Winning With Icky

by digby

I hope that I don't hear any talk today about how it's really a good thing that the court upheld a ban on a certain "icky" abortion procedure because it will mobilize all the rabid pro-choice people out there to fight back. The whole point of the "partial birth" project was to avoid just that, and it has succeeded. Nobody's going to mobilize for "icky."

The forced childbirth movement realized a while back that overturning Roe all at once was politically risky and they would have to build up steam to get it done. (They also enjoy milking it for $$$) So they have devised a cunning plan to chip away at it over time and with addition of the Gang of Fourteen's shiny new vanity project, Samuel Alito, they just opened up a brand new avenue to do it. It would appear that the health exception is no longer valid because no matter what the medical profession and the science says, if a rightwing congress decides that something isn't medically necessary, by God it isn't necessary. (Presumably, the sodomized virgin exception remains in place, dependent, of course, on valid determination by good rightwing Christian men who will assess whether the victim was properly chaste prior to allowing herself to be gang raped.)

Scott Lemieux explained the ramifications of the court upholding the D&X procedure ban in a piece a few months back:

... the larger problem is that, because the distinction between D&X abortions and any other procedure is wholly arbitrary, legislatures can invent further distinctions and continue to tie the hands of abortion doctors. As Eve Gartner, the lawyer representing Planned Parenthood, put it during the oral argument, "to allow such an expansion of pre-viability abortions that can be banned would set the stage for continued legislative efforts to ban other iterations of the classic D&E method of abortion, until truly there would be nothing left at all of Casey's holding that it is unconstitutional to ban second-trimester abortions."

Partial-birth abortion bans involve inventing a scary-sounding but scientifically meaningless term, applying it to an abortion procedure morally indistinguishable from any other, and using the legislative results as a Trojan Horse to undermine popular judicial protections of a woman's right to choose. They are the ultimate example of the increasing cynicism and emptiness of the leadership of the American "pro-life" movement, and the crass exploitation of its rank-and-file by Republicans (and too many Democrats) happy to use the issue to mobilize the base as long as the access to abortion of women in their social milieu aren't affected. Congress is employing rank dishonesty to play political games with the lives and bodies of American woman.

Christy Hardin Smith posted a very poignant story this morning about a real couple, who had serious health issues with their twin fetuses and were subjected to ridiculous legal constraints trying to save the life of at least one of them with a procedure that the religious right has successfully demonized. It does not strictly apply to the D&X procedure, but the logic is the same: a tremendously complicated issue, both medically and morally, is not in the hands of those who bear the burden of such decisions. Instead, five men on the the Supreme Court and a bunch of self-appointed people who insist that they have a right to legislate their religion into law will be making that decision for you.

But they have to. You see women are stupid selfish creatures who just want to avoid their responsibilities and they must be stopped:

Or as the forced childbirth proponents at Wizbang see it:

Here's a feminist whose first comment was "We're f***ed." Sure, lady,
if you mean that you can't go to an abortionist when you're 6+ months
pregnant and have your unborn baby almost completely delivered except
for his head and have his brains sucked out while he's still alive
because you just don't feel like being pregnant any longer, then yes,
I suppose you're f***ed.

Italics are mine.

Read this accountof another real life couple who had to make difficult decisions of life and death and late term abortion and then tell me that that woman just "didn't feel like being pregnant any longer." And ask yourself if you or anyone else has the right to tell those people what was the morally proper thing to do. I suppose if you believed that Bill Frist could diagnose Terry Schiavo from the floor of the senate, then you'll probably agree that the guy from WizBang, Samuel Alito and the Republican congress are the best people to make these decisions. I tend to think that life is just a little bit more complicated than that, but then I don't have the kind of Moral Clarity that allows me to believe that millions of children dying once they are born isn't my problem, but keeping fetuses in the womb to full term no matter what the circumstances is a moral imperative. Hell, keeping blastocysts frozen in a petrie dish is more important than saving actual children dying of disease, so I'm just a little bit flummoxed on the moral principles that guide these people.

So here we are. I'm not surprised. It was expected. In fact, it was ordained the day that the Supreme Court elected George W. Bush in 2000. The rightwing special interests that got that fifth vote are very effective when they take the long view and the forced childbirth movement is as good at what it does as is the NRA. (And our side is simply pathetic.) I fully expect that over time we will find ourselves with a "right" to abortion that has been regulated completely out of existence in some places and continuously under siege in others. At which point everyone will agree that the "right" isn't worth fighting for at all. (We're almost there already.)

In the real world, where actual people live, these kinds of issues aren't sickening little bon mots about horrible women who like the idea of "sucking out the brains" of little babies. They are difficult, complicated moral decisions that cannot be adequately addressed by facile, convenient assumptions about women's base motivations.

And that's the heart of the matter, going all the way up to the five important men on the Supreme Court. Underlying this decision and all the arguments, not just that puerile little snot's at WizBang, is something incredibly insulting to half the population of this country, (even if a fair number of its proponents are members of that group). Lemieux today at LG&M:

...let's also remember the underlying gender assumptions of those who support the power of the states and the federal government. Ann has already noted this powerful passage in Justice Ginsburg's brilliant dissent: "Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from '[s]evere depression and loss of esteem.' Because of women's fragile emotional state and because of the bond of love the mother has for her child,' the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women's place in the family and under the Constitution ideas that have long since been discredited."

Given Alito's assumption that the state has the same interest in regulating married adult women as it has in regulating children, that he would vote to uphold this ban isn't exactly shocking.

Or to put it another way, I'll quote Maha on the subject from some time back:

...the anti-abortion rights position is based on an assumption that women aren’t real people — especially women who get abortions. Oh, they’re human in a scientific sense, but they aren’t people. They are archetypes who live in the heads of the anti-abortion righters — Careless Woman, Selfish Woman, Woman in a Vacuum. The same people who imagine embryos can think and feel emotions — and therefore deserve protection — must believe a pregnant woman is just a major appliance.

There are copious anecdotes from abortion providers who say that often the same people protesting outside the clinic one week are patients (or parents of patients) the next week. These people assume that their situations are unique and should be the one exception. They often want the abortion staff to know they aren’t like those other women who get abortions. This inspired the bitter joke that the legitimate reasons for abortion are “rape, incest, and me.” Such people recognize their own humanity (or their daughter’s), but those other women who get abortions are just archetypes who don’t deserve respect or consideration.

I’ve long believed that whether one is pro-choice or anti-choice does not depend on whether one thinks embryos are human beings. It depends on whether one recognizes that women are human beings. Not archetypes, but real, individual human beings. Including women who get abortions.

Oh, Sandy. We hardly knew ye.

Update: For those of you who've been reading this blog a while, you know that I've been convinced that the Democrats are poised and desperate to throw in the towel on choice, just as they threw in the towel on gun control and the death penalty when the right proved to be relentless and obnoxious enough to wear them down.

Here's how ABC news reports today's news:

House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Harry Reid, D-Nev., took no position on two of the hottest social issues in America today -- guns and abortion -- in a week when those subjects were brought before the public in quite compelling ways.

Asked about this morning's historic and unprecedented decision by the U.S. Supreme Court to uphold a state ban on an abortion procedure, Pelosi -- longtime backer of abortion rights -- said, "This is an issue I need to review." Reid immediately changed the subject to the prevention of unwanted pregnancies. "That's what it brings to my mind," Reid said.

Two days after the slaughter of 32 innocents on the campus of Virginia Tech by a shooter with two handguns, Pelosi demurred on whether Congress was in any mood to examine gun control laws.

"The mood in Congress is one of mourning, sadness and the inadequacy of our words" to help the bereaved, Pelosi said.

Welcome to the Democratic Party 2.0. After years in the political wilderness -- President Bush in the White House, Republican majorities in the House and Senate -- Democrats are wary of engaging in hot-button social issues such as the "3 G's" -- guns, God and gays.

Many political observers, including Democratic National Committee Chairman Howard Dean, believe former Vice President Al Gore's support of gun control cost him the 2000 election, essentially handing over to Bush states such as Montana, Tennessee and West Virginia.

At a Harvard seminar following the 2000 election, Steve Rosenthal, then the AFL-CIO's political director, was asked what the Democratic party should do on gun control.

"Shut the hell up," he said. Democrats have largely heeded that advice.

Moreover, many in their ranks who are responsible for Democrats having recaptured the House and Senate -- what Speaker Pelosi calls "the majority makers" -- hold conservative positions on many of these issues, such as Sens. Jon Tester, D-Mont., Jim Webb, D-Virginia, and Bob Casey Jr., D-Penn. Reid himself is a foe of abortion who has in the past voted in favor of a ban on the procedure abortion opponents call "partial birth abortion

When you think about it, if we can get rid of the "ick" factor --- abortion, guns, god and gays altogether --- we can be Republicans, only with higher taxes. Awesome.

I remain confused, however, about why in poll after poll people say they don't know what the Democratic Party stands for. Oh well, whatever. The Republicans have screwed up so badly that all the Dems have to do is keep their heads down and not stand for anything beyond sparring with the Lame Codpiece and they can still win. Ain't that inspiring?

Update II: This post from Professor Balkin also explains some of the other aspects of the decision that are so depressing --- this in particular, where he draws from an earlier post from 2005:

If the Court applied the Salerno rule to abortion cases, it would mean that plaintiffs could not directly challenge new abortion regulations as soon as they were passed. Instead, a series of plaintiffs would have to go to court and prove that the law was unconstitutional as applied to their individual circumstances. This process would be time consuming and expensive, and it would take years to produce a jurisprudence limiting the statute's unconstitutional reach. Thus, the effect of applying Salerno (as opposed to what the Court actually did in Casey) would be to allow states to pass significant restrictions on abortion and keep them in force for long periods of time until a series of time consuming and expensive cases gradually eliminated their unconstitutional features. Indeed, precisely because creating an appropriate factual record for an individual as-applied challenge by a pregnant woman may be time consuming and expensive, the series of suits may never be brought, with the result that a whole host of abortion limitations that are actually invalid under the undue burden test will remain in force and will be applied to limit women's right to abortion. Applying Salerno to abortion litigation, in short, would drain much of Roe's and Casey's practical applicability to the real world. And because this will be achieved through an abstruse and technical doctrine of court procedure, many members of the public will not even realize that Roe and Casey have been effectively gutted.

...the rule that Justice Kennedy seems to have crafted has most of the disadvantages I pointed out back in 2005.

...because this will be achieved through an abstruse and technical doctrine of court procedure, many members of the public will not even realize that Roe and Casey have been effectively gutted.

Elections have consequences.

Update III: More consequences