Submitted to a Candid World

Ask anyone. Deadlines breed desperation.

I’ve said it before - the only thing more dangerous than George W. Bush with a mandate, is George W. Bush with nothing left to lose. In what I can only imagine is an attempt to find just one last way to hurt America, Bush has aimed to  cut off women’s access to contraceptives. This time, it’s a regular Texas two-step: (1) de-fund hospitals that “discriminate” against doctors & staff who won’t perform abortions, and (2) expand the definition of “abortion” to include “contraception.”

I respect the fantastic conversation we’ve been having on this site about abortion, but this goes well beyond being pro-life or pro-choice. Bush’s latest nefarious scheme is flat-out anti-women. It will not only prevent women from seeking abortions, but also function to withdraw emergency contraceptives, and even regular, prophylactic birth control pills from a large portion of the American population.

Crusading, fundamentalist Christianity’s latest backhand slap to America’s women has been - dare I say it? - gestating for the past four years. Consistent with the Bush administration mantra that not being allowed to force your beliefs on others is “discrimination,” late in the Congressional session in 2004, radical right-wing conservative legislators tacked a rider onto a massive, must-pass funding bill that required federally funded hospitals to employ pro-life staff, or lose billions of dollars in heretofore free grants. The bill - Public Law 108-447, or H.R. 4818 (2004) - tucked the provision away on page 3,163 of the immense act, in Section 507:

…
(d)(1) None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.

The rider was the natural expansion of a 1991 Supreme Court case, Rust v. Sullivan, 500 U.S. 173 (1991), which, in one the most nakedly partisan and legally tortured opinions ever penned by the Justices, allowed the government to pull funding from federally funded clinics that counseled recommended even mentioned the word “abortion.“

Bush’s new partisan magic comes from deciding to enforce this overlooked provision, while simultaneously redefining “abortion,” through the Department of Health and Human Services, as:

[A]ny of the various procedures that results in the procedures that result in the termination of the life of a human being in utero between conception and natural birth whether before or after implantation. [click here]

That’s right. The new HHS proposal would (1) define conception as life’s beginning, and (2) define anything that happens to the two-to-eight celled embryo immediately after fertilization - even before implantation - as an “abortion.” It would torpedo the morning-after pill, and, by extension, potentially prophylactic birth control pills too, at least insofar as it would end the ability of any publicly-funded medical care facility to dispense them.

While pulling pills from hospitals and federal clinics might sound like “not a big deal” - after all, can’t women just see a private practitioner, or get a prescription from Duane Reed? - the consequences of this decision, like so many of the Bush administration’s missteps, will (if enacted) be felt most heavily by women who lack those options, who live in towns with only hospitals, who rely on government-subsidized care because they can’t afford any better, or who face a rush, like rape victims, to prevent implantation. Bush’s HHS won’t end abortion & birth control: it’ll simply pull the option from the poor and those who need it most.

If there’s any upside to this new revelation - and I stress the “if” - it’s that Our Boy McCain is going to face a decision. Either way, he loses: he can join the President’s trip back in time to the 1920s, driving away women and moderates, or pick the moderate course and firmly alienate evangelicals, who see milestones like this as steps on the road to the Rapture.

Bush drove our country apart to further his partisan agenda; now he stands to drive his party apart, too, in a desperate final grab for power over women’s bodies.

Editor’s introduction: I would like this post to become the first in a series about the nature of science, and its intersection with law and public policy. I have a great deal of interest in the subject - in fact, my note for my Journal is on this very subject - and I think some of the readers here have the same interest. Since it’s an ongoing series, please leave a comment if you like the topic, don’t like the topic, or have an idea for the way the topic should go.

The Problem of Pseudoscience

Science is dangerous. In the context of a public policy debate, the invocation of science to justify, oppose, or recontour the issue in controversy either removes an element of the debate from contest, or elevates it to another level, where (ideally) objective fact must be met by objective fact, subject to the procedural rigors of the scientific method. In most cases, though, proffered scientific arguments are accepted at face value: science connotes objectivity and trustworthiness, and requires expert training to give it a closer look. Since most of us lack that level of training, we must trust the expert’s assertion that the science is correct: the use of science to debate public issues, then, carries with it an implicit promise that the expert’s scientific knowledge is being used correctly, in good faith, and with the benefit of experience. The scientist has to act as the fiduciary of the public, leading the untrained wisely and without prejudice or bias. In return, in the abscence of proof to the contrary, we assume good faith on the part of the social-minded scientists.

Thus, the problem of pseudoscience. While we in the public sphere are conditioned to trust science, and scientists, the potential for largescale abuse of trust lurks just beneath the surface. As Answers in Genesis and Expelled have shown us, dressing anything up as “science” automatically puts your opponent on weaker footing, because they then have to rebut the contention of special expertise or disprove the “science” scientifically, before even addressing the merits of the underlying argument. While science may be a wise policy guide, to the unprincipled, it can become a shield for bad ideas. (more…)

About half of the internet has been trying to sort out and properly react to Barack Obama’s alleged turn to center on FISA, the death penalty, and a few other issues.

The other half would’ve joined the party, but they were busy captioning pictures of cats.

I’ve resolved the issue to my personal satisfaction by reasoning that Obama’s “rightward turn” might be partly attributed to a heartfelt desire to reach across the aisle and be every person’s president, and partly chalked up to simple politics, both of which are fine by me.  But why listen to a law student when you could listen to a law professor?  Kyron Huigens of Cardozo Law reasons that Obama’s turn is not a turn at all, but rather explained by his principled beliefs in the way the law works.  I think he’s probably on the right path.

And this, my friends, is why you want an “elitist” as a president.  The Bush years have so blinded us by partisan gamesmanship that we’re looking for spin when there may not be any: “what’s that crazy Obama kid trying to prove?”  For once, we might just have a candidate who’s researched the issues, thought long and hard about them, and reached an intellectual conclusion.  He may not be as fun to sit down and have a beer with as George W. Bush, but when the tab comes, at least Barack Obama can calculate the tip.

Every now and again, we law-talking guys get our moment in the sun, when one of the vague and bizarre doctrines probed only by academics is exposed to the unexpected, searching sun of publicity. AH! It burns, it burns! This month, it’s comity and private international law, collectively known as the conflict of laws.

Executive summary: fur’ners want to sue the first amendment away from us, courts are letting them, and that’s bad. Or, in more depth, some plaintiffs with ties to terrorism and militant Islam are using the comparatively weaker free speech protections of European nations to win libel suits that they couldn’t win in America, American courts are for some reason enforcing the judgments, and Joe Lieberman (I-Conn.) is right to be worried. He wants to pass a law requiring American courts to ignore foreign libel judgments if they wouldn’t fly under our first amendment, and I think he’s right on target. Our first amendment is not up for debate. As usual, skip to the rant if you want.

The Law

If a European manages to make their law of libel apply to an American defendant, they do it through a two step process, first by winning the case in Europe, and second, by asking an American court to give them money based on the judgment.

After all, winning a case isn’t everything. When you “win,” you don’t get money; you get a judgment, and you have to ask the court to help you collect on that judgment. Those steps blur when an American sues an American: they’re both in front of the court, and if the losing party runs, American police are right behind them. But when a foreigner sues an American, things get dicey, and cracks start to show in the two step process. Let’s go through them both.

First things amendment first. It’s very hard to win a libel case. The United States grants vast leeway to speakers when making impolite, impolitic, or even borderline libelous statements. If you want to sue someone for slandering you, the burden is on you to prove the offense: you have to prove that the allegation made against you was (1) not true, and (2) made with reckless disregard for the truth. N.Y. Times Co. v. Sullivan, 376 U.S. 254. If you’re a public figure, forget about it - you have to prove “actual malice” in addition to those. Hustler Magazine v. Falwell, 485 U.S. 46 (yes, that Falwell). Long story short, the United States prefers to let people say what they want to when they want to, and if they’re wrong, the truth will out. That’s why the marketplace of ideas is so vitally important - because it’s the only remedy afforded to a slandered individual in cases where “reckless disregard” or “actual malice” can’t be proven. Because of the value we place in the marketplace of ideas, some slander cases just won’t be won.

Comparably, it’s much, much easier to sue for slander, libel or other defamation torts in other nations. In the U.K. and most of Europe, the burden is instead on the speaker to prove accuracy. An American citizen living in Europe, then, might get sued for something they could’ve freely said in America, and that’s just tough. The more complicated case arises where an American citizen, sitting in America, makes a false statement that injures (perhaps through the internets) someone halfway around the globe. An aggrieved plaintiff sitting in, say, Australia can win a judgment (”you were slandered”), but they can’t enforce the bloody thing. After all, who’s going to enforce it? The Australian court and legal system only have jurisdiction over people in Australia, and the defendant’s not in Australia . The court system is powerless, and the plaintiff’s stuck with a meaningless piece of paper.

Unless they can ask American courts to enforce the judgment. And that’s a matter of comity. Comity is how a foreign plaintiff gets a domestic court to turn their judgment into the money they feel they’re owed. But foreign courts - in our Australian example, American courts - don’t have to enforce the judgment. Both the common law of comity and modern statutes permit our courts to ignore a foreign judgment if it was unfairly obtained, if it contravenes a fundamental public policy, or if it’s repugnant to the nation’s values. This is why America doesn’t have to enforce Sharia law verdicts, for example.

Similarly, faced with foreign libel judgments, courts routinely decline to enforce a judgment as requested, since to do so would supplant American first amendment jurisprudence, and its respect for free speech, with a foreign standard that may be surprising or cruel to the American defendant. Given these cases, courts have been known to ask the parties to settle, try to broker a compromise, or flat out say “no.” And that’s the way it should be. Our first amendment is our first amendment. An American citizen has every right to expect to be covered by the first amendment when speaking within their own country. While America ought to respect the world’s values, when it comes to our citizens, our Constitution comes first.

The Rant

Free speech is one of our most vitally important values. When other nations ask us to compromise that value with regards to an act done by an American on American soil, and only affecting a foreigner in the abstract, the answer should be a categorical no, especially because established principles of comity allow us to do so easily without running afoul of treaty obligations or the reasonable expectations of foreigners doing business with Americans. American law for American citizens. Not too complicated.

Further, free speech is one of our greatest contributions to the idea of democracy. While other nations have opted to trade free speech for safety and comfort - Germany, for example, will jail you for speaking favorably of Hitler, or denying the Holocaust - we’ve somehow managed to get along by tolerating some truly despicable ideas, and trusting our citizens to sort the good out from the bad. The free, unrestricted marketplace may not always work, but it works for now, and as long as we still think it’s worth defending here, we ought not compromise it for the sake of those who may not understand why it works. While I’m not always okay with spreading democracy vis armae, by fire and war, spreading democracy by being a shining beacon to the world, and proving day-by-day that liberty works, is not only fine by me, it’s what I think of as our quintessential mission.

Paradoxically, being that city-on-a-hill may force us to live with some truly filthy stuff. Declining to enforce foreign libel laws, and maintaining our moderate protections for untruthful speech, may make America the mecca of the raving lunatic, the one place in the world where the depraved have the freedom to say whatever awful thought comes to mind, and still dodge the long arm of the law. I say, fine. That’s the experimental system the Founders undertook to create, and while it’s by no means perfect, it’s better than the alternative.

We can’t cave on our fundamental concepts of liberty. If we were to redesign our internal legal system to jive well with the world, and maximize the reciprocal enforcement of judgments, we’d have to toss the jury system along with free speech. Commercial jury verdicts viewed with deep suspicion by some of our peers on the international stage, to the point that they have gone, at times, unenforced. After all, the foreign argument goes, what do commoners know of high matters of corporate finance and restructuring? Enough, I say, that I’m still sitting only two miles north of the beating heart of the global finance system.

I may not often agree with Senator Lieberman. And this may be the one time you see me speaking with hostility about non-Americans and foreign cultures. But this isn’t an issue of xenophobia or intolerance. It’s an issue of preserving American law for Americans. Senators Lieberman & Specter, pass the bill. I’ll be deeply disappointed in any Senator that votes against it. Defending free speech is not a partisan matter.

The Electoral College doesn’t work. Setting aside its epic failure in the Great Litigators’ Election of 2000,[1] the College’s persistent problems are subtler and more invidious. It taints the American electoral process by effectively removing states and thereby voters from “play.” It drives down voter turnout. And without action, the problem is unsolvable.  While Barack Obama may yet remake the electoral map, he’ll only refocus attention on a different group of swing states. As long as the Electoral College continues to work the way it does, no candidate can break the “as go three states, thus goes the nation” paradigm.

Oddly enough, that the College is a problem is entirely uncontroversial. And yet, when someone in a position to change it is asked to take up the cause, the most frequent reaction is to throw up one’s hands in despair. After all, the College is a Constitutional issue, right? What can one Senator, one Governor, one Congressperson do? Obviously the only answer is, give up.

Wrong.  This easy way out, most recently taken by Governor Donald Carcieri of Rhode Island, who apparently thinks he’s legally required to take the coward’s route, misreads the law, misapprehends constitutional history, and derelicts the states’ duties to manage the College.  Managing the Electoral College is not a federal duty.  Our federal Constitution merely states that the election of the president will be governed by “a Number of Electors.”  In a pass-through to state law common throughout the Constitution, selection of those electors is committed to the sound discretion of the states.[2]  No federal authority holds a gun to the heads of state legislatures and demands that each state give all of its electors to the winner of the state’s popular vote.  If the several states have chosen that path, it’s by tradition and laziness.  Nothing else.

Which means that it’s up to the states, not the federal government, to fix the Electoral College.  And there is a way.  We have the technology, and it’s almost elegant in its simplicity.  Just have each state, on its own, give its electoral votes to the winner of the national, rather than statewide, popular vote (more detail here).  Once states amounting to 270 electoral votes adopt the measure, the job is done.  No constitutional convention, not even any federal law.  Just state-by-state lobbying.

When governors like Carcieri refuse to enact the NPV solution, and demand that NPV activists turn to federal lobbying, they’re not just taking the coward’s way out of an important political decision.  They’re completely misunderstanding the problem.  It’s like telling someone with a plane ticket from Manhattan to London to get off the plane and walk.  It’s why we need a mandatory constitutional law class for highschoolers.  If the people can’t understand the people’s document, where does that leave democracy?

Footnotes below the line.

(more…)

Sadly, Justice Antonin Scalia is the only of the current Nine to whom I have even a weak connection.  My dad met him once, on a business fishing trip, and found him to be a nice guy; and now, one of my best friends just met him abroad.  Her poetic description of the man who made legal conservatism respectable:

He’s just a man.  A short, pompous man.

Burn.  I’ll say one thing for Scalia, though: he may be pompous, and he may have failed at creating an objective conservative canon of constitutional interpretation (PBS’ Douglas Kmiec and I agree on this… and I swear I came to that conclusion before listening to his podcast!!), but at least he’s not a liar.  I’m looking at you, John Roberts.  And so is Scalia.

Dammit.  I hate it when I’m right.  Andy Schlafly of Conservapedia is planning on suing Lenski.

About a week ago, I predicted that Andy Schlafly may consider suing Lenski to get access to the data from his e. coli citrate experiment: despite Lenski’s willingness to give his data to a certified biologist, since Schlafly’s pride is now in issue, Andy wants a personal victory, and he’ll do anything he can to get it.  Well, now Schlafly has issued the first “Conservapedia challenge,” urging his crack squad of stormtroopers homeschoolers to look for a way to sue Lenski into giving his data to someone who won’t understand it.  Personally, I don’t think there’s a way: Lenski’s not a “public agency” within the meaning of FOIA (5 U.S.C. 522).  But, for the sake of those of you that care, I’ll do some research on my own time and report back.  Stay tuned.

In the meantime, look out world.  Andy Schlafly, armed with legal knowledge, a personal score to settle, and NO sense of honesty whatsoever, is a scary thing.  He has no honor and, as I’ve said, regardless of whether he has a case, he won’t hesitate to use his limited grasp of law to bludgeon you.  He may be all bark and no bite, but a lawyer’s bark has been known to cost money in and of itself.

Update: the debate rages.  It seems Schlafly’s just bluffing… again.  I’m SHOCKED!  If you’re just coming to this post, please take a look at the comments: as one of the posters there points out, Schlafly’s intense desire to stare down anyone that looks at him - evinced in this whole Lenski debacle, and his conduct at Conservapedia - can all probably be explained by his ardent desire to please mommy.  He is the last of three boys, a second-career lawyer who abandoned a good electrical engineering job… it all screams “LOOK AT ME, MOM.  AREN’T I GOOD?”

Apparently, if you live in a Ninth Circuit state (California, et al), the dismembered-fetus-picture truck is soon to join the ice cream truck outside the schoolhouse. Ruling on the issue just yesterday, the Ninth Circuit greenlit the use of abortion images outside schools as the latest weapon in the anti-choice activists’ arsenal, reaching a conclusion that’s questionable on the law, and emblematic of the principle that the first amendment requires us to embrace the bad with the good. I’ve divided this post into two sections; if you want, please feel free to skip “the law” to get to “the rant.”

The Law

You can get a little bit of the legal background at Education Week’s School Law Blog. Doctrinally, this ruling is a little bit surprising: owing to the traditional respect for speech in the open air and on the streets, the state can’t ban controversial commecial speech items, like smoking ads, near schools, but the Supreme Court has previously outlawed disruptive speech near schools (Grayned v. Rockford).  Why Grayned doesn’t control here is beyond me.

Also, courts have shown themselves quite flexible when dealing with extremely offensive speech near sensitive locations.  It ought to be unsurprising that a majority of these “offensive speech in sensitive locales” cases come up in the context of anti-choice abortion protestors and picketers, and courts have generally balanced the rights, handing neither side a sound victory, but letting protestors have their way in a less gruesome, less intrusive manner.

For example, law limits the traditional right to protest in the streets to prevent anti-choice protestors from screaming outside a politicians house (Frisby v. Schultz), and in no less than three major Supreme Court cases, the Justices have balanced the protestors’ rights to be insane against the clinicians and patients’ rights to be free of insanity, offensive yelling, and harassment, coming up with solid compromises allowing protests while protecting patient privacy and reasonable expectations of non-harassment (Madsen, Schenck, Hill). In short, the Grayned principle, regarding disruptive speech near schools, and the Madsen/Schenck/Hill balancing tests, all had to go out the window for the Ninth Circuit to decide this case the way it did. I’m a little confused. But enough of the law. I can’t hold in the rage any longer.

The Rant

Seriously, who the hell do these people think they are? I admit that a lot of first amendment cases these days are about finding out just how many people the law will let you piss off, but just because it’s legal doesn’t mean you ought to do it. These are people who will stand outside your home if you’re a doctor at a women’s clinic, make “WANTED” posters with your name on it and circulate it to murderers, harass you on your way to Planned Parenthood - even if you’re just there to get a yearly checkup - and then turn around thank God for the chance to so harass you. While the first amendment empowers the lunatics of the world to choose that course, it does not require them to do so.

I’d be a lot more convinced about the seriousness of the pro-life anti-choice movement’s commitment to “the sanctity of life” if they showed a little more concern for decency, and the line between “debate” and “harassment,” in their day-to-day activities. When a movement becomes a race to the bottom, to shock the most, to scare the most, to disgust the most, it’s time to question the movement’s direction and its real purpose. If their end is so vaunted, holy, and sacred, then their means ought to matter. And I get called “biased,” rest assured that I’d say the same thing about any movement that stooped to these inane tactics. The first amendment lets us speak our mind; but we don’t have to be jerks about it, nor should we. The first amendment is a right and a responsibility to engage in good speech; the right without the responsibility undermines society and democracy.

Picketers, get these trucks away from our kids. I wouldn’t shove gay porn down your kids’ throats, or plaster it on trucks near schools; why would you do this, just because you can?

Obama voted for the FISA (Foreign Intelligence Surveillance Act - read, wiretapping) compromise. Deal with it.

Let me clarify. Apparently some Obama supporters out there in the connected series of tubes are disappointed that our man has given the go-ahead to some degree of secret wiretapping, voting for and supporting the new wiretapping bill, which includes immunity for telecom providers who complied with then-illegal warrantless taps. Covert wiretapping, of course, is a hallmark of the Bush years (who else would try to secretly circumvent a secret court?), and Obama is taking a risk by passing on even a modicum of the Bush agenda. But here’s why he’s doing the right thing.

First, the cynical. Obama may just be doing what’s politically expedient. What he says now is very important for signaling to the electorate what his values are, but his actions today also have very low predictive value for what he’ll actually do in office (Bush taught us that). Obama can praise Bush-expanded FISA up and down, and still be free to push against it once he’s elected. He may anger a few liberals - people who’ll already vote for him anyways - but a moderate tack now is one step closer to shedding the leftist label. Expedience over honor, that’s the general election, and it’s high time we played that game.

Second, the transcendent. Obama may actually believe that Bush was partially right on FISA; he may be genuinely willing to cede the issue to the Republicans, and may genuinely differ from the liberal hard-line. If that’s the case, that’s good in and of itself. As president, Obama will have to choose his battles, and compromise with Republicans and conservatives on some issues. We can’t afford another eight years of bitterly partisan, with-us-or-against-us, black & white politics. If Obama has to pick some issues to compromise on - and he does - I think FISA is a fine choice.

So, again, the parties are advised to chill. Personally, I think Obama’s acting on the second impulse, and reaping the political benefits as a side note. Maybe I’m willing to give him the benefit of the doubt, but I’m actually glad to see the man who’s likely to be our next president thinking through which battles he ought to fight. I’m pretty far left (*gasp!*), but I won’t demand Total Victory the way Karl Rove and the Bush administration have: good governance requires compromise.

The same goes for Obama’s support for faith-based initiatives. If you recall these little wonders from 2001, they were the proverbial canary in the mines on the Bush administration: the signal that maybe he didn’t fully understand church/state separation. In fact, though, they’ve turned out to be low-impact, feel-good measures that haven’t, independently of the president, worn down the church/state wall. Good for Obama. I say keep ‘em, win over the evangelicals, and move visibly to the middle. Fine.

I have mixed feelings, though, about Obama’s critique of the Supreme Court’s decision to limit the death penalty to only murderers. The Court’s decision (holding that the death penalty is “cruel and unusual” as applied to convicted child rapists) is unsurprising - it’s strictly in line with precedent - and it’s also morally right. The death penalty is an abomination: take this from a man who spent eight hours today trying to exonerate an erroneously convicted, now executed, Texan. We oughtn’t compound the error, and confound our legal history, by expanding the death penalty beyond its historical limitations.

Here, Obama might’ve either done the expedient thing, or possibly just compromised too much. The death penalty enjoys wide support, and is easily spinnable against its opponents - “Obama doesn’t want to execute rapists” is a nasty little tag line - making critiquing the Supreme Court the easy thing for Obama to do. It’s still not the right thing.

But enough about Barack. Let’s consider the last issue - the death penalty - from the other side. Here’s McCain on the Supreme Court’s ruling:

It’s a peculiar kind of moral evolution that disregards the democratic process, and inures solely to the benefit of child rapists. It was such a jarring decision from the Court that my opponent, Senator Obama, immediately and to his credit expressed his disagreement. My opponent may not care for this particular decision, but it was exactly the kind of opinion we could expect from an Obama Court.

McCain’s rhetoric is disheartening, and especially ought to disabuse us of the notion that he’s a “moderate.” Instead of attacking the decision on legal grounds, he’s going entirely on emotion, declaring that nothing is too evil for certain individuals. That position is fine, and even defensible. But what’s worrying about it is that the rhetoric is entirely inconsistent with McCain’s stated belief that torture is wrong: McCain is using the same argument to justify the death penalty (”these people don’t deserve the law!”) that torture advocates use to justify “enhanced interrogation.” The root argument - that the value of human life is fungible - is the same, and McCain doesn’t bother to explain why it works for some but not others. This suggests to me that McCain either hasn’t thought the issues through, or is quite comfortable saying what needs to be said, and then changing on a dime.

I don’t usually write for this blog, but I’m concerned. Certainly there are plenty of things to arouse alarm these days (and we’re talking everything from an increasingly assertive Russia to the shunting of the next season of Project Runway over to Lifetime. This is no small range of fretting). Today, however, I’m concerned about South Dakota.

Specifically, a federal appellate court just okayed a South Dakota law that turns the informed consent a woman’s health doctor owes his patient into a political grandstanding event (Planned Parenthood’s press release here).

Unfortunately, this means that, if you’re a scared and pregnant woman in South Dakota who no longer wants to be pregnant, you are now going to be forced to hear (and in some cases, your doctor is being forced to tell you) that the fetus you wish to terminate is a “whole, separate, unique, living human being.” The speech the doctors are forced to give is, according to its proponents and to the court that overturned the injunction, biological in its nature. Of course, for those who have an even passing understanding of the pro/anti choice battle flowing through the courts these days, the language is blatant in its ideology. This is what keeps me up at night: the anti-choice movement has gotten very, very, very good at packaging their product. This means that they can bob and weave around the letter and spirit of the law with greater ease and effect… which is not good news for women who are hoping to retain their rights over decisions that affect their health.

Now I wouldn’t imagine that it’s an easy thing to walk into a clinic or doctor’s office seeking an abortion- I wouldn’t imagine it’s a choice anyone makes lightly or leaves behind them after they are through. Clearly every woman seeking termination is not a doctor or privy to advanced medical training, but I think it’s insulting and paternalistic in the extreme to assume that women lack some fundamental understanding about what an abortion will do to their body and psyche. To lecture a woman who is making an already difficult choice, to imply that she is committing murder, to heap guilt onto what may already be a sizable share, these are practices bordering on cruel and unethical.

I find this all very disturbing, both as a woman and as an American, but what disturbs me most about this situation is the fact that this is one more crack in the already weak dam of women’s reproductive rights in this country. Remember that story about the Dutch boy who saved his town by plugging the hole in the dam with his finger? Each new case, each new spin campaign, and each new piece of anti-choice legislation, no matter how outrageous, is yet one more crack in this dam, and the little Dutch boy can only reach so far to plug these new holes.

To further flog this metaphor, what we need in this country is a better dam. Roe is built on poor foundation and, while it has held back the waters so far, the halls of the Supreme Court are becoming less and less sympathetic to the sentiments behind the bulwark of caselaw shielding a woman’s right to choose. The small victories of the anti-choice movement (i.e.: allowing pharmacists and entire pharmacies to deny prescription birth control or emergency contraception to women) add up to an alarming picture of the future.