Category: abortion

Two court cases: Texas charges a women with murder for abortion, and once again, Gibson’s versus Oberlin College

April 10, 2022 • 12:00 pm

This story was reportd by Sophie Kasakove in yesterday’s New York Times and has been reported widely elsewhere (e.g., here). Click on the screenshot to read:

Yes, it’s Texas again, which of course enacted the nation’s most stringent abortion law, and making it enforceable by private citizens instead of the state. Any individual can report others involved in helping a woman get an abortion in Texas (the woman herself can’t be fined), and then can sue those “helpers” for $10,000 each. This case, however, is a bit different, for it involves the state charging a women with murder for the death of a fetus via abortion:

A South Texas sheriff’s official said on Saturday that a 26-year-old woman had been indicted on a murder charge in connection with the “death of an individual through a self-induced abortion.”

The woman, Lizelle Herrera, 26, was arrested on Friday and detained in Starr County, the official, Maj. Carlos Delgado, said in a statement reported Saturday by The Associated Press. Ms. Herrera was released on bail on Saturday, according to a statement from the Frontera Fund, an abortion rights organization. Her bond was set at $500,000.

While circumstances of the case remain unclear — the statement did not say whether Ms. Herrera was accused of having the abortion or aiding one, or how far along the pregnancy had been — the indictment comes months after the Texas Legislature passed several restrictions on abortion.

This apparently is not a violation of the new anti-abortion law, because she’s been charged by Texas and not reported by a private individual for purposes of a lawsuit, but it’s not even clear what law the woman has violated. In fact, the charge itself seems to abrogate the law (my bold below):

It is unclear what statute Ms. Herrera is being indicted under. An abortion ban that took effect in Texas in September, known as S.B. 8, prohibits abortion after six weeks but leaves enforcement to civilians, offering them rewards of at least $10,000 for successful lawsuits against anyone who “aids or abets” an abortion.

The Texas Legislature then enacted another law, S.B. 4, which establishes a criminal violation — a state felony punishable by a $10,000 fine and up to two years in prison — for providing medical abortion pills after 49 days of pregnancy, or for providers who fail to comply with a series of new regulations and procedures. That law also exempts pregnant women from prosecution.

One section of the Texas penal code exempts expectant mothers from being charged with murder in connection with “the death of an unborn child.” Most states instead target abortion providers when an abortion is deemed illegal. In most of the country, abortion is prohibited after fetal viability, generally 22 to 24 weeks, though several states are moving to ban abortions at much earlier stages in anticipation that Roe will be overturned.

According to the statement by Major Delgado, Ms. Herrera was indicted on the murder charge after she “intentionally and knowingly” caused the death of an individual by self-induced abortion.

So if Herrera helped another woman with that woman’s abortion, she must be reported and then a civil case brought against her, which is not what happened. If Herrera had a self-induced abortion, whether through pills or some other method, she cannot be charged with murder. Yet she was.

What we have here, in fact, is a charge brought on the explicit presumption that a fetus is equivalent to a living person who’s been born. I asked reader Ken Kucec about his take on this charge, and got this response:

As for the Texas abortion/murder case, it wasn’t brought under SB8, the Texas citizen-vigilante statute, but is being prosecuted by the Starr County district attorney’s office under Texas’s murder statute. It’s a novel application of the statute, turning on the “personhood” of a fetus, but we’re talking about Texas here (which is far and away the most prolific user of capital punishment) so there’s no telling what may happen.

Indeed. And if the U.S. Supreme Court, as expected, throws out Roe v. Wade, they may leave it to the states to enact their own regulations about abortion. In that case, Texas very well could criminalize abortion at any stage as a case of murder. If the U.S. Supremes deem it proper, the states can pretty much do as they want.

******************

The second article comes from The Bulwark, a centrist or right/center venue with an anti-Trump view.  But its politics hardly matter because I’m not going to deal with that issue. Click to read, though the headline is misleading.

I’ve long been on the side of Gibson’s Bakery against Oberlin College, as Oberlin, under false accusations of racism, defamed the bakery in 2016 and engaged in sleazy manipulations (see my many posts here; but it’s best to read the Wikipedia entry on the case).

In 2019, a jury found the college guilty of “libel, slander, interference with business relationships, and interference with contracts in the Lorain County Court of Common Pleas.” The damage award to the bakery was huge: $44 million dollars in compensation and punitive damages. A judge later reduced the award to $31.5 million, with $6.5 million of that going for lawyers’ fees. That’s still a big bite for Oberlin College, which has been financially constricted since they had to put up security for that amount.

Oberlin didn’t give in but appealed. However, on April 1, the appellate court affirmed the civil verdict. The court’s 50-page finding is here. I haven’t read through the whole thing, but the upshot is that the original verdict stands. Reporter Daniel McGraw, who covered the case from the beginning, says this:

. . .  the presiding judge, John Miraldi, set a high bar for the plaintiffs, ruling before the trial that little of what the students protesting outside the business said or did was admissible, because the plaintiffs could not attach the school to their students, who were exercising their free speech.

The Gibson’s legal team needed to prove two things: (1) that the school’s post-protest actions added fuel to the defamation fire; and (2) that the school knew that these actions were wrong, but kept the racist message going in order to satisfy parts of their student body and faculty.

The appeals court verdict lays out in great detail how Gibson’s satisfied those requirements.

There was testimony that some of the school administrators were themselves at the protest and handing out fliers. Administrators also allowed students to use college equipment to make copies, bought pizza and beverages to feed the protesters, and bought mittens for protesters whose hands were cold. The racism claim from the student senate resolution was emailed to all students and posted on the wall of the student center for a full year.

The second part—proving both intent and what the Oberlin College knew in terms of the veracity of the claims—is the heavier burden.

But the lawyers for Gibson’s uncovered emails and phone messages between administrators which supplied the proof to meet this burden.

Some examples: A text from one administration official said they “hope we rain fire and brimstone on that store.” There were references to that “stupid bakery.” Another email said, “I’m baffled by [Gibson’s] combined audacity and arrogance.” And how, by fighting Oberlin College, Gibson’s “made their bed now.” One administrator suggested that restricting students’ use of their school-issued money cards at Gibson’s would be “another tool for leverage.” The dean of students was confronted with a retired professor who expressed skepticism that Gibson’s was racist. The dean’s response: “Fuck him, I’d say unleash the students.”

Oberlin was hoist with its own petard—administrators’ emails. This is an example of how the vindictivness of the woke, combined with their absolute certainty that they’re on the side of the angels, can lead them into trouble.

The error with the headline is its claim that the Oberlin matter has now “come to an end.” I didn’t see how given that Oberlin has dug in its heels about this case, so why shouldn’t they appeal to the Ohio Supreme Court? Reader Ken answered this query in a comment I didn’t see when I was traveling:

In response to my query on my own brief report on April 3:

If I know Oberlin, they’ll further bankrupt the school by appealing higher up (if they can under the law).

Ken responded:

Oberlin can still seek rehearing by the three judge panel that decided the case or rehearing from all the active judges on Ohio’s Ninth District Court of Appeals sitting en banc. Failing that, the school can seek discretionary review from the Ohio Supreme Court.

If the Ohio Supremes decline to hear the case or if that court affirms the appellate decision, Oberlin’s final recourse would be to seek a writ of certiorari from the US Supreme Court. To do so, it would have to raise a federal issue rather than an issue of Ohio state law — in this instance, presumably an issue arising under the First Amendment. (This was how The New York Times got the defamation judgment awarded against it by Alabama courts before SCOTUS in New York Times v. Sullivan.)

Review before SCOTUS on certiorari is discretionary, too, with the Court granting review of something fewer than a 100 cases a year, out of over 10,000 annual petitions for certiorari. From what I know of the Oberlin case, it doesn’t appear to present a particularly compelling case for consideration by SCOTUS.

In the meantime, the interest on the trial judgment keeps mounting.

And I asked him one more question:

Do you THINK that Oberlin will continue the appeal process?

Ken’s response:

I think Oberlin’s attitude is in for a dime, in for a dollar, so I expect the school will probably run out the string to the bitter end, even though, as a general principle, a party’s chances of success diminish the further up the appellate process it seeks relief, since the standards of review get stricter and the court’s have greater discretion to deny consideration of the case.

In the meantime, two Gibsons have died without getting dime one. As The Bulwark reports:

The coda to this story is that David Gibson and his father, Allyn, owners of the bakery, both died during the intervening years. David Gibson testified in court that his father told him before the trial started that, “In my life, I’ve done everything I could to treat all people with dignity and respect. And now, nearing the end of my life, I’m going to die being labeled as a racist.”

Allyn Gibson survived his son David’s death, but did not live to see his family’s business vindicated. He died just a few weeks ago, on February 12.

So no, this case is not yet at an end. Oberlin has decided to run out its string, and I believe that further interest accrues on the fine that was assessed.

h/t: Ginger K., Steve

 

Scientific American: What we can learn about abortion from quantum mechanics

March 28, 2022 • 9:45 am

Scientific American continues to publish dreck, and I’m not sure why anybody who’s enthusiastic about science would want to continue subscribing.

This latest op-ed, to which I shouldn’t devote any attention (but the laws of physics dictate otherwise) is a prime example of the naturalistic fallacy. By looking at quantum mechanics, says author Cara Heuser, we can realize that one can hold two seemingly opposite views in one’s head at the same time. To wit: light can sometimes act as a particle, and sometimes as a wave, depending on the nature of the observation. Similarly, one can care for and about children and yet still be pro-choice.  The author, in fact, holds both views of medical care, and simultaneously saves children’s lives and provides abortion care. As the author’s bio notes:

Cara C. Heuser is a maternal-fetal medicine physician. She provides full-spectrum reproductive care, including prenatal care for high-risk pregnancies and abortion care, in Salt Lake City.

It’s not that I object to Heuser’s views, for I agree with her completely. But I do object to extrapolating from quantum physics to one’s views on abortion. This is the naturalistic fallacy, and a fallacy that could be applied (or rather, misapplied) to other real or apparent instances of cognitive dissonance. (That terms is usually reserved for a conflict of views that causes mental distress, but here I’ll just refer to having two seemingly or actually opposite views). There’s simply no lesson to be learned by extrapolating from how particles behave to how humans behave—or should behave.

Click on the screenshot to read.

My own views on abortion pretty much jibe with Roe v. Wade, but go even further. For example, I think that perhaps the threshold of abortion legality should be the onset of sentience—the ability to actually feel suffering—rather than viability. (One should also realize that if viability outside the womb is the criterion for prohibitng abortion, then this criterion will eventually be pushed back all the way to conception, as eventually we’ll have the ability to rear humans from fertilization to time of normal birth—all in vitro. The onset of sentience, on the other hand, does not change with technological innovation.) But I haven’t settled on my “threshhold” yet, though I still believe with Peter Singer that if a child is born with a defect or disease that will kill them very soon, is incurable, and causes suffering, it should be legal to euthanize them with the agreement of doctors and the parents).

I also bridle when people try to shut down the abortion debate by asserting a simple “right” to abortion. Where does this “right” come from? Granted, there is a Constitutional right to privacy, but instead of seeing abortion as some kind of inherent “right”, or as “moral on the face of it”,  I think abortions should be legal on grounds of pragmatism: society is better off allowing them rather than prohibiting them. (In matters of ethics, I tend to be a consequentialist.)

Indeed, the author, while several times asserting the “right” to an abortion, also argues for the procedure largely on practical grounds:

Perhaps we even have a moral compass that pushes us to provide this care. Perhaps we also value life. Many rights proponents argue that we must speak up because we value life: thousands of women have died from unsafe abortions before they were legal; multiple studies demonstrate that restrictions result in significant harm and confirm that abortion is safe; the oft-cited concern that having an abortion is detrimental to mental health has been demonstrated as false and, in fact, the opposite is true—denial of abortion care has resulted in extreme trauma to families and individuals.’

Here Heuser is arguing for “choice”, not from some abstract “right” or “morality”, but from its practical benefits. And I largely agree with that view. Unfortunately, courts would rather judge abortion from the Constitution, which says nothing relevant—and yet will probably repeal Roe v. Wade on Constitutional grounds—than from what is best for society. Courts are not ethical pragmatists.

But I digress. The author seems to think that for many, being in favor of abortion conflicts with being an ethical person. She realized this when she donated part of her liver to save the life of a sick child, and one of her colleagues was surprised, since this donation showed she cared for the life of children, while at the same time she was providing abortion care.

I don’t see this altruistic act as a fundamental conflict between ethics and a pro-choice view. In fact, I see no hypocrisy in caring for children and favoring abortion at the same time. In deed, in many cases, the best thing for a fetus that’s unwanted may be to abort it. But of course religionists do see a conflict, since they regard a fetus as the equivalent of a sentient human being.

So far so good. But then the author extrapolates the wave/particle duality of quantum mechanics to the issue of abortion. Just like that, she says, so one can be a moral person who cares for children and yet someone who can countenance abortion as well. She is, she says, one of these. Of course she is, and only a Pecksniff would call her out for hypocrisy. Yet one did:

In August of 2020, I had major surgery to donate a part of my liver to a child unrelated to me and whom I had never met. (Did you know you can do that? Find a center and/or register to be a deceased donor at www.unos.org). One month later, I petitioned our state medical society to oppose abortion restrictions, describing the harm these laws pose to patients under my care. I had no reason to think that my liver donation and my opposition to abortion restrictions were related until a colleague expressed his astonishment that I was “so pro-abortion but also donated an organ to a kid.”

Learning that I had undertaken an act that many people view as altruistic (a description that causes me discomfort, but I will at least allow it demonstrates a respect for life) presented a direct challenge to his view of abortion providers as morally bereft. My colleague found these two empirical truths difficult to reconcile. In his mind, one cannot be both an abortion provider and an ethical and thoughtful human. Pick one, says this belief system, team particle or team wave.

This is not a good example of hypocrisy; one can, on grounds of societal good as a whole both allow reproductive choice and allow (and applaud) someone who donates part of an organ to save a life. Her colleague is simply muddled.

This apparent conflict still bothers Heuser, however, but she should simply forget about that colleague. And she needn’t try to satisfy “pro-life” religionists, who will never be convinced that abortion can be the right thing to do.

But, apparently, she turns to quantum mechanics—the wave/particle duality—as a way to find solace—or to convince doubters:

Instead of either/or, imagine both/and. We recognize the value placed on a desired and loved pregnancy by families and understand that ending a pregnancy is the right decision for some people some of the time. Individuals may have ethical objections to abortion and recognize that anti-choice laws can harm people. We can value human life and recognize the complexities of reproductive decision making. Attending thousands of births has been a great joy in my career and has cemented my belief that forcing a person to give birth against their will is a fundamental violation of their human rights.

Given that one quarter of women in the U.S. have an abortion, many Americans have benefitted directly or indirectly from abortion care. I implore readers to emulate previous generations of scientists who changed our understanding of the universe by their willingness to consider seemingly opposite empirical truths:

Particle and wave, abortion providers and ethical physicians, pro-life and pro-choice.

Nope, that last sentence is meaningless with those first three words.

You can see the problem here. Any kind of hypocrisy or doublethink or conflicting tendencies can be rationalized via this fallacy, and not all those tendencies are pretty. Think of a celibate priest who is also a pedophile, someone who crusades against alcoholism while drinking on the sly, a diehard atheist who thinks religion is good for others (the “little people” argument) or even, to evoke Godwin’s Law, of Hitler who was a Christian and loved his dogs.

But there’s not even any hypocrisy in Heuser’s view—at least none that I can see. Ergo she doesn’t need to grope for explanations beyond consequentialist ethnics. By trying to do so, she gives people a rationale for all sorts of bad arguments about reconciling opposite or apparently opposite views.

I admire Dr. Heuser, but Scientific American really should not have published her specious analogy.

Ohio introduces an antiabortion bill similar to that of Texas, but worse: it bans all abortions

November 4, 2021 • 9:15 am

Yes, the states are falling like dominoes: just yesterday Ohio passed an abortion law whose enforcement mechanism is similar to that of Texas, but the restrictions on abortion are even more stringent.  Read the article from The Hill by clicking on the screenshot:

An excerpt:

The bill, called the 2363 Act, which the lawmakers said is the number of children lost to abortion everyday in the U.S., seeks to ban all abortions in Ohio and, like the Texas law, empower “any person” to bring civil action against an individual who performs and abortion or “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.”

Individuals who filed such lawsuits will be permitted to ask for $10,000 or more, according to Cleveland.com.

ADVERTISEMENT

The legislation does not include exceptions for rape or incest, but it would shield abortion patients from being sued by individuals who may have gotten them pregnant through rape or another form of sexual violence.

Well goody goody for that last stipulation!  The difference between Ohio and Texas is not only that generous stipulation, but the declaration of illegality of all abortions (for Texas it’s when there’s a fetal heartbeat—about six weeks after conception).

Can you guess which party introduced the bill? You won’t be wrong? One more excerpt:

“The sanctity of human life, born and preborn, must be preserved in Ohio,” Powell said, according to Cleveland.com. “The 2363 Act is about protecting our fundamental, constitutional right to be born and live. Abortion kills children, scars families, and harms women. We can and must do better.”

Ohio House Minority Leader Emilia Sykes (D) slammed the bill, calling it “an egregious assault on women, a dangerous attack on healthcare rights and an embarrassment for our state,” adding that “Ohio Republicans want to control women, but we won’t be silent.”

“Criminalizing care will disproportionately impact women of color, nonbinary people and those already at a disadvantage in our health and criminal justice system. …Once again, Republicans are showing that the everyday needs of Ohioans are less important than scoring political points, likes and retweets,” Sykes said, according to Cleveland.com.

I wish they hadn’t racialized the bill in this way. I think pro-choice is the right thing to do for everyone, and is not a palliative for racism. It’s like arguing for gun control because guns disproportionately kill people of color. Anyway, if Roe v. Wade is overturned by the Supreme Court, which is at this moment adjudicating the Texas bill, regulation of abortion will be thrown back to the states, and this kind of thing will be passed in many states.  I’m pretty sure that the Supremes won’t allow the “vigilante enforcement” procedure to stand, but without Roe v. Wade Ohio’s bill won’t need it.

You can read the ten-page bill by clicking on its first page below:

Here’s the heartbeat of the bill; note the cribbing from the Declaration of Independence:

And you have four years to bring suit and get your $10,000 reward for incriminating people. Note that the woman who has the abortion herself cannot be sued; it’s an attempt to stop abortion by intimidating abortion providers.

Since the Ohio legislature is majority Republican, and the governor is also Republican, things don’t look good.

Texas makes no bones about its new abortion law, asks Supreme Court to overturn Roe v. Wade

October 22, 2021 • 9:15 am

I received a link to this article in an email from Esquire Magazine, which baffles me because I never read the thing and never asked for alerts. Nevertheless, I read the very short article, in which author Charles P. Pierce shows that the draconian new Texas anti-abortion law is explicitly designed to get the Supreme Court to overturn Roe v. Wade. As you know, that law allows abortion in the first and sometimes second trimester of pregnancy. And you may remember that the case was decided in 1973 by a 7-2 vote on the grounds that the the Due Process Clause of the Fourteenth Amendment confers a “right to privacy” that protects a woman’s choice to have an abortion.

Texas’s law, which protects all fetuses that have a heartbeat, even those resulting from rape and incest, is manifestly unconstitutional (heartbeats start about six weeks in), and yet has been affirmed by appeals courts. (The law also is supposed to be enforced by citizen vigilantes.) It’s now before the Supreme Court, with the Dept. of Justice appealing for the Supremes to strike it down. The Court then asked Texas to answer the DoJ’s filing, which is the subject of Pierce’s column.

You can read his piece by clicking on the screenshot, but also be mindful that there is an antiabortion law from Mississippi scheduled to be heard by the Supremes in December. That case, Dobbs v. Jackson’s Women’s Health Organization, is explained by BallotPedia:

The newly-enacted [Mississippi] law prohibited abortions after the fifteenth week of pregnancy except in cases of medical emergencies or fetal abnormalities. The U.S. district court granted summary judgment in favor of the plaintiffs, holding that the law was unconstitutional, and put a permanent stop to the law’s enforcement. On appeal, the 5th Circuit affirmed the district court’s ruling. Click here to learn more about the case’s background.

This violates Roe v. Wade in prohibiting almost all abortions during the second trimester. If the Supreme Court were to reverse the Fifth Circuit’s affirmation of the district court ruling, then it would be overturning—or at least well on the way to overturning—Roe v. Wade.

Now, about the Texas law:

Pierce quotes from page 49 of Texas’s response to the DoJ, and adds this:

On Thursday, Texas filed its answer to the administration’s request that the Supreme Court block the draconian new Texas anti-choice law. In that answer, toward the end, the kitty comes screeching from the burlap.

The federal government criticized Texas for not “forthrightly . . . asking this Court to revisit its decisions.” Texas has done so now.

Despite the Court’s hope that its decision in Casey would “call[] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” abortion remains a divisive issue. There will always be those who deem abortion “nothing short of an act of violence against innocent human life.” Consequently, there will always be States who seek to protect unborn life through their laws, and there will be those who seek to challenge such laws, unless and until this Court returns the question of abortion to where it belongs—the States.

If the Court decides to construe the federal government’s application as a cert petition, it may also construe this response as a conditional cross-petition on the question whether the Constitution recognizes and protects a right to abortion and whether the Court should reconsider its decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.

Pierce’s interpretation, which isn’t hard to discern, is this:

Texas is saying that if the Court takes up the administration’s case against a Texas law that essentially repeals Roe in practice, it may consider Texas’s response to be a request that the Court repeal its previous decisions on the subject outright. They don’t care about the gender gap anymore. They don’t really see politics that way anymore. Qui audet adipiscitur, goes the saying.

I don’t think that Texas has been this explicit before, but of course we all know that although most Americans favor Roe v. Wade, religionists and Republicans in particular (there’s substantial overlap) want that ruling in the dumpster. Below are the latest Gallup statistics on what Americans feel about the 1973 decision. Only 32% think that Roe v. Wade should be overturned, while nearly twice that (58%) don’t want it overturned.

Now of course the Supreme Court is supposed to rule on Constitutionality, not popular support, but given that the Court previously ruled 7-2 in favor of a right to abortion, overturning the law now would be a severe violation of stare decisis. It will be an interesting year for the Supreme Court, but I’m not optimistic.

New appeal leads to reinstatement of Texas’s restrictive abortion law

October 9, 2021 • 10:15 am

Most of you know about Texas’s restrictive new abortion law, which bans all abortions after a fetal heartbeat is detected—about six weeks into pregnancy. Past that point, abortions are not allowed even in cases of rape or incest.

To add insult to injury (seriously: you have to carry a rapist’s or relative’s baby to term?), the Texas legislature allowed regular citizens to enforce the law, making it harder to declare it unconstitutional (even though it is). Everyone is “deputized” to enforce the law, allowing citizens to sue anybody who aids in an “illegal abortion” (including the Uber driver taking the woman to a clinic) for $10,000.  Finally, the provision makes the law retroactive even if it is blocked, so if it’s “paused,” as it was for a few days this week, legal abortions conducted during that pause can be considered illegal after the law kicks in again, and the providers sued. It’s nefarious, and designed to make it hard to legally block the law.

Nevertheless, after a request from Biden’s Justice Department, the law was blocked on Wednesday by federal judge Robert Pitman, who didn’t pull any punches in his 113-page decision.

“From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their own lives in ways that are protected by the Constitution,” he wrote in his opinion.

“This court will not sanction one more day of this offensive deprivation of such an important right,” he added.

Well, the exercise of that right lasted just two days. A three judge panel in the conservative Fifth Circuit of Texas ruled that Texas’s law would take effect again, although temporarily. Previously illegal abortions started up again (even though clinics could be sued later), but most clinics suspended activity. The panel gave the Justice Department until 5 p.m. Tuesday to respond to Texas’s appeal, but the unanimity and terseness of the ruling suggests that the Firth Circuit will permanently reinstate the law some time after Tuesday. You can see the two-page ruling here, but here’s the gist:

As you know, the U.S. Supreme Court refused to intervene before the law went into effect, a decision that baffles me because, according to present law, Texas’s law was palpably unconstitutional. That may changes as they move toward overturning Roe v. Wade, which I once thought unlikely but now think probable. So, as of now, the women of Texas are forced to obey an unconstitutional law, seeking abortions in other states if they’re past the sixth week of pregnancy.

A quote from the NYT piece:

“The Supreme Court needs to step in and stop this madness,” Nancy Northup, president and chief executive of the Center for Reproductive Rights, said in a statement. “It’s unconscionable that the Fifth Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas.”

But the Supremes have already refused to step in, and, in an upcoming Mississippi case about a similar law, may step in in a way we don’t like.

ACLU admits it screwed up by changing RBG’s words; Michelle Goldberg explains why the changes were misleading

September 28, 2021 • 9:15 am

A week ago I called attention to a tweet by the American Civil Liberties Union (ACLU) that quoted but redacted some words by the late Supreme Court Justice Ruth Bader Ginsburg (RBG). The ACLU made six changes in just one short quote, including an omission. Here’s what they tweeted:

Here are her real words, which according to Michelle Goldberg’s NYT article below, were uttered during RBG’s 1993 Senate confirmation hearings. As usual, RBG didn’t pull any punches!

“The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When the government controls that decision for her, she is being treated as less than a full adult human responsible for her own choices.”

― Ruth Bader Ginsburg

I added this in my post:

There are six changes, five in brackets, getting rid of “woman” and “her” (substituting “persons” and “people” for “woman” and “they” or “their” for three “hers”).  The missing part of the quote, which is “It is a decision she must make for herself”, could have been altered to “It is a decision they must make for themselves,” but that would add two more sets of brackets and make the whole quotation look really weird.

The explanation is simple and obvious; they are removing RBG’s reference to women having babies since the ACLU, whose mission now includes a substantial amount of transgender activism, is onboard with the idea that transmen, who are now given the pronouns “he” and “men”, can have babies. And indeed, transmen have given birth.

The ACLU is heavily into transsexual rights, which is fine since those are civil rights, but they’ve gone overboard on this before (one of their staff attorneys called for the censorship of Abigail Shrier’s book, and did so again by drastically changing RBG’s words. They’re also slowly but surely removing themselves from defending the First Amendment.  Here’s the tweet (now removed) by their chief attorney for transsexual issues:

I’m pretty fed up with the ACLU, though they’re still doing some good work. But back to the RBG redaction. In her op-ed, Michelle Goldberg (click on screenshot below) puts her finger on two reasons why the alteration of RBG’s words was misleading and invidious.

While Goldberg bends over backwards to approve of gender-inclusive language, she criticizes the ACLU’s changes for two reasons. The first one I raised in my post; the second is one that is more likely to be spotted and raised by a woman.

This was a mistake for two reasons, one that’s easy to talk about, and one that’s hard.

The easy one is this: It’s somewhat Orwellian to rewrite historical utterances to conform to modern sensitivities. No one that I’m aware of used gender-neutral language to talk about pregnancy and abortion in 1993; it wasn’t until 2008 that Thomas Beatie became famous as what headlines sometimes called the “First Pregnant Man.” There’s a difference between substituting the phrase “pregnant people” for “pregnant women” now, and pretending that we have always spoken of “pregnant people.”

What’s more difficult to discuss is how making Ginsburg’s words gender-neutral alters their meaning. That requires coming to terms with a contentious shift in how progressives think and talk about sex and reproduction. Changing Ginsburg’s words treats what was once a core feminist insight — that women are oppressed on the basis of their reproductive capacity — as an embarrassing anachronism. The question then becomes: Is it?

Goldberg clearly thinks “no, it’s not an embarrassing anachronism”, but for a reason that some trans-activists might oppose. (Bolding below is mine.)

A gender-inclusive understanding of reproduction is in keeping with the goal of a society free of sex hierarchies. It is one thing to insist that women shouldn’t be relegated to second-class status because they can bear children. It’s perhaps more radical to define sex and gender so that childbearing is no longer women’s exclusive domain.

Yet I think there’s a difference between acknowledging that there are men who have children or need abortions — and expecting the health care system to treat these men with respect — and speaking as if the burden of reproduction does not overwhelmingly fall on women. You can’t change the nature of reality through language alone. Trying to do so can seem, to employ a horribly overused word, like a form of gaslighting.

“One is not born, but rather becomes, a woman,” Simone de Beauvoir wrote. You can interpret this to support the contemporary notion of sex and gender as largely matters of self-identification. Or you can interpret it as many older feminists have, as a statement about how the world molds you into a woman, of how certain biological experiences reveal your place in the social order, and how your identity develops in response to gender’s constraints.

Seen this way, a gender-neutral version of Ginsburg’s quote is unintelligible, because she was talking not about the right of all people to pursue their own reproductive destiny, but about how male control of women’s reproductive lives makes women part of a subordinate class. The erasure of gendered language can feel like an insult, because it takes away the terms generations of feminists used to articulate their predicament.

The way I would answer this myself is that childbearing remains the domain of biological women (i.e., people who, when born, fit into the biological definition of “female”), even if they’ve become transsexual men.  This is what I think Goldberg means by saying, slyly, that “you can’t change the nature of reality through language alone.”

Her real objection, which I’ve put in bold, is that reproduction is but one of women’s “biological experiences” (I suppose menstruation is another, though I don’t see oppression as a “biological experience”) that cannot be had by biological men, and by “women” she means the term as it was used by earlier feminists. By saying that a man can become pregnant, the oppressor then gains membership in the class (“men”) that many feminists saw and still see as oppressors.

Although Goldberg doesn’t say so, the problem is the failure to distinguish between biological men and women on one hand and men and women who identify as members of the other sex on the other. Importantly, to activists, transmen are considered men in every respect, just a stranswomen are considered full woman.

But to Goldberg, “full” neglects history. What really irks her (and I can understand and sympathize with her position), is that biological women can not only be called “men”, but assumed to be men in every respect, including, thinks Goldberg, in their historical position as oppressors of women. (By the way, I don’t think that the ACLU quote “erased” gendered language, which it didn’t, but erased sexed language.)

Goldberg’s contortions to avoid seeming “transphobic”, I think, has obscured her point, which is a semantic one. (Or so I think: I may have misinterpreted her point.)

And regardless, I think that she’s still going to be demonized for writing this column.  But to her (and the ACLU’s) credit, the organization seems to go along with her. She reports:

On Monday, Anthony Romero, executive director of the A.C.L.U., told me he regrets the R.B.G. tweet, and that in the future the organization won’t substantively alter anyone’s quotes. Still, he said, “Having spent time with Justice Ginsburg, I would like to believe that if she were alive today, she would encourage us to evolve our language to encompass a broader vision of gender, identity and sexuality.”

This may very well be the case. It’s also the case that she spoke specifically about women for a reason.

The problem is that the activists who approve of this redaction don’t care about altering history, even “for a reason”.  They just want to make historical language conform to modern norms.

Pastor Warren compares pro-choice views with anti-vaxers ( touts the benefit of religion in helping us making sacrifices for society

September 27, 2021 • 11:30 am

In her weekly New York Times column, Anglican priest Tish Harrison Warren makes two arguments. It’s not as bad as her other columns, as there’s actually some material for thought here, but, as usual, she winds up making bad arguments, and then touting the benefits of believing in God. Click to read:

Warren makes two arguments. The first is to point out what seems like hypocrisy when one considers “pro choice” people who don’t oppose abortion with “anti vaccine” people who object to getting shots. In both cases, says Warren, one is being asked to curtail one’s personal freedom (“my body, my choice”) for the benefit of society as a whole—or so she says. The implication is that this is doublethink:

At a protest against vaccine mandates, a hospital worker told New York’s Livingston County newspaper: “If you want it? Great. If you don’t? Great.” She continued: “Choice is where we stand. If you want it, we’re not against it. That’s your choice.” Those I know who have refused to get vaccinated or wear masks have echoed this same idea. They assure me that they aren’t telling anyone else what to do but that this is a matter of personal choice. They are doing what they think is best for themselves and their families.

“My body, my choice,” the rallying cry of the pro-choice movement, has been adopted by those opposing mask and vaccine mandates. People who are pro-choice have voiced outrage that their phrase is being co-opted, which in turn thrills those on the right who are using it.

In Vogue, Molly Jong-Fast said that the phrase, when used by conservatives who oppose vaccine mandates, shows that “for Republicans, it’s a case of government regulation for thee but not for me.” Of course, critics would accuse her of the same hypocrisy for being pro-choice but also favoring vaccine mandates.

What’s useful here is the inspiration to think about her premise: how far must we curtail our freedoms to help society What’s not useful—and she does say that “the complexities of abortion and Covid prevention are different”—is that the situations are not at all comparable in the nature of the “freedoms” curtailed. Unmasked and unvaccnated, you might be endangering strangers you come in contact with, and the masking will last only the duration of the pandemic. Shots are even less onerous, and protect more people than do masks.

Pregnant, you do not endanger society as a whole—unless, and this may be true of Warren—one thinks an abortion is committing murder. Further, you are bringing an unwanted child into the world who will require years of care, as reader Mike pointed out yesterday.

I’m pretty much in favor of unrestricted abortions, as I don’t see it as the equivalent of murder. Further, I also favor the termination of the lives of already-born infants who have invariably fatal conditions like anencephaly and will suffer horribly until the inevitable end. (Peter Singer has been demonized for holding this view.)

But you can think on your own about whether there is any “hypocrisy” in favoring vaccine mandates and also being pro-choice. It is food for thought.

The other argument is that only Christianity (she singles it out, but would probably add “religion in general”) gives us a moral basis for making self-sacrifice for the good of society.

Christian ethics call people to ideas of freedom that are not primarily understood as the absence of restraint, but instead as the ability to live well, justly and righteously. In Galatians, after an extended meditation on liberation, Paul says: “You, my brothers and sisters, were called to be free. But do not use your freedom to indulge the flesh; rather, serve one another humbly in love.For the entire law is fulfilled in keeping this one command: ‘Love your neighbor as yourself.’” Freedom, for him, had a purpose and end, a “telos.” We are freed not to do whatever we feel is best for us individually, but instead to love our neighbors.

. . . .Over the past year as we’ve asked people to go into lockdown, cancel their travel plans or family gatherings, close or curtail their retail businesses, wear masks and get vaccinated, we are asking them to assume some level of financial and personal risk for the greater good — for strangers, for the elderly, for the immunocompromised, for the medical community. We can and should enact legislation like paid family leave, no-cost health care and other measures to support mothers, just as we support economic relief for those affected by Covid prevention. But we cannot deny that even if we seek to lessen the load, we are asking people to bear a burden.

How do you call a society committed to personal freedom and happiness to bear the burdens of others? Most of us intuitively grasp that there’s more to life than living for oneself and one’s own happiness or comfort. But we lack a positive vision for the purpose of individual liberty.

Thomas Aquinas, a medieval Catholic theologian, gave us the gorgeous and helpful phrase “arduous good.”

. . . . Consumer capitalism is not going to teach us about how to pursue arduous goods, nor is technological progress, nor is either American political party. Theoretically, religious communities are places that train us toward ends other than individual autonomy. They point us to something bigger and higher than ourselves, calling us to love God and our neighbors. However, this is unfortunately not always the case. Many religious communities have lost their ability to articulate an alternative to the sovereignty of personal choice and individual autonomy.

. . . But as a culture, we desperately need religious communities that do not parrot the predictable ethical arguments of the right or the left. We need a rooted and robust call to love our neighbors, our families and the marginalized, the needy, the weak and the afflicted among us.

But the arguments she makes apply to secular humanism even more than to Christianity. After all, it is conservative Christians who “parrot the predictable ethical arguments of the Right” against abortion because it’s seen as murder, usually because the fetus is ensouled.  Secular humanists have a diversity of views on abortion, and often considered ones. They don’t need the buttressing of ancient scripture and authority to arrive at a position.

As for “a rooted and robust call to love our neighbors, our families, and the marginalized, the needy, the weak, and the afflicted among us,” what about that comes from religion? Was it Christianity that gave us income taxes, Medicare, Medicaid, Social Security, and the other institutionalized forms of our sacrifices for those needier than we?  And wasn’t it Jesus who said this (Luke 14:25-27)?:

25 Many people were traveling with Jesus. He said to them, 26 “If you come to me but will not leave your family, you cannot be my follower. You must love me more than your father, mother, wife, children, brothers, and sisters—even more than your own life! 27 Whoever will not carry the cross that is given to them when they follow me cannot be my follower.

But let me admit that yes, studies have shown that Christians give more to charity than do nonbelievers. What I don’t know is whether how much of Christian charity goes to tithes or Christian organizations.  And countering that, let me say once again that the countries of Northern Europe, particularly in Scandinavia, are largely atheistic societies whose members give much more per capita to help their societies than do Americans. That’s one reason taxes are so high, and why state does what private organizations must take over in America.

No, what we don’t need is more love of God to spur us on to be more socially conscious. We need governments like those of Denmark and Sweden.

I wonder how longer the NYT will allow Warren to continue spoon-feeding us pabulum. At least she has a bit of a point in this week’s column. But surely there are pastors or theologians out there who can give us more food for thought, even if they’re victims of the God Delusion.