Editor's Note: A correction was made in this article at 9:38 pm on Thursday, July 16th, changing a reference to Dredd v. Scott to Dredd Scott v. Sandford, the case to which Jill meant to refer.
If there's one thing that this week's Senate confirmation hearings made clear, it's that Judge Sotomayor is not just a great mind, but a patient and generous teacher. Surrounded by senators who seemed primarily concerned with topping each other in condescension, Sotomayor responded with respect, nuance and a solid grounding in the law - to the point where the hearings sometimes felt like a high school civics class, with Sotomayor explaining the fundamentals of our legal system. The biggest surprises of the hearings so far haven't come from Sotomayor herself, but from the ignorance and arrogance shown by some members of the GOP. And the biggest pay-off won't just be from Sotomayor's confirmation - although that will certainly happen - but from the GOP's torching of any goodwill it hasn't already set aflame with women and racial minorities.
In the hearings, Sotomayor faced down Sen. Jeff Sessions, an Alabama senator with a notoriously racially troubled past. Sessions sat in Sotomayor's seat when Ronald Regan nominated him for a federal judgeship. The Senate Judiciary Committee killed his nomination after it came to light that he joked that he used to think the Ku Klux Klan wasn't so bad until he found out some of them smoked marijuana, and he believed the NAACP and the ACLU to be "un-American and "Communist-inspired" - his biggest grievance with the groups being that they "forced" civil rights down our collective throats. Watching Sotomayor respond to Sessions' sneering questions with insightful and polite answers was simultaneously infuriating and inspiring - I'm not sure I could have been nearly as composed, but she certainly put to rest any concerns about her "temperament."
Or
at least, she put those concerns to rest in the minds of reasonable
people. Sen. Lindsey Graham wasn't satisfied, and had the nerve to
read off several anonymous and unattributed statements about Sotomayor's
"temperament problem." His point was that Sotomayor is
too mean and too harsh in her questioning to be a good judge - a concern
rarely raised with aggressive male judges like Antonin Scalia.
But instead of making her look unreasonable or "temperamental" (what
is she, a racehorse?), he succeeded only in making himself look like
a bully and a fool, targeting her personality instead of her record.
Like many others in the GOP, he threw in some references to her "Wise
Latina" comment for good measure - after all, someone in the studio
audience may not be aware that she's not white.
And
it only went downhill on Wednesday. Abortion-related queries predictably
came up on both days, but were driven home with staunch anti-choice Sen. Tom Coburn's line of questioning. After asking her about
the current state of abortion laws in the United States as if he didn't
know - there's that condescension again - Coburn took the hearings
as an opportunity to lecture her, saying, "I don't expect you to
answer this, but I do expect you to pay attention to it as you contemplate
these big issues," before fixating on viability and fetal heartbeats.
Can you picture Sen. Coburn rhetorically shaking his finger like that at Scalia or Chief Justice Roberts?
If that wasn't enough, Coburn then told Sotomayor, "You'll have lots of 'splainin' to do" in a back-and-forth about the Second Amendment and self-defense. Only in our "post-racial" era can old white men criticize a highly-educated, accomplished Latina jurist for being "racist" and not adequately colorblind, accuse her of being an affirmative action pick, and then throw a Ricky Ricardo quote at her.
But perhaps the most offensive aspect of the hearings was some of the senators' blatant misrepresentations and feigned ignorance of the law. Senator Coburn's request that Sotomayor explain the status of abortion rights was just the tip of the iceberg. In his line of questioning on Wednesday, Sen. Orrin Hatch asked Sotomayor her opinion on judges "reading rights into the Constitution." Certainly Sen. Hatch is familiar with the Ninth Amendment, which states simply that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" - in other words, just because a right isn't explicitly delineated in the Constitution doesn't mean that the government is free to violate it. Even more egregious was Sen. Graham's contention that the Puerto Rican Legal Defense Fund, on whose board Sotomayor sat, argued in a brief that refusing to use taxpayer funds for abortion is akin to slavery. In fact, PRLDEF used the infamous Dredd Scott v. Sanford case to make the point that the anti-abortion law in question treated poor women as less than citizens under the law - the same mistake notoriously made in Dredd.
Throughout
it all, though, Sotomayor remained poised and calm, answering the questions
thoughtfully and thoroughly - much the same way she writes her opinions.
Her knowledge of the law, her preparation and her presentation were
absolute perfection - and serve as another example of a woman of color
having to do things twice as well as everyone else in order to succeed
(and she still has her intelligence, temperament and aptitude questioned).
There is almost no doubt that she will be confirmed. What remains to be seen is just how much damage these hearings will do to an already battered Republican Party. If Democrats are smart, they will replay these clips ad nauseum, and let all of America - and not just the nerds who streamed CSPAN at work - see just how Republicans act when they sit face-to-face with a woman of color (especially one whose accomplishments trump their own and may in their eyes be a little too big for her britches). I wonder what the female, non-white or even rudimentarily racially aware GOP constituents will think when they see the condescension and disdain heaped upon a woman who graciously responds with nothing but patience and tolerance.
I suspect the senators will have some "splainin" to do.
]]>I don't doubt that Republicans will harp on the race issue during the confirmation hearings -- as much as they love to accuse liberals of "playing the race card," they are the true masters of assigning an insidious agenda to anyone who isn't white and dares discuss race (or, heaven forbid, evaluates laws against discrimination). Sotomayor's color apparently makes her "biased" towards parties who share similar, less-than-privileged backgrounds, while the white skin worn by most of the sitting Supreme Court justices is assumed to play no role, and certainly not to bias them towards, say, white firefighters who feel like they were victims of affirmative action.
In a sane political system, Sotomayor's opinion in Ricci and even the Supreme Court's departure from it would be a non-issue. Affirming a lower court's ruling is about the most un-activist thing a judge can do, and the district court decision in Ricci was affirmed unanimously by the Second Circuit panel. Sotomayor's panel initially didn't even issue an opinion; when one finally was written on request of another judge, it was eight sentences long. Her role in Ricci was hardly the Angry Latina Woman of Limbaugh lore. The United States Supreme Court overturned the Second Circuit's decision, but by a narrow margin -- and Justice Ruth Bader Ginsberg felt so strongly about the Court's decision that she read her dissent from the bench.
In other words, it was a tough call -- one that divided the highest court in the country.
There is certainly good reason for the divisiveness. The Ricci decision struck a blow to disparate impact theory, making it easier to maintain laws and employment practices that are racially unbiased on their face but that in practice result in discriminatory outcomes. Sotomayor's position -- not that the fire department had to scrap the test results, but that they were legally permitted to -- was hardly revolutionary or far-left. One more left-leaning moderate judge on the Supreme Court and that position would have been affirmed.
The Supreme Court justices who evaluated Ricci are not raceless; most of them are white. And yet no one suggests that perhaps their whiteness influences their views on racial inequality, or that they aren't unbiased simply by virtue of belonging to the American cultural majority. Sotomayor, though, is branded a "racist" because she voted to uphold a lower court decision based on well-established legal theory.
Luckily, it's only a few conservative blowhards who are pulling the racist card. Republicans will undoubtedly bring up Sotomayor's views on affirmative action and race, but no one expects dramatics at the confirmation hearings. Despite right-wing whining about her "temperament" and the predictable problems with her not being a white male, it would be a surprise if the hearings did not go smoothly. The American Bar Association gave her their highest rating, and she is by all reputable accounts a highly-qualified, intelligent and moderate jurist. And with a ranking Republican member of the Senate Judiciary Committee having his own race issues, one would hope that the GOP would tread lightly with the racism accusations.
Of course, a lot can happen in a few days, and with all the focus on Ricci and race, there's been surprisingly little effort made to push Sotomayor to publicly state her position on Roe and reproductive rights. There has been even less talk about Sotomayor's views on gay rights, an underdeveloped legal area that is almost certain to make its way up to the Court in the next decade. And from the left, scant attention has been paid to Sotomayor's extreme deference to law enforcement agents, even when they encroach on citizens' privacy rights. So who knows -- maybe if the GOP lets go of its race fixation, a bomb will drop and we'll all find out that Sotomayor would vote to extend the rights guaranteed by Roe, or that she thinks there's no legitimate reason why a marriage between Adam and Eve is more valid than one between Adam and Steve (hey, here's hoping).
But with an experienced, pedigreed and thoroughly moderate judge
like Sotomayor, and with Democrats outnumbering Republicans on the
Judiciary Committee, I wouldn't hold my breath. More likely than not,
these will be the most boring hearings yet. And that is probably best
for all involved -- especially since it will open the door for Obama to
nominate a more progressive legal theorist in the future. Those will
be some fireworks worth watching.
In her time on the bench, Sotomayor's only major abortion-related case was Center for Reproductive Law and Policy v. Bush - and her conclusion isn't going to warm the hearts of reproductive rights activists. In that case, the Center for Reproductive Law and Policy (now the Center for Reproductive Rights) challenged the Global Gag Rule, a policy which barred U.S. money from funding any organization abroad that so much as mentioned abortion as an option or advocated for abortion rights. The Center for Reproductive Law and Policy (CRLP) argued that the Gag Rule violated their First Amendment, Equal Protection and Due Process rights. On the First Amendment claim, CRLP argued that the Gag Rule prevented the organization from fully communicating with international non-governmental organizations; if non-U.S.-based NGOs worked with CRLP to advocate for abortion rights in their own countries, they would lose U.S. funding. Thus, the Gag Rule's speech-chilling effect prevented CRLP, a domestic organization, from carrying out their mission, thereby curtailing their freedoms of speech and association. CRLP also argued that the Gag Rule violated their Fifth Amendment Equal Protection rights by privileging anti-abortion views and putting the CRLP on unequal footing when it comes to domestic competition with anti-choice organizations, and violated CRLP's Due Process rights by, as Sotomayor summarized in her opinion, "failing to give clear notice of what speech and activities they prohibit and by encouraging arbitrary and discriminatory enforcement."
The Second Circuit ruled against CRLP, and Sotomayor was the judge who penned the decision. She held that that a previous case -- Planned Parenthood Federation of America, Inc. v. Agency for International Development - "not only controls this case conceptually; it presented the same issue." In that case:
This Court rejected the challenge on the merits, finding "no constitutional rights implicated" by the Policy and the Standard Clause. Planned Parenthood, 915 F.2d at 66. The Court reasoned that the domestic NGOs remained free to use their own funds to pursue abortion-related activities in foreign countries and that "[t]he harm alleged in the complaint is the result of choices made by foreign NGOs to take AID's money rather than engage in non-AID funded cooperative efforts with plaintiffs-appellants." Id. at 64. "Such an incidental effect" on the activities of the domestic NGOs, the Court held, did not rise to the level of a constitutional violation. Id. The Court concluded that "the Standard Clause does not prohibit plaintiffs-appellants from exercising their first amendment rights." Id. Moreover, the Court explained that whatever one might think of the Mexico City Policy, "the wisdom of, and motivation behind, this policy are not justiciable issues," and the Court found the restrictions to be rationally related to the "otherwise nonjusticiable decision limiting the class of beneficiaries of foreign aid." Id. at 64-65. Having rejected plaintiffs' claims on the merits, this Court declined to address the question of whether plaintiffs had standing under Article III. Id. at 66.
The First Amendment claim was dismissed because the issue had already been decided in the Planned Parenthood case. The Due Process claim was dismissed for lack of prudential standing, because CRLP's complaint did not fall within the "zone of interests" protected by the Due Process Clause - it was a third party (the foreign NGOs), not CRLP, whose rights are constitutionally unclear because of the Gag Rule. The Equal Protection claim was dismissed because the Gag Rule's privileging of anti-abortion views did not infringe upon a fundamental Constitutional right or target a suspect class (legalese for a classification of groups which have historically been subject to discrimination, and therefore receive increased scrutiny under the Equal Protection Clause); further, Sotomayor pointed out that "the Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."
The Center for Reproductive Law and Policy lost the case, and the Global Gag Rule continued to compromise women's health around the globe until Barack Obama took office.
That outcome disheartened feminists, liberals and reproductive justice advocates, and I wish it had been decided differently. But the decision wasn't necessarily a bad one - and it absolutely should not stop progressive women's rights activists from supporting her nomination.
If anything, CRLP v. Bush highlights precisely why Sotomayor should, in a sane world, be an easy confirmation: She sticks to the rule of law, respects precedent and writes thoughtful and reasoned opinions. She was nominated to the federal district court by George H.W. Bush. Her decisions are left-leaning insofar as she generally seeks to protect Constitutional rights by supporting religious freedom and free speech, and she often sides with the plaintiffs in discrimination cases - hardly "activist" material. But she's not a liberal dream by any stretch. She has some bad First Amendment cases to her name (Doninger v. Niehoff, where she sided with a school that disqualified a student from running for senior class secretary after the student posted a vulgar school-related message on her blog), and some bad Fourth Amendment ones (United States v. Howard, where she held it was constitutional for state troopers to entice suspects away from their cars in order to allow other troopers to search the vehicles for drugs). Those cases, though, are the exceptions rather than the rule; generally, Sotomayor follows a fairly consistent Constitutional philosophy, and errs on the side of maintaining rather than limiting rights.
Given her history, it's hard to grasp why conservatives brand her "a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written," as Wendy E. Long, counsel to the right-wing Judicial Confirmation Network, put it. Sotomayor has clearly and consistently deferred to "the law as written" -- she's considerably less activist and dogmatic than Bush's two Supreme Court appointees, John Roberts and Samual Alito. Unfortunately for conservatives, the law as written does affirm the rights to speak without governmental intervention, to practice your religion freely, to be free from state-sponsored religious exercises, to maintain your privacy, and to retain certain protections even if you are a suspected criminal or a criminal defendant.
Sotomayor has embraced free speech rights even where the speech was abhorrent (an NYPD officer mailing anonymous bigoted and racist materials to charities requesting donations); stood up for victims of race, gender, age and disability discrimination; and dissented when the Second Circuit rejected a challenge to the New York law that disenfranchises convicted felons. She is by most accounts an intellectually gifted, hard-working and highly experienced judge. So while there is unfortunately little to go on with regard to her views on abortion rights, we know that Sotomayor is a smart, capable left-leaning moderate. She's not going to undo years of a conservative court alone but she is highly qualified and undoubtedly progressive.
Sotomayor would not have been my first choice, primarily because my political leanings are far to the left of her legal theory. But I'll be supporting her whole-heartedly. Her trail of opinions paints a picture of a fair-minded, incisive legal scholar who is unafraid to stake out unpopular but legally meritorious positions. Right-wingers are going to oppose her nomination with full force - we would be foolish to do it for them.
]]>Most commentators are placing their bets on Sonia Sotomayor, Diane Wood and Elena Kagan, with Jennifer Granholm, Deval Patrick, Kathleen Sullivan, Cass Sunstein and Janet Napolitano also thrown out as possibilities. The general consensus that Obama's choice is going to be a woman is not a bad gamble, since women make up more than half of the American public, one-third of all lawyers and thirty percent of lower federal court judges, but occupy only one seat on the current Supreme Court. Troublingly, though, there have been murmurings that this will be Obama's "woman nomination," and the "racial nomination" will be next - as if women can't be both women and of color, and as if the nominees will be little more than tokens.
In fact, the woman of color who has come out as the front-runner - Sonia Sotomayor - is a politically moderate, highly-accomplished woman who grew up in a housing project in the South Bronx and went on to study at Princeton and Yale Law. She's hardly a left-wing dream - she's a political centrist who was first nominated to the bench by George H.W. Bush - but she's nonetheless already being branded "radical," "liberal" and "activist." Those who aren't busy launching the usual right-wing hit-jobs on her are relying on gendered and racialized stereotypes to diminish her appeal, even in supposedly progressive publications. Jeffrey Rosen at the New Republic, for example, relies on anonymous mutual acquaintances to paint a picture of Sotomayor as both a lonely single woman who takes her law clerks to see Harry Potter movies and a domineering loud-mouthed brown woman who isn't as smart as she thinks she is - even though, as Matt Yglesias says, "You don't see a lot of dumb kids growing up in the South Bronx and winding up at Princeton." Rosen admits that he is unfamiliar with Sotomayor's judicial record, and doesn't bother to cite any decisions to substantiate his second-hand claims. At least the right-wing memo that lays out the plan of attack on Sotomayor, Kagan and Wood actually quotes them - although again provides no evidence for the contentions that Sotomayor "does not have a very good temperment" and is prone to "inappropriate outbursts."
Others have written extensively about the gender and racial dynamics of the Sotomayor attacks, and the gendered attacks on all the potential female nominees. It's becoming increasingly clear that if Obama does nominate a woman, the critiques will follow predictably sexist lines; if he nominates a person of color, the criticisms will be full of thinly-veiled racism.
What's less clear is which nominee feminists and progressive activists should throw their weight behind. Sotomayor (2nd Circuit Court of Appeals) and Wood (7th Circuit Court of Appeals) are fairly moderate; Kathleen Sullivan, dean of Stanford Law School, and Elena Kagan, former dean of Harvard Law School, recently confirmed as Obama's Solicitor-General, are progressive academics, but lacking in judicial experience. Supreme Court justices tend to move left through their years on the bench, so a political moderate today doesn't necessarily mean a centrist in later years - Justice David Souter, a reliable pro-choice vote on the court was, after all, a Bush nominee. Obama has said he will not require Supreme Court judges to pass a political litmus test, but most of the nominees appear to support progressive views on hot-button Constitutional issues, like abortion rights. Wood, for example, wrote the panel decision in National Organization for Women v. Scheidler, holding that women's rights organizations could use anti-racketeering laws to seek injunctive relief against violence from anti-abortion protestors - a position that the Supreme Court reversed. And Sotomayor penned a very controversial decision about the New Haven fire department's decision to not take a written exam into account when deciding who to promote, because the exam had racially disparate results; white firefighters accused the department of reverse discrimination. Sotomayor wrote the panel opinion in that case, ruling, against the plaintiffs, that the fire department could legally not take the exam scores into account and simply not promote anyone. The Supreme Court has since decided to review the case.
Decades of right-wing judicial appointments (with eight years of very moderate Clinton appointments in the middle) have stacked the federal bench to lean heavily right. Bright and highly capable lawyers have been passed over for judicial appointments in favor of political conservatives. That's why most of the "liberal" suggestions for the Supreme Court are actually political centrists, and the most left-leaning among them are in academia or politics - there just aren't all that many progressive judges to choose from.
That is the point we should be taking away from this: The Supreme Court is only one piece of the puzzle, and while it's important for all the obvious reasons, the justices on that bench never hear the vast majority of cases brought in the United States. The lower courts are the ones doing the bulk of legal interpretation, and setting the legal standards on most issues. The lower courts are also places where legal talent is fostered and developed, in both the judge's own career and in the work of her clerks and the attorneys who appear before her. The U.S. Courts of Appeals in particular are often the final decision-makers on crucial questions of law; well over half of the sitting judges on those courts were appointed by Republicans.
Of course, a Republican appointment does not necessarily equal a conservative jurist, and there are many wonderful sitting judges appointed by Republican presidents. Obama also has no obligation to choose a sitting judge for the vacant Supreme Court seat in the first place; academics and politicians have been put on the Court before, and many of today's finest progressive legal minds are professors, scholars and deans. It may behoove him to look outside the court house for the next Supreme Court justice.
But it would behoove all of us for the federal courts to be more diverse when it comes to ideology, race and gender, and to cultivate legal talent at all levels. Mine That Bird won the Derby this year in a major upset in just over two minutes; the process of picking and confirming a new Supreme Court justice will all be over in a few months. But the work of nurturing and advancing the most talented competitors is an ongoing commitment.
The battles over critical Constitutional issues - reproductive choice, civil rights, freedoms of speech and expression, the rights of criminal defendants - are played out in court houses around the country, and only a very few make it all the way up to our highest judicial body. While the fanfare surrounding Supreme Court nominations is a necessity and the importance of that Court should not be downplayed, progressives should take care to give equal - though perhaps stealthier - attention to all the people Obama puts on the federal bench. A truly progressive legal culture - lines of legal interpretation which affirm free speech, privacy, civil liberties and protections of minority groups and views - requires building from the ground up, not just from the Supreme Court on down. Liberal lawyers, legal scholars and organizations have done their part to protect the civil liberties, individual freedoms and general equality that our Constitution guarantees. The courts - and especially the courts of appeals - are necessary to make sure that those values are not chipped away.
Despite conservative hand-wringing about "activist
judges," we haven't seen all that many liberal judicial nominations in
the past thirty years; we probably won't get a very liberal Supreme
Court nominee this time around, either. But from the look of the
shortlist, we will undoubtedly be getting someone intelligent and
highly competent. And once SCOTUS fever wears off, we can get down to
the process of balancing out the federal bench - so there will be plenty
of seasoned, highly-qualified jurists in the running for Supreme Court
seats to come.
But here's the problem: The fact that a collection of cells starts to develop when that sperm hits the egg doesn't make that collection of cells a person, or the moral equivalent of a born human being. I think most people would agree - an acorn is not a tree, a seed is not a plant, and a zygote is not a person, even if a seed is a necessary precursor to a plant and a zygote is a necessary precursor to a person. The fact that about half of fertilized eggs don't implant - ending the potential development of those early "lives" - coupled with the fact that there is no "pro-life" concern for all those billions of fertilized egg-deaths belies the idea that pro-lifers really believe a zygote is the moral equivalent of a born human being. The anti-choice view has always been more about controlling women and controlling sex than saving lives.
Which is why it's very disconcerting to hear the Democratic vice presidential nominee adopting right-wing talking points about abortion. We shouldn't have to care where Joe Biden or any other politician believes life begins, because that belief shouldn't influence policy (luckily, Joe Biden agrees, and won't be letting his religious views influence what's best for a pluralistic society - h/t to Alex in the comments).
But too often politicians' religious beliefs do influence policy - much more so on the right than on the left, but interviewers nevertheless focus on religion because it's somehow widely accepted that an individual's faith should guide decisions that impact a religiously diverse nation (how well has that worked out for us?). So you don't just get Joe Biden asked about when life begins - on Meet the Press - but you get Barack Obama being interviewed by Rev. Rick Warren at Saddleback Church. And then you get follow-up questions on ABC.
Obama's answer wasn't bad, although I do wish he had mentioned that Democrats try to prevent unwanted pregnant before it happens, as opposed to Republicans who oppose even basic birth control:
"What I do know is that abortion is a moral issue," Mr. Obama continued, "that it's one that families struggle with all the time, and that in wrestling with those issues, I don't think that the government criminalizing the choices that families make is the best answer for reducing abortions. I think the better answer - and this was reflected in the Democratic platform - is to figure out, how do we make sure that young mothers, or women who have a pregnancy that's unexpected or difficult, have the kind of support they need to make a whole range of choices, including adoption and keeping the child."
But I'm glad he highlighted the fact that Dems try to make it easier for women to choose to have children if they want them. That's what the conversation should be about: What policies are politicians going to promote? What kinds of political solutions are being proposed by both parties?
Instead, we're stuck talking about when Joe Biden thinks life begins. And he's making the mistake of trying to appease the moderate and anti-choice vote by talking about conception and faith, instead of standing up for the very good and very moral position of the Democratic party: Give people the tools to determine for themselves the number and spacing of their children. Decrease the abortion rate through contraception and education. Give women a full range of choices by making childbirth and parenthood realistic possibilities. And leave it up to women to decide whether or not they carry a pregnancy to term.
That is a solution that appeals to moderates and self-identified pro-lifers a whole lot more than "Tell people not to have sex. Don't give them education or contraception. Make abortion a crime," which is basically the Republican platform. And yet we're still adopting their frame when talking about this issue.
If the Obama/Biden ticket is serious about change, this is a pretty good place to start.
Strang: Based on emails we received, another issue of deep importance to our readers is a candidate’s stance on abortion. We largely know your platform, but there seems to be some real confusion about your position on third-trimester and partial-birth abortions. Can you clarify your stance for us?
Obama: I absolutely can, so please don’t believe the emails. I have repeatedly said that I think it’s entirely appropriate for states to restrict or even prohibit late-term abortions as long as there is a strict, well-defined exception for the health of the mother. Now, I don’t think that “mental distress” qualifies as the health of the mother. I think it has to be a serious physical issue that arises in pregnancy, where there are real, significant problems to the mother carrying that child to term. Otherwise, as long as there is such a medical exception in place, I think we can prohibit late-term abortions.
That quote is from here. And while that piece is certainly the most offensive, I’m also not thrilled with his answer here:
Strang: You’ve said you’re personally against abortion and would like to see a reduction in the number of abortions under your administration. So, as president, how would do you propose accomplishing that?
Obama: I think we know that abortions rise when unwanted pregnancies rise. So, if we are continuing what has been a promising trend in the reduction of teen pregnancies, through education and abstinence education giving good information to teenagers. That is important—emphasizing the sacredness of sexual behavior to our children. I think that’s something that we can encourage. I think encouraging adoptions in a significant way. I think the proper role of government. So there are ways that we can make a difference, and those are going to be things I focus on when I am president.
I love Obama. I find him incredibly inspiring. I’ve had a lot of silly, idealistic little hopes pinned on him. I so badly want him to be a candidate who stands up for progressive values without apology. Instead, it looks like he’s taking the traditional Democratic route of moving towards the center and trying to please everyone.
This is why Democrats are losing the abortion-rights battle: We’re adopting the right-wing frame and rhetoric, and speaking in their terms. The question “How can we reduce the abortion rate?” is an easy gimme for any pro-choice candidate. You say: “Education, health care and contraception access are the most effective ways to decrease the need for abortion. Abstinence-only sex education has been a colossal failure, and around the world we can see that the abortion rate is lowest in countries with comprehensive sex ed programs, wide-spread access to contraception, health care for all, and a strong social safety net. We know what works; but it’s Republicans who continuously block legislation that would decrease the abortion rate. Democrats in Congress have repeatedly tried to increase contraception access for all women, and have tried to promote initiatives that would make it easier for women to choose to have children — initiatives like aid to low-income families, subsidized day-care programs, and early childhood education. It is the Democratic party that has taken important steps to actually decrease the abortion rate, while the supposedly “pro-life” Republicans have put barriers in the way of pregnancy prevention, then limited abortion access, and then made life more difficult for women and their children. It seems that “pro-life” Republicans only care about life up until the moment of birth — and they have taken no steps to actually decrease the need for abortion. By contrast, my administration will take a comprehensive, truly life-affirming view: We will support women, men and children at all stages of life, and we will give Americans as many options as possible to make the best decisions for themselves and their families.”
Not hard. Instead, Obama used talking points that I would expect to hear from John McCain: Abstinence education. The sacredness of sexual behavior. Adoption.
I realize he’s talking to a Christian magazine, and so he needs to frame the issue in a way that resonates with Christian readers. But “Christian” or even “pro-life” does not equal “Republican,” or “pro-life” in the way that mainstream anti-choice organizations and politicians are “pro-life.” A whole lot of self-identified pro-life people don’t actually want to see women dying of dangerous illegal abortions; a lot of pro-life people realize that criminalizing the procedure isn’t the answer, and that instead we should decrease the need for abortion through common-sense measures like education, contraception, economic justice and universal health care. That’s a big block of voters; I’d like to hear Obama talk to them — in part because the Republican party claims to speak for them, but doesn’t actually represent their interests.
And I’d like to see Obama stand up for his pro-choice base. The issue of late-term abortions is a tricky one, because anti-choicers trot it out as if huge numbers of women were waiting until the eighth month of pregnancy to terminate. In reality, third-trimester abortions count for about one-half of one percent of all abortions. It’s already nearly impossible to obtain a late-term abortion in much of the country, and it is actually impossible to obtain one for purely elective purposes. Women who terminate pregnancies in the third trimester aren’t doing it for kicks; they’re doing it because they have some sort of serious health problem that requires it, or there’s a fetal abnormality.
Obama did say he supports late-term abortion rights in the case of a physical medical problem, but he took out mental health as a legitimate concern. That’s a talking point that you hear a lot from anti-choicers: That mental health is a “loophole” through which any undeserving baby-carrier could legitimately terminate her pregnancy.
But mental health underlies many of actual reasons women have late-term abortions. Take severe fetal abnormalities — where a wanted pregnancy goes wrong, and the problem isn’t discovered until relatively late. In many situations — anencephaly, for example — carrying the pregnancy to term might not be any more dangerous than carrying a healthy fetus to term. Pregnancy and childbirth always come with serious risks, and it’s often impossible to know which risks will arise, but many fetal abnormalities don’t pose the kind of physical harm to the pregnant woman that would seem to pass anti-choice (and now, Obama) muster. (To be clear, many fetal abnormalities do pose significant health risks — it’s just not the rule. Which is precisely why this issue should be evaluated case-by-case between a woman and her doctor, and politicians should butt out). So even though many fetal abnormalities don’t threaten the pregnant woman’s health or life, most people seem to agree that it’s cruel to force a woman to give birth to a baby that cannot possibly survive (if it’s even born alive, which many anencephalic fetuses aren’t). But if a doomed pregnancy doesn’t threaten a pregnant woman’s physical health, why would we allow her to terminate it?
Because, obviously, it threatens her mental health in no small way. Being forced to carry a wanted but doomed pregnancy, and being forced to go through childbirth to produce a dead or dying baby, is understandably deeply emotionally traumatic. We want to give women the option to avoid that kind of mental trauma because we recognize that physical harm is not the only harm that matters.
And the psychological harm of being forced to give birth against your will to a baby that will not survive is not the only kind of psychological harm that matters. It is impossible to account for all the circumstances under which mental issues may seriously impair the ability of a pregnant woman to function, and may be just as threatening as physical issues. People face diverse circumstances, and when it comes to health and medical care, sweeping rules can cause widespread harm. Which is why when it comes to issues like abortion and other medical procedures, we should err on the side of providing care, not limiting it, and we should allow individual circumstances to be best evaluated by the people living those circumstances and the doctors treating them.
That is the position that we expect pro-choice politicians to stake out. Either Obama caved to anti-choicers on this one, or he really believes it and isn’t as strongly pro-choice as many of us thought. I’m not sure which is worse.
]]>This post was originally published at Feministe.