The University of Idaho tries to restrict faculty speech on abortion

September 30, 2022 • 9:30 am

Idaho is one of those states that enacted draconian abortion bans after the Supreme Court’s Dobbs decision. Here’s how the law in that state is described by the Center for Reproductive Rights:

On August 25, Idaho began enforcing its trigger ban, which prohibits abortion at all stages of pregnancy, with exceptions for the life of the pregnant person and for survivors of rape and incest who have reported the incident to law enforcement. following the U.S. Supreme Court’s decision to overturn Roe v. Wade in the case Dobbs v. Jackson Women’s Health Organization. However, the state is prohibited from criminalizing medical providers who provide abortion care to pregnant people in emergency situations pending the outcome of the Department of Justice’s lawsuit against Idaho on the theory that the trigger ban violates the requirement of the federal Emergency Medical Treatment and Labor Act (EMTALA). EMTALA requires hospitals that receive Medicare funds to provide stabilizing treatment to patients regardless of their ability to pay.

. . .Idaho retains targeted regulation of abortion providers (TRAP) laws related to facilities, which was held to be unconstitutional, and reporting. Idaho law continues to restrict the provision of abortion care to licensed physicians and still restricts the use of telemedicine for medication abortion. Providers who violate Idaho’s abortion restrictions may face civil and criminal penalties.

The criminalization of abortion in this way has caused a chilling of speech about abortion. A report from the Academic Freedom Alliance (click screenshot below), notes that the University of Idaho’s legal department tried to regulate faculty speech on the topic:

The Academic Freedom Alliance (AFA) today sent a letter to the University of Idaho responding to a guidance memo from the university’s general counsel regarding faculty compliance with the state’s new abortion laws, particularly the memo’s guidance that faculty should “remain neutral on the topic” of abortion during classroom discussions. The general counsel’s memo warns that, due to new state laws against abortion, those found to be “promoting” abortion could face penalties including mandatory loss of state employment, bars on future state employment, prison time, and fines.

The University of Idaho is a state University, and thus academic speech falls under the aegis of the First Amendment. Promoting choice (i.e., advocating breaking state law) is not a violation of the First Amendment, and, if there is a discussion of this in the classroom, there can be no Constitutional way to prevent a professor from expressing his or her opinion one way or the other.

The AFA’s letter to the University, from Keith Whittington, chair of the academic committee, lays out the reasons why this chilling of speech is unconstitutional:

It is well established that public universities like the University of Idaho are constrained by the First Amendment of the U.S. Constitution. The federal courts have specifically recognized that classroom speech by professors is constitutionally protected. Keyishian v. Board of Regents, 385 U.S. 589 (1967); Demers v. Austin, 746 F.3d 402 (9th Cir. 2014). The Demers court specifically held that “teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor” at the university level is protected under the First Amendment. The United States Court of Appeals for the Sixth Circuit just months ago emphatically reaffirmed that the First Amendment does not tolerate state actions “that cast a pall of orthodoxy over the classroom” or that “stifle[s] a professor’s viewpoint on a matter of public import.” Quite simply, “the First Amendment protects the free-speech rights of professors when they are teaching.” Meriwether v. Hartop, 992 F.3d 492, 505 (6th Cir. 2021).

As for the law’s prohibition of the use of public funds (i.e., professorial salaries) to “promote abortion,”) that too is unconstitutional.

It is true that the Idaho Code § 18-8705 prohibits the use of public funds to “promote abortion,” but construing that statutory language to require state university professors to “remain neutral on the topic” is a vast overreach and inconsistent with the requirements of the First Amendment. The U.S. Supreme Court has emphasized that a law is constitutionally invalid “if it prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S.

. . . When Congress criminalized not only conduct involving criminal facilitation or solicitation but also pure speech involving abstract advocacy, the courts have concluded that the First Amendment requires that those statutes be applied narrowly so as to exclude pure speech such as the kind of promotion of abortion that might occur in a classroom discussion. “The statute’s plain language is ‘susceptible of regular application to protected expression,’ reaching vast amounts of protected speech uttered daily.” United States v. Hernandez-Calvillo, 39 F.4th 1297, 1313 (10th Cir. 2022). In such circumstances, the restriction of classroom teaching on topics relating to abortion through the criminal law is impermissible under the First Amendment.

Ergo, if a professor says, “I favor unlimited abortion,” she is not violating the law. You might think it would be different if the professor tells students that if they are pregnant they should get abortions, but I suspect that, too, is legal speech, for the prof is merely expressing an opinion and not facilitating or soliciting abortion.

In the end, the AFA says it takes no position on the legal regulation of abortion, but asks that the University of Idaho rescind its “required neutrality” regulation in favor of telling faculty that they have the right of free expression, including with respect to this law. The AFA also “calls on state official to swiftly clarify that the state criminal law should not be interpreted to apply to classroom discussions that do not involve the facilitation or solicitation of unlawful acts”:

The general counsel’s guidance sends a chilling message to every member of the faculty who must discuss difficult and controversial material relating to abortion as part of their teaching duties. The statute itself might not recognize “academic freedom [as] a defense to violation of law,” but the First Amendment is an overriding limitation on the power of the state legislature to impose such a restriction on classroom teaching in state university classrooms.

Laurence Tribe on why the Dobbs decision was wrong—and based on religion

September 1, 2022 • 11:00 am

Laurence Tribe, a Harvard Law School professor once thought to be a future nominee for the Supreme Court (too liberal, I guess), has written a comprehensive attack on the Dobbs decision of the Court—the decision that overturned Roe v. Wade. Tribe is an expert on American Constitutional law (in fact he wrote the definitive book on the subject), so he knows his onions. And his critique of the majority decision is devastating, showing that it’s not only politically based and rests on shaky legal arguments, but allso rests firmly on Christianity.

It’s a long article, and not always an easy read (Tribe isn’t a master of lucid prose), but it’s well worth perusing, for it’s quite convincing that Alito’s majority argument for overturning Roe (“there’s nothing in the Constitution conferring a right to abortion”) is bogus.

The article, despite being in the New York Review of Books, is free; click below to read it.

I’ll just put what I see as Tribe’s main points in bold below. Indented bits are (usually) quotes from the article.

The Ninth Amendment reserves unnamed rights as protected by the Constitution, and the Fourteenth Amendment protects deprivation of “life, liberty, and property without due process of law.” These together protect the right to abortion.

Here’s the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

And the Fourteenth (section 1; the “Liberty Clause”): “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Tribe’s take:

That “the Constitution makes no express reference to a right to obtain an abortion,” a point made as though it were some sort of discovery, in no way establishes that the Fourteenth Amendment’s protection of “liberty” from government deprivation “without due process of law” excludes control over one’s own body, not to mention the course—indeed, continuation—of one’s life. On the contrary, the Ninth Amendment’s explicit instruction that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” rules out any claim that the Constitution’s failure to list the right to bodily integrity among its “enumerated” protections excludes that right from those “retained by the people.”

. . . Conspicuously absent from Dobbs is any coherent legal analysis—or anything that deserves to be called “analysis” at all—of why someone’s right to avoid compelled pregnancy, involuntary childbirth, and forced parenthood is not an essential part of the “liberty” protected by the Fourteenth Amendment (and perhaps even of the freedom from “involuntary servitude” protected by the Thirteenth). As a result, it’s the Alito opinion in Dobbs, and not Justice Harry Blackmun’s opinion in Roe, that is “not constitutional law and gives almost no sense of an obligation to try to be.”

Put simply, Dobbs is a fiat issued by five justices simply “because they could.”

As for the Ninth not conferring any right to abortion,

Although many observers criticized Alito’s leaked draft opinion for failing even to mention the Ninth Amendment, the opinion as finally released was almost defiant in its dismissive treatment of that amendment’s rule of construction.

The only thing the Court says about it in Dobbs is that “the abortion right” is not itself “founded…in the Ninth Amendment’s reservation of rights to the people.” But that is a wholly irrelevant observation and confuses the category of “rights” with the category of rules about how to read a text dealing with rights. Nobody has ever seriously claimed that the “abortion right,” or indeed any substantive right, could possibly be “founded” in a rule about how to read the Constitution. The Ninth Amendment is not the “foundation” of any group of rights but a directive about how constitutional decisions about rights are to be made. Searching for rights in it is akin to searching for actual pieces of lumber in a manual on how to build a house.

And a bit more, concentrating on Kavanaugh’s decree that the court would leave each state to decide for itself, and invoking a nonexistent “right to interstate travel” as being in the Constitution:

Explaining why the Liberty Clause should prioritize, say, the freedom of speech or of religion, or the right to bear arms for self-defense, or the right to exclude the military defenders of the nation from one’s home “in time of peace” over the no less basic freedom to determine what is to become of one’s own body would be no mean task. After all, those rights are protected from infringement by the states not because the text of the Constitution requires it. The Bill of Rights restricts only the federal government. The states cannot infringe those rights because the Supreme Court has said they are fundamental rights whose infringement, like the right to abortion before Dobbs, would violate the Fourteenth Amendment’s Liberty Clause.

Particularly puzzling is Justice Kavanaugh’s insistence, in his separate concurring opinion, that the Court’s decision to let each state decide for itself whether and to what degree to protect the right to end a pregnancy will leave individuals who live in states where abortion is criminalized entirely free to travel to other states to obtain abortions without penalty. How does he know that? Because, he says, of “the constitutional right to interstate travel.” But no such right is expressly mentioned in the Constitution, any more than is the right to control what goes on in one’s own body. Both rights are at best implicit in the Constitution, not enumerated anywhere in its text. This is not to denigrate the existence or significance of the right to interstate travel, a long-settled part of what knits the states into an inseverable Union, or to undermine its protections for those helping women escape the clutches of states that ban abortion and make criminals of all those who facilitate it. It is simply to expose the glaring inconsistency in Justice Kavanaugh’s analysis, without whose vote there would have been no majority to overrule Roe.

This whole kerfuffle shows the deficiencies of “originalism”: that judgments should be made based on what’s explicitly stated in the Constitution or what would have been understood when it was written. There are simply too many things that have changed since the Constitution was written, things that could not have been anticipated by its authors.

The Court’s insistence that Roe had “no sound basis in precedent” is bogus.

Tribe:

To support the idea that Roe and the 1992 reaffirmation of its core holding in Casey had no “sound basis in precedent” and could thus be safely overruled without causing damage to the fabric of the law or undoing the web of other decisions on which people had come to rely, the Court in Dobbs simply listed a series of rights, as though it was self-evident that they bore no similarity to the right to decide whether and when to terminate a pregnancy. These included the rights “to marry a person of a different race,…to marry while in prison,…to obtain contraceptives,…to reside with relatives,…to make decisions about the education of one’s children,…not to be sterilized without consent,…and in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures,” as well as the right “to engage in private, consensual sexual acts” and “marry a person of the same sex.”

But merely noting, as the Court did, that those rights did “not concern abortion” obviously fails to establish that they are not analogous to the right to reproductive autonomy. It is thus difficult to take seriously the statement by the Dobbs majority that its repudiation of the right to abortion will not ultimately serve as a precedent to rescind some or all of these seemingly similar rights, especially given the explicit statement in Justice Thomas’s concurrence that they are without foundation and that future litigants should attack them on the basis of Dobbs.

Tribe adds that justices in the Dobbs majority have expressed opposition to other rights, such as the right to marry guaranteed by Obergefell v. Hodges, and those “rights”, too, are endangered. Though the majority opinion says that the Dobbs decision is a one-off, “limited to the present circumstances”, that’s probably not true. As the minority opinion notes, ““Either the mass of the majority’s opinion is hypocrisy (“duplicity”, as Tribe calls it), or additional constitutional rights are under threat. It is one or the other.”

The Court’s ruling that states can ban all abortion as one option is explicitly a religious view, and thus violates the First Amendment.

Tribe:

Whatever anyone might have thought in 1868, when the Fourteenth Amendment was adopted, it has since become clear that “conception,” as I wrote in 1973 when defending Roe v. Wade, is “a complex and continuous process” of cell division followed by chromosomal recombination and in no sense “an objectively definable event”:

Although none [can] deny that the developing fetus, and indeed the unfertilized ovum, represent[s] “potential human life,” and while all [can] agree that the infant at birth [is] fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity [is] crossed—when the embryo or fetus “bec[omes] fully human”—[cannot] be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.

The attribution of metaphysical and legal status to a developing embryo from some particular point in time represents not a discovery of an empirical datum about reality but a choice, all but invariably grounded in one or another religious tradition or teaching, about what signals the creation of an individual human soul.

And this means that state rulings that “personhood” or “fetal rights” begin at conception are also religious views and abrogate the First Amendment (remember that members of other religions have insisted that the Dobbs decision violates their rights). Here’s something Tribe wrote in 1973 to defend the decision in Roe v. Wade:

Although none [can] deny that the developing fetus, and indeed the unfertilized ovum, represent[s] “potential human life,” and while all [can] agree that the infant at birth [is] fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity [is] crossed—when the embryo or fetus “bec[omes] fully human”—[cannot] be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.

And what he writes now:

It is little wonder that justices who view every instance of conception as a holy event would be inclined to treat the “moment” a new life is present in a woman as the moment from which any state is entitled to criminalize the termination of that life. It is but a short step from such a view to the dogma that the “moment of conception” marks the point at which any state may be constitutionally obligated to treat that life’s termination, whatever the reason, as a terrible crime. The Dobbs “compromise” making it a matter for each state to determine is no more consistent and stable than the 1857 Dred Scott compromise making the status of slaves and their descendants a matter for states to decide.

It is a fair inference from the First Amendment’s ban on “establishment of religion” that the Constitution should not be hijacked by any primarily religious movement or by a political movement that exploits religion as a Trojan Horse. Yet Dobbs followed—and embodies the approach of—a series of Supreme Court decisions systematically eroding the sometimes-maligned “wall” of separation between church and state. The current Court’s unmistakable determination to breach that barrier to government endorsement of particular religious beliefs reached its apex this past term in a ruling that treated a government employee’s “proselytizing on government property during a public school function” as “private, personal and quiet” when it was anything but, and was indeed highly coercive.

The theocratic movement to advance religiously based governance—the antithesis of genuine religious freedom—has installed as the law of the land the essentially unreasoned position advanced in Dobbs, replacing the compromise between life and liberty embodied in Roe and Casey with the absolutist claim that the presence of a potential life instantly and automatically transforms a woman’s body into a vessel that governments are free to regulate as they see fit. This is unlikely to be the final step on the treacherous path the Court has chosen.

These three arguments in tandem (particularly the last one) make a compelling case that not only is the right to abortion not specifically in the Constitution, but didn’t need to be to be Constitutional, fpr similar rights have been affirmed as Constitutional despite their similar status to the “right to abortion.” As a strict First Amendment person, I also find the religious argument compelling. The Dobbs decision implicitly affirms a religious view. That view is not unique to Christianity, but it’s still religious, and privileging religion over nonreligion is itself unconstitutional.

The Dobbs decision was wrong from the get-go, and Tribe’s article is the most cogent one yet to show us why. Given the youth of the conservative justices, it’s likely that equally wrong decisions will follow, giving bogus Constitutional justification.

At the end, Tribe mentions a speech recently given by Alito mentioning the notion that “religious liberty is worth special protection.” Nope, it’s not, for secular liberty, with its philosophy not based on the concept of a “soul,” is worth just as much protection. One cannot base laws on ideas that are manifestly bogus, like a soul, and rest solely on unevidenced religious views.

The solution? Tribe notes that he reluctantly thinks that the court should be enlarged to thirteen judges, but he also recognizes that this is not politically feasible. As for me, I see no solution at all. Mitch McConnell, as well as RBG, who refused to retire, have produced this shameful situation.

h/t: Darrell

Scientists abjure “woman” in favor of “birthing persons” and “pregnant persons”

July 7, 2022 • 11:45 am

In April, the Washington Post publicized its desire to adopt more “gender-neutral language”, citing the paper’s earlier pubication of “A guide to the words we use in our gender coverage“. That guide sets out how the paper will use a panoply of words related to gender identity, sexual orientation, and so on. Nowhere in that article is there a guide showing how to use the words “man” or “woman”. Women are mentioned only in these two entries:

Transgender describes someone whose gender identity is different from the sex they were assigned at birth (this can also be shortened to “trans”). For example, a transgender woman is someone who was listed as male at birth but whose gender identity is female.

Nonbinary is a term used by people whose experience of gender identity and gender expression do not align neatly as either “man” or “woman,” the two categories Western countries have generally used to classify gender.

Note the present perfect tense: “Western countries have generally used“, implying that that time is past.

Now, scientific journals and societies, in a race to determine who can display the most virtue (euphemistically described as “becoming inclusive”) are deep-sixing the term “woman” as well. You can see this in the following Science article, which is actually not bad, about how the Dobbs case, and the end of national Roe v Wade legislation, will affect science . Click to read

Many of the points the article makes are good ones. Will women scientists boycott states that don’t allow abortions, or not have meetings there? Will women scientists consider taking jobs in such states? Will pregnant women scientists go to conferences in states where, if something goes amiss, they can’t get good medical care? These are questions that women scientists should ponder, and I already have one colleague who says she will never even go to a state like Texas or Mississippi that bans abortions.

(One idea just crossed my mind: will women scientists also boycott meetings in countries that have strict anti-abortion laws. For compared to a fair number of countries, even in Europe, many U.S. states have more liberal abortion laws).

But I digress. These issues, of course, aren’t unique to science, but scientists do have a tendency to go to professional gatherings, and these things must be considered.

No, the article is fine, but we can see scientists using Post-ian “inclusive” language. First of all, the article itself does not contain the word “woman” except in two quotes from women scientists, one of which uses “woman” in conjunction with another term (my emphasis)

The Supreme Court’s reversal will likely be felt most strongly in groups that are already underrepresented in science, says Nicole Williams, the outreach director for the nonprofit 500 Women Scientists. “Being an African-American woman, and just knowing the stats—that Black birthing persons already experience high levels of pregnancy-related mortality—the overturning of Roe versus Wade is a death sentence for Black women scientists and birthing persons.”

I wasn’t quite sure what the last sentence meant: whether “Black women scientists and birthing persons” referred only to black women, both scientists and pregnant ones, or intended the term “birthing persons” to be only non-black pregnant women. But I think it’s the former: Williams is talking about problems that hit black women harder. But “birthing persons”? Nope. And I wonder what Williams means when she calls herself an “African-American woman”. Isn’t she an “African-American birthing person”? And shouldn’t the organization be “500 Birthing People Scientists”?

I’m only partly joking; as I note below, this purging of language really isn’t inclusive, for it erases a class that has its own identity: biological women. More in a second.

One more change of language at the end, quoting a social scientist who is pregnant and worries about emergency situations as she had a miscarriage:

“As a pregnant person,” Alves says, she wouldn’t feel comfortable attending conferences in locations where, if something went awry, “I couldn’t get medical care that I needed and that reflects my values.”

It’s hard not to imagine that Alves deliberately chose to use “pregnant person” instead of “pregnant woman.”

Well, so what? Language changes, the advocates of inclusivity will say. But remember this eloquent and thoughtful NYT article, which I wrote about recently (click to read):

Read the whole thing; I’ll just give a small bit about so-called inclusivity:

But in a world of chosen gender identities, women as a biological category don’t exist. Some might even call this kind of thing erasure.

. . . Tolerance for one group need not mean intolerance for another. We can respect transgender women without castigating females who point out that biological women still constitute a category of their own — with their own specific needs and prerogatives.

If only women’s voices were routinely welcomed and respected on these issues. But whether Trumpist or traditionalist, fringe left activist or academic ideologue, misogynists from both extremes of the political spectrum relish equally the power to shut women up.

For the Washington Post, Science, and many other media, as well as people themselves, women apparently don’t exist as a biological category.

h/t: Luana

The University of California system issues an official critique of the Dobbs decision, chilling speech of those who disagree

July 7, 2022 • 9:15 am

I happen to be one of those who favored the Roe v. Wade decision; in fact, I’d go farther than the judges in that one by extending the term limits for abortion. Ergo, I think that Dobbs was a bad decision and that some way must be found around it. All American women who want an abortion should be able to get one without having to travel to other states.

This is my personal view, though I know many others disagree. Universities, in particular, which are supposed to serve as venues for debate, should not take official positions on such issues, as that chills or squelches the speech of faculty, staff, and students who disagree with those positions but fear reprisals if they disagree publicly.

This is why we have the Kalven Report at the University of Chicago, and, given my many posts on it, you should be familiar with it by now. Let me just quote a bit of that short report, which is one of our two pillars of free speech at the University of Chicago (the other is The Chicago Principles of Free Expression). I do recommend reading the short Kalven Report in its entirety, but here’s the most-quoted bit (emphasis is mine):

The mission of the university is the discovery, improvement, and dissemination of knowledge. Its domain of inquiry and scrutiny includes all aspects and all values of society. A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. By design and by effect, it is the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upsetting.

The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community. It is a community but only for the limited, albeit great, purposes of teaching and research. It is not a club, it is not a trade association, it is not a lobby.

The University of Chicago does not issue official statements about ideology, politics, or morality unless some aspect of society “threaten[s] the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.” But these “aspects” are only ones bearing on the “discovery, improvement, and dissemination of knowledge” within the institution.

The Dobbs decision is not such an aspect. Sure, you can stretch nearly every issue into one that “threatens the mission of the university”, but we have a high bar for that, and the University does not—or is not supposed to—issue statements about issues like war, apartheid, abortion, guns, Palestine vs. Israel, and so on. (There have been violations here, and some of us are working on those).

The University of California, on the other hand, takes the opposite position, going full tilt by issuing statements about nearly every sociopolitical issue. These can come from either the UC administration or departments of various campuses. All of them should be taken down.

On June 24, the President of the University of California system, Michael Drake, took it upon himself to criticize the Dobbs decision of the Supreme Court overturning Roe v. Wade. His statement, as you see, is labeled as being a “UC statement” (University of California), not his personal opinion. It is thus the opinion of a huge and powerful educational institution, and a public institution.

Drake oversees the entire UC system; as his webpage notes:

Dr. Michael V. Drake is the 21st president of the University of California. He oversees UC’s world-renowned university system of 10 campuses, five medical centers, three nationally affiliated labs, more than 280,000 students and 230,000 faculty and staff.

Is he speaking for all of them in his statement? Click on the screenshot below:

The statement is short, and I reproduce it in its entirety:

UC Office of the President June 24, 2022

University of California President Michael V. Drake, M.D., today (June 24) issued the following statement on the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization:

For nearly 50 years, people in the United States have had the right to make private, informed choices about their health care and their futures. I am gravely concerned that today’s U.S. Supreme Court decision removes that right and will endanger lives across the country. This decision overturns decades of legal precedent and could pave the way for other fundamental rights to be removed.

The Court’s decision is antithetical to the University of California’s mission and values. We strongly support allowing individuals to access evidence-based health care services and to make decisions about their own care in consultation with their medical team. Despite this decision by the Court, we will continue to provide the full range of health care options possible in California, including reproductive health services, and to steadfastly advocate for the needs of our patients, students, staff, and the communities we serve. We will also continue to offer comprehensive education and training to the next generation of health care providers, and to conduct life-saving research to the fullest extent possible.

This is a sobering moment for many of us at the University of California and throughout the nation. Today, we stand with California leaders and health care advocates who are taking critical steps to protect Californians’ human rights and their access to affordable and convenient health care choices.

As you see, he says that Dobbs decision is “antithetical to the University of California’s mission and values”. But where in its mission and values does it mention that its values include “access to evidence-based health care services”? That is a policy, not the mission of the University of California. And that shows that any social event, law, or policy can be stretched to warrant damnation by the University of California.

But what about those half a million students, faculty, and staff? Do they agree with what President Drake said? I doubt it. Dobbs is now the law of the land, but California permits abortions, and may, this fall, add a clause to the state’s constitution protecting the right to abortion. Good for them! In fact, Drake didn’t have to say anything, for his University and his state (and UC hospitals) already allow abortion. What he’s doing here is giving official condemnation to the Dobbs verdict without having to do anything about it (he can’t; it’s the law for the time being). The statement represents another case of performative wokeness that shows Drake’s virtue—but at the cost of repressing the speech of those who are “pro-life”. (I hate to write that term, preferring “anti-abortion”).

And Drake could do this for nearly everything, though of course so long as the Left is ascendant at his University, his statements will always be pro-Left. Another state’s University system could issue a completely different statement: one approving Dobbs and damning Roe v. Wade.

But the point is that none of this has anything to do with the mission of a university. Drake and others could write as individuals, but they should never write as if they represent everybody involved with the University of California. (Of course were I Drake, I’d keep pretty much to myself, like a judge, because he has professional cachet even when writing as an individual. But that is his choice.)

Eugene Volokh, writing at his site “The Volokh Conspiracy” at Reason, agrees with me. Click the screenshot to see his take:

Volokh adheres to our Kalven Report and even quotes it, but you can read that for yourself. Here’s his take on Drake, and I heartily agree:

I don’t think that a public university’s “mission and values” should be to promote a reading of the Constitution as securing abortion rights, or as not securing abortion rights, as opposed to promoting research on this and related questions. And while of course a public university that runs hospitals should generally perform legal medical procedures, and train doctors with regard to legal medical procedures, I don’t think that justifies the university taking a stand on whether such legality is determined by state legislatures or by Supreme Court Justices.

That’s especially so when, as the UCLA Chancellor’s follow-up letter points out, “The decision is not expected to affect women’s reproductive rights in California,” so UC doesn’t even have much of a direct interest in the outcome of Dobbs as it affects its own operations. (There may be more room for statements by a public university president as to political decisions that do directly affect the operations of the university, such as changes in funding, statutes related to student admissions, and the like.)

It turns out that the University of California has its own version of a Kalven Principle, issued in 1970. Volokh quotes it:

More broadly, I tend to agree with the 1970 statement by the Office of the UC President:

There are both educational and legal reasons why the University must remain politically neutral. Educationally, the pursuit of truth and knowledge is only possible in an atmosphere of freedom, and if the University were to surrender its neutrality, it would jeopardize its freedom. Legally, Article IX, section 9, of the State Constitution provides in part that “The University shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs…”

And yet here we see Drake violating the very principles of his own university system!

Volokh then points to the Kalven Report, including the famous excerpt I put above, and then reproduces an email written by Professor Leslie Johns of UCLA’s political science department to the UCLA chancellor—an email that includes this:

Abortion is not a simple matter of access to health care. It is a complex moral and political question that involves balancing fundamental rights to life and physical autonomy. By denying this reality, you are asserting a political position. Yet your employment as a public employee explicitly prohibits you from using your office for political purposes. It is both inappropriate and illegal for you (and for me) to use our official capacity to make claims that specific abortion policies or constitutional interpretations are “antithetical to the University of California’s mission and values.”

In effect, she’s underlining the Kalven Principle that a university should not issue statements that will chill discussion, nor should it issue definitive proclamations on debatable issues. I’m not sure if Drake is, as Johns asserts, doing something illegal by issuing the “UC Statement.” But Kudos to Professor Johns for taking the Chancellor on a trip to the woodshed!

Like freedom of speech itself on campus, the Kalven Principle is always under assault by those who want to control political discourse at universities. It’s a never-ending fight, even at the University of Chicago which, like the University of California, professes political and ideological neutrality—but doesn’t hesitate to violate it when it professors or administrators want to flaunt their virtue.

Peter Singer’s contrarian view on the Dobbs decision

July 4, 2022 • 10:20 am

Peter Singer, my favorite ethical philosopher and somewhat of a role model, has published a provocative article at Project Syndicate that has made me rethink the Dobbs decision that overturned Roe v. Wade. While I absolutely supported Roe v. Wade, and in fact would extend the two-trimester guidelines for legal abortion, I didn’t really see the “right to abortion” enshrined in the Constitution. Sure, you could slot it into the “right to privacy”, but that’s stretching it. And that dies differ from the supposed “right to own guns”, as the Second Amendment specifies under what condition people can own guns: for a militia, not to carry them into a bar in Colorado.

The Supreme Court’s current brief is to rule on whether a law is constitutional, not to make new law. And if you take that view, then the Dobbs decision was correct, as it in effect affirmed that states could ban abortion, for the right to make such laws was not a subject of the Constitution. Ergo, Roe v Wade, which affirmed such a right, wasn’t decided properly.

Of course the Court’s ruling was also tempered by the strong Catholic beliefs of most justices, so it was largely a religious decision as well. But given that I am strongly pro-choice, what do I do? After thinking about it, I’m pondering the solution offered by Singer in this piece: let the democratic process, whether it be on the federal or state level, decide issues that aren’t addressed by the Constitution.

Click to read:

Singer:

Every woman should have the legal right safely to terminate a pregnancy that she does not wish to continue, at least until the very late stage of pregnancy when the fetus may be sufficiently developed to feel pain. That has been my firm view since I began thinking about the topic as an undergraduate in the 1960s. None of the extensive reading, writing, and debating I have subsequently done on the topic has given me sufficient reason to change my mind.

Yet I find it hard to disagree with the central line of reasoning of the majority of the US Supreme Court in Dobbs v. Jackson Women’s Health Organization, the decision overturning Roe v. Wade, the landmark 1973 case that established a constitutional right to abortion. This reasoning begins with the indisputable fact that the US Constitution makes no reference to abortion, and the possibly disputable, but still very reasonable, claim that the right to abortion is also not implicit in any constitutional provision, including the due process clause of the Fourteenth Amendment.

The reasoning behind the decision in Roe to remove from state legislatures the power to prohibit abortion was clearly on shaky ground. Justice Byron White was right: The Roe majority’s ruling, he wrote in his dissenting opinion in the case, was the “exercise of raw judicial power.”

Singer continues:

The Supreme Court exercised that power in a way that gave US women a legal right that they should have. Roe spared millions of women the distress of carrying to term and giving birth to a child whom they did not want to carry to term or give birth to. It dramatically reduced the number of deaths and injuries occurring at that time, when there were no drugs that reliably and safely induced abortion. Desperate women who were unable to get a safe, legal abortion from properly trained medical professionals would try to do it themselves, or go to back-alley abortionists, all too often with serious, and sometimes fatal, consequences.

None of that, however, resolves the larger question: do we want courts or legislatures to make such decisions? Here I agree with Justice Samuel Alito, who, writing for the majority in Dobbs, approvingly quotes Justice Antonin Scalia’s view that: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

Now Singer points out the irony of the Court overturning Roe right after it affirmed, on Constitutional grounds, the right of citizens of New York to carry handguns, a right that isn’t really in the Constitution unless you stretch the Second Amendment like a Slinky.

I know what you’re thinking: “But if the states vote, I won’t get the laws I want: we’ll have a lot of states that ban abortion.” And that may be true, but if such things aren’t specified in the Constitution, then it’s either up to Congress or the states to decide the issue, not the Supreme Court. The Congress might just squeak through a national pro-choice law some day (not in the near future, sadly), but until then we should not let the Supreme Court strike down democratically enacted legislation. This is something Singer points out in his piece (my bolding):

There is an even more radical implication of the view that courts should not assume powers that are not specified in the Constitution: the Supreme Court’s power to strike down legislation is not in the Constitution. Not until 1803, fifteen years after the ratification of the Constitution, did Chief Justice John Marshall, in Marbury v. Madison, unilaterally assert that the Court can determine the constitutionality of legislation and of actions taken by the executive branch. If the exercise of raw judicial power is a sin, then Marshall’s arrogation to the court of the authority to strike down legislation is the Supreme Court’s original sin. Marbury utterly transformed the Bill of Rights. An aspirational statement of principles became a legal document, a role for which the vagueness of its language makes it plainly unsuited.

So whence does the Supreme Court derive its ability to overturn legislation not in the Constitution? It’s not in the Constitution itself, but is an assertion of one Justice in 1803. I’m taking Singer’s word for this, but I assume some readers will know this history.

Apparently, though Singer is not clear on this, laws that are clearly against what is specified in the Constitution can properly be struck down, for otherwise we’re left with conflicting legal assertions.

And now you’re probably asking yourself, as I did, “Well, if the court doesn’t rule on whether hazy laws are Constitutional, then what should it be doing?” That’s a good question, and Singer’s answer isn’t totally satisfying. For if the Supreme Court (or apparently any court) can’t rule on whether every law adheres to the federal Constitution, can state courts rule on whether hazy state laws are constitutional? I suppose that depends on whether state judges are elected or appointed. If the former, then their rulings are part of the democratic process; if they’re not, then they have no business making such rulings (see below).

Singer’s Big Solution:

Supreme Court decisions cannot easily be reversed, even if it becomes clear that their consequences are overwhelmingly negative. Striking down the decisions of legislatures on controversial issues like abortion and gun control politicizes the courts, and leads presidents to focus on appointing judges who may not be the best legal minds, but who will support a particular stance on abortion, guns, or other hot-button issues.

The lesson to draw from the Court’s decisions on abortion, campaign finances, and gun control is this: Don’t allow unelected judges to do more than enforce the essential requirements of the democratic process. Around the world, democratic legislatures have enacted laws on abortion that are as liberal, or more so, than the US had before the reversal of Roe v. Wade. It should come as no surprise that these democracies also have far better laws on campaign financing and gun control than the US has now.

The part in bold, which is my emphasis, is not entirely clear, and that is Singer’s fault. What does he mean by “enforce the essential requirements of the democratic process.” Couldn’t he list some appropriate actions? Does he mean that they can adjudicate laws that may have not been passed democratically, or laws that lower courts mistakenly construed? I’m pretty sure he means at least that “the Supreme Court should not determine the Constitutionality of laws to which the Constitution does not apply.” For Supreme Court justices, being appointed and not elected, shouldn’t be doing what they’re doing. (I can just imagine what the Supreme Court would look like if its judges were elected!)

This of course will radically overhaul the entire court system in the U.S., and not just federal courts. I’m just throwing this out there to see what readers think. Most of us are pro-choice and are angry as hell that the Supreme Court decided that Roe v. Wade didn’t really rest on a constitutional “right to privacy.” But remember that courts are political, and the Supreme Court in particular can willy-nilly rule on rights when the court itself isn’t accountable to the voters.

NYT columnist and Anglican pastor Tish Harrison Warren on why abortion should be banned

June 27, 2022 • 9:15 am

I’m still not sure why Anglican Priest Tish Harrison Warren was hired to write a weekly column on religion for the New York Times. Not only does she push mythology on the paper’s educated readers (I think of it as an “astrology for the elite” column), but her sentiments are nearly always trite and anodyne.

From her previous columns, though, we know she believes in much of the Christian mythology, including the existence and divinity of Jesus, and of the salvific properties of his Resurrection. I’ve also seen hints that she thinks abortion is immoral.

This week she defends that last position, though manages, as she so often does, to say that without telling us explicitly that that’s her view. Instead, she dances around the topic, giving three arguments for why the “bodily autonomy” argument of pro-choice people is wrong. But in the process she also buys into another myth: that humans are qualitatively different from other animals, for we are made in the image of God. (She says nothing about a “soul,” but there must be some distinguishing feature that makes it immoral for humans but not other animals to undergo abortion.)

I’ve never known anybody to switch sides in the “pro choice” vs. “anti choice” debate, though there are some, like Christopher Hitchens, who personally aren’t comfortable with abortion but wouldn’t ban it. I’ve also known women who wouldn’t have an abortion, and yet still are pro-choice for everyone else. That’s fine with me: whatever they believe personally, they just can’t force it down the rest of our throats.

Warren would indeed sign onto that force-feeding just mandated by the Supreme Court, but she’s very cagey about it. I’ll briefly present—and criticize her three arguments for why the claim that “women have bodily autonomy” is not a good argument for the right to abortion. But in the end they all hinge on one assumption: a fetus has the same rights as a human who’s been born, adult or child, and that’s because of God.

Click on the screenshot to read:

Warren’s quotes are indented.

Here are three ways that I find abortion rights arguments that appeal to bodily autonomy unpersuasive and ultimately harmful to our understanding of freedom and what it means to be human:

1. Bodily autonomy is limited by our obligation to not harm others. We already recognize in law that there are limits to physical autonomy. One can’t walk down the street naked, even if one really wants to, or go 75 miles an hour in a school zone, even if slowing down poses a burden on the driver.

These limits came up in the Dobbs oral arguments. Twice, Justice Clarence Thomas brought up a case where a woman was convicted of child neglect for ingesting harmful illegal drugs while pregnant. The Supreme Court’s majority opinion in Dobbs addresses this as well, saying that an appeal to autonomy, “at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.” Our desires to do as we wish with our bodies must be respected but they also must be limited by the needs and rights of others, including those who live inside our own bodies.

First, I don’t agree with laws banning women from taking legal drugs while they are pregnant, even if they could damage the fetus. Imagine the courts making it illegal for women to smoke or drink or even take illicit drugs on the grounds that this is child neglect. (If you take illicit drugs, pregnant or not, you can be prosecuted for that alone.) This already presumes what you want to prove: that the fetus has the same rights as an already-born child.

And to say that bodily autonomy does not permit you to go naked (that depends on the country!) or speed in a car, is not the same as the bodily autonomy of deciding whether you have a child or not. The “naked” stuff is presumably to enforce public order, though I don’t care about that (naked people walk around Berkeley without arrest; who cares?), while bans on speeding protects other adult humans from being hurt by your negligence. The argument about abortion hinges on whether you consider a fetus, particularly one in the first trimesters of pregnancy, to have the same “rights” as an adult on the road need your car. If you say “no,” as I do, because you see fetuses as non-sentient embryos (actually, balls of cells early in pregnancy), and which are, in effect, parasitic on the mother, then the arguments from drug-taking, speeding, and nudity disappear. Remember, you are 14 times more likely to die from pregnancy than from abortion. To me, that by itself suggests that the default option is choice.

I’m sure readers will have other things to say about this “argument.” On to argument #2:

2. The term “autonomy” denies the deep interdependence and limitations of every human body. One definition of autonomy is “independence.” But no human has complete bodily autonomy from birth to death. The natural state of human beings is to be deeply and irrevocably interdependent on one another. The only reason any of us is alive today is that someone cared for us as children in the womb and then as infants and toddlers. Almost all of us, through age or disability or both, will eventually depend on other human beings — other human bodies — to bathe, dress, feed and otherwise care for us.

A child in the womb is dependent on a mother for life in a way that does place a unique burden on a mother. But this burden does not end at birth. Parenthood — at any stage — is an arduous good. A 1-year-old baby is dependent on adults for nourishment, protection and care in ways that can be profoundly burdensome, yet we cannot claim “bodily autonomy” as a reason to neglect the needs of a 1-year-old. Abortion seems to punish a fetus for its lack of bodily autonomy and deny the profound reliance that all of us who have bodies hold.

To me this argument has little force because a fetus is not identical to a child or another adult in the ways described above. A child without parental care, or who is abused, suffers in ways that an aborted non-sentient fetus doesn’t, and society also suffers in in different ways. (I don’t see society suffering at all if a woman has an abortion.)

And being “dependent” on others (why not just add farmers and truckers?) when you’re an adult, young or, old isn’t the same as forcing people to take care of you, because there are no laws that mandate such care. There is no law that your relatives must empty your bedpan, but Warren wants a law that will force a women to go through nine months of sometimes-dicey pregnancy because the fetus is dependent on the mother for nourishment and development. Warren has made no convincing argument that “interdependence” leads directly to banning abortion. Like the other reasons, this is a post facto argument she’s concocted to defend her position, which I believe comes from her religion.

This is the wonkiest of the arguments:

3. The pressing issue when it comes to abortion is whether championing “bodily autonomy” requires us to override or undo biological realities. In the Dobbs oral arguments, Julie Rikelman described what women experience if they lack access to abortion: “Allowing a state to take control of a woman’s body and force her to undergo the physical demands, risks and life-altering consequences of pregnancy is a fundamental deprivation of her liberty.”

But is restricting abortion the same thing as forced gestation? Is it correct to compare abortion restrictions to a state “taking control” of a woman’s body and a deprivation of liberty?

To me, yes, the comparison is valid. But what are the “biological realities” that are undone when a woman has an abortion? Simply that sex, even with birth control, sometimes lead to pregnancy. In other words, when you have sex, you have to pay the price if you get pregnant, even if you don’t want the child:

Whatever one thinks sex is and what it is for — whether a sacred act or a mere recreational pleasure — all of us can agree that sex is the only human activity that has the power to create life and that every potentially procreative sexual act therefore carries some level of risk that pregnancy could occur. (Birth control significantly lessens this risk but does not entirely take it away since birth control methods can fail.) Yet, the state does not impose this risk of producing human life; biology does. Except in the horrible circumstances of rape or incest, which account for 1 percent of abortions, women and men both have bodily agency and choices about whether they will have sex and therefore if they are willing to accept the risk of new life inherent in it.

. . . . A sperm and an egg unite to grow into a human inside the body of a woman. The state doesn’t force this to happen any more than it forces aging or forces weight loss from exercise or forces lungs to take in oxygen and release carbon dioxide.

To use language of forced gestation or of a state “controlling” women’s bodies is to portray biology itself as oppressive and halting the natural course of the body as the liberative role of the state.

This is what she’s really saying:

“Sex can lead to pregnancy. If you don’t want a child, don’t have sex.”

Whence the “requirement” that we cannot undo the reality that when you have sex, an egg could be fertilized? It is simply Warren’s view that a fertilized egg is somehow very special—more special than the fertilized eggs of other animals. And when that sperm penetrates the egg, biology says that we have to let development continue.

But this is again a post facto way for Warren to justify her religious view that humans are special (see below) because we’re made in the image of God. To answer her, I can just say “what is the biological imperative that requires allowing a fertilized egg, produced by failed contraception, to continue development?” This comes perilously close to turning an “is” into an “ought”. But the real reason she comes up with this hokey imperative is her religion. That becomes clear in this sentence (my emphasis):

Speaking as a woman, with a woman’s body, I want safety and freedom for all women. I want women to be full participants and empowered leaders in public life. I believe we, as human beings and image bearers of God, have a right to bodily integrity, protection and liberty.

Except when it comes to abortion. . . .

That’s the real reason behind all this: embryos are sacred and cannot be destroyed because God made them in his own image. The rest is commentary and justification. Those two sentences are the only place where Warren even comes close to telling us that abortion should be illegal (except for rape and incest), and why. Yes, she throws in all the liberal ways you can live with prohibited abortion: more child-support laws, free health care, and “affordable child care.” Tell that to a woman who has no resources to bring up an unwanted child, or is in a situation where pregnancy can ruin her life!

In the end, Warren’s arguments are the same as those of Catholics: fetuses are sacred because they are made in the image of God (presumably having a soul) and it is murder (or, as Harrison euphemistically says, “undoing biological reality”) to abort them. She began with that belief and then confects three arguments why abortion doesn’t abrogate women’s “bodily autonomy”. She is a Catholic in an Anglican dog collar.

My advice to Pastor Warren: “It’s fine if you try to persuade people to oppose abortion, but don’t go forcing people to adhere to your religiously-based views.” What’s moral in your Anglican religion doesn’t have to be the law of the land.

Roe v. Wade is history

June 24, 2022 • 11:09 am

Here’s the headline that we were fearing but expecting, especially given the earlier leak, but I suspect most of us are still depressed by it.

You can find the Court’s decision in Dobbs et al. v. Jackson Women’s Health Organization et al. here (Alito wrote the majority opinion).

And click below to read the NYT article:

The vote was, as we knew it would be, 6-3, and you can find the decision here. What will happen now is that each state will make its own ruling, and states may even take steps to prevent its residents from going out of state to get an abortion.

A quote from the NYT:

The decision, which echoed a leaked draft opinion published by Politico in early May, will result in a starkly divided country in which abortion is severely restricted or forbidden in many red states but remains freely available in most blue ones.

Chief Justice John G. Roberts Jr. voted with the majority but said he would have taken “a more measured course,” stopping short of overruling Roe outright. The court’s three liberal members dissented.

It’s a horrible day for America and especially for American women. I will make just three points and let the readers discuss this.

1.) Most Americans agree with Roe v. Wade. Of course, that doesn’t bear on its constitutionality, but you can make an argument that the right to privacy allows the government to legalize abortion. Here’s what CNN said an hour ago:

In a May CNN poll conducted immediately after the leak of the Supreme Court’s draft opinion, Americans said, 66% to 34%, that they did not want the Supreme Court to completely overturn its decision. In CNN’s polling dating back to 1989, the share of the public in favor of completely overturning Roe has never risen above 36%.

Just 17% of Americans in the CNN poll said they’d be happy to see Roe vs. Wade overturned, with 12% saying they’d be satisfied, 21% that they’d be dissatisfied, 36% that they’d be angry, and 14% that they wouldn’t care. Most Democrats (59%) and nearly half of adults younger than 35 (48%) said they’d be angry. And a 59% majority of Americans said they’d support Congress passing a law to establish a nationwide right to abortion, with just 41% opposed.

2.) For a laugh, read what the 6 conservative justices who killed this precedent said during their hearings when asked about it. To a man and woman, they either equivocated or invoked stare decisis, i.e., respect precedent. They were lying; they knew how they would one day vote to overturn it. But of course you are expected to lie if you want that black robe.

3.) Some of the laws made by the red states, like the one already in force in Louisiana, will not allow abortions even in cases of incest or rape: a palpably immoral decision. Only Ceiling Cat knows the various restrictions that the Republicans have in store for controlling women’s reproduction.

We’ll all have more to say about this in the coming days, usually involving cursing Roberts et al. but now just react, vent your spleen, or whatever. It’s 6-3 against real progress from now on.

Oh, and then there’s this for “originalist” Thomas:

In a solo concurring opinion, Thomas says the court should reconsider rulings that protect contraception, same-sex relationships, and same-sex marriage. pic.twitter.com/zcQNko6NVR

— Matt Ford (@fordm) June 24, 2022

A new solution to the gun issue

May 26, 2022 • 9:00 am

Everybody’s pondering how to stop mass shootings, including tightening gun restrictions, and of course nobody has a solution. Here’s one offered by Phyllis Chesler, whom I hadn’t heard of before. She’s apparently quite a well known second-wave feminist, and (relevant to this piece) strongly “pro choice”. Here’s how Wikipedia describes her:

[Chesler is an] American writer, psychotherapist, and professor emerita of psychology and women’s studies at the College of Staten Island (CUNY).^[1]^[2] She is a renowned second-wave feminist psychologist and the author of 18 books, including the best-sellers Women and Madness (1972), With Child: A Story of Motherhood (1979), and An American Bride in Kabul: A Memoir (2013). Chesler has written extensively about topics such as gender, mental illness, divorce and child custody, surrogacy, second-wave feminism, pornography, prostitution, incest, and violence against women.

Malgorzata, who sent me this link, says that Chesler has been somewhat demonized because she’s a defender of Israel as well as a a critic of the misogyny of Islam. But these aren’t the topics here: it’s gun violence (she brings in abortion at the end). Chesler has a novel solution to the problem of mass shootings. It may be a bit tongue-in-cheek, but given Chesler’s history it’s not that likely.

Here’s her piece from the New English Review (click on the screenshot to read):

Here are some quotes from her piece, which some will claim is anti-male, but really, you can’t argue with the data. Her quotes are indented and the bolding is hers):

President Biden focused both on the Gun Lobby and on God in his speech at the White House in response to the latest horror—the mass shooting of nineteen children by an 18-year-old Hispanic man/boy who, we’ve just been told, had failed to graduate from the Uvalde High School. That was what he was allegedly arguing with his grandmother about when he shot her down.

I guess our President did not read my piece about the single most important variable which is invariably always missing, never mentioned, when it comes to mass shooting, namely, that 99.9% of mass murderers are all male.

. . . President Biden: Where is the funding for mental health that our country needs so desperately? Chirlane McCray: What did you do with the three billion dollars allocated for mental health services? Clearly, nothing much, given all the epidemic of shootings on New York City streets and in our subways allegedly by mentally ill men.

The male ego. The supposedly male thin skin. The inability of some men to absorb abuse, frustration, failure, or disappointment without violently turning it against someone else. Yes, it is a real problem.

Now I tend to bridle when I see men lumped together and dissed as a group (one rankling example is the “old white male” trope). But Chesler isn’t saying that all males are potential murderers: rather, that there’s something about the male psyche that leads to a higher proportion of mass shooters (and, I suspect, all shooters) among males. And she’s right, whether that “something” be evolutionary, cultural, or both. (I suspect the risk-taking behavior of males, combined with their innately higher aggression are some evolutionary aspects of this situation. And of course “macho”-ness is culturally encouraged in men.)

And here’s her solution, which is funny because of the parallel with anti-abortion activitists:

Sometimes a very good idea crosses my desk. Written by an unknown genius, and passed along by one Nev Schulman, please allow me to share this with you.

Our Anonymous Genius suggests the following:

“How about we treat every young man who wants to buy a gun like every woman who wants to get an abortion—mandatory 48-hour waiting period, parental permission, a note from a doctor proving he understands what he’s about to do, a video he has to watch about the effects of gun violence…Let’s close down all but one gun shop in every state and make him travel hundreds of miles, take time off work, and stay overnight in a strange town to get a gun. Make him walk through a gauntlet of people holding photos of loved ones who were shot to death, people who call him a murderer and beg him not to buy a gun.”

Of course this is sarcastic, but Chesler has a point.

Chesler:

From NPR: Joan L. Roth/Courtesy of Palgrave Macmillan

The Atlantic: deep-sixing the word “woman” in the abortion debate for ideological reasons does not help the cause

May 17, 2022 • 11:45 am

When liberal venues such as The Atlantic start picking holes in the progressive Left’s irrational or woke tendencies, then you may find some hope that the whole insanity gripping the Left (and heartening the Right) might be coming to an end. I hold out no such hopes, but nevertheless cheer on people like staff editor Helen Lewis, who in this Atlantic article raises the possibility that getting rid of the word “woman”, as many Progressives want to do—the rationale is that the word must now include transgender women, and this, causing confusion, mandates flushing “woman” down the drain—may have deleterious consequences for the Left and, in particular for the abortion debate.

If there’s any issue that holds out hope that Democrats won’t be totally destroyed in this November’s elections, it’s the Supreme Court’s upcoming dismantling of Roe v. Wade. The current construal of that soon-to-be defunct decision is supported by 60% of Americans, and if the Dems can leverage and keep harping on a a sensible abortion position like Roe (even if it can’t be passed in Congress), their platform would have more appeal.

Unless, that is, the whole issue gets sabotaged by those who want to get rid of the word “woman” on ideological grounds. And so it is going, pushed along by the newly woke ACLU who have decided that in every relevant respect, including sports, abortion, and jailing, “transwomen are women”. Well, yes, for nearly all purposes, and I’m happy to use whatever pronoun makes someone comfortable. But I won’t pretend that biological men or women who change gender are exactly the same as cis men or women in some circumstances. And expunging “women” from the abortion debate is not going to make a lot of biological women (or people in general, including lesbians and gays) very happy.

Click to read.

A few of Lewis’s excerpt with the relevant tweets. Here’s one that got her going:

Abortion bans disproportionately harm:
▪️ Black, Indigenous & other people of color
▪️ the LGBTQ community
▪️ immigrants
▪️ young people
▪️ those working to make ends meet
▪️ people with disabilities

Protecting abortion access is an urgent matter of racial and economic justice.

— ACLU (@ACLU) May 11, 2022

You can see the problem, of course. Abortion bans disproportionately harm biological women above all, if you take the normal meaning of “disproportional.” Lewis notes that 99.9% of those who need abortions are cis women. She dissects the tweet:

, , , on May 11, the ACLU once again caught the moment, posting a tweet that perfectly encapsulates a new taboo on the American left: a terrible aversion to using the word women.

According to the ACLU,

Abortion bans disproportionately harm:

■ Black, Indigenous & other people of color

■ the LGBTQ community

■ immigrants

■ young people

■ those working to make ends meet

■ people with disabilities

Wait. Run that second point past me again? Surely one of the many things to recommend lesbian sex is that it doesn’t risk getting you pregnant. Unsurprisingly, multiple commentators struggled to see how abortion bans “disproportionately harm the LGBTQ community”—even if those laws do indeed harm parts of it, such as queer women and trans men who have procreative sex. The ACLU’s defenders have pointed to data from 2015 showing that high-school students who self-define as lesbian but have had sex with male partners are more likely to get pregnant than their female counterparts who identify as heterosexual. But comprehensive longitudinal studies have found that lesbians across the age spectrum are about half as likely to get pregnant as straight women. Another suggestion would be that abortion bans could also affect IVF provision, which many gay and lesbian couples rely on to have a baby. To a casual reader, though, the ACLU has used phrasing that reads like an incantation—a list of disadvantaged groups that are more interesting than women. There’s something of the record-store hipster about it all: I care about groups with intersecting oppressions you haven’t even heard of.

Lewis reminds us of how the ACLU arrantly changed the words of the late Justice Ginsburg in a pro-abortion ad last year, eliminating all references to “women.” Remember this?

With Justice Ruth Bader Ginsburg’s death, we lost a champion for abortion and gender equality. And on the anniversary of her death, the fight to protect abortion access is more urgent than ever. pic.twitter.com/vIKadIHouN

— ACLU (@ACLU) September 18, 2021

Why is this effacing of “women” happening? Because supposedly jettisoning the word “women” makes one’s appeal more inclusive and thus rakes in more money for organizations like the ACLU (they’ll get no dosh from me).

Lewis:

One of the most irritating facets of this debate is that anyone like me who points out that it’s possible to provide abortion services to trans people without jettisoning everyday language such as women is accused of waging a culture war. No. We are noticing a culture war. A Great Unwomening is under way because American charities and political organizations survive by fundraising—and their most vocal donors don’t want to be charged with offenses against intersectionality. Cold economic logic therefore dictates that charities should phrase their appeals in the most fashionable, novel, and bulletproof-to-Twitter-backlash way possible. Mildly peeved centrists may grumble but will donate anyway; it’s the left flank that needs to be appeased.

Pointing out that women are the ones who largely need abortions is very second wave, boring, old-school, so done. Witness those placards held by older women that read: I can’t believe I’m still protesting this shit. Instead, the charities think: Can we find a way to make this fight feel a little more … now? And that’s how you end up with the National Women’s Law Center tweeting, “In case you didn’t hear it right the first time: People of all genders need abortions. People of all genders need abortions. People of all genders need abortions. People of all genders need abortions. People of all genders need abortions. People of all genders need abortions.” (No, that’s not my copy-and-paste keys getting stuck. The group really said it six times.)

Yep: see for yourself.

In case you didn't hear it right the first time:

People of all genders need abortions. People of all genders need abortions. People of all genders need abortions. People of all genders need abortions. People of all genders need abortions. People of all genders need abortions.

— National Women's Law Center (@nwlc) May 4, 2022

It’s not hard to see that this circumlocution and annoying repetition takes away the power that the Left really has on this issue: to most liberals, abortion instantiates a biological woman’s right to control her body and that right is being taken away. (And yes, it’s only biological women, who happen to include transgender men, who need abortions).

But does eliminating “woman” really help the abortion-rights campaign in America as opposed to catering to a few people who insist that men can get abortions? Lewis doesn’t think so:

In Britain, where I live, the British Pregnancy Advisory Service, a major abortion provider, announced that it would continue to use women and other gendered language in much of its general literature, while developing tailored materials for clients who identify otherwise. Not only has the sky not fallen as a result, but Britons continue to have access to state-funded abortions, paid for out of general taxation. While American charities congratulate themselves on the purity of their language, the communities they serve—people of all genders who could have a free abortion in Britain—struggle to access terminations. No one should be polishing their halo here.

And the potential harm: ignoring the most important issues (and alienating supporters) by getting bogged down by pronouns. As Lewis notes above, one can still be sensitive to transgender men who can get pregnant and yet still keep the word “woman”. She continues:

Language battles should not distract us from the true injustice raised by the potential repeal of Roe v. Wade: the removal of the right to privacy and bodily autonomy for 51 percent of Americans. But something is lost when abortion-rights activists shy away from saying women. We lose the ability to talk about women as more than a random collection of organs, bodies that happen to menstruate or bleed or give birth. We lose the ability to connect women’s common experiences, and the discrimination they face in the course of a reproductive lifetime. By substituting people for women, we lose the ability to speak of women as a class. We dismantle them into pieces, into functions, into commodities. This happens in many ways. This week I also saw an Axios editor rebuke a New York Times reporter for writing “surrogate mothers” rather than “gestational carriers”—as if the latter phrase were not dehumanizing, a whisper away from “vessels.”

To her credit, Lewis does consider at several points reasons people adduce for eschewing the word “woman”, but in the end rejects them. Her last sentence here is eloquent:

In my view, the best argument for gender-neutral language in the abortion debate is the ACLU’s unspoken one: History suggests that society doesn’t care much about women, so maybe abortion rights will have more appeal if supporters invoke some other causes instead. And yet I can’t stomach it. Supposedly progressive groups like the ACLU are free riding on the work of centuries of feminist activism, all of it based on the implicit or explicit premise that there are two sexes, one that did the voting and property-owning and being president, and one that did the unpaid scut work and giving birth. The ACLU can afford to wipe away the word women only because everyone knows which half of the population needs abortions. Women will continue to exist, and to be disproportionately harmed by abortion bans—even if their existence becomes unspeakable.

Now that is good writing!

Quote of the Day: A Catholic notes the benefits of Roe v. Wade while still opposing the decision

May 10, 2022 • 10:00 am

In today’s NYT you can find the op-ed below (click on screenshot to read), a defense of overturning Roe v. Wade written by Matthew Walther. As you can see by the subtitle, Walther is editor of the bimonthly Catholic literary journal Lamp.

I suppose you could say that it’s to Walther’s credit that he admits that there could be bad socioeconomic consequences of overturning this bit of “settled law,” but in the end it’s clear that he thinks those consequences, good or bad, are irrelevant. As he says in his last sentence, “What is right is very rarely what is convenient.” For he sees the shelving of Roe v. Wade as equivalent to “the joyful fact of hundreds of thousands of additional babies being born.”

In fact, although he mentions that there may be some economic downsides of Roe v. Wade, in the main he seems to agree with this:

It is not possible to conceive of our present way of life — the decline of heavy and textile manufacturing and the rise of the service economy, financialization, the collapse of traditional familial and other social structures, the subsuming of virtually every facet of our existence into digital technologies — in the absence of the estimated 63 million abortions that have been performed in America since 1973.

and this:

[In the last twenty years], countless economists and social scientists have argued the opposite: that legal abortion is not only compatible with but also necessary for sustained economic growth. Among other things, reduced access to abortion is correlated with lower rates of labor force participation, reduced wages and increased job turnover.

If the actions of major corporations in states such as Texas, which recently banned abortion after about six weeks of pregnancy, are any indication, America’s business establishment agrees. The boards of corporations like Citigroup, with a fiduciary duty to their shareholders, have announced that they will subsidize travel for employees who seek out-of-state abortions.

Opponents of abortion should consider the possibility that these corporations are correct in their apparent assumption that abortion contributes to the maximization of shareholder value. Are we prepared to accept the converse proposition, to invite a reduction in shareholder value by banning abortion?

So here we have a Catholic saying that the economic consequences of banning abortion could well have been good, but he doesn’t care because abortion is a fundamental wrong—it’s murder.

I don’t care that much about socioeconomic consequences, either, but for the opposite reason: I see abortion in the main as a societal and personal good, preventing the state from interfering from a woman’s ability to control her own body. The difference between Walther and me is that I don’t see a fetus as equivalent to a sentient human being, and would probably extend Roe v. Wade further than even the its present limits (first and perhaps second trimester).

And this difference comes from Walther’s Catholicism. Where, I ask, is the evidence (beyond that asserted by religious authorities) that abortion is identical to murder, even in its very early stages? There is clearly a developmental continuum in a fetus, with an abrupt break when the baby is born, and so drawing a line for when a fetus becomes equivalent to a person with rights, including freedom from “murder”, is purely arbitrary. Many Catholics, though, draw the line at a rationally insupportable stage: fertilization. A “person” is not created at fertilization: we have a zygote that now will go on to continue development. That zygote is an undifferentiated ball of cells without mentation or the ability to feel pain. And there’s no evidence it has a soul or anything differentiating it from the embryos of any number of vertebrate species.

But I digress: read the article:

Here Walther asserts the equivalence of abortion with murder, which outweighs any possible negative societal consequences (my bolding).

The scope of the problem is far broader than economics. Research over the years has suggested that an America without abortion would mean more single mothers and more births to teenage mothers, increased strain on Medicaid and other welfare programs, higher crime rates, a less dynamic and flexible work force, an uptick in carbon emissions, lower student test scores and goodness knows what else. If you sincerely believe, as I do, that every abortion means the deliberate killing of an innocent human being, is there some hypothetical threshold for negative growth, carbon dioxide levels or work force participation rates beyond which the protection of that life would be too burdensome?

For me, the answer is no.

. . . .I believe that those who oppose abortion should not discount the possibility that its proscription will have consequences that some of us would otherwise regret. To insist, as opponents of abortion often have, that the economists John Donohue and Steven Levitt cannot be right about the correlation between Roe and the reduced incidence of crime two decades later strikes me as a tacit concession that if they were right, our position on abortion might have to be altered.

So far, so good. At least he admits there’s a downside to prohibiting abortion, though he sees abortion as an act whose downside can never be large enough to warrant allowing it. But then he puts on his Tish Harrison Warren suit and says, “Well, let’s justify banning abortion by being ever so much nicer to the unwanted children who are born, and by creating an atmosphere in which they could thrive.” If only it were that easy! And even if it were, I would still say that abortion is a choice best left to the pregnant woman.

Walther continues:

For the same reason, opponents of abortion should commit ourselves to the most generous and humane provisions for mothers and children (paid family leave, generous child benefits, direct income subsidies for stay-at-home mothers, single-payer health care) without being Pollyannaish. No matter what we do, in a post-Roe world many children who would not otherwise have been born will live lives of utter misery, and many of our fellow Americans will be indifferent to their plight. If we wish to dispel the noxious argument that only happy lives are worth saving, we will have to be honest about the limits of social policy and private charity in regulating the turbid ebb and flow of human suffering.

The last sentence puzzles me. A life that can be either “happy” or “unhappy” does not begin until a child is born. Yes, you can say that a fetus has a “life”, but it is not a noxious argument to say that one of the major benefits of abortion is that it prevents unhappy lives from coming into being.

Here’s what I can live with: 60% of Americans are satisfied with keeping the Roe v. Wade prescriptions in place. I would go further, but this “settled” law seems to me a good compromise, though largely a compromise with religious people who wish to force their beliefs on the rest of us. The compromise is necessary, in religious America, to hold our Republic together, and it’s done a pretty good job in the last fifty years.

Could there be a downside of allowing abortion that’s so harmful that I would favor abolishing the practice? I can’t imagine one. There’s no chance it will drive the population to zero, and any economic consequences seem to me not harmful but helpful. But in the end I see it as the right of a woman to determine what to do with her own body, and, like the First Amendment, that’s not something to be monkeyed with.

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