Kathleen Parker and the War on Women

Kathleen Parker is one of those people who appears to have an amazing ability not to blush, at least on paper. Take for her example her screed about "The silly, selective ‘war on women’":

Let’s be clear. The war on women is based on just one thing — abortion rights. While it is true that access to abortion has been restricted in several states owing to Republican efforts, it is not true that women as a whole care only or mostly about abortion.

Well, no. The Republican war on women is about women's reproductive rights in general, and notably includes sex education, access to birth control and insurance coverage for birth control. More than that, it includes no small amount of "slut shaming", and a huffy dismissal of the notion that women haven't achieved wage equality with men. If you don't believe me, take a look at this column by a person named "Kathleen Parker" in which she admits that the "war on women" includes insurance coverage for birth control. Parker makes a fascinating argument,

The alleged war on women was based essentially on the notion that people who think abortion is a bad idea — or who don’t think the government should mandate insurance coverage for birth-control coverage — are anti-woman. Democrats point mainly to new state laws that have limited access to abortion, not to mention the unforgettable observations of a few Republican men about “legitimate” rape and so on.

Whatever one’s own position, Republicans could be characterized as waging a war on women only if no women agreed with the premises mentioned above.

That sort of illogical and narrow thinking is mirrored by those who defend the practice of female genital mutilation by arguing that the arrangements for mutilation are made by mothers, for their daughters, and the procedure is performed by women. If even one woman is involved in the practice, under Parker's logic, the practice cannot be deemed oppressive toward women. Would Parker argue that slavery in the U.S. cannot be said to be oppressive to the slaves because there were black slave owners? I would hope not, but that argument would be completely consistent with her logic.

Next take a look at this column also by somebody named "Kathleen Parker" in which she whines that evil liberals want small children to have access to the "morning after pill". Parker's concern is, of course, not about safety or whether one over-the-counter medication should be treated differently than others based on objective concerns -- her concern is that a minor might be able to go into a pharmacy and purchase a medication that is safer than a lot of the other OTC drugs the same minor is free to purchase, without having to tell an adult that she's sexually active.

Fundamentally, though, she's making a "What about the children" argument in order to distract us from the fact that she's defending people who want to keep certain forms of birth control (and in some cases, all forms of birth control) out of the hands of women of any age. But even if we ignore that fact, contrary to Parker's pretense, the issue is not one about the role of government in relation to the family. It's about the relationship of parents and their daughters, and whether the government should stick itself into the middle of that relationship by imposing nanny state rules to keep certain OTC medications out of the hands of minors. Parker also pretends that she has safety concerns about the morning-after pill, never mind that pregnancy and childbirth are vastly more dangerous to young women than the pill she hopes to keep out of their hands.

Next take a look at this column, also... wow... by somebody named Kathleen Parker,

With each generation, the question becomes more declarative and querulous. Recent demographic shifts show women gaining supremacy across a spectrum of quantitative measures, including education and employment. Women outnumber men in college and in most graduate fields. Increasingly, owing in part to the recession and job loss in historically male-dominated fields, they are surpassing men as wage-earners, though women still lag behind at the highest income and executive levels.

So you see, women are doing just fine, thank you very much, and what you really need to focus on is how terribly men are doing -- "If we continue to impose low expectations and negative messaging on men and boys, future women won’t have much to choose from." Except it's implicit in Parker's argument that, at least outside of college enrollment numbers, men are doing as well as or better than women.

For more evidence of my point, you need only read further into Parker's column about the "silly" war on women,

Yet Sandra Fluke, whose appeal for insurance coverage of birth control prompted Limbaugh to call her a “slut,” was elevated to martyr status and perhaps a political career.

I suspect that most people had forgotten about Sandra Fluke before Parker brought her up, but she's a great example of how Republicans engage in anti-birth control rhetoric and slut shaming.

After telling us that her column is not about abortion, then proceeding with what I guess she expects her audience to view as some sort of ironic humor by writing a paragraph-long screed against abortion rights, Parker gets to her real target: The fact that on occasion she can identify a Democrat who says stupid or sexist things about women. As if we needed to be told? Needless to say, though, she's nutpicking -- selecting isolated examples of people saying silly things -- and conflating them with her party's problem, the fact that its politicians have established a clear pattern of making sexist comments -- one that makes columnists like, you know, Kathleen Parker regret that Republicans have not yet learned to talk to women.

Parker reminds us in her column that Bill Maher, a left-leaning comedian who is not a Democrat but is presently supporting the Democratic Party, is a sexist.

Sarah Palin, whose potential vice presidency I politely opposed for legitimate reasons that are now widely embraced, has been outrageously abused in the vilest terms — by Maher among others — and left to twist in the wind.

Twist in the wind? Try "laugh all the way to the bank." So why bring Bill Maher, a man she sees as inclined to make vile, sexist remarks, into the column at all? Because he offers a useful distraction from domestic concerns:

On the latter’s offense, and the silliness of the so-called war in general, I defer to Bill Maher, who recently chastised liberals for their selective outrage regarding women’s rights.

“We hear a lot about the Republican ‘war on women.’ It’s not cool Rush Limbaugh called somebody a slut. Okay,” said Maher. “But Saudi women can’t vote, or drive, or hold a job or leave the house without a man. Overwhelming majorities in every Muslim country say a wife is always obliged to obey her husband. That all seems like a bigger issue than evangelical Christian bakeries refusing to make gay wedding cakes.”

One could easily turn that around -- why is Parker obsessing over whether the Republicans are fairly being accused of a war on women, when so-called honor killings occur in parts of the world, and where rape victims can even be killed in the name of protecting the honor of their families? If Parker were better at logical thinking, she might realize that it is possible to be opposed to discrimination against women at home and abroad. If she were a better thinker she might realize that U.S. voters have a better chance of effecting policy change in this country than they do of convincing Saudi Arabia to grant women full equality. On an international scale, the mistreatment of women in many other nations is a larger issue than the mistreatment of women in the U.S., but when you live in the U.S. you actually are allowed to comment upon and even prioritize domestic policy concerns, as well as those issues that you could actually affect through your speech and votes.

Parker then moves on to her penultimate attack -- the statement of a single Democratic politician about his female opponent,

A more recent example of a war-on-women event occurred in Virginia’s closely watched congressional race between Democrat John Foust and Republican Barbara Comstock. This time it was a Democratic male attacking a Republican female in, shall we say, the most clueless of terms. Lacking facts or finesse, Foust mused to an audience that Comstock hadn’t ever held a “real job.”

Meaning, what, that she’s just a mom?

Probably not. It sounds like an echo of Republican attacks on President Obama during his first campaign. I don't recall that Kathleen Parker leapt to Obama's defense, "How dare my party suggest that being a father isn't a 'real job'" -- recall the column linked above where Parker claimed deep concern over the marginalization of fathers. I'm not sure that Parker mouthed those exact words about Obama, but she certainly embraced the sentiment:

The faith of the American people may not have been misplaced in Obama. But the young senator from Illinois became a president overnight, before he had time to gain the confidence and wisdom one earns through trials and errors.

Parker then whines,

Even if this were so, and it is not, why should Foust get a pass for such an ignorant, sexist remark? Is any Democratic male — even one who manages to insult while pandering — better than any Republican female? In my experience, a woman who can manage a household and juggle the needs of three children while obtaining a law degree from Georgetown University, as Comstock did, can run a corporation or a nation.

Foust is getting "a pass"? Then Kathleen Parker's criticism of him in a column published in one of the nation's leading newspapers and syndicated across the country must be a figment of my imagination.

Never mind Parker's criticism of Obama's lack of experience -- or, for that matter, her disdain for Sarah Palin, mother of five. When Parker is not pretending to be offended, and not pretending to be a sudden believer in the power of motherhood, she is actually willing to acknowledge that knowledge of foreign policy and economics are important, even in a vice president. Parker's able to recognize that it's possible for somebody to be a mother and to have held conventional employment or elected office on top of it, yet be woefully unprepared for a position of responsibility. Parker is simply playing the game of gotcha politics -- her concern is not actually the sentiment that the Republican candidate is unprepared -- a type of criticism she, herself, has made in different words -- it's that the Democrat used the wrong words and made himself a convenient target, whatever he in fact meant.

Parker takes a momentary step back from her feigned outrage to inform us,

[Comstock's] résumé includes such non-cookie­baking activities as serving as a senior aide to Rep. Frank Wolf, whose congressional seat she is pursuing. She currently is serving her third term in the Virginia House of Delegates, where she has advanced legislation to thwart human trafficking and supported several conservative positions related to health-care and tax reform.

It's interesting to me that Parker conveniently sidesteps the discussion of Comstock's actual job experience in order to pretend that her opponent's comment was intended to diminish motherhood, as opposed to being an echo of the refrain of the political right, that work in politics or as an elected official... or for a non-profit, or as a college professor, or for the government (other than the military)... doesn't count as a "real job". Parker could have pointed out the obvious -- that being a senior aid to a politician is a "real job", and that serving as an elected legislator is a "real job". But to acknowledge those facts would be to acknowledge the probability that the criticism of Comstock's résumé was an echo of the criticism directed at President Obama, not a commentary on motherhood.

Parker still isn't done....

When a Comstock ad recently called Foust’s comments “sexist, bizarre, insensitive, ignorant,” the 10th District’s Democratic Party tweeted, “If @barbaracomstock were a man, she’d be down 20 pts w women. Her record & policies are horrible for women.”

No, if Comstock were a man, she wouldn’t have to counter such slander.

Wait a second.... What's the "slander" here? If it's "slander" to suggest that a candidate who is a parent has never held a real job, the record is replete with that type of attack on President Obama. If it's that a candidate who has actually held real jobs has never held a real job, see also the résumé of President Obama. If it's that it's a slander to say that taking pro-life positions is bad for women, that's certainly not a criticism that has never been raised against a male candidate. What slander are we actually talking about?

Further, if we really want to get into scurrilous, unfair, gender- and implicitly race-based attacks on candidates, we need look no further than a columnist... whose name momentarily eludes me. No, wait, I remember now: Kathleen Parker, and her attacks on Obama as not being a full-blooded American, his being effeminate (or at least low on testosterone) for his supposed use of the passive voice, or of being a (pussy) cat.

At this point, surprisingly, Parker still finds room for another bad argument,

Virginia voters who oppose Comstock’s legislative record have a clear alternative. But if they cast their ballots for Foust, they’ll be electing a man whose disrespect toward women and the single job only women can do — mothering — is at least as offensive as Limbaugh’s name-calling.

Alas, those poor voters. They have no choice but to accept Parker's position that any suggestion that a candidate who happens to be a mother has never held a "real job" completely disqualifies her opponent from office, or they may as well be calling defenders of women's reproductive health "sluts". Don't bother looking for the logic -- it's not there.

Movement Toward Gay Marriage and the Myth of Roe v. Wade

Although I rarely find Charles Krauthammer to make a meaningful contribution to a public discussion, and his column on the DOMA decision isn't really an exception, he is repeating some unimpressive arguments raised often enough that it may be worth attempting to push them back. Before I get to the current column, I'll travel back in time seven years to some of his prior musings on the subject. Back then, Krauthammer was pushing the anti-gay marriage canard that if you allow gay marriage it inevitably follows that you should legalize polygamy:

In an essay 10 years ago, I pointed out that it is utterly logical for polygamy rights to follow gay rights. After all, if traditional marriage is defined as the union of (1) two people of (2) opposite gender, and if, as advocates of gay marriage insist, the gender requirement is nothing but prejudice, exclusion and an arbitrary denial of one's autonomous choices in love, then the first requirement -- the number restriction (two and only two) -- is a similarly arbitrary, discriminatory and indefensible denial of individual choice.

Right there, Krauthammer give us pretty much all the evidence we need that his thinking on this issue is weak, and that he doesn't understand the legal issues involved in the case. I don't want to assume to much, but I would hope that even Krauthammer would concede that to apply a similar argument to anti-miscegenation laws would be an "epic fail".

After all, if traditional marriage is defined as the union of (1) two people of (2) the same race, and if, as advocates of interracial marriage insist, the race requirement is nothing but prejudice, exclusion and an arbitrary denial of one's autonomous choices in love, then the first requirement -- the number restriction (two and only two) -- is a similarly arbitrary, discriminatory and indefensible denial of individual choice.

I know that opponents of marriage equality argue vociferously that "allowing gay marriage is completely different from allowing interracial marriage", but the reason that comparison comes up is because of arguments like Krauthammer's. By his "logic", there is no distinction - if you don't allow discrimination in which of two, unmarried adults can get married, you cannot defend restricting the institution of marriage to two unmarried adults.

The response of many opponents of gay marriage is that being gay is not a protected category - it's not on the short list of factors that the state is supposed to scrupulously avoid using to discriminate between citizens - and thus the reasoning behind Loving does not extend to gay marriage. That because the discrimination is not based upon a protected class such as race, religion, national origin, color, (in their opinion) sex, or another such category, that the courts should not concern themselves with the question. Krauthammer does not appear to be working from the "protected category" argument, because "married vs. unmarried" isn't on that list.

The language of DOMA permitted the Supreme Court to resolve the case from a different angle - that Congress intruded into an area of law traditionally left to the states (domestic relations) in order to impose restrictions and disabilities on a class of people, and thus ultimately violates basic due process and equal protection principles applicable to the Federal Government. What frightens opponents of marriage equality is that the court all but said that there is not even a rational basis for opposing gay marriage - that should the issue be squarely raised. Given that the two leading arguments against gay marriage (and you'll forgive me if I missed a third)¹ are "tradition" and various forms of "gay sex is icky", it's not surprising that they are concerned that a future court might find there to be no rational basis for the continued state-level prohibition.

Perhaps Krauthammer accepts that the arguments against gay marriage are fundamentally weak. Perhaps, like many gay marriage opponents, he starts channeling Rick Santorum - never mind that the same "slippery slope" argument applies to anti-miscegenation laws (and were probably applied to that particular marriage equality argument in certain parts of the country). The slippery slope argument can be raised about any change, and its use is usually fallacious. In this particular instance, no surprise, it is fallacious.

We can start with this: When you have two unmarried individuals, the marriage contract is between them and them alone. If you then say, "We don't care if you're married already, you are free to marry an additional spouse," you risk infringing the rights of the existing spouse. And if you require that spouse's knowing consent to the new marriage - or should I say, all spouses - you're conceding a significant difference between the marriage of unmarried people and the marriage where one or more of the parties to the marriage is already married. Adding additional spouses is not, as Krauthammer blithely asserts an "individual choice" because the marriage already involves more than one individual. States have created bodies of law addressing the rights and duties of married couples, property division upon divorce, child custody upon separation or divorce, what property is part of the marital estate, pension and inheritance rights, access to health insurance benefits, taxes, housing laws, eligibility for social services.... When you add additional parties to the mix, every single one of those laws would need to be revisited and would become ridiculously complex.

There's a reason why the few nations that permit polygamy restrict that right to the male partner, and given him most of the rights within the marriage including in relation to assets and the children - because once you move toward an egalitarian arrangement it becomes extraordinarily difficult to create legal institutions around multi-partner marriages. In those cultures, the marriage is a constant that revolves around the man. Women can enter or leave the marriage. But if you attempt to create egalitarian multi-partner marriages you create a context in which the marriage can continue even after one or more partners leaves. You could end up with a marriage in which the original parties to the marriage are no longer involved, a 'divorce' that creates two or more new 'marriages' in its wake, and claims to custody or visitation from a wide assortment of moms and dads.

If you're not willing to directly address the weakness of the argument for proscribing gay marriage, perhaps it's not surprising that you've given even less thought to the weakness of the slippery slope argument you throw up as a shield. But whether or not you support polygamy, you cannot avoid the fact that there is a rational distinction between categorizing people as "married" versus "unmarried", and you cannot avoid acknowledging the complexity of rebuilding our nation's laws to accommodate marriages involving multiple parties.²

Krauthammer agrees that gay marriage poses no threat to "traditional marriage", so his argument really is one of fairness,

Posit a union of, say, three gay women all deeply devoted to each other. On what grounds would gay activists dismiss their union as mere activity rather than authentic love and self-expression?

That's a group choice, not, as he earlier posited, an individual choice. Here, Krauthammer is shifting the question from "is there a rational basis for the state to treat unmarried people differently from married people" to "If we allow gay marriage, is it unfair to people who want polygamous marriage." The "logic" here appears to be that it's better to be unfair to large numbers of people than it is to be unfair to smaller numbers of people, without regard to whether the distinction can be explained or justified - and that argument ultimately betrays the fact that Krauthammer's argument lacks a logical foundation. His argument boils down to, "It may be unfair to gay people to not allow them to marry, but allowing gay marriage would not end the unfairness to polygamists that they can't engage in multi-partner marriages, so we shouldn't do it.

As for gay marriage, I've come to a studied ambivalence. I think it is a mistake for society to make this ultimate declaration of indifference between gay and straight life, if only for reasons of pedagogy. On the other hand, I have gay friends and feel the pain of their inability to have the same level of social approbation and confirmation of their relationship with a loved one that I'm not about to go to anyone's barricade to deny them that. It is critical, however, that any such fundamental change in the very definition of marriage be enacted democratically and not (as in the disastrous case of abortion) by judicial fiat.

"...if only for reasons of pedagogy"? How... compelling. To me, that does not sound like an expression of "studied ambivalence" - it sounds like a preference for the status quo and the willingness to disregard the consequences of his policy preferences on any class of people who aren't Charles Krauthammer. As for the conclusion about judicial fiat... call it foreshadowing.

For a guy who wants us to see him as "ambivelent" on the subject of gay marriage, Krauthammer seems to have little conflict - beyond that one-time nod to the pain suffered by his "gay friends", but all of his arguments come down on the other side. For example, he imagines that gay marriage will lead to a "war on religion", picturing a religious college that is sued for denying a married, gay couple the opportunity to live in married student housing. Never mind that the school could avoid being a casualty of this imagined war simply by refusing federal money - a notion that I guess Krauthammer finds far more disturbing than discrimination against gay couples. Krauthammer complains, "It will be sued everywhere in the country if it’s declared to be a constitutional right, because it would imply that anybody who opposes it does it only out of bigotry, for no other reason". Given that the only other reasons for opposing gay marriage that Krauthammer has acknowledged are "pedagogy" and that "allowing gay marriage would be unfair to polygamists"... I suppose he makes a valid point. To assume that all marriage opponents are anti-gay bigots can be said to be making the mistake of attributing to malice something that at times will be better explained by ignorance.

Krauthammer's ambivelence is cast further into doubt by his recent column on the subject. Krauthammer proposes that there are only two possible grounds for holding DOMA to be unconstitutional, federalism and leaving the institution of marriage to the states, and equal protection. Krauthammer sees the two justifications as irreconcilable, and thus that it's inevitable that the Supreme Court will rule that all states must allow gay marriage. I'm not sure whether I should take that to mean that Krauthammer is implicitly conceding that there's no rational basis for laws prohibiting gay marriage, or if he's unable to fathom why the court does not find "reasons of pedagogy" to be an adequate basis for discrimination.

From a technical standpoint, Krauthammer is conflating a decision holding that the federal government cannot arbitrarily curb the rights of a group of people with an emphasis on interstate recognition of marriage, with state legislation that is entirely intrastate in nature. Krauthammer complains about equal protection,

In states with same-sex marriage, Washington must give the same federal benefits to gay couples as to straight couples because to do otherwise is to discriminate against the gay couples. After all, they are equally married in their states. For Washington to discriminate against them is to deny them equal protection of the laws. Such discrimination is nothing more than irrational animus — and therefore constitutionally inadmissible.

Except the Supreme Court was commenting not on state laws for or against gay marriage, but on a federal law that targeted married gay couples and stripped them of a basic legal protection - to have their lawful marriages respected by other states. As the Court put it, "The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law." There's nothing inherent in the Windsor decision that removes from a state the right to forbid same sex marriages within its borders - but that state will no longer have a federal statute that it can point to as a justification for disregarding the validity of gay marriages lawfully entered in other states.

In other words, Krauthammer's argument only holds if he believes that there are no better arguments for opposing gay marriage than those proposed by the defenders of DOMA. I'm not sure if I should take this as an implicit abandonment of his notion that gay marriage can be forbidden "for reasons of pedagogy", but it's safe to infer that he does not expect the Supreme Court to find a law premised upon his position to have a rational basis.

As Krauthammer sees it, the problem with this decision is that it paves the way for a future decision that will require all states to permit gay marriage.

Which is exactly where the majority’s [equal protection] rationale leads — nationalizing gay marriage, the way Roe nationalized abortion. This is certainly why David Boies, the lead attorney in the companion Proposition 8 case, was so jubilant when he came out onto the courthouse steps after the ruling. He understood immediately that once the court finds it unconstitutional to discriminate between gay and straight couples, nationalizing gay marriage is just one step away.

I know there's a "conventional wisdom" that holds that but for the opinion in Roe v. Wade we would have had a national debate that would have led toward reproductive freedom across the country, and that the reason we have a continued debate over abortion rights is because the Supreme Court cut that debate short. The only problem with that argument is, well, everything. Roe v. Wade is controversial because it's at the center of the abortion rights debate, but despite decades of controversy and opprobrium it was, is, and remains consistent with public opinion. To the extent that Roe foreclosed part of a debate, it was not the part that would lead toward the expansion of reproductive freedoms for women, it was the effort to restrict and outlaw abortion procedures. Scott Lemieux argues,

In general, the comparison of abortion politics before and after Roe v. Wade is most consistent with the expectations held by skeptics of judicial exceptionalism. Clearly, the legitimation hypothesis is not applicable in the abortion case. The court’s intervention certainly did not resolve the abortion issue in any meaningful sense, and the public certainly did not accept the court’s verdict as the final word on the issue. On the other hand, there is also little evidence that the court’s action would have produced more countermobilization than a similar policy enacted by Congress or state legislatures. The pro-life movement was a powerful force before Roe, and the decision did not demonstrably change either the tone of abortion discourse or the distribution of public opinion on the issue. There is no evidence, specifically or generally, that policy-making by the courts is thought of as inherently illegitimate by the public. It should be re-emphasized that these empirical findings do not mean that there was no countermobilization against Roe.... Certainly, abortion politics are more salient at the level of presidential politics in 2003 than they were in 1972 when George McGovern declined to take a position on the issue. The comparison of abortion politics before and after Roe, however, compels the strong inference that it is the nationalization of abortion politics represented by Roe, and not the legalization of [abortion], that is the key variable in explaining this shift. Hypothetically, had Congress passed (and been constitutionally able) to pass legislation with similar policy content, there can be little question that abortion would have become a more salient issue in presidential politics as well.

Lemieux's argument, as exemplified by his reference to McGovern, is also consistent with the fact that it was not until the Reagan era, and its effort to turn the religious right into a permanent Republican voting bloc, that being "pro-life" became a litmus test in the Republican Party.

Krauthammer is not demonstrating concern that this theoretical cut-off of debate predicated by decisions like Roe or Windsor will prevent the development of abortion rights and gay marriage as national legal rights. For example, if he's truly concerned about federalism, why didn't he blow a gasket about DOMA, a law that allowed state legislatures to avoid trying to create laws and policies consistent with their own constitutions and the U.S. Constitution. What meaningful debate did we have in the decade after the passage of DOMA?

Krauthammer's selective focus on court decisions that lead toward gay marriage, and his (at best) disinterest in state and federal legislation and ballot initiatives that attempt to impede or prevent movement toward gay marriage, suggests that his opposition is to the expansion of rights and not to the means by which those rights are expanded or protected. In this specific case it seems less that Krauthammer's actual objection is to the fact that the Supreme court intervened, and is more to the fact that he is unable to articulate a single reason why the Court's decision was incorrect.
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1. A third argument might be, "If gay marriage is allowed, the result will be to weaken the traditional institution of marriage." The primary problem with that argument is that there's no evidence to support it, not even from jurisdictions that permit gay marriage. If you don't care whether your argument is supported by evidence, you could as easily argue that gay marriage will bring on a Martian invasion. Either way, in the absence of evidence you're blowing smoke.

2. Krauthammer claimed, "This line of argument makes gay activists furious" - no, Charles, this is what "furious" looks like; odds are that was people pointing and laughing.

When a Politician Talks About Reproductive Choice

If a politician is directly asked whether, in the event of his election, people should be worried about the loss of reproductive choice, and he answers anything but "no", whatever else he may appear to be saying his answer is "yes".

Whether you find that disturbing or reassuring is an entirely separate issue.

If Abortion Can't Be Rare, Women Shouldn't Have Contraceptives

That appears to be the subtext of Ross Douthat's recent column in which he imagines that "liberals" don't truly want abortions to be rare. As with many of Douthat's columns, the weak and fallacious reasoning is so overwhelming it's difficult to find a point of focus - to produce an analysis many times as long as Douthat's original, demonstrating how his logic is flawed, his factual assertions are incorrect, or how he substitutes his assumptions and prejudices for facts. I expect that there are countless posts around the blogosphere that take Douthat apart, line by line, so I'll try to focus on aspects of Douthat's analysis that seem to me to be particularly egregious or that I doubt would be the focus of those other posts.

Douthat writes,

Where cultural liberals and social conservatives differ is on the means that will achieve these ends. The liberal vision tends to emphasize access to contraception as the surest path to stable families, wanted children and low abortion rates. The more direct control that women have over when and whether sex makes babies, liberals argue, the less likely they’ll be to get pregnant at the wrong time and with the wrong partner — and the less likely they’ll be to even consider having an abortion. (Slate’s Will Saletan has memorably termed this “the pro-life case for Planned Parenthood.”)

So far, not so bad. Douthat predictably skips over an important element of the liberal view - contraceptive use requires not only access, but education. When and how to use contraception effectively, which contraceptives are most effective, when you should "double up" and incorporate a backup method along with your primary method, what to do in the event of a mistake or failure. Douthat's misleading arguments later in his piece, citing to a Guttmacher Institute study that undermines his claims (e.g., Douthat's argument that "only 12 percent cited problems obtaining birth control as a reason for their pregnancies" when about half of the pregnancies at issue did not involve any contraceptive use, or the impact of the unavailability of contraception to sexually active teens on the abortion rate) - nor the cultural and religious context that people like Douthat help create, that contributes to an atmosphere of ignorance and shame about sexual activity that both contributes to the non-use of contraception and to unwanted pregnancy. But again, I expect his arguments on those fronts have been well-covered by others.

Douthat has basically stated that liberals accept that unmarried people will have sexual relations, and that married couples will at times want to avoid pregnancy, and that the best way for people to avoid unwanted pregnancy is to use contraception. Saletan, who I would not characterize as a liberal, grasps the fundamental truth of that argument. So why is it that Douthat sees the argument as partisan opinion? Why can't he accept the basic truth that people who choose an appropriate form of contraception for their lifestyle, and use that form of contraception properly and consistently, in fact do largely avoid unwanted pregnancy?

Douthat's discomfort with basic facts is further evidenced by his presentation of the "conservative" case - which he later implies through a parenthetical is really a religious case, and even within that context more of a Catholic or possibly Evangelical Christian case than a Protestant position:

The conservative narrative, by contrast, argues that it’s more important to promote chastity, monogamy and fidelity than to worry about whether there’s a prophylactic in every bedroom drawer or bathroom cabinet. To the extent that contraceptive use has a significant role in the conservative vision (and obviously there’s some Catholic-Protestant disagreement), it’s in the context of already stable, already committed relationships. Monogamy, not chemicals or latex, is the main line of defense against unwanted pregnancies.

Douthat then admits that, as a matter of raw, unambiguous fact, the "conservative narrative" is a complete failure - yet he sneers in relation to high rates of unwanted prenancy in "conservative regions" that "Liberals love to cite these numbers as proof that social conservatism is a flop". Well, Ross, let's see... We have had birth control of various sorts for thousands of years. We have had religion of various sorts for thousands of years. We have had abortifacients and abortion techniques for thousands of years. The Catholic Church has been preaching abstinence, the evils of abortion and "sex only for procreation" for almost two thousand years. We have seen essays decrying the moral depravity of youth, unwanted pregnancy, and people defying the teachings of their religions in order to utilize birth control or obtain abortions (sometimes at grave personal risk) for thousands of years.

At what point, Ross, can we look at the facts and admit that pointing our fingers at young people and lecturing, "Shame on you for your dirty thoughts - no sex for you!" isn't going to prevent teen pregnancy? That we're dealing not with a clear and easy moral choice (that it would seem Douthat didn't make for himself but wants to impose on others, particularly women) but are dealing with an incredibly strong biological drive and immutable aspects of human nature? That unwanted pregnancy is something we can influence through education and contraception, but that will never disappear?

The fact that Douthat makes only the slightest reference to his own religion in his essay, without sharing statistics on contraceptive use and abortion rates among Catholic women, betrays both Douthat's fundamental dishonesty and the failure of what he purports to be the "conservative narrative". If the near-absolutist philosophy of the Catholic Church has that little impact on its members, what makes Douthat believe that human nature is suddenly going to change and that preaching abstinence and preventing access to birth control will do anything but increase the number of unwanted pregnancies? Douthat claims that "Mormon Utah... with some of America’s lowest rates of teenage pregnancies, out-of-wedlock births and abortions" is the exception that proves the rule - oops.

He predictably cherry-picks his blue state statistics, arguing that "Liberal California... has a higher teen pregnancy rate than socially conservative Alabama" and that its lower teen birth rate results from a higher rate of abortions. What happens, Ross, if we control for California's high teen pregnancy rate among its immigrant population - most notably socially conservative, Catholic Latino immigrants? His argument kind of... falls apart. And whoah - if you want to reduce unwanted pregnancies within that population and thereby reduce the number of abortions, guess what works? Could it be... education and access to contraception?

And that last line... monogamy prevents unwanted pregnancies? Since when?

Douthat latches onto the politician's line that "abortion should be safe, legal and rare", and pretends that it is a coherent policy statement - politicans can't truly believe that, he seems to believe, because in his opinion abortion is not yet rare enough, except perhaps in states that have next to no abortion clinics and a culture of intimidation of abortion providers - and in his opinion access to safe, legal abortion is irrelevant - neither safety nor legality are important to Douthat, so he completely discounts that those are the foundations of pro-choice policy whereas rarity is an aspirational goal. And his solution to the problem appears to be to suggest that we rely upon moral solutions that have never worked, because even when available contraception is not always used. Like his suggestion that monogamy prevents unwanted pregnancy, his argument is at its core absurd, ignorant, and contrary to indisputable facts.

It's Important To Be Pro-Life....

Except when it counts? Or is that when it's most important that the state dictate your (lack of) choice?

Ross Douthat ploddingly repeats a tired old argument on abortion rights and Down syndrome:

For abortion opponents, cruel ironies abounded in this sibling disagreement. Because of Eunice Shriver’s work with the developmentally disabled, a group of Americans who had once been marginalized and hidden away - or lobotomized, like her sister Rosemary - was ushered closer to full participation in ordinary human life. But because of laws that her brother unstintingly supported, that same group was ushered out again: the abortion rate for fetuses diagnosed with Down syndrome, for instance, is estimated to be as high as 90 percent.

Now we could start by looking at facts. You know, Kennedy's support for universal healthcare and SCHIP. By helping families afford to care for their developmentally disabled children through programs largely opposed and restricted by Republicans, liberals like Kennedy made it easier for families to "choose life". But lets run with Douthat's "facts be damned" approach. When Michael Gerson trotted out that same statistic, I responded with what should be obvious to even a mediocre thinker:

Do you suppose he has evidence that parents who self-classify as conservatives don't choose abortion when they learn that they are expecting a Down syndrome child? Well, he says, "In America, the lives of about nine of 10 children with Down syndrome are ended before birth." So either Gerson has to admit that American conservatives are a big part of what he describes as the problem, or argue that significantly less than 10% of Americans are "conservative."

I guess there's one more possibility: He could be arguing that while liberals fret over the conflict between humanitarianism and egalitarianism, conservatives are skipping the debate and heading straight to Planned Parenthood.

Seriously, that statistic can mean only one thing: When confronted with a very tough choice - one that Gerson and Douthat would strip away from them - the overwhelming majority of pro-life parents suddenly find that they prefer to live in a pro-choice world.

Now remember, the abortion issue is one of Douthat's favorite topics, if not his absolute favorite. If he understands anything, it's this issue. As much as he complains that Kennedy was firmly pro-choice, Douthat's an embodiment of pro-life absolutism. Thus, it's fair to take him to task for this:

[I]n Planned Parenthood v. Casey, the Supreme Court upheld a near-absolute right to terminate a pregnancy - a decision made possible by her brother’s demagogic assault on Robert Bork five years earlier, which helped doom Bork’s nomination to the court.

Did you follow that? Douthat, a supposed conservative Republican (and yes, he expressly declared himself a Republican on Bill Maher's show just a couple of weeks ago), whining that his party wasn't able to stack the Supreme Court and legislate from the bench.

First we have the illogic of his "for want of a nail" argument. Apparently, Douthat takes great umbrage that Kennedy said of Bork, "Robert Bork's America is a land in which women would be forced into back-alley abortions", because but for such "demagogy" abortion might now be illegal.

Douthat also flat-out lies about the holding of Casey, which largely upheld state law restrictions on access to abortion. Other than spousal notification laws, what common restriction on access to abortion has been found to constitute an "undue burden" under Casey?

Douthat closes with yet another distortion, one that suggests that he's succumbing to the temptation of regurgitating his party's weekly memo instead of providing actual (or factual) analysis:

And it’s entirely fitting, given his record, that Kennedy’s immediate legacy is a draft of health-care legislation that pursues an eminently Catholic goal - expanding access to medical care - through a system that seems likely, in its present design, to subsidize abortion.

Nothing in the current healthcare proposals would have any effect on the Hyde Amendment or its prohibition on using federal funds to pay for abortions.

Update: Dana Goldstein points out yet another piece of legislation Kennedy sponsored:

In 2005, Kennedy co-sponsored a bill - the Prenatally and Postnatally Diagnosed Conditions Awareness Act -- that expanded federal financing for support programs for expectant and new parents who receive a Down syndrome diagnosis. Research shows that doctors delivering such a diagnosis often share very little information about living with the disease, and presume that the patient would prefer to terminate her pregnancy. Indeed, about 90 percent of couples who receive a prenatal Down syndrome diagnosis do choose abortion. But enriched by his sister Rosemary's life, Kennedy sought to link expectant and new parents with mentor families already raising a child with Down syndrome, as well as create a national registry of families willing to adopt disabled infants.

Once again, the opposite of what Douthat was implying.

Update II: Ruth Marcus addresses the abortion factor, noting how the issue has historically been treated, and (without naming names) how people (like Douthat?) are distorting the issue in an effort to derail healthcare reform.

Looking Away in Horror

Way back during my high school days, the biology teachers shared a small office between two classrooms. There, they kept a number of old biology texts that were available to all students, but which were primarily for their own reference and mostly disregarded by the student body. One of the texts was a reprint of an early 20th century book on fetal abnormalities. The text focused on severe, mostly lethal abnormalities, and each entry was accompanied by a photograph of a stillborn baby illustrating the abnormality. Some of the pictures looked scarcely human, some looked like the babies had been the victims of torture, and a few weren't even recognizably human.

Sensitivities have changed since the original publication, which described the babies it depicted as "monsters". At the time of its publication, you might have seen babies (real or fake) with similar deformities preserved in formaldehyde and presented at "freak shows". Historically, in much of the Christian world, a child with this type of deformity who survived (or even one with far lesser deformity or genetic abnormality) might have been shuttered away from the world, their parents and siblings keeping their very existence a secret, or institutionalized.

Ross Douthat's latest essay on abortion rights is mostly a restatement of what he's said before, and a lot of people have taken issue with the points he makes. But I have yet to see this addressed:

Over the last week, there’s been an outpouring of testimonials, across the Internet, from women (and some men) who lived through these hard cases. They help explain why Tiller thought he was doing the Lord’s work, even though that work involved destroying something that we wouldn’t hesitate to call a baby if we saw it struggling for life in a hospital bed. They help explain why so many Americans defend his right to do it.

Why, then, did Douthat's Catholic forbears accept the labeling of such children as "monsters" and "grotesques"? Why did it countenance the keeping of their births and existence a secret? Why did it help perpetuate a culture of shame around having a child with a birth defect? What's its explanation for why God would create a baby, destined to struggle for life for minutes, days, weeks, or perhaps even a few excruciatingly pain-filled years, before inevitably succumbing to a congenital or genetic abnormality? A baby who might inspire somebody, not prepared to see it, to avert her eyes in horror? How is this consistent with God's infallibility? I don't mean to single out Catholicism in this regard; but that's the prism through which Douthat sees the world.

As usual, instead of stating a clear position, Douthat waffles and begs the question. Following up on the straw man proposition that the "argument for unregulated abortion rests on the idea that where there are exceptions, there cannot be a rule", Douthat proclaims,

As a matter of moral philosophy, this makes a certain sense. Either a fetus has a claim to life or it doesn’t. The circumstances of its conception and the state of its health shouldn’t enter into the equation.

It wouldn't take much courage for Douthat to state what his arguments, present and historic, suggest that he believes: That a fetus has a claim to life without regard to the circumstances of its conception and the state of its health. I'm not sure whether Douthat chooses not to do so out of some sense that he can depict himself as unbiased on these issues, or simply because he lacks courage. Instead of taking a position he lectures,

But the law is a not a philosophy seminar. It’s the place where morality meets custom, and compromise, and common sense. And it can take account of tragic situations without universalizing their lessons.

Douthat confuses law with politics. It's very simple to draft a law that says "Abortion is illegal under all circumstances" - perhaps Douthat should consult his Priest about something called "canon law". The fact is, if you deviate from the dogmatic line that abortion should be prohibited in all circumstances - whether it be to allow "abortions on women facing life-threatening complications, on women whose children would be born dead or dying, on women who had been raped, on 'women' who were really girls of 10" - you're pro-choice. The only difference between you and somebody who favors few (or even no) restrictions on access to abortion is where you choose to draw the line.

If Douthat were interested in that debate, he would spend less time building straw men or making statements so absurdly false (e.g., "Under current law, if you want to restrict abortion, post-viability procedures are the only kind you’re allowed to even regulate") that the most charitable interpretation is that they betray a level of ignorance that should disqualify him from writing on this issue.

Ross Douthat's Supreme (Court) Ignorance

Sometimes you need a sounding board. I sometimes get the sense from Ross Douthat's columns that I would enjoy discussing issues with him. He seems reasonably bright, reasonably informed, and sufficiently capable to challenge my opinions so as to make our conversations interesting, without the narcissism or dogmatism that can turn political debates into a futile bore. (He has some sacred cows, sure, but so does everybody.)

But I am losing the sense that he would enjoy discussing issues with me. Because if he were the type to truly enjoy debate, or to seek challenge of his opinions rather than looking for affirmation, I doubt that his column on the Supreme Court would have come out in quite the same way. It reads like a mediocre undergraduate essay, foggy on the facts, weak on the logic, without any clear basis for the "cure" he proposes. I suspect that he's raised the same issues before, perhaps even blogged about them, but in contexts where he had a sympathetic audience and could avoid or ignore criticism.

Douthat opens with a fair criticism of the judicial nomination process. Sotomayor will establish herself as a sufficiently learned jurist but, when confronted with serious controversies, will hide behind the excuse that she can't comment on an issue that might come before the court. Never mind that in order to establish her judicial bona fides, she will comment on any number of non-controvercial subjects that the court might be asked to revisit - it's those 5-4 and 6-3 issues that are off the table. But that won't be a standard she created - that's the standard the Senate created and perpetuates. I suggested a possible work-around - the Senate could ask a candidate to state the best arguments on both sides of a controversial issue without picking a side. What a choice for a Senator... having already decided not to filibuster, do you press hard on the issues or preen for the camera?

Douthat proceeds to suggest that the politicization of the Supreme Court is a bipartisan problem, but that it is somehow more of an issue now than at any prior time in the nation's history. Granted, it's unusual for a conservative to admit that the Republicans have done their best to build an activist judiciary, and to resolve cases through the judiciary when they can't prevail legislatively (even in contexts where they control the legislative and executive branch, as was the case for most of G.W.'s tenure, or after John Engler created his activist "conservative" court in Michigan). But new? I suggest that Douthat pick up a dusty old case reporter from 1803, and read the case that in large part created the dynamic he now deplores - Marbury v Madison. Perhaps he should also grab a reporter, just a few volumes down the shelf, and read Martin v Hunter's Lessee.

The context for the Supreme Court acting as the final arbiter of federal constitutional questions was resolved centuries ago. Does Douthat believe that, at that time, nobody noticed a political aspect to the court's direction, rulings, and expansion of its own power? Politicization and the consequences of a bad ruling are more significant now than, say, back in 1857, when the Supreme Court kinda sorta made a bad ruling that, in the view of many (although granted, a view disputed by some historians) kinda sorta contributed to the subsequent civil war? Or when the post-Civil War Supreme Court decided to limit the reach of the 14th Amendment's and roll out the red carpet for Jim Crow laws? Or when FDR threatened to stack the Supreme Court with new justices? (How did that one get past Douthat?)

Douthat's contention that complaints about the Supreme Court's power "have more merit now than ever" is based not on any substantive review of their rulings, but on statistics.

According to calculations by the Harvard law professor Jed Shugerman, the Court has gone from overturning roughly one state law every two years in the pre-Civil War era, to roughly four a year in the later 1800’s, to over 10 a year in the last half-century. So too with federal law: Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it’s overturned more than 80.

To anybody slightly conversant with Supreme Court history, what of that would be surprising? Subsequent to the Civil War, the Supreme Court has incorporated most of the rights enumerated to in the Bill of Rights to the states, meaning that they could start reviewing state laws as violative of federal rights. It's a bit like arguing, "The Supreme Court made no decisions under the Thirteenth, Fourteenth or Fifteenth Amendments before the Civil War, then suddenly for no reason I can see they started overturning laws as violating those Amendments."

There's another factor, one Douthat should know about. There's a whole body of Supreme Court precedent that might be described as the "what about now" decisions. States, confronted with a ruling that a particular statute is unconstitutional, often take a "try and try again" approach. It's unconstitutional to ban abortions? Well then, how about we impose a seven day waiting period... no? How about 48 hours? How about we require spousal notification... no? Then how about parental notification? How about we give state funds directly to K-12 parochial schools... no? Then how about we give them free textbooks, and create a voucher program where parents decide where to use the voucher? There are many other examples. Once you decide that a line can be drawn, you're going to get a lot of subsequent argument over where to draw that line, and the decisions start to look more like the making of policy than the neutral application of law. (Rival paper or no, Douthat might benefit from reading George Will.)

In terms of federal legislation, let's see... What happened in 1954? I'm sure it was nothing significant. Seriously, it's like there's a huge blind spot in Douthat's understanding of history - we have a civil war, get a new set of constitutional amendments resulting in Supreme Court scrutiny of state laws, and suddenly more state laws are reviewed. We have a seminal case that overturns "separate but equal" and paves the path for integration and the civil rights era, and suddenly the Supreme Court is doing crazy things like overturning state anti-miscegenation laws.

You also have the evolution of the court, post-FDR, with justices being asked to review commerce clause cases that aren't particularly sexy or interesting to laypersons (probably not to most lawyers) but play a part in the increased scrutiny of state and federal legislation. We found ourselves moving into an era where the federal government was increasingly regulating state activities, often by attaching strings to grants of federal money, with judicial review of whether those strings were constitutional, whether state efforts to circumvent the strings were permissible, whether the strings constituted "unfunded mandates".... etc. We have also seen an explosion in the quantity of federal law, including the creation of a huge body of federal criminal law, and a federal "war on drugs" (now accompanied by a "war on terror") that is often held up as justification for rolling back protections extended under the Bill of Rights. We had the development of a highly mobile society, the rise of information technologies, and the extension of federal laws and regulations into areas prior generations couldn't have imagined.

The change wasn't the consequence of the flipping of a magic "judicial activism" switch. A lot was going on. This is a context where statistics may be interesting, but prove nothing.

The public doesn’t seem to mind this increasing assertiveness: The Supreme Court regularly shows up in polls as the most respected branch of government. But settling so many vexing controversies with 5-to-4 votes — effectively making Anthony Kennedy the nation’s philosopher king — is an awfully poor way to run a republic.

Except that when you have a 5:4 decision, every vote on the majority side is arguably the "swing vote". It's not as if Kennedy's not predictable - for the most part you know where he's going to come out on any given case. This is really no different from Scalia's years of writing lengthy dissents. Now he falls into the majority. Or during the period when we were told that both O'Connor and Kennedy were "swing votes", but we were still ending up with a lot of 5:4 decisions. Has it not occurred to Douthat that there's a reason we have an odd number of Justices? That we've known since the dawn of the Republic that they would be deciding issues by majority vote, and would sometimes vote 5:4 on difficult issues? That sometimes being a "swing vote" reflects that you're giving an issue more careful thought and consideration than a Justice who sits as an immovable anchor on one side or the other?

Let's say you have a split among the federal circuits, with most circuits having ruled on a particular interpretation of the Sherman Antitrust Act, with a narrow majority of circuits favoring a particular approach to the law. Four Justices vote to grant certiorari, the issue is well-briefed, well-argued, and is debated among the Justices. They come back with a 5:4 decision. To Douthat, this is a bad thing? That they've just unified the interpretation of a difficult issue of law, creating predictability and uniformity across the nation in relation to an issue that has previously triggered a lot of extremely expensive litigation? It's as if he thinks the Supreme Court does nothing but make personally motivated decisions on reproductive rights cases. In fact, that seems to be exactly what he thinks:

The modern Court’s most enduringly controversial power grabs — with Roe v. Wade leading the way — were usually the work of liberal justices, and even the more modest liberal theories of jurisprudence tend to depict the Justices as soldiers in the progressive cause, constrained primarily by what the political climate allows them to get away with.

I obviously hang out in the wrong circles, because when I randomly ask one of my peers, "Which case represents an enduringly controversial expansion of power that has the most profound impact on our daily lives", I'm not going to hear about Roe. I'm going to hear about the Commerce Clause, and cases like Wickard v Filburn. Douthat's so focused on a single tree, that he can't see that he's standing in a forest of Commerce Clause issues.

There's another point to be made here: Roe v Wade limits the state's ability to control the lives and actions of citizens, to intrude into the private medical and reproductive choices of competent, rational adults. As a social conservative, Douthat sees an action that frees people from state control as a "power grab". Were he a libertarian, he might still find fault in the court's reasoning, but he would argue instead that it's an area the state has no business regulating at all - the power grab would lie in the state's removing the choice from the individual. This is a context where Douthat apparently prefers the power of the state over either the rights of the individual or the power of the federal government to limit state intrusion. But that seems more opportunistic than "conservative".

Douthat returns to statistics:

But in practice, the main divide between liberal and conservative judges tends to be over the responsibilities of the federal government, not judicial activism per se. During the last decade of the Rehnquist Court, for instance, the conservative Clarence Thomas and the arch-liberal John Paul Stevens were almost equally willing to vote to strike down legislation. It’s just that Thomas was much more likely to rule federal actions unconstitutional, while Stevens was more likely to vote to overturn state laws.

Once again, Douthat ignores court history, substituting statistics and shallow political labels for substantive analysis. It's reminiscent of Cheney's trying to write Colin Powell out of the Republican Party, or Douthat's sneering at Arlen Specter as a "centrist" and arguing that "Rockefeller Republicans" aren't conservatives. Political labeling as name-calling, with no apparent grounding beyond "I'm conservative, so people who disagree with me are not." If Stevens is "ultra-liberal", what was Justice Blackmun? Justice Brennan? Justice Marshall? Chief Justice Warren?

What makes Thomas the paradigm "conservative" Justice? Back in the day when Thomas was best known for joining Scalia in dissent, how did this divide manifest itself? I suspect that Douthat cherry-picked Thomas, because he has been around long enough to have a track record and, of the longer serving conservative Justices, was the most likely to strike down federal laws. But that doesn't make the case that he's representative of either conservatives or conservative justices. Also, is Douthat offering an inference about the court, or about a particular justice of the court? If it's the former, the voting record of an outlying judge is peripheral to even the statistical argument. If it's the latter, looking at only those cases where a statute is overturned tells you only part of the story, and may not even be representative of the whole - you must also look at the justice's dissenting opinions.

There are bipartisan ways that the Court could be reined in, and the legislative branch reinvigorated. Shugerman, Caminker and others have proposed a supermajority rule, for instance, requiring a 6-to-3 vote to overturn federal legislation.

I suggest that Douthat pick up a dictionary, and look up the term "coequal." The fact that the Supreme Court can overturn legislation is not an accident of history. It's part of the design. I pause for a second to ask, does the name-dropping carry any significance to the average reader? Who hears the name "Caminker" and thinks, "Oh, yeah, Evan, from U of M"? Who's going to think, "Didn't those guys write about this issue, six or so years ago? Out of concern about the activism of the Rehnquist court?" These are the most prominent voices that Douthat can find? In fairness, one of the reasons you don't find much discussion of these ideas is that they can't get past the idea stage without a constitutional amendment. They're thought exercises but, as policy, are something that would require judiciousness by a court and a Chief Justice who favors consensus over expediency.

Caminker's concern was the reversal of federal statutes on federalist grounds. He saw the series of 5:4 decisions as inconsistent with past practices and insufficiently deferential to the presumption that federal laws are constitutional. But that begs the question of whether or not those decisions were sound. History includes some outrageous Supreme Court rulings that had clear majority support. It also overlooks the fact that the change was brought on in no small part due to Justice Rehnquist's becoming Chief Justice. Rehnquist favored expediency over consensus, and wanted to limit or overturn a number of historic cases. He was ultimately joined by other justices who scorn stare decisis and deference in relation to laws they regard as wrong, namely Scalia and Thomas. And if Douthat was paying attention to Caminker, he would have some idea that the Rehnquist court turned its sights on the progeny of the Great Society cases and the associated expansion of federal reach under the Commerce Clause. In terms of the evolution of the court, Douthat might have noted that the "conservative majority" responsible for those decisions was described as Chief Justice Rehnquist along with "Justices O’Connor, Scalia, Kennedy, and Thomas" - as previously noted, Kennedy can be quite predictable.

So what's magic about the number "six", or even the number "seven"? If Douthat believes that some special weight should be given to a Supreme Court decision that's decided by a clear majority... let's say, 9:0, why does he mark 1954, most notable for it's unanimous decision in Brown v Board, as the beginning of the end? Why does he spend so much time fretting over Roe v Wade, a 7:2 decision?

And, oh my goodness, Douthat takes this thought experiment seriously:

To get conservatives on board, the rule would have to be extended to state legislation as well. This isn’t as crazy as it sounds - versions of the supermajority idea have been batted around by left and right alike since Reconstruction, and merely proposing it might spur the Court toward greater consensus, and perhaps greater modesty as well.

It's bad enough that Douthat doens't understand the concept of coequal branches of government as applied to the Executive, Legislative and Judicial branches. Now he seems to be operating under the belief that the U.S. Supreme Court owes deference to state legislation that contravenes the U.S. Constitution. This, he believes, is conservative? And how puzzling... who would have thought that there would be people arguing to impede U.S. Supreme Court review of state laws following reconstruction, at least up to the point the Court declared itself to be cool with Jim Crow laws? What might their goal have been? Douthat says these same concerns started rearing their head again after 1954 and Brown v Board? What a remarkable coincidence.

Douthat continues,

Absent such constraints, the best reform would be term limits for the Justices, instead of lifetime tenure. Give them 12 years, rotated on a regular schedule, and then send them on their way.

I've previously noted that term limits for justices are silly and largely unworkable. But Douthat's goal here seems to be something far less than admirable: He seems to be hoping that term limits will further politicize the court:

Such limits wouldn’t reduce the Supreme Court’s power directly, but it would help us see the Court for what it has become - a deeply political institution, as fallible as any other, and answerable, when all is said and done, to us.

Same as it ever was.

It's hard to take this argument seriously, even granting Douthat's weak grasp of the court's history and its role as an institution. Douthat woud no doubt argue that, were term limits imposed, the incumbents should somehow be grandfathered in and their retirements staggered. Otherwise, I sense that Roberts and Alito would suddenly feel very lonely.

Of course, the biggest question raised by Douthat's sudden recognition of Republican judicial activism, and his concern for depoliticizing the court and impeding its ability to review state court decisions, is "Why now?" He says this has been a problem for more than fifty years, that things got a lot worse more than thirty-five years ago, and the conservative-dominated Rehnquist and Roberts courts represent more than two decades of "justices gone wild".

The answer, if you've read any appreciable amount of Douthat's work, is implied when he mentions Roe v Wade, and also by his lack of awareness of federalism and commerce clause controversies. He's concerned that there will soon be a 5:4 majority that's skeptical of state limits on abortion rights, and he hopes to make it more difficult for the Supreme Court to review or revisit state restrictions on abortion laws. And if he can't do that, he wants to shout from the rooftop that the only reason the Supreme Court could disagree with his (religion-based) opposition to abortion is that it's a political body. His goal here is to preserve the status quo through a few more Supreme Court retirements, and it's not something he would be proposing if the court were shifting toward an anti-Roe position - it's little different from a call to stack the court.

What would Douthat think of a rule that a Supreme Court precedent can't be overruled or limited unless an equal or greater number of justices vote for the change? Brown v Board would prevail over Plessy v Ferguson, as it was a 9:0 decision. You would get a great deal of stability, and any chief justice who wanted to build a legacy would have to strive for broad consensus, obviating any need to try to (unconstitutionally) legislate a supermajority standard or amend the Constitution to impose one. Except most of the restrictions on reproductive rights that followed Roe v Wade would have to be tossed, because they didn't get the support of seven or more justices. What do you say? Do we have a deal?

That "Why The Party Failed" Thing

In taking on Ross Douthat's tendentious piece on abortion, I didn't address his headline, ostensibly the thesis of his piece, that "Abortion Politics Didn’t Doom the G.O.P." Of course not. If the GOP's approach to abortion politics were to doom it, it would not be by driving away people like Kathleen Parker and Max Boot. It will be when the religious right gets tired of promises, promises, promises and no delivery, and the single issue anti-abortion voters either vote for a third party candidate or stay home. What doomed the Republican Party in the 2008 election was the Bush Administration's top-to-bottom, back-to-front incompetence, coupled with a dozen or so too many corruption scandals.

Which isn't to say that, within the foreseeable future, I won't be writing pretty much the same thing about a future Democratic administration....

Pushing For A False Center On Abortion

Ross Douthat is not a stupid man, so what am I supposed to make of this? Is there any way to assume that this is offered in good faith?

His editorial starts with a false premise - that factions within the Republican Party are blaming the pro-life movement for its election failure. Initially, it should be noted that when Republican stalwarts such as Kathleen Parker reach the point of being uncomfortable with "The evangelical, right-wing, oogedy-boogedy branch of the G.O.P.," it is a sign of trouble. Parker doesn't represent the center - she's considerably to the right - but appears concerned about a faction of the party that is unwelcoming to her.

It was one thing, during the election campaign, to turn a blind eye to Sarah Palin's version of campaigning and sneer that anybody who criticized her was "elitist". (Incredibly, Douthat suggests that "post-feminist realities" of Palin's lifestyle make it surprising that she was embraced by the religious right, as if Palin weren't a Pentacostal Christian, and as if he hasn't hear a single word she has ever said.) But now some of those within the Republican party who recognize science, accept evolution, want access to birth control, and see room for a certain level of abortion freedom - and perhaps even want people who are openly pro-choice to be comfortable as members of the Republican Party - are questioning their own fit. As Steven Waldman, co-founder of Beliefnet.com, stated,

More problematic, Waldman tells Fresh Air host Terry Gross, were Palin's comments about God's will and the construction of an Alaska natural gas pipeline.

"That's exactly the kind of religion and politics-mixing that the founding fathers were terrified of — and with good cause," Waldman says. "The slippery slope is when politicians claim to know what God's plan is, and try to figure out the policy in order to match it up to God's plan."

No surprises here - Republicans like Parker see the factions that reject science and call for a complete ban on abortion rights as "the other" who doesn't really fit with the party, while Douthat seeks those like Parker as "the other". It's silly and dishonest to caricature their concerns as suggesting that "If the Republican Party would only jettison its position on abortion, it would be back on its feet in no time".

Douthat later addresses anti-science factions associated with the pro-life movement,

As for the movement’s supposed antipathy to science and social change - well, no doubt you’ll find more believers in young-earth creationism or divinely ordained patriarchy at a pro-life rally than you would at the Harvard Faculty Club. But here, too, the easy stereotypes are increasingly detached from reality.

How does a factual description of people Douthat concedes actually exist become an "easy stereotype"? Douthat presents the following argument to suggest that it's unfair to view pro-lifers as anti-science:

For example, we’re coming off a decade in which pro-lifers responded to the embryonic stem-cell controversy by becoming better versed in the relevant science than their miracle-cure-promising opponents. They insisted, presciently, that scientific advances with non-fetal stem cells, rather than legal restrictions, would eventually offer a way forward.

Except for the fact that their early arguments, parroted by President Bush, were false and held back scientific research. And the subsequent arguments have been variations on a theme - that if we wait long enough we'll see alternatives to fetal stem cell research that are just as good as fetal stem cell research - something that's every bit as "miracle-cure-promising" as believing that stem cell research will bring about immediate miracle cures. Douthat sees every headline suggesting an alternative source of stem cells as vindication for obstructing science; but he neglects to mention that "we're not there yet".

Further, people who hope for miracle cures from stem cell research are not necessarily pro-choice or pro-life. Often they're people who are hoping for a miracle cure for themselves or a loved one. They're egged on by sensational media coverage of potential developments in medicine, just as Douthat is egged on by every article that suggests we will eventually be able to perform unimpeded stem cell research with stem cells derived from non-fetal sources. But neither side is giving any real heed to the science.

But beyond that, Douthat has changed the subject from the anti-science pro-lifers he admits exist, to another group that uses a lay understanding (and oversimplification, and often misunderstanding) of science to argue against stem cell research, without showing that there's any overlap. He presents no evidence that the anti-scientific factions of the pro-life movement have shifted even slightly in favor of science. There's also a maxim he has surely heard, "Even the devil can cite scripture for his purpose." It's one thing to learn to recite "scientific arguments" in favor of limiting stem cell research (or opposing the theory of evolution, or arguing that men and dinosaurs simultaneously walked the Earth), and quite another to actually understand and argue from science.

Douthat whinges that the pro-life movement is familiar with the criticisms of Parker and others:

Most abortion opponents can recite the litany by heart. Their movement should focus on changing hearts and minds, rather than the law. It should be more consistently pro-life, by helping human beings outside the womb as well as those within it. It should cease trying to roll back the sexual revolution and standing athwart science yelling “stop!” And above all, it should be less absolutist, and more amenable to compromise.

But Douthat next attempts a sleight of hand, claiming "pro-lifers have already taken much of it to heart"

Compromise, rather than absolutism, has been the watchword of anti-abortion efforts for some time now. Since the early 1990s, advocates have focused on pushing largely modest state-level restrictions, from parental notification laws to waiting periods to bans on what we see as the grisliest forms of abortion.

That's false, and Douthat writes about these issues with sufficient frequency that he has to know it's false. While there are unquestionably people within the pro-life movement that have embraced goals that fall well short of a reversal of Roe and a national ban on abortion, the largest pro-life organizations and their leaders unabashedly advocate for a 100% ban on abortion. How did Operation Rescue, for example, describe its goals in South Dakota?

Let there be no mistake. The Abortion Bill is an incremental approach to a ban on abortion. It does not represent the total ban sought by many for the sake of the unborn child, but it creates a prohibition of those abortions we can achieve at this time while laying the foundation for the long term goal of an abortion-free America.

So, basically, a law that came close to banning abortion and required doctors to make a highly misleading and inflammatory statement to women in order to discourage abortions, even if they believed it to be medically, factually and legally wrong, was part of a larger scheme to effect a complete ban. And this, to Douthat, represents "largely modest state-level restrictions"? Would he respond that it's an "exception" that is somehow beneath his notice?

Douthat makes no mention of contraception rights, and opposition to contraception and "the morning after pill" within the pro-life movement. Doctors should have the right to choose not to provide accurate, valuable medical information to their patients, without warning them up-front, "I'm pro-life and I won't fully inform you in relation to your legal choices"? And that "right" may even extend to informing patients about birth control? Again, where's the compromise? For that matter, does Douthat support broad contraception rights, given that in his book he is scornful of contraception and its effect on society? What's his level of "compromise" on that issue?

Douthat also describes the conflagration over "partial birth abortion" as "bans on what we see as the grisliest forms of abortion". I recognize that this was sold to the public on the basis of gore, but what sort of basis is that for public policy? Have you ever seen a cesarean section? The surgeries to treat severe craniofacial disorders such as Crouzon Syndrome? A pneumonectomy to remove a cancerous lung? When a doctor devises a treatment that he considers to be the best for his patient, the concern should never be whether somebody might pop into the surgery from the street and find it "grisly".

As for Douthat's claim that efforts have largely shifted from a "culture of (sometimes violent) protest" to "pro-life energy is being channeled into grassroots efforts, from crisis pregnancy centers to post-abortion counseling", how exactly do those "crisis pregnancy centers" typically work? Mostly, it seems, by masquerading as objective providers of information and assistance, then attempting to indoctrinate pregnant women with pro-life propaganda. You don't believe that they're out to lie and deceive? Then tell me, why of all names did pro-life propagandists start publishing under the name "ProChoice.com":

Abortion... When is it safe?

No medical procedure is 100% safe so the answer is never Completely,
and less safe than many procedures. To be 100% safe don't have one.
Risks are:

• Severe Bleeding
• Having problems in future pregnancy
• Becoming sterile
• Needing a Hysterectomy
• Not completing the job
• Severe infection
• Developing Breast cancer
• Psychological issues
• Death

Is there truly a moral high ground in spreading falsehoods and using dishonest scare tactics? Also, as Steven Waldman suggests, those of faith who argue for abortion reduction over anti-abortion absolutism are, in many pro-life circles, viewed as allied with the enemy. Where can I find Douthat putting in their place those of his pro-life peers who accuse Obama of supporting infanticide?

In relation to the Supreme Court, Douthat questions whether the pro-life movement can stop attempting to impose "an abortion litmus test for Republican presidential nominees", and then suggests that the real problem is "the inflexibility of the Supreme Court’s abortion jurisprudence." He argues that there are many alternatives to the U.S. model of abortion rights, an argument he's made before:

The trouble with seeking common ground on abortion is that the legal regime enacted by Roe and reaffirmed in Casey permits only the most minimal regulation of the practice, which means that any plausible "compromise" that leaves Roe in place will offer almost nothing to pro-lifers. Even the modest restrictions that prevail in many European countries (and that, not coincidentally, coincide with lower abortion rates) are out of the question under the current legal dispensation.

Did you catch that? Things coincide with each other, but not by coincidence? He's an editor, and he didn't catch that? Or was that the best alternative word he could find for "correlate", and he wished to avoid telegraphing that he is arguing that correlation equals causation. Douthat seems predisposed to present sweeping claims as fact, without any indication that he's actually tried to find out if what he's saying is true. Another consistency? If he has evidence to support his sweeping claims, he is consistent in his failure to present it. Perhaps somebody whispered a few facts in his ear, as European policies don't merit mention in his Times editorial.

Douthat next feigns interest in compromise:

The public is amenable to compromise: majorities support keeping abortion legal in some cases, but polling by CBS News and The Times during the presidential campaign showed that more Americans supported new restrictions on abortion than said it should be available on demand. And while some pro-lifers would reject any bargain, many more would be delighted to strike a deal that extends legal protection to more of the unborn, even if it stopped short of achieving the movement’s ultimate goals.

But no such compromise is possible so long as Roe v. Wade and Planned Parenthood v. Casey remain on the books. These decisions are monuments to pro-choice absolutism, and for pro-lifers to accept them means accepting that no serious legal restrictions on abortion will ever be possible - no matter what the polls say, and no matter how many hearts and minds pro-lifers change.

Unless I assume that Douthat has absolutely no familiarity with the court rulings in Roe and Casey, how can I regard that as anything less than intentional dishonesty? Roe gives broad protection to first trimester abortion rights, but allows for significant state regulation beyond 12 weeks. Casey reviewed several state restrictions on abortion rights - parental consent, "informed consent" with 24-hour waiting periods, spousal notification, and certain reporting requirements on abortion providers - and found only the spousal notification requirement to be impermissible. There's obviously a lot of room for regulation that makes it difficult for many women and girls to obtain abortions, even as the basic right is upheld. Fundamentally, Roe isn't much broader a protection than exists under the "modest restrictions" Douthat describes as being in effect with Europe, where abortion is generally available during the first twelve weeks of pregnancy (although a woman may have to recite a talismanic phrase, such as "I'm in a state of distress", in order to trigger that right).

There's really only one reason to wish to overturn those cases - to open the possibility to a complete ban on abortions. That, of course, is Douthat's personal goal, so it should be no surprise that it's his conclusion. But what a treacherous web he weaves in trying to make his maximalist position consistent with "compromise". Was he chuckling when he wrote "that if Americans want laws that better reflect their muddled sentiments on abortion, it is pro-choice maximalism, not the pro-life movement, that’s really standing in the way"?

There are highly principled people on both sides of the abortion debate, presenting cogent arguments. The majority of Americans are torn on the issue, respecting that there should be some basic right to abortion but being uncomfortable articulating what that right should be or what restrictions should be allowed. Women who face abortion still face stigma, and thus even in largely pro-choice communities it's often kept secret. Within this context, it is a shame that Douthat is choosing to be disingenuous, as his brand of faking moderation while working for an abortion ban makes it much harder from those who are trying to reach honest compromise.

Like 'Em Or Hate 'Em....

Whatever your personal position on cases like Heller and Roe, today George Will does a pretty good job of explaining how those decisions lead to cases that require judges to substitute their policy preferences for actual interpretation and application of the Constitution. In terms of Roe,

Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.

In terms of Heller,

Now the court must slog through an utterly predictable torrent of litigation, writing, piecemeal, a federal gun code concerning the newfound individual right. What trigger locks or other safety requirements impermissibly burden the exercise of this right? What registration requirements, background checks, waiting periods for purchasers, ballistic identifications? What restrictions on ammunition? On places where guns may be purchased or carried? On the kinds of people (e.g., those with records of domestic violence) who may own guns? On the number of gun purchases in a month?

Where do I disagree with Will? While he, as a pundit, has fully embraced the notion that conservatives favor judicial restraint, the reality is quite different. Heller is not an exceptional ruling following a history of conservative deference to constitutional language and state and federal legislatures, it's a continuation of an activist history masquerading behind claims of "originalism" or "textualism". For the most part, political partisans either don't pay attention to the other side's judicial excesses, or simply don't care about their own. Will's column suggests that he falls into the former category, but now that he is aware of the issue it's up to him to demonstrate how much he actually cares about judicial activism that advances his own political agenda.

It has been said that the most important word in the Supreme Court's lexicon is not "liberty" or "equality" or even "justice," it is "five." But whereas in baseball a tie goes to the runner, in controversies about the constitutionality of legislation, a tie between serious arguments should, Wilkinson says, tilt judicial judgment to the democratic side - the legislature.

Except if the subject is campaign finance reform? Seriously, when it's your own ox that's being gored, it's really difficult to take a step back and say, "We should defer to the legislature," as opposed to, "Those judges are gutting the Constitution and stripping this right of any meaning." Moreover, whatever the right, there's a point where that will be true. Then what? Do we simply check to see whether or not the legislation under review includes "findings" that nominally support the legislation? Legislatures figured that game out a long time ago.

Will closes,

So, regarding judging, too, conservatism is a house divided. And as Lincoln said (sort of), a house divided against itself is really interesting.

And Will raises interesting issues that, unfortunately, aren't likely to be resolved at any time during the next two centuries of constitutional litigation.