This Is Your Grandpa's Democratic Party(?)

"Democrats abandoned ordinary Americans."

It's not true. But it's stuck, like a craw in the mouth of the American voter (and the American pundit). And the big question amongst Democratic strategists is how to dislodge it.

My latest idea, in my ongoing quest to become the Democratic Party's Francis Coppola, is to explicitly run with a narrative that says "yes, this is your Grandfather's Democratic Party" -- directly tying oneself to JFK and the New Deal and the civil rights era and that whole period where (supposedly) the Democratic Party was the party of ordinary Americans. Cut to lines about:

• Defending labor unions.
• Bringing back honest, well-paying jobs that can support your family.
• Taking on the billionaires robbing our democracy.
• Protecting civil rights.
• Restoring a women's right to choose.

All intercut with images of modern workers interspersed with older imagery (the March on Selma, men on girders building skyscrapers, etc.) that evokes the good old days.

What's the point of the ad? Basically, it's to create a permission structure for people who have -- for whatever reason -- internalized the narrative of "the party left me" to tell themselves things have changed again. They're not voting for the modern Democratic Party that Fox News has created for them in their minds over the past few years (latte-sipping coastal elites blah blah blah), they're voting for the mythologized Democratic Party of yesteryear that the Fox News caricature is tacitly juxtaposed against -- the party of the New Deal and of JFK, the party that was a working-class party, the party that built things and fought for everyday Americans.

"Mythologized" is important. Obviously, in reality the Democratic Party of that era (or any era) was not some clarion beacon of the worker's voice; nor was it some uncomplicated bastion of civil rights and women's rights advocacy. I know that, you know that. I also know that "ordinary Americans" is a loaded term, that the past wasn't actually that great for a whole lot of people, and so on.

But we're not writing a history paper here, we're dealing with a mood, and that mood is not especially connected to historical reality. How many times have you heard someone say that the current Democratic Party "just keeps moving to the right" (when it is beyond obvious that the Biden administration is the most progressive Democratic administration in my lifetime)? Objectively, it is impossible to defend the notion that the Democratic Party leadership is more conservative now than it was during the Clinton administration. In reality, making a show of affirming people who think "well, back then Democrats were fighting for me" is worth playing a bit of make-believe. Nostalgia is a hell of a drug, and just the gesture of "this is a change in a direction that makes you feel fuzzy" can have an outsized impact. The past wasn't actually that great, and modern changes are good actually. But if you can make people feel as if the things we're pulling for now are simply a restoration of the hazy memories they have when things were inchoately "better" (or "less complicated" or "less divided" or whatever), you're in a very good position.

I'm not saying the idea is perfect. In particular, even as a subversion of the "not your grandpa's ..." frame, the tagline still is a rough one at a time when many people are aggrieved at the "gerontocracy" in American politics. So workshop the hell out of this. I'm not prideful about it. But I think there's something here. The great insight of the contemporary conservative movement is in how they manage to fuse their present-day reactionary values as if there were simply a restoration of the greatness of the founders (I read one constitutional commentator describe originalism as "ventriloquizing the present through the past"). Democrats can do it too -- and as the Republican Party falls deeper and deeper into the grip of billionaire oligarchs and weird paranoid extremists, there's an opening here we can and should exploit.

As They Do

The ongoing fallout of the Dobbs decision, and the way it's made manifest the GOP's extreme and retrogressive anti-abortion priorities, has caused no small amount of soul-searching amongst Republican politicians. We saw, for example, a slew of Arizona Republicans race to disavow their own hand-packed-picked supreme court's decision to resurrect a pre-statehood near-total ban on abortion. Donald Trump also came out and said he opposed a national abortion ban. What should voters make of this about-face?

Nothing. Absolutely nothing. Why not? Because Republicans are, to be blunt, lying. No matter what they say, no matter what press releases they write, no matter what interviews they give, when push comes to shove, they will absolutely either endorse or acquiesce to the most draconian possible limitations on female reproductive autonomy. That's the full truth.

The list of supporting evidence on this is essentially endless, but I'll just give two examples:

Exhibit A: Arizona, where the GOP-controlled legislature -- fresh off their oh-so-pained public squirming over the aforementioned state supreme court ruling -- has continued to block legislative efforts to actually, you know, repeal the offending law.

Exhibit B: Florida, where Senator Rick Scott rapidly backtracked from his own heresies calling for greater moderation on abortion after that state's supreme court reversed decades-long precedent clear the way for abortion bans by clarifying that of course he'd support even a six-week ban if given the opportunity.

These are two among many.

I suspect that over the next few months, we will continue to see more Republican rhetoric that gestures at some sort of "moderate" or "compromise" position on abortion, occurring right alongside more extreme tangible implementations of the right's extremist anti-choice agenda (what's going to happen when the Supreme Court permanently allows states to murder pregnant women in defiance of federal law). Even as rhetoric, it's hollow -- the "exceptions" they promise are nugatory or impossible to implement, the "deals" on offer are to impose unwanted bans on blue states while letting red states be as extreme as they desire -- but more than that they're lies. No matter what they say, no matter what they earnestly promise, no matter what soul-searching they might promise, where Republicans are in charge what they will do is push for and defend the most draconian abortion bans they can possibly get away with.

There's no lever that will get Republicans to behave differently; no weird trick that can change their minds. Where they have power and hold office, this is what they will do. Our only option is to deprive them of that power. No matter what they say, no matter what they believe, anyone who is taking any steps right now to assist Republicans taking or keeping office is tacitly endorsing extreme abortion bans. There's no way around it.

Texas' Great Abortion Compromise

The GOP's "compromise" position on abortion has always been clear.

(a) It will include in its categorical abortion bans exceptions for threats to the life or health of the mother; and in exchange

(b) It will threaten to jail any woman or doctor who dares try to use those exceptions.

Compromise!

The Texas Supreme Court has vacated a lower court ruling that enjoined the state from prosecuting a doctor who was set to give a woman a medically-necessary abortion. Even when the injunction was in place, state Attorney General Ken Paxton threatened to prosecute any doctor or hospital which abided by its terms and provided the procedure. And that threat remains on the table for future persons in this position (the plaintiff in this case, Kate Cox, has subsequently fled the state of Texas to receive the emergency care she needed. One presumes that the instant she returns, the bounty hunters licensed by Texas' ghoulish "pro-life" inquisitors will be hounding her).

Cox had a nonviable pregnancy -- her fetus had been diagnosed with trisomy 18, a fatal chromosomal condition -- and she had already faced severe health complications that repeatedly sent her to the hospital. Her doctors accordingly concluded that continuing the pregnancy would threaten her health and future fertility. But the state of Texas swung into action to do everything it could to ensure that she could not get the medical care she needed, insisting that Kate Cox's continued mortal peril was a legal obligation, and woe befall anyone who dared try to rescue her from it.

The Texas Supreme Court's opinion is a sterling encapsulation of the "compromise" laid out above. Over and over again, it asserts (in what would be comic if it weren't so dire) that decisions regarding whether an abortion is medically necessary are to be made by doctors, not judges. Doctors, not judges; doctors, not judges; doctors, not judges. And the court purports to confirm that doctors need not attain a pre-procedure judicial injunction before they perform a medically-necessary abortion; nor must they wait until death is "imminent" before performing the procedure.

So why are we here? Well, because after repeating "doctors, not judges" for the umpteenth time, the Court says "buuuuuut the doctor needs more than a good faith assessment, his or her judgment has to be 'objectively reasonable.'" And who decides that? It will be judges, after the fact! And what are the markers of "objectively reasonable" in this context? The court throws up its hands -- your guess is as good as mine! Except it isn't, because if you guess wrong, Ken Paxton has a prison cell waiting for you!

The way the "compromise" works out is that Republicans earnestly promise in theory all the exceptions and carveouts that make an abortion ban regime even remotely compatible with respecting women as humans, then do absolutely everything they can to make all of those provisions completely inaccessible in practice. Here the Texas Supreme Court makes three such promises: the decision regarding "medically-necessary" is one for doctors, not judges; the decision does not require advanced authorization by a judge; and the decision does not have to wait until the patient is bleeding out on the operating table. Each of these is less than "reasonable", they are the absolutely bare sub-minimum Texas women should be entitled to. And all three of them are lies.

The reason why Kate Cox and her doctors went to court is because they had absolutely no way of knowing if their judgment about the medically-necessary character of this abortion would be respected by the state of Texas, and if they guessed wrong, they were facing serious criminal penalties. So they needed a judge to confirm they were in the statutory safe harbor. The Texas Supreme Court's response was to say "try it and see" -- knowing full well that the entire problem is that doctors will be too terrified to try with the Sword of Damocles hanging over their head. In those circumstances, of course doctors will be hesitant to move until the case for a health-exception is rock-solid, not from their own "judgment", but in terms of whatever firebrand yahoo anti-women extremist is gazing over their shoulders from the Attorney General's office. And that's going to mean wanting to wait until one has formal judicial approval; or wait until the patient is bleeding out on the table. The promises are lies, and they are meant to be lies. The reality is exactly as ghoulish and inhuman in its cavalier indifference to women's life and health as it has always been presented, and that's fully intentional.

There is one little bit of the Court's opinion I will defend. At the outset, the Court characterizes the Texas laws at issue, which effectively ban abortion in all cases and in this case effectively compelled a woman to carry a non-viable, life-threatening pregnancy to term in the face of excruciating agony and serious medical danger, as "reflect[ing] the policy choice that the Legislature has made." That they did. Texas has made a policy choice that women, in their capacity as vessels, have essentially no rights over their bodies even in the face of excruciating pain, unfathomable injury, or devastating risk. There should be no pretending that it was doing anything different; no illusion that outcomes like this are not exactly what Texas hoped would happen when it enacted its law. 

The point of Texas' law was to ensure that women would be placed in mortal peril and then left at the arbitrary mercy of the state to determine whether their lives would be preserved, and to that extent the Texas Supreme Court was doing nothing more here than faithfully enforcing the will of the Texas legislature. The United States Supreme Court has decreed that, after fifty years where women were acknowledged as human, the judiciary must respect that "policy choice". There remain many avenues through which that choice still can be resisted. But the very least, we can accurately name what that choice is: a choice to endanger women and to make it functionally illegal to give them desperately-needed medical care. What Kate Cox went through is what local and national Republicans hope and demand women around the country should be subjected to, over and over and over again.

Media Alt-Centrists in Disarray

 

When I first saw this Tweet (Xeet?), my eye was drawn to "Dems should pursue working-class voters of all races." It's a great example of something that is simultaneously (a) alt-center conventional wisdom and (b) utterly inane. What are the sorts of policies Dems should pursue to working-class voters of all races? Answer: the ones they're already supporting! 

The difference between talking and delivering. pic.twitter.com/mb6bp65eKV

— Joe Biden (@JoeBiden) August 31, 2023

Price negotiations for prescription drugs is a great, obvious example of a policy that's geared to the interest of working-class voters of all races. Standing with the incipient wave of labor mobilization is another. The infrastructure bill was yet another. All of these are centerpiece items of the Democratic Party's economic agenda. But the alt-center punditry acts as if they don't exist. The "advice" on offer is "do what you're already doing, but make me pay attention to it." And one cannot help but think that the price the pundits have put on "make me pay attention to it" is "stop distracting me by also supporting policies that are distinctively to the benefit of specific historically marginalized communities."

At the same time, there is a separate vapidity in the "advice" that Biden shouldn't run for reelection. Again, as advice this is just terrible: Biden has a proven electoral track record and has already beaten Trump once. There's no universe where a chaotic primary free-for-all would actually be healthy for the Democratic Party or the broader prospect of ensuring that Trump or any of his lackeys stay out of the White House. The desire for "a real primary" is just thinly-disguised thirst for the good old days of "Dems in disarray" and the chaotic intraparty knife fights that aren't happening on the GOP side because virtually all of Trump's "challengers" can't help but cozy up to him (with a not-so-subtle wink to the various factions within the Democratic Party whose definition of a "real primary" excludes any primary where their preferred candidate doesn't march to victory).

Finally, "faculty lounge" politics is also a meaningless phrase. If it's meant to refer to the notion that Democratic party politics take their cues from whatever petition is currently being passed around the Wesleyan anthropology department email list, it's delusional. If it's meant to be a general referent to so-called "culture war" politics, then it's horribly outdated -- we are long past the days where the main "culture" wedge issues favored Republicans over Democrats. Republicans are getting absolutely blitzed on reproductive rights as their radical campaigns to imprison, maim, and murder women are predictably reviled. And their anti-LGBTQ agenda doesn't fare much better. Democrats have a lot of room to punish Republicans for their extremism here, and absolutely should.

Biden should run for reelection, and in the process will no doubt trounce token primary opposition. He should promote his policies which will improve the lives of working class voters of all races, and he should absolutely torch Republicans for their unabashed extremism in desiring to take American "culture" back to the 19th century.

.... And Getting Worse Roundup

This will not be my cheeriest roundup. But there are a bunch of links burning a hole in my pocket, so here you go.

* * * *

Apropos yesterday's post on Fugitive Uterus Laws, a Washington Post article on similar efforts underway to set up checkpoint towns in Texas designed to capture any pregnant women who has designs on leaving the state for freedom.

North Carolina Republicans considering impeaching a state supreme court justice because she talked about racism. While I can't fault Slate for juxtaposing this against the undisclosed largesse heaped upon Justice Thomas, my mind more rapidly went to efforts in Wisconsin to impeach a state supreme court justice because she might vote for democracy.

A politically engaged fifteen year old kid asked a (not even that tough!) question that made Ron DeSantis uncomfortable on the campaign trail. So he sent his goons to rough him up.

You see, the real problem with the "War on Drugs" is that it's too metaphorical.

The latest Fifth Circuit crack-pottery: it's probably illegal for the FDA to tell humans they're not horses (yes, this is the latest conservative institution to burn its remaining dignity in defense of ivermectin conspiracies).

Georgia school district: saying the word "gay" around fifth graders is like graphically describing the horrors of the Holocaust to kindergarteners. 

Are States Allowed To Trap Pregnant Women Inside Their Borders, Berlin Wall Style? Views Differ!

In his Dobbs concurrence, Justice Kavanaugh took pains to argue that even after the right to reproductive freedom was stripped from the constitution, it was still forbidden for "a State [to] bar a resident of that State from traveling to another State to obtain an abortion." It was a very, very small sop given to the predictable calamity the Court unleashed upon women of reproductive age, who were otherwise told in no uncertain terms that their body is not their own when the state has a different agenda for them.

But Justice Kavanaugh's opinion was not signed onto by any other justice. And, much like the question of whether states can murder pregnant women, views differ as to whether they can criminalize pregnant women leaving their borders. Right now, Alabama is in court arguing that it is entitled to criminally prosecute those who aid Alabama women in leaving the state to have an abortion. After all, if Alabama has a valid interest in forcing its women into labor, then surely it has an equally valid interest in thwarting those women who might try to escape their wardens and find freedom over their bodies in other states. The term Fugitive Uterus Act is absolutely fitting and appropriate, and the passage and enforcement of such laws is a top priority for the current Republican Party.

Justice Kavanaugh's concurrence notwithstanding, the entire point of Dobbs is that a woman's right to control her own body has zero constitutional significance. That said, if we take Justice Kavanaugh at his word (far from clear we should), and if Chief Justice Roberts goes along with him (far from clear he will), then maybe this is a bridge too far for the current Supreme Court. If, if, and maybe.

[Source for the above image]

The Sunset of Women's Rights

Going off my post from yesterday, I'm quoted in today's Bloomsburg Law article about Judge Ho's wild opinion in the mifepristone case -- particularly his ruminations on the "aesthetic injury" pro-life doctors endure from women being allowed to control their own reproduction.

“I absolutely get and agree with the idea that there is something degrading about treating women as, you know, akin to kind of the natural splendor of a sunset,” David Schraub, an constitutional law professor at Lewis & Clark Law School, said noting the criticism Ho’s argument has gotten on social media.

[....] 

Schraub said Ho is “a standard-bearer for a new generation of conservative jurists” who recognize and believe in the judiciary as a vanguard for right-wing social change. This generation, he said, isn’t afraid to attack in bold language anyone who’s advocating for a more constrained, traditional view of the judicial role.

Ho “likes the bombast and it’s a very, very common feature of the opinions he writes,” Schraub said. 

Not quite sure how I became the mifepristone guy, but here we are. 

Scientists Aren't Gods. Fifth Circuit Judges Are Gods

The Fifth Circuit has released its decision in the mifepristone case. In essence (and I read this quickly, so take with a grain of salt), the court did not overturn the initial FDA approval of mifepristone or the approval of generic variants (the former because the claim was time-barred; the latter because the plaintiffs showed no specific evidence that they were additionally injured by generic approvals). However, it upheld the district court's stay on subsequent FDA decisions which made mifepristone more readily accessible (e.g., allowing it to be prescribed by telemedicine). The new FDA regulations were, the court concluded, "arbitrary and capricious" primarily because while the agency did analyze the risks latent in the individual alterations it was making to the regulatory schema and found them to be negligible, the FDA did not specifically analyze how all these changes might interact when aggregated together.

The decision is, as the panel took pains to repeatedly note, stayed until the Supreme Court has an opportunity to act.

In May, I proffered three possibilities of what the Fifth Circuit would do in this case. The first was that they would take the Supreme Court's hint and reverse the district court. The second was that they would largely affirm the district court but try to file off the "rougher edges" to make it more likely the Supreme Court would uphold the ruling. And the third would be to let their freak flag fly and go all in on defending the extremity of the district court ruling.

What we got was mostly in that middle camp. The court didn't accept the most extreme iterations of the district court's ruling which would have completely taken mifepristone off the shelves nationwide. And its analysis, for the most part, styles itself as sober review of the administrative record and standing doctrine. But the end result was still the court stretching the law to force a substantial rollback in its accessibility. The hope, I think it is clear, is to present this ruling as the "reasonable" conservative position that doesn't go as far as the district court and so one that liberals can't really complain about if it is upheld (spoiler: we can and should).

Judge Ho concurred in part and dissented in part because he would have upheld the district court's decision in its entirety, and in contrast to the majority his opinion was squarely in the realm of possibility number three. He went whole hog on every possible avenue for showing his right-wing culture warrior bona fides, including florid discussions of the importance of the doctor's "conscience rights" to be mad that they have to treat patients who are suffering from medical emergencies they disapprove of and a full-scale defense of the applicability of the Comstock Act to block any sort of approval for abortion medication.

There is stiff competition for who is the worst federal appellate judge. But I'm not sure there's any competition for who the most arrogant federal appellate judge is (and it's no surprise, perhaps, that it's a University of Chicago Law alum taking the crown). In that vein, one passage of Judge Ho's opinion especially stood out to me -- his strident defense of the judiciary refusing to accord deference to the scientists at the FDA.

In this appeal, neither the FDA nor Danco is content to simply argue that the district court erred. They disparage the ruling as “an unprecedented judicial assault on a careful regulatory process.” The “non-expert” district court issued an “unprecedented order countermanding the scientific judgment of the Food and Drug Administration.” 

Their message is simple: The scientists at the FDA can do no wrong. So courts have no business reviewing their actions. 

That’s mistaken on multiple levels.  

[....] 

Scientists have contributed an enormous amount to improving our lives. But scientists are human beings just like the rest of us. They’re not perfect. See, e.g., Whole Woman’s Health v. Paxton, 10 F.4th 430, 464–70 (5th Cir. 2021) (en banc) (Ho, J., concurring). None of us are. We all make mistakes.

And the FDA has made plenty....

The scientists at the FDA deserve our respect and our gratitude, but not our blind deference. That would defy Congress’s clear directive that courts conduct independent legal review of FDA action under the APA. 

Of course it is true that scientists can make mistakes. Judges can make mistakes too (this case is replete with them). And since "we all make mistakes," the actual germane question is who is more likely -- scientific experts or generalist judges -- to make a mistake when it comes to assessing highly technical medical and scientific decisions on drug approval. And the answer there is obvious: judges are far more likely to be mistaken. Hence why the standard of review is "arbitrary and capricious". The agency doesn't get blind deference, but it still gets regular deference. Absent blatant, smack-you-in-the-face mistakes -- the sort that go beyond disputes about best practices or disagreements on matters of judgment and slide all the way into "arbitrary" or "capricious" conduct -- judges defer to the scientists because judges know that in normal circumstances they're more likely to cause a mistake than to correct one.

In this case, the FDA analyzed the risks of its new regulations enhancing public access to mifepristone and found that they were negligible. Would it have been better if it is specifically analyzed how these risks might change when all the regulatory changes were aggregated? I have no idea (since again, I'm not a scientific expert, and I'm modest enough not to venture a guess). But it is hard to argue that the decision to rely on the individual negligibility of the risks is either "arbitrary" or "capricious". That sort of pot-shot second-guessing of scientific judgment is exactly what normal judicial modesty and deference should foreclose. 

But Judge Ho's eagerness to emphasize the fallibility of the FDA's scientists is quite predictably paired with a blind refusal to recognize his own parallel status as a mere mortal. In our constitutional system, it seems, scientists aren't gods; only Fifth Circuit judges are.

Forcing Child Rape Victims To Give Birth Is Exactly What the Dobbs Justices Hoped Would Happen

This is a picture of a twelve-year old girl.

(I assume. It's from an article titled "Awesome Things About Raising 12 Year Olds." For obvious reasons I didn't want to spend too much time Google Image searching "12 year old girl").

This is an article about a different twelve year old girl.

Ashley just had a baby. She’s sitting on the couch in a relative’s apartment in Clarksdale, Miss., wearing camo-print leggings and fiddling with the plastic hospital bracelets still on her wrists. It’s August and pushing 90 degrees, which means the brown patterned curtains are drawn, the air conditioner is on high, and the room feels like a hiding place. Peanut, the baby boy she delivered two days earlier, is asleep in a car seat at her feet, dressed in a little blue outfit. Ashley is surrounded by family, but nobody is smiling. One relative silently eats lunch in the kitchen, her two siblings stare glumly at their phones, and her mother, Regina, watches from across the room. Ashley was discharged from the hospital only hours ago, but there are no baby presents or toys in the room, no visible diapers or ointments or bottles. Almost nobody knows that Peanut exists, because almost nobody knew that Ashley was pregnant. She is 13 years old. Soon she’ll start seventh grade.

In the fall of 2022, Ashley was raped by a stranger in the yard outside her home, her mother says. For weeks, she didn’t tell anybody what happened, not even her mom....

[Ashley's mother] Regina tentatively asked [Dr.] Balthrop if there was any way to terminate Ashley’s pregnancy. Seven months earlier, Balthrop could have directed Ashley to abortion clinics in Memphis, 90 minutes north, or in Jackson, Miss., two and a half hours south. But today, Ashley lives in the heart of abortion-ban America.... Within weeks [of the Dobbs decision], Mississippi and every state that borders it banned abortion in almost all circumstances.

Balthrop told Regina that the closest abortion provider for Ashley would be in Chicago. At first, Regina thought she and Ashley could drive there. But it’s a nine-hour trip, and Regina would have to take off work. She’d have to pay for gas, food, and a place to stay for a couple of nights, not to mention the cost of the abortion itself. “I don’t have the funds for all this,” she says. 

So Ashley did what girls with no other options do: she did nothing. 

It bears repeating what Scott Lemieux said: the very consistent Republican position on cases like Ashley's is that states should have more latitude to force child rape victims to give birth compared to the average women (and they very much believe the average women shouldn't have much in the way of rights either). Ashley's situation isn't a case of unintended consequences; it's the Dobbs ruling doing exactly what its proponents intended and wanted it to do.

F-ing Banned Roundup

 Ron DeSantis' botched campaign rollout includes the following hats.

What happened to the letter "F"? I have to assume that some parent filled out a form calling it obscene, and now it's banned in the state of, er, "Lorida".

Anyway, my browser needs clearing, so today you get a roundup.

* * *

Texas Republicans set up a bespoke center at the University of Texas to promote a conservative ideological vision. Texas Republicans also look set to wreck tenure. Turns out the latter poses a recruitment problem for the former.

The Fourth Circuit upholds race-neutral admissions standards at Thomas Jefferson High School in Virginia against a challenge that they discriminate against Asian-American applicants. Ilya Somin objects here; I may have my own comments later.

Now that he's running, JTA runs down all the Jewish things you need to know about Ron DeSantis. He loves Israel. Also, his campaign against wokeness has resulted in banning books on the Holocaust, and neo-Nazis are flocking to the state.

Rep. Rashida Tlaib (D-MI) admits she "struggles" with the idea of removing Israeli settlers from the West Bank, suggests they have the right to stay where they are. I've said it before and I'll say it again; one need not like or even fully credit Tlaib's putative commitment to "one state with equal rights for all" to admit that it's clearly better than the many, many politicians whose position is "one state that does not even pretend to provide equal rights for all."

Louisiana Republicans are completely uninterested in hearing from the child rape victims whom they want to force to give birth.

Texas forces a woman with an unviable pregnancy to stay in the hospital until she gives birth to her stillborn fetus (or becomes sick enough to potentially die) by threatening her with criminal prosecution if she tries to leave.

If we don't raise the debt ceiling, it seems we have to triage who gets paid. I've seen many proposals on how to do this. But Kevin Drum raises the possibility that our treasury system isn't built to allow for any "choosing", and so we'd be forced to basically just arbitrarily pay whoever comes to the door first.

The Lawlessness is the Point, Part II

The panel of Fifth Circuit judges who will hear the appeal of the bonkers Texas decision that purported to outlaw mifepristone has been announced. Judges Jennifer Walker Elrod, James Ho, and Cory Wilson will hear the case. (In case you're a bit confused: the Supreme Court put the district court decision on hold while the appeals process played out, but did not issue a final ruling; hence why we're still getting a stage before the Fifth Circuit).

From the vantage point of reproductive rights defenders, it's tough to imagine a worse panel draw than this -- and that's saying something, given that there aren't a lot of good panels to be drawn on the Fifth Circuit. But Judges Elrod, Ho, and Wilson are all right-wing reactionaries and anti-abortion extremists who made no pretenses at respecting rule of law in this subject even when Roe still was the law of the land. And without even the presence of a more moderate voice on the panel who could act as a break, we're likely to see a runaway train of ideological one-ups-manship where all three judges push each other to be as aggressive and extreme as possible.

So what will happen here? One possibility is that the panel will accept the signal offered by the Supreme Court in its stay, and reverse the decision (that is, preserve mifepristone's legality). This strikes me as highly unlikely. One enduring quality of the Fifth Circuit in general and these judges in particular is that they do not hesitate to shoot their shot. Their philosophy has consistently been to throw up the most radical, results-oriented conservative fantasy decisions they possibly can, and then dare the Supreme Court to reverse them. Given the composition of the Supreme Court, after all, it's hardly a bad bet. And hey -- you miss 100% of the shots you don't take!

Okay, so "dutifully obeying the law" is probably out. What else? Basically, I think there are two realistic options for what we might see. Possibility one is that the judges try to "write the brief" to the Supreme Court to convince (at least five of) them to ban mifepristone. This could include filing off some of the rougher edges of Judge Kacsmaryk's original opinion, maybe soft-playing some of the more radical insinuations (like with the Comstock Act), purport to address the lower court ruling's disdain for administrative law or standing principles while functionally just replanting it, and basically try to create a fig leaf that, with time and distance, five members of the right-wing supermajority on the Court think  will be large enough to shield the obvious fact that they're imposing their policy preferences and calling it law.

Possibility two is that the judges will not even try to reframe the issues in a way that looks more palatable or reasonable. Forget the fig leaf; they're let it all hang out in naked splendor -- a "eugenics" references here, a twee comparison of President Biden and/or the FDA to King George III there -- and just completely bulldoze any semblance of adherence to the governing legal rules and precedents that govern this case. Wild theories of standing or administrative law review will be asserted with not a care in the world for how they interact with past precedents or the judges' own putatively-held legal principles. The opinion will be a flat "because we can" declaration of unfettered judicial might.

One might think the former choice is more likely. There's a real opportunity here for conservative judges to further shear off the rights of women over their own bodies -- a huge priority for them -- that's more likely to meet with success if they don't let their eyes get bigger than their stomachs. Don't oversell, trim the sails back a bit, and take what would still be a huge W for them (and a huge L for women).

But I think the latter is more probable, and it goes back to the theme I've been hitting on in prior posts: the lawlessness is the point. Critical to the practice of conservative judges in this era is openly asserting and living out the proposition that they are unbound by law. That a given judicial opinion reads as lawless is not a problem, it is a feature; it is a means of demonstrating this freedom from constraint. It is precisely because Judge Kacsmaryk's decision was so universally panned by legal experts that it needs to be affirmed and, if anything, expanded upon -- judges (or at least these judges) assert their power and legitimacy as far as they demonstrate they are not bound by the strictures of professional norms or public commentary. The more one deviates from the professional consensus, the more one demonstrates judicial supremacy. And bizarrely, I don't think being reversed by the Supreme Court really upsets them. What matters, oddly enough, isn't the tangible outcome of the case. What matters is showing that they, personally, have flamboyantly demonstrated how they soar above the mewlings of their lessers.

Judges Elrod, Ho, and Wilson are among the prime instigators of this style of judging on the Fifth Circuit -- jurists completely drunk on their own power, who revel in demonstrating that what was thought to be law will in no way binds them from imposing their will. I predict that their decision in the mifepristone case will be another venue for them to make this point. Yes, it will be lawless. And yes, that's the point.

Assumption of Pregnancy Risk

A Nebraska Republican, State Senator Steve Halloran, has challenged the notion that the post-Dobbs world "forces women to be pregnant" by arguing the following:

“No one’s forcing anyone to be pregnant. Pregnancy’s a voluntary act between two consenting adults.”

Immediately, one might note that both the "consenting" and the "adults" parts of that sentence are not at all necessary. And that is no small elision! But beyond that, pregnancy isn't really an "act". It's a status. People who become pregnant consent to the status of being pregnant if and only if they are permitted to terminate that status and choose not to.

What Halloran is trying to gesture at is the notion that any person who consents to sex, also consents to becoming and staying pregnant. But we don't typically call that sort of downstream effect "consent". Rather, the phrase Senator Halloran really is going for, but doesn't want to use, is "assumes the risk".  We might say that if I mouth off at strangers in a seedy bar, I assume the risk of getting punched. That is not the same thing as saying I consent to participating in a bar fight.

Halloran, for his part, believes that if a woman has sex, she assumes the risk of becoming pregnant and can therefore be coerced into preserving that status regardless of her actual preferences or any intervening changes in circumstances (whether those changes be health-related, financial, emotional, familial, or anything else). In this, he is reflecting a common Republican view. Pregnancy, as far as the GOP is concerned, is a risk sexually-active women take. And having assumed that risk, any further consent they might want to offer or withdraw is wholly and utterly superfluous. Once a woman becomes pregnant, consent for Republicans is perhaps a nice to have, but absolutely not a need-to-have.

Multimedia David: Intersectionality and Mifepristone Edition

A couple of non-blog media appearances for me (in case you haven't had your fill).

Two local Portland news affiliates interviewed me about the Texas anti-abortion decisions. You can watch the clip from the local NBC channel here, or read the story from the local ABC affiliate here. I'm always a bit skittish about doing television segments -- I hate the way I look/sound on TV, and there's always the anxiety over what clip or portion thereof they'll choose to run -- but on the whole I was reasonably pleased with how this went.

Meanwhile, a few weeks ago I gave a talk on my "White Jews: An Intersectional Approach" article to ENCATE, the European Network for Countering Antisemitism through Education. The talk was recorded; you can watch it here. It is an unexpected but pleasant surprise how resonant that paper has been for European audiences in particular (I fully admit I was thinking almost exclusively about the Anglo-American experience when I wrote it), and I really appreciated getting to speak before this group.

You Can't Message Your Way Out of Your Own Heartfelt Extremism

Following their preferred candidate getting absolutely blitzed in a swing-state judicial election due to his anti-abortion extremism, conservatives are now trying to argue that they need to pivot to better messaging on abortion. 

There are a whole host of reasons why this won't work, starting with the fact that their favored "moderate", "compromise", "good message" alternative is Lindsey Graham's proposed nationwide compulsory women-maiming law. But another reason why it won't work is that the Republican Party cannot control the behavior of its own membership -- most notably, those in the GOP's YOLO Joker caucus (federal judiciary division) -- who insist on nothing short of the absolute most draconian limits on reproductive care imaginable:

A federal judge in Texas blocked U.S. government approval of a key abortion medication Friday, siding with abortion foes in an unprecedented lawsuit and potentially upending nationwide access to the pill widely used to terminate pregnancies.

The highly anticipated ruling puts on hold the Food and Drug Administration’s approval of mifepristone, a medication first cleared for use in the United States in 2000. The ruling will not go into effect for seven days to give the government time to appeal.

U.S. District Judge Matthew J. Kacsmaryk, a nominee of President Donald Trump with long-held antiabortion views, agreed with the conservative groups seeking to reverse the FDA’s approval of mifepristone as safe and effective, including in states where abortion rights are protected.

On the one hand, Republicans need to find a way out of the abortion trap. On the other hand, unaccountable hack judges in Texas are banning abortion medication nationwide based on completely spurious, results-oriented reasoning, guaranteeing that the GOP's forced labor agenda stays front and center in all of its extreme, uncompromising splendor indefinitely.

The Texas injunction now is paired with a dueling injunction from a district court in Washington, which forbids any alteration by the FDA to the status quo (at least in the plaintiff states in that litigation; the judge declined to make his injunction nationwide). This means the case almost certainly is headed to the Supreme Court sooner rather than later. Will the Court actually follow the law for once, or will we get another (to borrow from Josh Blackman) "epicycle" as rule of law bends itself to satisfy the whims of anti-abortion extremists cloaked in Article III garb? Stay tuned.

Republicans Propose Nationwide Compulsory Women-Maiming Law

It's abortion/privacy week right now in my Constitutional Law class (Griswold and Roe today, Casey and Dobbs on Thursday). After class this morning, a student came up to me and showed a headline regarding the new Republican proposal to ban abortion nationwide after 15 weeks. He was surprised, since all the judicial rhetoric he had read thus far had been emphatic about "returning the issue to the states" -- how was that consistent with a federal ban? I answered, as politely as I could, that anyone who actually believed anti-abortion activists would settle for "leaving it to the states" once Roe was overturned is someone I'd like to sell bridges to. And, in fairness, that makes sense from their vantage -- if you think abortion is murder, you're hardly going to be content with allowing some states to murder to their heart's content.

That being said, as philosophically unsurprising as a federal abortion ban may be for anti-abortion activists, it seems like political suicide under circumstances where abortion is already supercharging Democratic intensity. Yet say what you will about the GOP bill, it dares venture boldly into new domains of terrorizing women and girls.

Authored by South Carolina Senator Lindsey Graham, the Republican bill not only bans abortions after 15 weeks, it does so without any exemption for the health of the mother. While "life-endangering" pregnancies are exempt, those which only risk severe bodily injury to the pregnant vessel person remain subject to the ban. The bill also goes out of its way to clarify that "emotional" or "psychological" harms cannot be the basis of labeling the pregnancy "life-endangering". In circumstances where there is an extreme suicide risk, the Republican law's mandate is apparently "let her die". A nationwide abortion ban with no health exemption is, stunningly (or not), being cast as an attempt at "unifying Republicans" who have been placed on the back foot after finally catching the car that is overturning Roe. After all, views may differ on whether government is permitted to murder pregnant women, but Republicans are united behind the principle that they can be maimed without consequence.

Other exemptions in the bill, most notably for rape and incest are highly circumscribed. Rape victims, for instance, must have obtained government-approved counseling at least 48 hours prior to the abortion proceeding. Child victims of rape or incest must have reported the incident to government authorities in advance. On that point, the statute helpfully gives the parents of said minor rape/incest victims the right to sue if such reporting does not happen -- a fantastic provision that I have no doubt will not at all be used to help chill and retaliate against child victims of sexual violence.

Those who do not consent to compulsory federal maiming of women face up to five years of jail time. This is the new, nationwide GOP policy on abortion. And it is on the ballot in November.

Are States Allowed to Murder Pregnant Women? Views Differ!

One of the Biden Administration's responses to the Dobbs decision was to issue an interpretation of the Emergency Medical Treatment and Labor Act (EMTALA) that basically says doctors have to provide necessary medical care to pregnant persons in emergency situations -- including abortion care, if that is necessary to protect the mother's life or health. Since EMTALA is a federal law, it would preempt state laws which purport to prohibit abortion care in those circumstances.

Consequently, various red states have sued to vindicate their sovereign entitlement to require by law that hospitalized pregnant patients be left to die even when their life could easily be saved by surgical intervention. Two courts, one in Texas and the other in Idaho, have now opined on the Biden executive order. They've split in their decision -- the former striking down the new guidance, the latter upholding it and preempting Idaho law to the extent it conflicts with the guidance.

The belief that Dobbs would remove the judiciary from the thicket of deciding abortion cases was always a mirage (if it was believed at all). It just changes what courts will have to decide. Right now, they're deciding whether states are allowed to require, under pain of criminal penalty, that pregnant women and girls be maimed or killed when their bodies and lives could be easily saved. And as we're seeing, on that novel legal question, "views differ". Such is the burden of having a uterus in the post-Dobbs world.

Gallows Humor vs. Pure Fear in Political Ad Strategy

Last night, I saw the following ad start circulating by a pro-choice organization targeting Texas Gov. Greg Abbott (and, by extension, the draconian anti-abortion regime that has recently been ushered in).

 

I'm curious what people think on this (as I've mentioned, cutting political ads is something I'm absolutely irrationally confident I'd be good at).

I fully agree that Democrats should be running and running hard on the demise of Roe. If there is one thing Americans hate, it is changes to settled expectations, and this one was a doozy. Democrats can and should do everything they can to elevate and place at the forefront the anxieties, fears, and trauma that is associated with this settled right being unceremoniously torn away.

I am curious how people view this ad, in particular, as fitting into the strategy. The most striking feature of the ad is the abrupt switch in tone -- from a pure emotional appeal to absurdist gallows humor. The ad has gotten generally positive reception on my Twitter feed, though I can imagine people thinking it's a little too jokey and slapstick for the moment. The alternative, of course, would be to run ads that aren't cut with humor but rather play purely on fear -- fear of women dying, being maimed, being arrested. I want to be clear: those fears are justified. I don't think this is fear-mongering, because these terrible prospects are absolutely on the horizon where they are not already the reality. But the point is there is a different style of ad one can imagine that doesn't flinch away from the raw terror of the moment by interspersing it with a bit.

Consider something like the following: 

A woman is sitting in an examination room in a hospital gown. She's terrified, and has clearly been crying, but she's trying to stifle any sound and keep a brave face. There's blood spotting the gown near her groin. The camera slowly pans over, zooming out so she stays in frame but capturing more of the exam room until it reaches the doorway. Out in the hall, one sees three police officers talking to a doctor or nurse. Eventually, one of the officers walks into the exam room with handcuffs out.

No humor, no levity, no absurdism. Not even any dialogue. Just a terrified woman, in the most vulnerable moment of her life, facing the abusive power of the state. A terrible image. But we are living in terrible times.

Would that be better? Worse? Or should both types of ads be run? I'm not sure. Again, curious what people think about what's the right and most effective strategy.

When Will Dead and Maimed Women and Girls Become Old News?

It's been less than a month since Roe v. Wade was overturned, and already the consequences are being felt by women and girls around the country whose health and lives are suddenly imperiled. Many of these stories have gotten significant coverage. To name a few:

• The ten-year-old rape victim who was forced to travel to Indiana for an abortion because it would have been illegal in Ohio.
• The patient in Texas who was in the process of miscarrying but was placed in mortal peril because doctors could not operate until the fetus stopped registering a heartbeat.
• The Wisconsin woman who was left to bleed out for ten days during a miscarriage because doctors could not be sure treating her would not violate the state's anti-abortion laws.
• The hospitals in Texas who are turning away pregnant patients facing complications because they fear legal liability for providing basic medical care.
• The pharmacists refusing to dispense certain drugs necessary for medical treatment because they think they could also be used to facilitate abortions.
• The decision of the Idaho Republican Party to support banning abortion even in cases necessary to save the life of the mother -- a legal mandate requiring mothers to die.

All of these cases occur fresh in the wake of the Supreme Court's Dobbs decision. All demonstrate, in vivid detail, how the health and safety of women and girls in America has been dramatically imperiled by the Court's imperious decision. Some right-wing commentators have labeled in "suspicious" how many of these stories are emerging so shortly after Dobbs. There is nothing suspicious about it: of course the consequences of banning abortion would manifest immediately after banning abortion. These stories are what will happen in the first month after Dobbs, and the second, and the third, and the twelfth. These stories are the new normal.

Which raises an important question: what happens when they become normal?

These stories are getting coverage now because they're novel. They are breaking reports about the new reality we live under. But in two, three, twelve months, these stories will still be occurring, but they'll no longer be new. Will they still be covered? Or will the media move on?

One can easily imagine in September and October and November newspaper editors deciding that the latest instance of a child rape victim being forced to scurry across state lines, or a miscarrying woman being left to bleed out in a hospital, or a patient denied prescribed medication by an overzealous pharmacist, are yesterday's news. They'll recede into the background, not because they've gone away, but because they're omnipresent.

This isn't an inevitability. News networks don't skip covering crime stories just because "there are muggings every day". One would hope that they'd apply the same logic to women. Every time one of these laws maims or kills or harasses a girl or woman in their community, that should be a story. The drumbeat shouldn't stop, because the story isn't stopping. It should never be "old news" .

We'll see. I'm skeptical. But we'll see.

The Default Conservative Response to Inconvenient Facts is to Cry "Liar!"

Many of you have probably been following the horrific story of a ten-year old rape victim from Ohio who was forced to travel to Indiana to have an abortion following her home state's criminalization of the procedure.

No doubt some of you witnessed a collective right-wing response to the story, which was simply to declare it a lie. The Wall Street Journal editorial board called the story "too good to confirm". Ohio Rep. Jim Jordan (R) called it "another lie". National Review contributor Michael Brendan Dougherty called it a "fictive abortion and a fictive rape." Ohio Attorney General Dave Yost suggested the story was a fabrication because he hadn't heard a "whisper" about such a rape case from local law enforcement officials. It was everywhere.

Then the story was (further) confirmed, and those who called it a lie retreated with various amounts of egg on their face. Which is to say, they mostly said they were right to assume the story was made up even though it wasn't.

This has been the main meta-media response to the controversy: agreeing that there were "red flags" about the story such as its "weird timing" that meant we should all have taken very seriously the collective right-wing declaration that the story was a hoax, even though it turns out to have been horrifyingly true.

There were no significant "red flags" here. It is not suspicious that the Indianapolis Star did not publish the name, address, photograph, and social security number of a minor rape victim. It is not "weird" that stories of the horrible consequences of criminalizing abortion would begin to emerge shortly after abortion was criminalized. Obviously, if there is actual evidence of malfeasance or fabrication, one should look into that. But that wasn't present here.*

No, what happened here is very straightforward: A story was published that constituted an inconvenient fact for conservatives. So they declared it to be a lie. That's it. That's all that prompted the reaction. No "red flags", no "reasonable grounds to question". The story was inconvenient, and the response was to cry "liar!"

If we had to do meta-coverage of this story, that's what should have been the frame. It is, after all, the same basic instinct that motivated the cries that the 2020 election was "stolen". What prompted those cries was not any "evidence" or "suspicions" or "red flags". Biden winning was an inconvenient fact, and the default right-wing response to an inconvenient fact is to declare it a lie. Same reason why January 6 insurrectionists are declared to be "antifa". Same reason why mass shootings are alleged to be false flags. Same thing for global warming, same thing for whether Israeli soldiers shot Shireen Abu Aqleh, same thing for Trump's connections with Russia. This is not something occurring in isolation. It is a pattern of behavior, and a deeply dangerous one at that. It's always a lie, it's always "fake news".

So if the media wanted to soul-search its coverage, it should start there. What does it mean that conservatives now reflexively and instinctively declare any story that troubles their ideological waters to be a lie, and what does it mean that the media still views those cries as having credence?

This response, after all, is toxic to the proper functioning of democratic politics. Yet rather than identify it for what it is, let alone push back on it, the media aids and abets it with thumb-sucking self-abnegations agreeing "questions were raised." No they weren't! The mere fact that Republicans don't like a given fact or event or story about the world is not and should not be enough for the media to agree that its truth is up for dispute.

So that's the story I want to see. I want a deep dive into how conservatives have begun calling any inconvenient fact a lie. I want a clear and unvarnished explication of the pattern of behavior, contextualizing the most recent instance by reference to other prominent cases where they've run that same playbook. I want comments from self-reflective journalists about why these unevidenced cries of "liar" are given credence, and whether it is appropriate to continue to give credence to those cries going forward.

That's the metastory. Someone should get on it.

Oh, and for those of you wondering: now that the story has been fully confirmed, conservatives are sweeping into action ... by launching a criminal investigation of the doctor who cared for the child and proposing legislation that would criminalizing giving the child an abortion in Indiana. Because the current Republican orthodoxy is that adolescent rape victims should have to give birth or die trying.

* The closest exception I'll cop to is the Ohio Attorney General saying he hadn't heard of such a case, with the strong implication that if the case existed he would have known about it. But since it turned out there was such a case, the proper response for the media going forward is to treat Attorney General Yost as presumptively uncredible unless proven otherwise. Of course, the actual response will be to continue to treat uncorroborated declarations by Yost as rock-hard proof, while spinning in circles to explain why a doctor going on the record about an event they have first-hand knowledge about is too flimsy to take seriously.

On the Power of Sharing Stories

The personal should not have to be political.

But it is.

There are innumerable reasons why someone might terminate a pregnancy. Virtually none of them entail events one wishes to broadcast to the world. That's not a matter of shame. Someone who finds out that their very badly wanted pregnancy is non-viable, and that the safest way to forward is through an abortion proceeding, might not feel especially inclined to share a play-by-play on Facebook. Very often, abortions occur because something didn't go right -- the pregnancy was unplanned, or unwanted, or it was wanted but non-viable, or any number of other permutations -- and people are, or should be, allowed to grieve in private.

And yet. I have been inspired by the number of people in my circles who have shared their stories of having an abortion, or seriously considering having one, or having the immediately live prospect of needing one. As much as the Supreme Court just rolled back the constitutional clock, it cannot do so entirely, because these stories are out there and are publicly shared. The world is not as it was in 1973. Women who quite directly relied on Roe's promise for their own health know what would have been had Roe not been present for them. Women who tomorrow will not be able to access that care will know, in a very public way, what could have been.

Dobbs will bring about terrible things, but those terrible things (what an awful consolation prize this is) will be public in a way they would not have been in 1973. We have language to speak of them, and we know we could live in a world free of those terribles because we had lived in it. What had been countless discrete experiences in isolation, out of the public eye, out of the public discourse, now is a shared reality. Being able to name it, being able to organize around it, being able to know that one isn't alone and that it doesn't have to be this way is an irreplaceable resource. The stories matter, and the willingness to share them matters. It will make a difference. Every story, account, and tale, makes those who suffer these terribles feel a little less alone. Again, what an awful consolation prize. But it is the seed of how we fight back.

It shouldn't have to be like this. Each time I read one of these stories, typically someone sharing a wrenching, emotional, miserable moment at the most intimate core of their personal lives, my heart breaks twice -- first that it happened, second that the narrator now feels obligated to share something so personal with the world. They shouldn't have to. It is, in itself, a massive sacrifice they are making for us. But they are sacrifices that make a difference, and I am grateful for every story.