SCOTUS confirmation hearings for Sam Alito will begin. NARAL is sending out a fact sheet on Alito and birth control saying that Alito considers some birth control methods — such as birth control pills, the contraceptive ring, the IUD (intrauterine device), and the birth control patch — to be “abortifacient” rather than contraceptive. He has also argued in favor of requiring women seeking abortions to be given misleading and counter-factual anti-reproductive-rights propaganda. Alito “appears to question the competence of women to make their own choices,” the fact sheet says. “Alito urges that the state become the moral guide of the woman facing a crisis pregnancy, that the bedrock principle of informed consent be twisted beyond all recognition into a political instrument.”

Alito is one more right-wing control freak who doesn’t trust you to live your own life. It’s not about babies (states with the most restrictive abortion laws tend to have higher infant mortality rates than more liberal states). It’s not about women’s health. It’s not about conscience. It’s about control.

Why We Fight (Alito)

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Latin America holds some of the world’s most stringent abortion laws, yet it still has the developing world’s highest rate of abortions – a rate that is far higher even than in Western Europe, where abortion is widely and legally available. [Juan Forero, “Push to Loosen Abortion Laws in Latin America ,” The New York Times, December 3, 2005]

Usually left out of our endless abortion debates is the simple fact that making abortion illegal doesn’t stop it. Making abortion illegal only drives it underground, where it is unregulated.

Forero of the New York Times continues,

Regional health officials increasingly argue that tough laws have done little to slow abortions. The rate of abortions in Latin America is 37 per 1,000 women of childbearing age, the highest outside Eastern Europe, according to United Nations figures. Four million abortions, most of them illegal, take place in Latin America annually, the United Nations reports, and up to 5,000 women are believed to die each year from complications from abortions.

According to the Alan Guttmacher Institute,

Belgium, the Netherlands, Germany and Switzerland have abortion rates below 10 per 1,000 women of reproductive age; in all other countries of Western Europe and in the United States and Canada, rates are 10-23 per 1,000.

Romania, Cuba and Vietnam have the highest reported abortion rates in the world (78-83 abortions per 1,000 women). Rates are also above 50 per 1,000 in Chile and Peru.

Abortion is legal (with varying gestational limits) in Belgium, the Netherlands, Germany, Switzerland, Romania, Cuba, and Vietnam. It is banned in Peru except to save the mother’s life. It is banned completely in Chile. Clearly, there is no correlation between abortion rates and abortion laws. (More on abortion laws worldwide here.)

The evidence suggests that legal status makes little difference to overall abortion levels. Levels are very high in Eastern Europe and low in Western Europe, yet abortion is broadly legal in both. And levels are far lower in Western Europe than in Latin America, where abortion is highly restricted (except in Cuba and Guyana). [“Sharing Responsibility: Women, Society & Abortion Worldwide” (Alan Guttmacher, 1999), p. 28 (PDF)]

If laws against abortion don’t stop abortion, why bother? The usual rebuttal to that question is that there is still murder and theft in spite of laws against murder and theft. My response is that (I suspect) such laws, and vigorous prosecutions thereof, slow murder and theft down a lot. That’s not something I can prove with comparative data, since I’m not aware of any place with no restrictions on homicide or theft, other than places so violent that no civil authority exists. But if you think about it, the building of communities–civilization itself–would be pretty much impossible with no safeguards against slaughter and pillage.

Yet Belgium, the Netherlands, Germany, Switzerland, etc. are all civilized, last I heard.

I think laws banning abortion are comparable to one of America’s great failed social experiments, prohibition. Driving liquor underground didn’t exactly stop drinking, but it was great for organized crime.

A Guttmacher study of abortion in Latin America describes what happens underground:

A 1993 study in Brazil, Colombia, Chile, the Dominican Republic, Mexico and Peru showed that women everywhere are familiar with teas and infusions made from herbs and other vegetable products that are believed to induce abortion (Table 5 [at the bottom of this post]).

If these products do not have the desired effect (and nobody knows whether they are genuine abortifacients), women are then likely to resort to riskier methods: the insertion of a rubber tube, caustic liquids or other foreign objects into the uterus; or the oral or vaginal application of powerful pharmaceutical and hormonal products. In Brazil, a pharmaceutical product usually prescribed for the treatment of gastric and duodenal ulcers, misoprostol (Cytotec), is widely used to terminate pregnancy.

In the six countries studied by Guttmacher (Brazil, Chile, Colombia, the Dominican Republic, Mexico, and Peru), each year half a million women are hospitalized because of injuries received from crude, underground abortion.

Worldwide, Guttmacher says,

About one-third of women undergoing unsafe abortions experience serious complications, but fewer than half of these women receive hospital treatment.

Of the estimated 600,000 annual pregnancy-related deaths worldwide, about 13% (or 78,000) are related to complications of unsafe abortion.

Where abortion is legal and performed by medical professionals, however, “The risk of abortion complications is minimal; less than 1% of all abortion patients experience a major complication. … The risk of death associated with childbirth is about 11 times as high as that associated with abortion.”

Forero at the New York Times describes an incident in Pamplona, Colombia.

In this tradition-bound Roman Catholic town one day in April, two young women did what many here consider unthinkable: pregnant and scared, they took a cheap ulcer medication known to induce abortions. When the drug left them bleeding, they were treated at a local emergency room – then promptly arrested.

This incident helped galvanize a movement to loosen restrictions on abortion in Colombia and elsewhere in Latin America.

So far, no country has dropped its ban. But the effort, spurred by the high mortality rate among Latin American women who undergo clandestine abortions, has begun to loosen once ironclad restrictions and opened the door to more change.

And change is needed, because …

In an interview, a doctor in Medellín, Colombia, said that while he offered safe, if secret, abortions, many abortionists did not.

“In this profession, we see all kinds of things, like people using witchcraft, to whatever pills they can get their hands on,” said the doctor, who charges about $45 to carry out abortions in women’s homes. He spoke on condition that his name not be used, because performing an abortion in Colombia can lead to a prison term of more than four years.

“They open themselves up to incredible risks, from losing their reproductive systems or, through complications, their lives,” the doctor said.

Would American women be driven to take the same risks if legal abortions were entirely unavailable? If past is prologue, as this Guttmacher paper argues, the answer is yes.

First off, let’s put aside any notion that there were few abortions in America before Roe v. Wade. Since few abortions were officially reported as such before Roe it’s hard to know precisely how common abortion really was. However,

Estimates of the number of illegal abortions in the 1950s and 1960s ranged from 200,000 to 1.2 million per year. One analysis, extrapolating from data from North Carolina, concluded that an estimated 829,000 illegal or self-induced abortions occurred in 1967.

(By some coincidence, currently there are 1.2 million abortions performed per year in the U.S., and in a larger population than in the 1960s. It may be that the actual rate of abortions is somewhat lower now than it was pre-Roe.)

The pre-Roe estimates are based partly on the number of women admitted to hospitals because of complications from illegal abortion.

In 1962 alone, nearly 1,600 women were admitted to Harlem Hospital Center in New York City for incomplete abortions, which was one abortion-related hospital admission for every 42 deliveries at that hospital that year. In 1968, the University of Southern California Los Angeles County Medical Center, another large public facility serving primarily indigent patients, admitted 701 women with septic abortions, one admission for every 14 deliveries.

A clear racial disparity is evident in the data of mortality because of illegal abortion: In New York City in the early 1960s, one in four childbirth-related deaths among white women was due to abortion; in comparison, abortion accounted for one in two childbirth-related deaths among nonwhite and Puerto Rican women.

Even in the early 1970s, when abortion was legal in some states, a legal abortion was simply out of reach for many. Minority women suffered the most: The Centers for Disease Control and Prevention estimates that in 1972 alone, 130,000 women obtained illegal or selfinduced procedures, 39 of whom died. Furthermore, from 1972 to 1974, the mortality rate due to illegal abortion for nonwhite women was 12 times that for white women.

Of course, if Roe v. Wade were overturned, abortion wouldn’t be illegal everywhere in the U.S. But if most of the South and Midwest banned abortions, as would probably be the case, women in those states would either go underground or travel to more progressive states to terminate pregnancies. And having to travel tends to delay the procedure, making it more dangerous.

(I have a vision of abortion clinics popping up around state borders, complete with their own motels for out-of-state guests. I can see the signs–Last chance for an abortion before you leave Massachusetts! Some of these place could be fairly posh, since poor women would resort to visiting the neighborhood basement abortionist. Or a coathanger.)

Which brings us to an editorial in today’s New York Times, “Judge Alito and Abortion.”

Judge Alito’s personal views are too well known to be debated – his mother recently told The Associated Press, “Of course, he’s against abortion.” Many people personally oppose abortions while supporting a woman’s right to reach her own decision. But when Judge Alito applied for a promotion to a legal position in the Reagan administration in 1985, he made it clear that he was not one of those people. He was “particularly proud,” he wrote, of his work as a lawyer on cases arguing “that the Constitution does not protect a right to an abortion.”

Judge Alito has tried to explain away that fairly unambiguous statement by saying he was simply an advocate seeking a job. That immediately raised questions about his credibility. Had he misrepresented his views to get a job? Is he misrepresenting them now since he is trying to get an even more important one?

In any case, a memo released later makes it clear that Judge Alito opposed Roe even when he wasn’t a job applicant. In 1985, he told his boss that two pending cases provided an “opportunity to advance the goals of overruling Roe v. Wade and, in the meantime, of mitigating its effects.” It is hard to believe that Judge Alito did not regard Roe as illegitimate when he wrote those words. If he agrees with Roe, it raises serious questions about what kind of lawyer he is, because in that case he would have been working to deny millions of women a fundamental right that he believed the Constitution guaranteed them.

Don’t say you weren’t warned.

Update: See also “A History of ‘Pro-Life’ Violence.”

Alito Backgrounder

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Jeralyn Merrit of TalkLeft has a post up at Altercation that provides lots of links to documentation of Judge Alito’s “proven track record of hostility to pro-choice issues and civil rights.” Clip & save.

Jeralyn writes,

Take this example from PFAW’s summary of Judge Alito’s views on racial discrimination in a death penalty case, in which he was reversed by the full panel of judges in his own circuit. An African American was sentenced to die by an all-white jury. It was found that blacks had been improperly struck from the jury. On appeal, Alito wrote the opinion deciding against the defendant.

    The full Third Circuit, in a split decision, reversed Alito’s ruling, and the majority specifically criticized him for having compared statistical evidence about the prosecution’s exclusion of blacks from juries in capital cases to an explanation of why a disproportionate number of recent U.S. Presidents have been left-handed. According to the majority, “[t]o suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants…”

This is frightening.

It’s important to remember that the political Right currently running our country are way to the right of the American mainstream. They have to pack the court to permanently impose their so-called “values.”

We Don’t Need No Steenkin’ Paternalism

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There was much arguing yesterday about the Casey decision, which struck down a provision requiring husbands to be informed of their wives’ plan to abort. SCOTUS nominee Alito didn’t have a problem with this. Several righties yesterday claimed we lefties were being hysterical when we said such a provision amounted to giving husbands a veto.

Here is an explanation of Casey by Ed Whelan of the very rightie National Review Online:

Subject to several exceptions, that provision required that a physician performing an abortion on a married woman obtain from her a signed statement that she had notified her spouse that she was about to undergo an abortion. Such notice was not required where the woman states that (a) her spouse is not the father of the child; (b) her spouse cannot be located; (c) the pregnancy resulted from spousal sexual assault that had been reported; or (d) that she has reason to believe that furnishing notice would likely result in the infliction of bodily injury on her (by her spouse or by any other person). Notice was also not required in the event of a medical emergency.

As I’ve written earlier, one of the most common qualities of rightiness is an inability to make a distinction between rhetoric and reality. In this situation, righties take the rhetoric at face value (See? She doesn’t have to get permission; she doesn’t have to provide a document if the husband might hurt her) and fail to comprehend how these little requirements might actually function in the real world, in real lives, in real marriages.

It’s not crystal clear to me whose signature would have been required. If she has to get her husband’s signature then we’re essentially looking at a permission slip; a husband who disagrees with the decision is likely not going to sign it. If the wife merely has to sign an affadavit stating that she informed her husband, then most wives who are afraid to speak to their husbands are simply going to lie and say they informed him when they didn’t. And that fear may not be that he will break her teeth; it’s just as likely she fears he will hate her if he found out, and the marriage would be damaged. And an emotionally abusive husband may not strike her but would find other creative ways to make her life hell.

Whelan continues,

All members of the panel agreed that the relevant question was whether the spousal-notice provision constituted an “undue burden” under the analysis that had been set forth in O’Connor’s opinions (which all agreed provided the governing legal standard). … Alito explained at length why the analysis that O’Connor had offered in her opinions established that the spousal-notice provision did not constitue an “undue burden”. … It is of course true that, in the subsequent Supreme Court appeal, O’Connor ruled that the spousal-notice provision did constitute an undue burden. But Alito’s opinion compellingly demonstrates that the body of O’Connor’s writings that was then available to him supported the opposite conclusion.

So a fair summary of Alito’s opinion is that he read O’Connor’s opinions to indicate that a spousal-notice provision that had all sorts of exceptions did not constitute an undue burden. No one should present the case as having anything to do with spousal consent rather than notice, no one should misrepresent the scope of the exceptions, and no one should read the case as expressing Alito’s own constitutional or policy views (as opposed to his reading of Supreme Court precedent) on any aspect of abortion.

Let it not be forgot that O’Connor is more conservative than anything else; just because she expressed a more liberal view in some opinions doesn’t erase the fact that her worldview is more rightie than leftie. In essence O’Connor tends to veer left in those cases in which she might have had some personal experience (such as sex discrimination) and therefore “gets it.” But like most righties, when she wanders outside the realm of her personal experiences the real world becomes a foreign place for her, a place she can’t even imagine. And the fact that Alito couldn’t see the burden is prima facie evidence that he can’t think outside a rightie box.

The only way the notification provision wouldn’t be burdensome to many women is if it wasn’t enforced. If the women could simply swear they spoke to their husband even if they didn’t, without fear of repurcussion, then perhaps it wouldn’t be all that burdensome. But the only purpose of such a law would be to cause the woman seeking an abortion more stress and grief. In other words, the essential point of such legislation is to be burdensome.

Righties tend to fall into the argument that the provision wasn’t burdensome because it was toothless, which ought to be a clue to them that the intent of the law was burdensome, indeed.

And if the lie was something that could come back to bite the wife someday, then it would be very burdensome. And it’s not clear to me if the wife or the medical facility that performed the abortion could face litigation from an angry husband who found out. Can of worms, people?

The provision represents another rightie tendency, which is that righties essentially distrust human beings to make their own decisions. We saw that during the Terri Schiavo flap, when all manner of legislation was proposed that would have allowed government to intrude in a family’s end-of-life decisions. To a rightie, human beings are mindless beasts who need to be controlled by Big Brother so they don’t make “bad” decisions; i.e., decisions with which the rightie disagrees. And righties always assume that people who make these “bad” decisions have done so because they don’t think. Notice all the legislation imposed by states intended to make women reflect on a decision to abort, as if women can’t think for themselves. It’s beyond their comprehension that most women who decide to abort do understand exactly what a pregnancy is and realize that abortion is a serious matter.

Their whole attitude is insulting to women and reeks of the vilest kind of paternalism. Which, frankly, pushes a lot of buttons. So some of us do find righties and their twisted idea that they should have the power to control the rest of us more than infuriating. This is not “hysteria.” This is anger. Righteous anger.

I suspect that most married couples discuss a decision to abort without having the law tell them to do so. I also believe that any woman who fears her husband needs to either get over her fear or get a divorce; that’s not the way any human being should go through her life. But these are matters people need to work out for themselves. Big Gubmint need not be involved.

Update: Emily Bazelon has an excellent explanation of the Casey decision at Slate.

…the [Supreme] court rejected Alito’s narrow reading of what sort of regulation constitutes an undue burden. O’Connor, Kennedy, and Souter wrote: “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The definition of an undue burden on the right to abortion as a “substantial obstacle” wasn’t exactly what the pro-choice crowd wanted to hear. But it was a lot better than the “severe limitation” prohibition, or veto, that Alito had propose–definitions that would have allowed much more extreme restrictions.

The triumvirate also parted company with Alito entirely over his vision of the rights of husbands. The Constitution did not permit states to require wives to tell their husbands before getting an abortion, the Supreme Court majority found. The O’Connor-Souter-Kennedy opinion cited a lot of trial testimony about the prevalence and danger of domestic violence. Pennsylvania’s law exempted wives who’d been raped by their husbands, but not those who’d been coerced into “sexual behavior other than penetration,” the three justices noted. They continued:

In well-functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that notifying their husbands will provoke further instances of child abuse; these women are not exempt from [Pennsylvania’s] notification requirement. Many may fear devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends.The dissenters, by contrast, adopted Alito’s sunnier, husband-centered version of marriage. Then Chief Justice William Rehnquist (joined by Antonin Scalia, Clarence Thomas, and Byron White), emphasized “a husband’s interests in procreation within marriage and in the potential life of his unborn child.” Rehnquist paid Alito the high compliment of directly quoting his words about the good that could come from requiring women to talk to their husbands. “This participation might in some cases result in a decision to proceed with the pregnancy,” Rehnquist concluded.

Righties keep claiming that we who oppose the notification requirement are hopelessly ignorant when we say it might cause women to suffer harm. I guess three members of the Supreme Court are hopelessly ignorant. The justices, of course, assumed that women who fear their husbands would have complied with the law.

Better Middle Than Late

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I’ve been reading and listening to comments on nominee Sam Alito, including mention of the Planned Parenthood v. Farmer decision mentioned below. And I’ve noticed that rightie commenters and most “journalists” persistently make a mistake when they talk about this decision. That mistake is to say that the case in question was about a ban on late-term abortion. It was not. It most definitely was not.

The law in question banned “partial-birth” abortion. Anti-privacy forces confuse the issue by insisting that “partial birth” and “late term” mean the same thing. To me “late-term” implies that the pregnancy is almost full term. But the procedure that righties call “partial birth”–intact dilation and extraction (D&X) and dilation and evacuation (D&E)–are procedures performed mostly (if not entirely) in the second trimester, which reasonably would be considered MID term.

According to the written decision, 80 to 90 percent of abortions performed after the first trimester are D&E abortions. These are commonly done between 13 and 20 weeks’ gestation. The D&X is a less common variation of the D&E that involves collapsing the skull and removing the fetal body intact, as opposed to retrieving it in several pieces via a D&E. The D&X variation reduces the risk of cervical laceration and also provides an intact body, which might be required for diagnostic purposes.

These are not the only procedures available for second-trimester abortion. After 16 weeks’ gestation, the most common procedure used is induction, which involves injecting a lethal substance into the uturus and then inducing labor. The fetus might also be removed by hysterotomy, which is like a C-section, and sometimes by hysterectomy–removal of the uturus.

For reference: The second trimester is from weeks 13 to 26. The third trimester is weeks 27 to 42. A fetus is potentially viable only after the 23rd week, and that’s iffy. Babies born after at least 27 weeks’ gestation usually survive. According to the Alan Guttmacher Institute, only 1.4 percent of abortions in the U.S. are performed after 21 weeks’ gestation. I haven’t been able to find reliable data on third trimester abortions.

Anyway, now that we’ve got the “late-term abortion” nonsense out of the way– like other such laws, the act nullified in Planned Parenthood v. Farmer did not use medical terms, but instead used the term “partial birth abortion,” and defined that term in such a way that physicians testified they couldn’t tell exactly what was being banned. Further, the act appeared to ban abortion procedures on a “living” fetus, meaning a fetus with a discernible heartbeat, which could be as early as seven weeks’ gestation. Not exactly “late-term.”

And, if in fact the law banned only D&E and D&X procedures, it didn’t ban abortions at all, because other procedures are available. The righties never seem to notice that. It’s also beyond belief that righties can’t manage to write a law banning D&E or D&X procedures that might get approved by a court. I believe all they’d have to do is use actual medical terms and definitions and provide a “life or health of the mother” exception. But state legislatures keep passing essentially the same muddled, sloppily worded mess, and courts keep slapping it down. Makes me wonder if they actually don’t want it to become law; they just like putting on a show for the voters.

Regarding Judge Alito’s decision, provided in the last post, he was being clear that he felt it was his duty as a LOWER court judge to find according to existing case law. However, the law in question was a bare-assed attempt to sneak a total abortion ban on the books by means of bad phraseology. Any judge going along with the gag and approving legislation-by-deceit would seem pretty “activist” to me.

Also: From The Mahablog archives–why a “right to privacy” IS in the Constitution.

Update: Hunter gently explains why he disagrees with a particular conservative talking point. Billmon discusses Alita’s Casey dissent. Digby looks at the “strategy” behind abandoning Roe v. Wade. Fafblog does Hallowe’en. And the Rude One is, well, rude.

Pass This Along to the Righties

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Figure this one out: In July 2000 SCOTUS nominee Samuel Alito, sitting on the U.S. Court of Appeals for the Third Circuit, voted that a law banning “partial birth” abortion was unconstitutional.

This doesn’t mean I trust him not to mess with Roe v. Wade, but please pass this along to the righties. Let it mess with their heads.

The case was Planned Parenthood of Central New Jersey v. Farmer. I just found this and I need to read it through to understand exactly what the problems were with this law, but here is Alito’s concurrence with the decision (note the phrase, “our responsibility as a lower court):

ALITO, Circuit Judge, concurring in the judgment.

I do not join Judge Barry’s opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court’s decision in Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent. I write briefly to explain why Carhart requires us to affirm the decision of the District Court in this case. This is an appeal by the New Jersey State Legislature from a decision of the United States District Court for the District of New Jersey holding the New Jersey Partial-Birth Abortion Ban Act of 1997, 2A:65A-5 et seq., unconstitutional and permanently enjoining enforcement of the Act. Planned Parenthood of Central New Jersey v. Verniero, 41 F. Supp. 2nd 478 (D.N.J. 1998). The New Jersey statute closely resembles statutes enacted in recent years in many other states.

On January 14, 2000, the Supreme Court granted certiorari to review the decision in Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999), cert. granted, 120 S.Ct. 865 (2000), which presented the question of the constitutionality of a similar Nebraska statute. The Supreme Court recently held that the Nebraska statute is unconstitutional. Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000).

The Court based its decision on two grounds. First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother. See 2000 WL 825889, *9-*14. Second, in Part II-B of its opinion, the Court held that the Nebraska statute is unconstitutional because it imposes an undue burden on a woman’s ability to choose the method most commonly used for second trimester abortions, the “dilation and evacuation” (D & E) method. See 2000 WL 825889, *14-*18.

Under Carhart, the decision of the District Court must be affirmed. First, the New Jersey statute, like its Nebraska counterpart, lacks an exception for the preservation of the health of the mother. Without such an exception, the New Jersey state is irreconcilable with Part II-A of Carhart.

Second, the Supreme Court’s holding in Part II-B of Carhart is also applicable here. As noted, in that portion of its opinion, the Court held that the Nebraska statute applied, not only to the “dilation and extraction” or D & X procedure, but also to the more commonly used D & E procedure. The wording of the relevant provisions of the Nebraska statute is nearly identical to that of the New Jersey statute. Thus, the Supreme Court’s holding in Part II-B of its opinion in Carhart must be regarded as controlling in this case.

In light of this interpretation of the New Jersey statute, the Legislature’s argument that the plaintiffs lack standing must fail. As noted above, the New Jersey statute must be interpreted, in light of Carhart, as applying to the D & E procedure, and the plaintiff physicians in this case perform that form of abortion. The Legislature’s argument that this case is not ripe because the New Jersey statute has not been authoritatively interpreted by the state courts or state enforcement officials must also fail. In view of the interpretation in Carhart, there is no reason to wait for interpretation by state officials or judges.

In a post-Carhart filing, the New Jersey Legislature has urged us to certify questions concerning the interpretation of the New Jersey statute to the state supreme court. In Carhart, however, the Supreme Court of the United States turned down a similar request for certification by the Attorney General of Nebraska. 2000 WL 825889, *18. The decision of the Supreme Court of the United States to deny certification in Carhart must be regarded as controlling here, both with respect to the Legislature’s request for certification and with respect to its closely related argument that the District Court erred in refusing to abstain pursuant to Railroad Commission v. Pullman Co. , 312 U.S. 496 (1941).

In conclusion, Carhart compels affirmance of the decision of the Distric Court.

I will comment further once I’ve had a chance to digest this.