Politics, et Cetera
A publication from The Political Forum, LLC
Tuesday, July 8, 2014
They Said It:
It is no simple, no superficial thing, nor to be estimated by superficial understandings. An ignorant man, who is not fool enough to meddle with his clock, is however sufficiently confident to think he can safely take to pieces, and put together at his pleasure, a moral machine of another guise, importance, and complexity, composed of far other wheels, and springs, and balances, and counteracting and co-operating powers. Men little think how immorally they act in rashly meddling with what they do not understand. Their delusive good intention is no sort of excuse for their presumption. They who truly mean well must be fearful of acting ill.
Edmund Burke, Appeal from the New to the Old Whigs, 1791.
HOBBY LOBBY AND THE CONSTITUTIONAL ORDER.
On the off chance that you hadn’t noticed, the political Left’s reaction to last week’s Supreme Court ruling in the case of Burwell v. Hobby Lobby Stores, Inc. has been rather . . . uhhh . . . extraordinary. So much so that some of our friends on the Right have called it “unhinged.”
The former Speaker of the House Nancy Pelosi declared that the decision was, somehow, a “gross violation of workers’ religious rights” and that the decision would permit “corporations to choose which laws to obey.” The former Secretary of State and presumed future president Hillary Clinton called the decision “deeply disturbing,” which is ironic, we suppose, since the ruling was based on the explicit terms of a law her husband signed. Some on the Left demanded that Hobby Lobby stores be “burned to the ground.” Others called for “dissenters” to have sex in Hobby Lobby stores, just to make the “prudes” there unhappy. The columnist and “feminist” Jessica Valenti put the Left’s complaints into column form but still struggled not to sound like a lunatic:
And while SCOTUSBlog reported that the decision will allow for the government to “provide alternative ways [for women] to obtain or access [contraception] coverage”, several women’s health leaders I heard from said that is far from certain.
No matter the legal rhetoric, the message about women and sex remains the same. It seems appropriate that that quote from Ellen Willis is from the essay “Abortion: Is a Woman a Person?” Because what’s at stake in a decision like this – and in a debate like this – is women’s basic humanity, of which sexuality is an integral part. Yes, contraception is about health and women often need birth control for medical reasons – but we also need it for sex, and that’s just fine.
The supreme court wrote that this decision doesn’t “provide a shield for employers who might cloak illegal discrimination as a religious practice”. But what else can we call the targeting of contraception – and the targeting of women’s health and lives?
Good grief. We’ll spare you a wholesale rebuttal of this silliness, largely because there is no rebutting such wild and fallacious irrationality. If a well-reasoned Supreme Court ruling can’t convince some people that their position is nutty, then nothing – much less this essay – is going to succeed where the Justices failed. It just so happens that some people, including much of our political class, are wedded to notions that are incompatible with reality and which serve as evidence of a deep-seated paranoia.
In truth, the Hobby Law decision was based on a rather narrow interpretation of the conflict between regulatory law and statutory law. There was no grand design adhered to by the justices in the majority; no ambitious scheme to deny women access to contraception; no broad precedent by which religious liberty was affirmed in all cases, thereby making it possible for anyone, anywhere to claim an exemption from any law, as long as he or she could claim a violation of religious conscience.
Indeed, the Court denied the applicability of First Amendment claims with respect to this case. The majority ruled only that the regulation in question – the Obamacare contraception mandate – did not meet the requirements for violating religious conscience spelled out very clearly and very precisely in the Religious Freedom Restoration Act, which was passed nearly unanimously in 1993 by a Democratic House and a Democratic Senate and was signed by Democratic President Bill Clinton. Any claims of universal victory or universal defeat based on this single ruling are hyperbolic at best.
But if all of this is true – and it is, we swear it – then why exactly is the Left freaking out? Why are the supposedly sane and rational leaders of the Democratic Party bemoaning the impending theocracy? Why do feminists claim that this is a disaster of monumental proportion that points to the ongoing existence of a patriarchy dedicated to destroying women’s rights and keeping them “barefoot and pregnant?”
More to the point, what does all of this say about the near-term future of domestic politics and for the prospects for the continuation of the culture wars? How, pray tell, can the nation address its serious long-term economic and foreign policy problems, if its people can’t even refrain from gratuitous and absurdist displays of emotion and illogicality on something as narrow and immaterial as four-out-of-twenty FDA approved forms of birth control, which is precisely what was involved in the Hobby Lobby case?
We know we’ve told this story before, but we think it bears repeating in this context. Several years ago, we had a brief flirtation with an Asian company that thought it might want to distribute our product in Europe and Asia. We really like your work, we were told, except for one thing that we cannot understand: your obsession – and not just yours, but ALL Americans’ – with abortion and birth control.
The deal fell through, obviously, although not because of any concern over our “obsession.” Still, for us it raised an interesting point. Of course they don’t understand our obsession. They aren’t Americans.
Now, we don’t mean that to come off as condescending. What we mean is that only an American – which is to say only someone who has lived here and understands the deep emotional attachment that exists in this country for our Founding documents and our place in history – can possibly understand why the battle over abortion, birth control, and “women’s issues” more generally is a national obsession. Abortion is, in some ways, the quintessential American conflict. And it will, we’re sure, remain so for the foreseeable future. Let us explain.
Like it or not, the source of all that is hostile and nasty and irrational and obsessive in the American culture wars can be traced to Roe v. Wade. Many conservatives trace the problem back to Griswold v. Connecticut, the birth control case in which the “right to privacy” and “penumbras and emanations” made their debut. And in a sense, we suppose they’re right. But for most Americans, Roe v. Wade is the touchstone. It is the case that changed everything and that turned the cultural unrest of the 1960s into a full-fledged, several-decades-long culture war.
This notion that the Roe decision was a central factor in the start of the culture wars is hardly new. Indeed, it has long been part of the prevailing argument against “judicial activism” and what many on the Right see as the judicial “usurpation” of American democracy. It has been nearly twenty years now since the journal First Things produced a brilliant, provocative, and highly controversial issue in which a handful of eminent scholars discussed the “End of Democracy” and the judicial usurpation of the rights of the people. Among those who authored essays for the issue were Hadley Arkes, Charles Colson, Judge Robert Bork, and Princeton’s renowned legal and ethics scholar Robert P. George, all of whom noted that concern about judicial activism and its impact on the American culture was, even at that time, well established.
Among those whom Robert George cited as proponents of the idea that judicial activism had led to a crisis in American politics and had precipitated the culture wars was Supreme Court Justice Antonin Scalia, whom George called “the leading exponent” of the intellectual attack on judicial activism. Scalia, George noted, had declared “abortion, for example, to be a matter entirely outside the purview of constitutional law and, therefore, beyond the jurisdiction of courts.” In a later piece, written for the Wall Street Journal in August 2012, George makes the argument against Roe more explicitly. To wit:
Even many supporters of legal abortion now consider Roe a mistake. Lacking any basis in the text, logic or original understanding of the Constitution, the decision became a symbol of the judicial usurpation of authority vested in the people and their representatives. It sent the message that judges need not be impartial umpires—as both John Roberts and Sonia Sotomayor say they should be—but that judges can impose their policy preferences under the pretext of enforcing constitutional guarantees.
By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Abortion, which the Court purported to settle in 1973, remains the most unsettled issue in American politics—and the most unsettling.
One would, we think, be hard-pressed to impugn the logic of this argument. It is clear that one of the greatest frustrations for the Pro-Life side of the debate is the fact there is nothing that it can do to alter the fundamental legal questions, regardless of the validity of or popular support behind its positions. In its Roe decision, the Supreme Court created a Constitutional Right to abortion, which is to say that it created a right that the laws of the states or of the federal government cannot overrule. As Justice Harry Blackmun put it in the majority decision:
State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy . . .
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.
This is important. As any schoolboy knows, a Constitutional right is significantly different from a statutory right. The latter is created by law and therefore subject to change. The former, by contrast, is presumably endowed the Creator, a right of all people, the espousal of which is integral to the plan “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity . . .”
A Constitutional right is subject to change only in two cases: an amendment to the Constitution, or a later ruling by the Court that invalidates the previous ruling, arguing that it was mistaken. Under these conditions, it is little wonder that the folks on the Pro-Life side of the argument have been enduringly frustrated and perpetually aggrieved. Their government – through the imposition of an edict delivered by non-democratic means and virtually unalterable by those same democratic means – established as the eternal law of the land a practice which they consider tantamount to murder.
We should point out, though, that the Pro-Lifers are not the only ones whose psychological predisposition has been affected by the construction of a Constitutional right to abortion. The Pro-Choice side too has been deeply affected. And although this impact has heretofore been largely ignored, it is, we think, the key to understanding the contemporary Left, its social priorities, its policy priorities, and its generally unhealthy and flabbergasting reaction to such things as the Hobby Lobby decision.
Do you remember Wendy Davis? If you live in Texas or are keenly interested in state-level politics, then you most certainly do. She is, after all, the Democratic nominee in the race for governor of the Lone Star State. And how she came to be the nominee is an interesting and instructive tale.
Up until about a year ago, almost no one outside of Texas had ever heard of Wendy Davis. She was a fairly nondescript, average, run-of-the-mill state legislator. She had been in the Texas state senate for just over four years and had, before that, served on the Fort Worth City Council – as a Republican. In June 2013, though, Davis made a national name for herself by conducting an 11-hour filibuster against Texas Senate Bill 5, which would have loosely outlawed abortion after 20 weeks (with the usual exceptions for the health of the mother) and would have mandated that abortion centers meet the same standards as other health care clinics in the state.
On the surface, this proposed legislation appeared fairly innocuous. It purported to consider the health care outcomes for women and, more to the point, was entirely in keeping with the Supreme Court’s “trimester” approach to viability as fashioned in Roe. Additionally, it was consistent with public opinion, both in Texas and nationwide about the inherent decency of preventing the infliction of pain upon a fetus.
None of that mattered, though, either to Wendy Davis or to the Pro-Choice movement more generally. Davis conducted her filibuster, and in so doing forced Governor Rick Perry to call a second special session of the Texas legislature in order to pass the bill. She also turned herself into a Pro-Choice hero, which, in turn, filled her campaign coffers and allowed this relative unknown to become the Democratic Party’s nominee for governor.
In defending her position on abortion, Davis purportedly echoed the former Speaker of the House Pelosi, calling the right to abortion “sacred ground.” And while many on the Pro-Life side reacted vehemently and disgustedly to the statement, it is, we think, a helpful assertion. Davis and Pelosi – and the Pro-Choice crowd more generally – think of abortion rights as “sacred” not because they think it is Godly or holy or righteous, but because it is a Constitutional right. And in this country, Constitutional rights are indeed considered sacrosanct.
Consider, if you will, what abortion laws look like in, say, Europe. As a general rule, the American Left is startlingly Euro-phillic. Why, the Left perpetually wonders, can’t we be more like Europe? More notably, Europe is, for the most part, far more relaxed about abortion politics. Europeans think that we’re nuts, and that we expend way too much energy on the subject. Like our erstwhile Asian suitor, they think Americans obsessed with the subject. But then, what is the reality of European abortion? How do their laws stack up against American law?
As luck would have it, Emily Matchar, who is, more-or-less Pro-Choice asked precisely those questions in an article for The Atlantic last summer. She put it this way:
I assumed that Western Europe would be the land of abortion on demand, likely government-subsidized, and possibly with a free bag of condoms afterward. But as it turns out, abortion laws in Europe are both more restrictive and more complicated than that. Waiting periods, decried by American pro-choicers as infantilizing and unreasonably burdensome, are common in Western Europe.
In Germany, women seeking first-trimester abortions are subject to a mandatory three-day waiting period and a counseling session. Abortions after the first 12 weeks of pregnancy are forbidden except in cases of grave threat to the mother’s physical or mental health. The Netherlands mandates a five-day waiting period between initial consultation and abortion; clinics must provide women with information about abortion alternatives. Abortion is then legal until viability (legally defined as 24 weeks, usually interpreted as 22 weeks). In Belgium, where abortion was illegal until 1990, there’s a six-day waiting period and the woman must claim to be in “a state of distress” before receiving a first-trimester abortion.
Many Western European countries have what might seem like odd requirements and exceptions to their abortion laws.
In Finland (home of the now-famous Finnish baby boxes and other enviable government benefits), abortion is available up to 12 weeks of pregnancy, unless the woman is under 17 years old, in which case she may have an abortion until she’s 20 weeks pregnant. But even for early abortions, women must provide a “social reason” for seeking to terminate her pregnancy, such as poverty, extreme distress, or already having at least four children. While in practice most abortion requests are granted, it still forces women to prove to an authority the validity of their desire not to have a baby. In Denmark, abortion is available on demand up to 12 weeks of pregnancy. Afterward, exceptions are made for cases of rape, threats to the woman’s physical or mental health, risk of fetal defects, and — revealingly — in cases where the woman can demonstrate lack of financial resources to care for a child.
Israel (though not part of Europe, obviously) has similarly idiosyncratic requirements and restrictions. Though 93 percent of American Jews support abortion rights in all or most cases, and the Torah has little to say about abortion, the Jewish state of Israel has fairly heavy-handed abortion laws. Abortion is illegal for married women between ages 17 and 40, except in cases of rape, incest, fetal malformation, or risk to the mother’s physical or mental health. Women eligible for abortions (the unmarried ones, that is) must submit to ultrasounds, wade through rivers of paperwork, and plead their case to an expert.
Eastern Europe, a stronghold of liberal abortion laws under Communism, has become increasingly strict of late. Russia recently passed a law restricting abortion to the first 12 weeks of pregnancy, and Russian clinics are also now forced to give (medically dubious) warnings about the health risks of abortion, which supposedly include cancer and infertility. After the fall of the USSR, Poland enacted some of Europe’s strictest abortion laws banning the procedure except in cases of rape, fetal malformation, or serious threats to the woman’s health.
Matchar went on to argue that the reason for this is that “in America, abortion laws are about morality, while in Europe, they reflect national ideas of what constitutes the common good.” Our instinct here is to say that this is pure statist pabulum, based on nothing more than Matchar’s beliefs that abortion and “the common good” are one and the same and that Europeans are better at providing the common good than are Americans.
But in truth, Matchar has a point – or rather, half a point. In Europe, elected leaders are free to do as they see fit with abortion, as long as they don’t run afoul of their constituents. That is to say that they can amend abortion laws to meet the popular, democratic definition of the common good. Obviously, that is not the case in the United States, but not because we are obsessed with “morality.” Instead, it’s because we are obsessed with our Constitution and the rights that it guarantees.
One can argue about whether this Constitutional obsession is healthy. We’d argue that it is. Many Progressives, by contrast, would argue that it isn’t. The difference between the original Progressives and their contemporary heirs is that the former chose to express their displeasure with the Constitution by amending it, i.e. the 16th, 17th, 18th, and 19th Amendments. The latter, by contrast, choose to do so by having unelected, unaccountable judges alter the meaning of the Founders’ words to suit contemporary opinion.
We’re not sure that the parallel here is exact. In fact, we’re pretty sure that it’s not. Still, we think that some value can be gained from looking at abortion rights as they compare to gun rights. In both cases, opponents argue that the proponents of the “rights” are “radicals” and that they absolutely and incontrovertibly resist both the will of the people and common sense.
Countless innocents have been killed by abortion, just as countless innocents have been killed by guns. And even basic, practical restrictions upon the rights to abortions and guns are rejected by proponents as both unconstitutional and part of a long-term strategy by opponents to chip away at the right over time, eventually eliminating it. Moreover, both constitute key fronts in the culture wars, essentially dividing Left from Right.
There really can be no question that what makes gun rights and abortion rights so similar is their Constitutional foundation. What makes them different, we think, is a much more complicated matter, the bulk of which is beyond the purview of this essay. For our purposes today, it should suffice to say that there are two principal differences.
For starters, gun rights opponents propose legislation aimed not at curtailing the right per se, but at curtailing gun violence. And in so doing, they acknowledge that the right to bear arms and the effects of bearing arms are distinct phenomena. They simply have no idea about how to achieve the latter without harming the former. With abortion, by contrast, that distinction is non-existent. Pro-Lifers want to end abortion, which is to say that they want to end the “right” to it. The right is not some ancillary casualty in the pursuit of the greater good. The right itself is seen as erroneous.
Obviously, there is a reason for this, namely the second difference between gun rights and abortion rights. The former is spelled out explicitly in the text of the Constitution, while the latter is not; it exists only because a majority of justices decided that it did.
And this brings us, at long last, to the likely long-term impact of the abortion and contraception debate. And unfortunately, here we have bad news and worse news.
Roe v. Wade established abortion on demand as the law of the land and as a sacrosanct right for every woman. That means that any encroachment on “women’s health,” – which is the contemporary catch-all euphemism for abortion and contraception – will be met with massive resistance. And quite often, that resistance will include considerable hostility, significant irrationality, and the resuscitation of the old “war on women” theme. It doesn’t matter if the encroachment is small, narrowly constructed, or even likely to make women’s health better over the long run. It doesn’t matter if some small group of employers manages to earn the legal ability to avoid paying for 20% of the FDA approved forms of contraception pursuant to a regulatory ruling issued only a couple of years ago. None of that is relevant, because the right at risk is a CONSTITUTIONAL one. And Constitutional rights must be defended at all costs and at against any incursion.
Neither the broad culture war nor the “war on women” campaign run by the Democratic Party will be going anywhere soon. Every election cycle for the foreseeable future will be, at least in part, about abortion, contraception, and the so-called war on women. There is simply no avoiding it. This will be the state of our politics indefinitely, even more so if the Democrats manage to nominate a woman (Hillary Clinton or, in the Leftists’ dreams Elizabeth Warren) for president in 2016. War on women. War on women. War on women. As far as the eye can see.
It also means that the much-heralded and much-maligned “single-issue” voters are not going anywhere soon either. For decades, many on the Left have insisted that they are “fiscal conservatives” but “cultural liberals.” And for them, the single cultural issue that matters most is abortion – or “women’s health care,” if you prefer. Likewise, many on the right have insisted that their erstwhile sympathies for liberalism in theory has been overwhelmed by their opposition to abortion/women’s health care in practice. Specifically, we are thinking here of much of the Catholic and working-class Southern Baptist electorate.
Obviously, this should be cause for concern for the political Right. There are a great many issues that the Right feels need to be addressed and which do, in fact, need addressing. The long-term debt, the entitlement state, health care, immigration, foreign affairs, the advance of the police state, the advance of the administrative state, etc., etc., ad nauseam. None of these issues will be rectified any time soon unless the Democrats suddenly wake up to the reality and the severity of these threats or unless the Republicans find a way to do better with white women voters – the demographic group least likely to vote Republican based on abortion/women’s health care. The former seems unlikely, although not as unlikely as the latter.
Moreover, the Right is staring down the barrel of the proverbial gun on this matter, as the question of gay marriage winds its way through the courts. If the broad issue of gay marriage makes it to the Supreme Court and is upheld on the grounds of the Equal Protection Clause, then the cultural divide will grow even larger and less advantageous to the GOP. Two Constitutional rights dividing Left from Right on cultural grounds will likely be more than the GOP can handle. With a majority of young voters currently favoring gay marriage, the Republicans will be faced with a monumental task in persuading voters to come around to their position. And persuasion has not exactly been the GOP’s strength of late.
At the same time, the Left isn’t exactly in the clear. It too should worry about the effects that the ongoing abortion war could have on its voting base. It is true that most new immigrants to this country are poor, Hispanic minorities who are predisposed at present to vote for the continuation of the welfare state. But it also true that these new immigrants are overwhelmingly Catholic. And there’s no telling how they will vote five, ten, fifteen years down the road, particularly if the “war on women” theme continues and especially if they are not relegated to the fringes of society but are legalized and made a part of the broader American family, as the President seems determined to ensure.
Naturally, we have some thoughts about how the Right might better equip itself to fight and win the culture wars by working to neutralize the causus belli, i.e. Roe v. Wade. But then, those ideas don’t really fit our role here or the scope of this newsletter.
In the meantime, then, you should expect the matter to remain both unsettled and quite nasty. There will be more Hobby Lobbies. There will be more Wendy Davises. There will be more (and more and more . . . campaigns run on the “war on women.”) And we Americans will maintain our obsession. That’s life in a Constitutional republic, we’re afraid.