Thursday, September 26, 2013

Fights over medical abortion

The newest front in the legislative war over abortion access is the regulation of "medical abortion" performed in the first eight weeks or so of pregnancy.

Pro-life activists express many concerns about medical abortion (questions about its safety, for example). Their true cause for alarm is that medical abortion allows for abortions to occur outside of the clinic structure-- the abortion experience occurs largely at home, and, in some states, family planning doctors are prescribing the drugs remotely (through a kind of Skype-like arrangement).

Anti-abortion legislatures have been achieving a measure of success against clinics by passing TRAP laws. In other words, legislatures are restricting abortion access by regulating clinics out of business. Medical abortion rewrites the rules because it allows abortions to be decentralized and privatized, so a pillar of recent American pro-life strategy will be severely undermined with its proliferation.

Michelle Goldberg and Emily Bazelton have written excellent analyses of anti-abortion laws aimed at stopping this new trend. Note that the U.S. Supreme Court will be hearing a case this term on a medical abortion law in Oklahoma.


Article in Slate by Emily Bazelton (September 10, 2013): The Cleverest New Anti-Abortion Law

Article in The Daily Beast by Michelle Goldberg (September 9, 2013): The Triumph of Bureaucracy Over Abortion Rights

Article in The Guardian (July 15, 2013): North Dakota law banning medical abortion struck down

Friday, August 30, 2013

Squishy fetus dolls

Where do you stand on the Great Squishy Fetus Doll Debate of 2013?

This is not one of the most important issues out there, but it is interesting.

I recommend all of the linked sources below, if nothing else for the great titles, word choices, and, well, odd pictures of squishy fetus dolls.


Article in The Huffington Post (July 26, 2013): Fetus Dolls Are a Thing, Were Given to Kids by Anti-Abortion Group at North Dakota State Fair

Blog post by Rob Port on SayAnythingBlog (July 21, 2013): Dear Pro-Lifers: Can You Stop Being a Bunch of Weirdos? 

Article in Jezebel (July 24, 2013): Worst State Fair Ever Has Squishy Fetus Toys for Unsuspecting Kids

Page at Heritage House (aka Target for pro-life merchandise) for "The Precious One" 10-12 week fetal model

A second page at the Heritage House web site, at which pro-life activist Abby Johnson explains how fetal models help her with her "sidewalk counseling" work

Thursday, August 29, 2013

The decline in abortion clinics

As one might suspect, there has been a rather dramatic decline in the number of abortion clinics nationwide in the past few years.

Pro-life activists attribute this decline to three things (the first two, I think, having a real and concrete impact):
  1. State legislatures passing "TRAP" laws (targeted regulation of abortion providers) that require unnecessary and expensive changes to abortion clinics, which the clinics cannot afford. TRAP laws also sometimes require clinic doctors to have admitting privileges at a local hospital, which local hospitals refuse to provide. 
  2. State legislatures "defunding" family planning clinics (that also perform abortions) by passing laws ensuring that no state money goes to places that perform abortions. 
  3. Prayer vigils and other forms of direct action at clinics themselves, like the 40 Days for Life campaign. 
Because abortion services in the United States are so heavily dependent on the clinic system, attacking clinics legally and financially is a sound strategy for making abortion effectively illegal in the United States.

The clinic system in the United States exists largely because of increased demand from women for legal and safe abortion access after Roe v. Wade and Dow v. Bolton were decided in 1973. At that time, hospitals were seen as lacking the capacity and will to handle increased demand for abortion; in addition, many hospitals in the pre-Roe and Doe era had cumbersome approval procedures. Individual OB/GYNs have been performing abortions as part of their private practices (legally and illegally) for a long time, but were not seen as possessing sufficient capacity. In addition, at least in the ones run by feminists, clinics focused specifically on reproductive health were to provide abortions and information about it in an enlightened and sensitive way.

In order for access to abortion services to be maintained or increased, one or more things has to happen:
  1. TRAP laws must be declared unconstitutional under the doctrine of the "undue burden" of Casey v. Planned Parenthood. Everyone is aware of the true motivation of TRAP laws, which is to shut down clinics without attacking the right of abortion directly. 
  2. Abortion services must be offered in non-clinic settings, such as private OB/GYN practices or hospitals. This would be difficult to do, for a host of reasons (that can be the topic of a separate post). That being noted, embedding abortion services within a larger network of other medical services and providers would make TRAP laws and defunding efforts almost impossible. 
  3. Early-stage abortion (which comprises 85-90% of all abortions in the U.S.) can be provided through medical abortion (i.e., abortion caused by taking one or more drugs). Medical abortion could be provided by private OB/GYNs, or by existing clinics but remotely (the drugs are provided locally after a video conference with a consulting physician, who could be several hundred miles away). Note that pro-life activists, alarmed over the access benefits of medical abortion, have been legislating against it as well. 

Article in The Huffington Post (August 26, 2013): Anti-Abortion Laws Take Dramatic Toll on Clinics Nationwide

Feature on RH Reality Check that contains documents from state agencies describing how the state currently regulates abortion providers: State of Abortion

Article in The Daily Beast (January 22, 2013): The Geography of Abortion Access

Monday, August 26, 2013

Surgery to restore sexual pleasure after female circumcision

There was a fascinating article in The Guardian over the weekend about a surgeon who performs surgery to help restore genital (in particular, clitoral) sexual sensation to women who have undergone female circumcision.

The article as a whole is definitely worth reading. The first part of the article is a bit too focused on the background of the people organizing and offering the surgery: the doctor who performs the surgery is transsexual and the activist who has organized the service is a member of a goofy religious sect called the Raelians.

It would be hard for any journalist to ignore the background of the people offering the service-- it is just interesting, if nothing else-- and the author of the article has a legitimate concern about the surgery service being a front for evangelization (she concludes it is not). But the author seems to go out of her way to heap disdain on the Raelians, perhaps to ensure the reader that the article is not a product of her being duped by a 'cult.' There is nothing wrong with despising the Raelians-- it is just not relevant to the heart of the story, which is the patients themselves and their struggle to have functional sex lives and a healthy self-image regarding their bodies.

The article also does a great job of conveying how female circumcision is not just about the physical alteration of women's genitals. The physical change of circumcision reifies and reenforces a host of social and mental constructs about women and their relationship to sexual pleasure, their power within marital and sexual relationships, and their role in the community. As with almost any body modification, successful surgery is only the first step in a long process of mental reevaluation and readjustment.


Article in The Guardian (August 24, 2013): High hopes: the UFO cult 'restoring' the victims of female genital mutilation

Friday, August 23, 2013

How many countries allow for abortion after 20 weeks?

Many, but it depends.

The fact check site PolitiFact did a nice job analyzing the question and, in doing so, providing a clear summary of the major differences between abortion laws among countries.

Politicians love to use a certain rhetorical technique when conveying information: They make a statement that draws a narrow frame around just the set of facts that they want the listener to hear.

In this case, Carly Fiorina (former CEO and Republican candidate for U.S. Senate) asserted that only four countries in the world "legalize abortion after five months" (about 20 weeks), including the United States. Two of those countries have 'bad' governments-- North Korea and China-- and the other is our 'socialist' neighbor to the north, Canada. If you want to get people fired up over a government policy, comparing us to China and North Korea is the way to do it. (People on the left tend to do the same thing, just on different issues.)

At any rate, is Fiorina's statement true? Half-true, says PolitiFact:
Fiorina said only four countries allow legal abortions five months into the gestational period. The United States, Canada, North Korea and China do fit that measure, but Singapore and the Netherlands, which Fiorina left off her list, do as well. Far more countries permit abortions in certain circumstances in which the pregnancy would damage the woman’s well-being, be it physical, mental or economic. Fiorina’s claim is based in fact but misses the mark, so we rate it Half True.
Ironically, Fiorina's statement is half-true precisely because of a phenomenon that pro-life politicians and activists love to point out: Exceptions to abortion laws, as enforced, can be tantamount to legalization.

In the six countries in which abortions after 20 weeks are "legal," there is no prohibition against abortions until a later stage in gestation. In dozens of other countries, abortion after 20 weeks (or 12 weeks or some other point) is generally illegal but there are exceptions to the general prohibition.

Regarding exceptions:
  1. An exception can be written in a way that allows for a wide range of behavior. Put another way, if an exception is written too broadly, it can swallow the rule. American abortion opponents make this point about American abortion law-- that the "life or health" exception in Roe and Casey is so broad that it essentially allows for women to obtain abortions for almost any vague "health" reason up to the point of birth. This is why almost all pro-life legislative proposals contain only an exception directed to clinically diagnosable physical threats to a pregnant woman's life or health (not vague mental or socioeconomic "health" reasons). 
  2. An exception can be enforced in a way that essentially translates into legalization in practice. 
Given that American pro-lifers constantly make this point about abortion laws and their exceptions, it is disingenuous for someone like Fiorina to assert that only four countries in the world "legalize" abortion after 20 weeks. 


Analysis in PolitiFact (August 18, 2013): "There are only four countries in the world that . . . legalize abortion after five months-- China, North Korea, Canada, and the U.S."

For more explanation and analysis of how abortion exceptions work in practice, see this earlier post of mine.

The Center for Reproductive Rights categorizes the abortion laws of all countries in this one-page fact sheet: The World's Abortion Laws Map 2013 Update

Thursday, August 22, 2013

Proposed virginity tests in Indonesia

From The Guardian:
A plan to make female high school students undergo mandatory virginity tests has been met with outrage from activists, who argue that it discriminates against women and violates their human rights.
Education chief Muhammad Rasyid, of Prabumulih district in south Sumatra put forward the idea, describing it as "an accurate way to protect children from prostitution and free sex". He said he would use the city budget to begin tests early next year if MPs approved the proposal.
"This is for their own good," Rasyid said. "Every woman has the right to virginity … we expect students not to commit negative acts."
The test would require female senior school students aged 16 to 19 to have their hymen examined every year until graduation. Boys, however, would undergo no investigation into whether they had had sex.
It always fascinates me how the terms of the debate over various sexual and reproductive issues are so different from country to country.

The opponents of the virginity tests (in Indonesia) seem to rely on one basic argument against the law, which is that some young women might have broken hymens due to sexual assault or for other non-consensual reasons. The test for 'sexual purity,' in other words, might render a false positive.

Note what is not being questioned:
  1. Female virginity is really important and losing it before marriage is shameful.
  2. The state has a legitimate interest in policing female virginity.
  3. Forcibly subjecting a young woman to a hymen check is not per se illegitimate. (UPDATE: The "deputy head of the national commission on violence against women" condemned the proposal on human rights grounds.)

Article in The Guardian (August 21, 2013): Female students in Indonesia may be forced to undergo 'virginity tests' 

Article in Al Jazeera (August 22, 2013) that reports on international reaction to the virginity test proposal: Netizens denounce Indonesia 'virginity tests' plan

Wednesday, August 14, 2013

Sarah Terzo and the challenge of being a pro-life atheist

If you missed it, I recommend you read Sarah Terzo's cri de coeur about the frustration she faces as someone who is a pro-life atheist. Her experiences confirm that the American pro-life movement is overwhelmingly Christian in orientation. While many non-Christians, atheists, or agnostics likely self-identify as pro-life, my impression is that the activists largely approach reproductive politics as an outgrowth of their Christian faith and theology.

Ms. Terzo publishes an absorbing blog, ClinicQuotes, that focuses on the stories and statements of people who have changed from being pro-choice to pro-life. As far as I can tell, her body of work and her methods of activism betray nothing that would make her undesirable as a pro-life ally.

Recently Ms. Terzo contacted several 'crisis pregnancy centers' to ask if they would let an atheist volunteer at their center, and they were pretty clear in rejecting her offer of help. I get the impression that she was doing this to confirm what she already knew and had experienced.

Interestingly, Ms. Terzo is a regular contributor to Live Action News, which is the online news site for Live Action (the famous-infamous organization run by Lila Rose that produces creatively-edited 'sting' documentaries about abortion clinics). By publishing Ms. Terzo's column, they have shown a catholicity that other pro-life activists have not.


Op-ed in Live Action News (August 1, 2013): On being a pro-life atheist

Sarah Terzo's ClinicQuotes blog

Homepage for Secular Pro-Life, a group for non-Christian pro-life activists. Their web site is worth its own look (if nothing else, to see how their policy vision differs from, say, the policy vision of the Catholic Church)

Tuesday, August 13, 2013

How to increase the German population

The New York Times published a story that illustrates the trickiness of managing population growth or, in the case of Germany, decline.

Germany's birthrate is well below replacement rate. Still, they are wealthy and, unlike the United States, for example, willing to spend money to help families with day care and enact policies to encourage couples to have children (like legislated family leave). It is not working:
So far, though, even while spending $265 billion a year on family subsidies, Germany has proved only how hard it can be. That is in part because the solution lies in remaking values, customs and attitudes in a country that has a troubled history with accepting immigrants and where working women with children are still tagged with the label “raven mothers,” implying neglectfulness.
If Germany is to avoid a major labor shortage, experts say, it will have to find ways to keep older workers in their jobs, after decades of pushing them toward early retirement, and it will have to attract immigrants and make them feel welcome enough to make a life here. It will also need to get more women into the work force while at the same time encouraging them to have more children, a difficult change for a country that has long glorified stay-at-home mothers.
Now, a cultural conservative might say that the cultural change that needs to take place in Germany is that women and men should accept traditional gender roles so that more women would choose to stay out of the paid workforce and devote themselves to having larger families.

The article implicitly rejects that possibility, likely on gender equity grounds: Women should have the same career choices as men. Another reason may be the math of getting to a larger workforce: A two-gender workforce doubles the size of the labor pool.

Note that what the article does not question, or only obliquely, is whether men should bear equal responsibility for raising children. When women are in the paid workforce but bear a larger responsibility for raising a couple's children, the 'work vs. family' dilemma is more acute, and may factor into a woman's calculus regarding how many children to have, or whether to have children at all.

So while the author of the article notes some important cultural changes that need to take place, it misses one.


Article in The New York Times (August 13, 2013): Germany Fights Population Drop

Saturday, August 10, 2013

Choosing to not have children in America

Should we be worried that some Americans and British couples are choosing to go through life without kids?

Kathleen Parker, writing in The Washington Post, surveys a bunch of articles and news stories and sees a cultural trend of foregoing parenthood to live a life of high disposable income, full nights of sleep, and  worry-free adulthood.

It is, overall, a really great column and worth reading in full, and I agree with her primary thesis, which is that parenthood can be a pain (in the neck, rear end, and in other places and ways), but is worth it:
Mysteriously, the inevitable pain, suffering and sacrifice of parenthood are also part of that joy. What is a rose without thorns? Life without death is imponderably meaningless. I would argue that without death, there would be no love.
Indeed, what makes parenthood so relentlessly amazing — both the beauty and the beast of it — is the possibility of losing the thing you love more than your own heartbeat. Putting someone else’s interests above one’s own is the alpha and omega of parenthood.
The love and joy that (relatively unselfish and relatively mature) parents experience is of a piece with an acquired taste for the ironic, absurd, astringent, salty, and bitter-- the shift from enjoying cotton candy to dark chocolate, hot chocolate to espresso, pop to jazz, Barney to Robert Frost.

(Having written that, I wonder if children in earlier eras-- seen essentially as miniature adults-- were socialized earlier for the complex palate of life by their stories, poems, and songs. Consider the original Grimm's Fairy Tales. The vapid and cloying sweetness of contemporary kids' culture is an artifact of culturally seeing kids as kids and also a consumer market that focuses on products for kids specifically.)

A couple of counter notes, however:

First, I agree that debating over whether to have kids or use more of one's time and disposable income for self-pleasure is a "first-world problem," but not just because first-world citizens lead lives of relative luxury. It is also a "first-world problem" because women and men in the first world have better access to effective contraception (although not enough for my taste), and cultural views of women are advanced enough (although not enough for my taste) that women are actually seen as having a "choice" whether to have kids, rather than this being a non-question. These are problems everyone in the world should have.

Second, Parker assumes or concludes that the primary reason couples are choosing to be child-free is because of a shift in the culture toward selfish choices: "The pleasure principle seems to be gaining on the procreative principle." That could certainly be part of the calculus, but there are so many other factors that influence birthrates in the U.S. and other first-world countries. There are heavily Catholic first-world countries where gender roles are still lived in more traditional ways-- Italy, for example-- where the birth rate is lower than in the United States and the UK.

I don't have a problem with selling parenthood, but effective and affordable family planning resources, a culture that promotes equitable responsibility within parenthood, government and industry policies that do not punish couples (women, in particular) for having children, and an economy that wouldn't require couples to spend so much of their time and effort making ends meet-- these things would help people to choose parenthood, too.


Column by Kathleen Parker, published in The Washington Post (August 9, 2013): Of pleasure and parenthood

Robert Frost's "To Earthward" is one of the best descriptions of how one's experience of pleasure and joy changes over time. "Now no joy but lacks salt . . ."

Thursday, August 8, 2013

Teen girls are not getting the HPV vaccine

Why not? Doctors are not talking to their patients about it.

As reported by The New York Times, the Centers for Disease Control (CDC) has concluded the following:
The very low vaccination rate for teenage girls against the human papillomavirus — the most common sexually transmitted infection and a principal cause of cervical cancer — did not improve at all from 2011 to 2012, and health officials on Thursday said a survey found that doctors were often failing to bring it up or recommend it when girls came in for other reasons.
Only 33 percent of teenage girls had finished the required three doses of the vaccine in 2012, officials said, putting the United States close to the bottom of developed countries in coverage.
Dr. Thomas R. Frieden, head of the Centers for Disease Control and Prevention, said on a call with reporters that coverage for girls “has not increased at all from one year to the next. Zero.” Coverage rates for new vaccines typically increase by about 10 percentage points a year, he said.
It is interesting that doctors themselves could be the problem. In the past few years, debates over giving young adults the HPV vaccine revolved around possible parent resistance. The idea was that parents would resist having their tween/teenage daughter vaccinated because it implies permission for her to have sex (because she won't get the virus unless she is sexually active).

So why are doctors as a whole failing to discuss the HPV vaccine sufficiently? Three guesses:
  1. Even if parent attitudes about the giving the vaccine to girls and boys at a young age have improved, doctors might not know that. Doctors may sense-- correctly or not-- that this is controversial and don't want to appear to be 'pushing something' on their patients. 
  2. Doctors might sense the big push for the HPV vaccine as driven by pharmaceutical business interests as much as real necessity-- that this is a lucrative solution to a ginned-up problem. Every single doctor I have talked to in the last five years is highly sensitive to health care politics, and their attitudes, tempered in the fires of experience, generally run toward the skeptical-to-cynical end of the spectrum. So it could be that many doctors are hanging back on having their own patients vaccinated until some time has passed and the HPV vaccine is seen as less cutting edge and more part of the conventional wisdom in patient care. 
  3. There could be a class and cultural presupposition by many family doctors that their patients' children are not the 'kind of kids' who are likely to be sexually active in their early teens, so the need for this group of kids to be vaccinated early is relatively low. "This discussion can wait until they are older"-- which might not happen, as the NYT article indicates, because older teens are more autonomous and less likely to go through the three-shot treatment as they would when they more under the thumb of a parent at a younger age.
Clearly, a follow-up survey focusing on doctors' attitudes needs to be done to figure out what is going on.


Article in The New York Times (July 26, 2013): HPV Vaccine Not Reaching Enough Girls, CDC Says

Centers for Disease Control (CDC) survey (July 26, 2013), published in Morbidity and Morality Weekly Report (MMWR), vol. 62, no. 29, p. 591: Human Papillomavirus Vaccination Coverage Among Adolescent Girls, 2007-2012, and Postlicensure Vaccine Safety Monitoring, 2006-2013-- United States

Wednesday, August 7, 2013

Ariel Castro and addiction to pornography

In the wake of Ariel Castro being sentenced to prison for the next millennium (literally), James D. Conley (an American Roman Catholic bishop) wrote a column of the "what does this represent about the culture" variety in First Things. 

Conley's thesis:
Pornographic addiction is powerful, destructive, and all too typical. Ariel Castro’s addiction is no excuse for his actions, but it points to a deep and sobering reality: Free, anonymous, and ubiquitous access to pornography is quietly transforming American men and American culture.
Are Ariel Castro's crimes the direct or indirect result of contemporary American porn culture? Readers posting in the First Things "comments" section raised a lot of thoughtful and pertinent objections to Conley's analysis. I summarize here and add my own thoughts:
  1. Are incidents of sexual assault in fact on the rise, and, if so, in a way that correlates with a rise on the use of pornography? Is it possible that incidents of reported sexual assaults are on the rise (as opposed to the absolute number of sexual assaults), because law enforcement officials and the public have started to turn away from a 'blame the victim' mentality and institutional support for victims of sexual assault has improved?
  2. Should we take the assertions of a sociopath at face value? Isn't it rather self-serving for Ariel Castro, like Ted Bundy before him, to blame what he did on pornography?
  3. There is no evidence that addiction to pornography, let alone heavy pornography use, prompts people to commit sexual assault. Sexual assault by men against women has been endemic in human history, before the advent of easy-access Internet porn-- just under-reported, explained away, or justified through a blame-the-victim culture. If addiction to porn prompted criminal behavior of the Ariel Castro variety, wouldn't we be hearing more about it? I don't believe professionals who counsel people with addiction to pornography have issued warnings about criminal tendencies spawned by such an addiction. 
  4. Is it possible that the causal arrow is the other way? That people who have the desire to commit rape consume pornography because it stokes their desires or fantasies? Put another way, is it possible that use of pornography could be an effect of a person's attitudes towards other people rather than a cause of those attitudes? 
  5. Sexual assault and changes in its prevalence over time, if any, are likely not related to a single and easily identifiable variable. So the fact that, in this particular case, Castro claimed or admitted to a pornography addiction does not mean that it is the primary variable affecting his behavior.
  6. I don't recall an addiction to pornography being raised in connection with any other recent perpetrators of kidnap-and-enslave-type crimes (Elizabeth Smart's kidnappers, for example). If addiction to pornography is likely to lead to this type of crime, then why do we have only this one case from which to draw a connection? 
Conley's column reveals more about his worldview and that of his intended audience than it does the criminology of rapists who consume pornography. His thesis fits in with the view that sex unbound from married, procreative-centered love is harmful and dangerous and results in the objectification of other people, which (Conley suggests) is a prerequisite for one person to desire the sexual assault of another. Pornography, according to this view, is one facet of a broader deadening of the subjective connections between human beings that are necessary for civilization. The danger pornography presents to society is of a piece with the dangers of contraceptive-based sex, premarital sex, and the right of abortion.

There are, of course, many alternative views of pornography and its social impact. One is that pornography is not harmful per se. Instead, much of pornography socializes young men to objectify women and degrade them because the pornography reflects and reveals traditional gendered attitudes about women-- that their primary value is as vessels for the sexual gratification of men and vessels for child-bearning and child-rearing. 

From this perspective, then, the problem with the bulk of pornography is not that sexual relations are insufficiently bounded, traditional, and hidden. The problem is that a lot of pornography reflects-- and amplifies-- traditional views of women as inferior to men. 

Therefore, the solution to the pornography 'problem' is not to suppress the medium or put sex back in the box of tradition but to socialize young men (in particular) to see women as fully equal creatures who are ends in themselves rather than mere means to achieving a sexual or social goal.

Arial Castro is simply not relevant to the issue. He is only representative of his own depravity. 


Column in First Things by James D. Conley, STL (August 6, 2013): Ariel Castro's Addiction

Tuesday, August 6, 2013

Catholic institutions already survive under contraceptive mandates

Many times when I am writing one of these blog posts-- or just watching the news or discussing it with my students-- I wonder, "Why isn't X being made more of? Why can't people see how important X is?"

I wonder that a lot when it comes to religious opposition to the ACA "contraceptive mandate." In the face of the many accommodations made by the Obama administration and the HHS, I find the objections of the Catholic Church and other organizations (like Hobby Lobby) to be specious. (To review my various musings on these things, click on the "ACA" label, below.)

Encountering a specious argument in politics is, by itself, nothing to get worked up about. That would be like objecting to french fries because they have potatoes in them. What is galling in the case of the contraceptive mandate is to assert that it's a fundamentally intolerable threat to the conscience rights of Christians and represents sign-of-the-apocolpyse changes in the American constitutional system.

Baloney. As I (and many others) have discussed before, with the HHS accommodations in place, there is just no distinct, direct, or sufficient financial or decision-making connection between religious employers and and their employees regarding contraception, such that an employer would reasonably feel that he or she has "provided" employees with contraceptives.

That's the specious argument part. The galling part is the fact that so many Catholic-affiliated organizations have, for years, already been "providing" contraceptives to their employees through health plans under several state mandates-- including the Archdiocese of New York, headed by Cardinal Timothy Dolan, the president of the U.S. Conference of Catholic Bishops (USCCB).

If the conscience rights of believers are going to be intolerably burdened by contraceptive mandates, why hasn't the world already ended? How is that Catholic institutions are already living with state-level mandates?

When presented with the fact that Catholic employers have been "providing" contraceptive services already, the response of mandate opponents has been a) well, we couldn't figure out a way to avoid it, and b) just because we are putting up with it does not mean that we like it-- we still see it as a violation of our religious beliefs.

Fair enough, but it gives the lie to the assertion that this cannot stand-- apparently, Catholic employers are not required, in order to have a clear conscience, to shut down their charitable work entirely or only serve a Catholic population to ensure that they fall outside the mandate's scope (as has been threatened by mandate opponents in the Church).

In short, the stakes are not as high as advertised, which might come as a shock to American Catholics, who are getting the official message that this is some kind of existential threat.

(Non-Catholic opponents of the mandate, like the owners of Hobby Lobby, have their own set of objections, but, for them, I would simply go back to the specious argument that they, through their corporate form, are actually linked to their employees making the free choice to receive free contraceptives from a third-party insurance company.)

Over the years, the Obama administration has shown a curious incompetence or unwillingness to sell its programs vigorously on the best rhetorical grounds. If I were a member of the administration I would be selling the American public hard on the fact that religious organizations in many states already "provide" free contraceptive services to their employees and the world has not come to an end.


Article in The New York Times (May 26, 2013): Archdiocese Pays for Health Plan That Covers Birth Control

Article in The New York Times (February 10, 2012): N.Y. Law on Contraceptives Already in Place, and Catholic Institutions Comply 

Guttmacher Institute State Policies in Brief fact sheet (August 1, 2013): Insurance Coverage of Contraceptives

Final rule for the implementation of the contraceptive mandate (July 2, 2013): Coverage of Certain Preventative Services Under the Affordable Care Act, Federal Register, Vol. 78, No. 127, p. 39870

Recent article in The Hoya (July 18, 2013) reporting that Georgetown University will comply with the new HHS rules: Georgetown Insurance to Cover Contraception

Recent article in America (July 9, 2013), reporting that the Catholic Health Association (CHA) has decided to accept the HHS accommodations, in a split with the USCCB: CHA Accepts Contraception 'Accommodation'

Article in Mother Jones (February 24, 2012), which has a link to a document created by the National Women's Law Center listing Catholic organizations that provide some range of contraceptive coverage: Which Catholic Institutions Cover Birth Control? 

U.S. Conference of Catholic Bishops (USCCB) statement (July 3, 2013) rejecting the HHS final rule on accommodating religious organizations

For the perspective of the major non-Catholic organization fighting the contraceptive mandate, see the Becket Fund for Religious Liberty's HHS Mandate Information Central

Monday, August 5, 2013

The decision to let a premature baby live

The New York Times published a thoughtful op-ed by doctor who works with severely premature babies. She raises the tricky ethical question of whether and when parents and their doctor should fight to save a severely premature baby. The column is an antidote, to an extent, to the simple "always save every baby, no matter what" thinking about children who are born severely premature (those hovering right at the edges of fetal viability).

The author, Dr. April R. Dworetz, suggests that doctors need to do a better job helping parents understand the consequences of engaging in heroic measures to perpetuate the life of some children. She also suggests, in some cases, a bit more:
Sometimes, I think we doctors need to do more than inform. On occasion, I’ve offered to make a life-or-death decision for parents. If they agree, they are essentially making the decision, but are shifting the burden to me. It’s harder for parents to say, “I unplugged my baby,” than to let the doctor do it.

Op-ed in The New York Times (August 4, 2013): End of Life, at Birth

Sunday, August 4, 2013

Are American abortion extremists really extreme?

Salon reporter and analyst Katie McDonough wrote a short and interesting article listing what she labeled the top five "extreme lawmakers behind some of the most draconian reproductive rights restrictions grabbing headlines in recent months."

In 2013, all the glory goes to legislators in states that have been in the vanguard of piecemeal assaults on abortion rights: Texas, Arkansas, North Dakota, Alabama, and Arizona.

If one is pro-life, the article naturally has little appeal or value. If one is pro-choice and/or an interested observer of the culture wars, then the article has a "can you believe these crazies?" kind of appeal.

I am not taking the article too seriously-- it is what it is. Still, Ms. McDonough raises an interesting question. Are what we consider "extremists" in the United States all that extreme? More to the point, how does one define extremeness, and on what scale?

One could measure the extremeness of legislators in two ways:
  1. The content of their legislative proposals
  2. Their stated or inferred thinking about abortion, women's rights, etc. 
One could further examine the content of their legislative proposals from three perspectives:
  1. How much the legislative proposals vary from current American laws as permitted under Roe and Casey
  2. How restrictive the legislative proposals are relative to other "peer" countries, Europe, for example
  3. How sneaky and outrageous the legislation is in attempting to undermine Roe and Casey without directly attacking them (TRAP laws, vaginal ultrasounds, medically inaccurate lectures from doctors, etc.)
Taking a look at the content of the legislation supported by the 'top five,' they are actually not all that extreme when measured
  1. against legal regimes in other countries, and 
  2. against American public opinion.
Their endgame might be to have a legal regime like Ireland pre-2013 (no abortions permitted at all) or Texas circa 1972 (no abortions except when the pregnancy is physically life-threatening). What they are actually and currently proposing, however, would not look unusual in a range of European countries

Regarding American public opinion, their legislation-- Arkansas', for example, which I discussed in an earlier post-- or 20-week abortion bans, is not far off the mark. Where pro-life legislation does miss the mark is with proposals to give fetuses "personhood" from the moment of conception, and with laws that would restrict abortions generally before 12 weeks, so I agree with McDonough there. 

Really, these legislators are seen as "extreme" because, from a pro-choice perspective, they come off as somewhat batty and anti-feminist and anti-science and too religious-- and appearance certainly could mirror reality. Their underlying ideology, as represented by poorly formulated public statements, is largely out of step with American public opinion. Pro-life legislators do not get themselves in trouble because of their proposals, per se. Instead, it is their boneheaded and anti-feminist statements about rape, medically necessary abortions, and appropriate gender roles for men and women that get people worked up. 

Furthermore, the anti-abortion legislators listed by McDonough are brazen in their legislative attempts to undermine, bit by bit, the current legal regime in Roe and Casey. McDonough does not mention what I think are the worst forms of anti-abortion legislation (including a law sponsored by one of her 'top five'), which are the TRAP laws that aim to shut down abortion clinics that safely offer access to constitutionally protected abortion procedures and valuable family planning services. These make all abortions illegal in effect and are thus outside mainstream American opinion and the legal regimes of most peer countries. 


Article in Salon (July 29, 2013): 5 of the most extreme anti-abortion lawmakers in the U.S. 

A web site providing useful information about abortion laws in Western Europe and where and how one can access abortion services: Abortion Clinics in Europe

Friday, August 2, 2013

Fetal pain and 20-week abortion bans

The New York Times has been doing some great reporting on reproductive politics lately. There is a lot of material to work with (!) but the paper has been great at getting behind the surface of events and providing context and analysis.

Speaking of which: The NYT published a story today on the pro-life push to use the theory that fetuses feel pain before the point of viability to drive legislative bans on abortions at 20 weeks and beyond.

What is accomplished by a 20 week ban based on the theory of fetal pain?
  1. This kind of ban largely meshes with public opinion. While these bans tend to not allow abortions that threaten the "health" of the pregnant woman, they do allow for abortions after 20 weeks that threaten the "physical" "life" of the pregnant woman. (The U.S. House version, the Pain-Capable Unborn Child Protection Act (PCUCPA) also has a rape and incest exception.) As long as women who have life-threatening pregnancies can have abortions at this stage of the gestational process, most Americans are not going to raise a fuss. 
  2. It sells the humanity of the fetus, which pro-lifers think will help win the long-term hearts and minds battle over abortion. 
  3. It sets up the public and legislators for bans even earlier in the gestational process: Legislators, judges, and the voting public come to accept the idea that fetuses feel pain at X weeks (even if scientists do not), and accept a ban pegged to X weeks. Then, in a year or two, pro-life activists push the idea that the science now indicates that fetuses feel pain at X-2 weeks, so a ban pegged to X-2 weeks makes more sense. And on and on. 
  4. It messes with the doctrinal structure of Roe and Casey. The Supreme Court already broke the jurisprudential ice in Gonzales v. Carhart (2006), when they upheld the federal partial-birth abortion ban, which (in my opinion) just does not fit with how the Court had been analyzing abortion laws since 1973 (with a few reversed exceptions). Getting a 20-week ban through the court system in tact would allow the Roe/Casey doctrine to be pushed aside bit by bit, law by law. 
There are several problems with the 20-week/fetal pain laws. For example:
  1. Most scientists do not conclude that fetuses feel pain until much later in the gestational process. Which is kind of central to the whole question. 
  2. Doctors who perform the rare late-term abortion already take the precaution of killing the fetus first before performing the abortion procedure. (This is assuming, which I think is a quite reasonable one, that most abortion doctors performing late-term abortions are not criminals or monsters like Kermit Gosnell.) Note, however, that these abortions are late enough that doctors are hedging against the possibility of fetal pain. Second-trimester "dilation and evacuation" (D&E) procedures are generally not preceded by an anesthetizing or killing of the fetus before termination, because, as noted, the science of fetal development does not indicate its use. 
  3. If pro-life advocacy of a 20-week ban based on fetal pain is driven by concern for the fetus, then why is there a rape and incest exception in some of the proposals? Do fetuses conceived as a result of sexual assault not feel pain at 20 weeks? And, in the case of the federal PCUCPA, why are doctors not legally directed to provide fetuses pain-saving drugs when abortions after 20 weeks are legally permitted? 
  4. Regarding the proposal to ban 20 week-and-late abortions under federal law: Under a standard contemporary conservative reading of the Constitution, the federal government does not have the constitutional authority to pass a general ban on late-term abortions. This is an area of traditional state regulation. 

Article in The New York Times (August 1, 2013): Theory on Pain Is Driving Rules for Abortions

Brandi Kostal, Logan College, and missing class for childbirth

Earlier this summer, my university sent around an email to faculty reiterating the federal government's Title IX policy-- and, by extension, our policy-- regarding accommodating the needs of pregnant and parenting students. They did not explain why we were, at that moment, being reminded of it, beyond 'FYI.' 

Having read a story today published in (IHE), it now makes more sense. A student studying to be a chiropractor at Logan College missed the latter part of an academic term due to a difficult birth and recovery process. When she asked her professors how and when she might make up missed assignments, she was told that her absence from school-- to give birth and recover-- was not excused. The student, Brandi Kostal, eventually contacted the National Women's Law Center and filed a complaint against the College. 

The question that most interests me here is what the professors and administrators at the College were thinking in failing to accommodate a student who had an emergency c-section. 

According to the IHE article, Ms. Kostal's pregnancy was no big secret and the professors knew well ahead of time that she was going to give birth during the semester. If the College had some specific reason for thinking that Ms. Kostal taking classes while pregnant was going to be a problem-- being exposed to toxic chemicals in the lab, for example, or being physically unable to perform her duties in and out of class-- then they could have discussed that with her at the beginning of the semester.

Even so, those potential problems are inapposite to the issue of whether and how to accommodate Ms. Kostal for missing class because of birth and recovery. Perhaps Ms. Kostal already missed a ton of classes earlier in the semester-- we don't know from the article-- and was hopelessly behind in the class, so that the birth and recovery process was just capping off an already lost semester. If that were the case here, however, I doubt that the National Women's Law Center would have taken up her cause. 

Maybe Logan College and this particular academic program are generally more strict than other colleges and programs when it comes to excused absences. But it struck me as odd that something like "documented personal or family illness" was not included as a category of excused absence. If a student gets in a car accident and is in the hospital for a week with a broken leg, that is not considered an excused absence at Logan College? 

Unless Logan College is run like a boot camp, it would essentially be impossible for them to enforce their attendance policy, unless professors are given personal discretion to accept a broader range of excused absences in their courses, and/or professors are permitted to forgive a set number of unexcused absences per semester without penalty.

The latter policy is an attractive option for professors because allows them to avoid having to adjudicate what absences are excused or unexcused, which is frustrating and difficult to do from an evidentiary standpoint. What is one to say when a parent reports that her/his child missed school with a 24-hour vomiting bug and required constant attention? This is not the kind of illness that calls for a trip to the doctor, so there is no documentation to validate the excuse. Another example: students miss class to attend funerals. I do not like having to demand that a student provide documentation of the death of a loved one in order to be excused from class. So giving students a maximum number of "whatever the reason, you are excused" absences makes things easier for everyone. Students, however, can still go over that number-- and do-- and, as a professor, one is back to adjudicating official vs. unofficial excuses. 

At Logan, according to the IHE article, students who missed "more than 15 percent of classes" could be given an "Attendance Failure" grade. And in Ms. Kostal's case, her c-section and recovery would have caused her to enter the absence danger zone, so she forced herself back to class against the advice of her doctors. Despite her efforts, she must have still missed some assignments and perhaps too many classes, so she wanted her absences to be acknowledged as valid, and the college refused. 

Why did Logan College take such a hard line? On the surface, it seems a bit baffling. To state the obvious, it is hard to gin up a c-section. Outside of a fiery car wreck, giving birth, let alone a difficult birth-- or, I should say, a birth more difficult than normal-- is just about the most legitimate and capable-of-being-validated excuse conceivable. 

If one sees missing class to give birth and recover as a legitimate excuse, then the obvious solution here is to allow Ms. Kostal to take a temporary "incomplete" grade, which gives her time to finish the assigned work-- she will still do the work that the other students have done-- within a certain time after the academic term is completed. 

So what were the professors and administrators at Logan College thinking? My guess is that they believed that Ms. Kostal should not have taken classes that term at all due to her pregnancy. The IHE article reports that someone at the College told Ms. Kostal that she should take a lighter course load because of her pregnancy or impending delivery. When she refused and missed classes as a result, college officials likely concluded that 'it was her own fault,' and that they were not going to accommodate a student who put herself into a position to fail and should have known better.

This attitude would explain why the College did not permit Ms. Kostal to take an incomplete in order to make up her missed work. It also would explain why they considered allowing Ms. Kostal to withdraw from the classes-- essentially pretend as if she did not take the courses at all, passing or failing-- as a form of "compromise." It is a "compromise" for them-- that is, giving up something-- because they see this whole situation as caused by Ms. Kostal's poor decision to take classes in the first place. 

Note, however, that taking a withdraw from a class a) prevents the student from getting any benefit from the work that they did put in, and b) can have an effect on a student's ability to receive financial aid. So withdrawing from a course is not cost free. 

This is an important story for many reasons, one of those being that it illustrates a basic, persistent gender bias in traditional conceptions of how school, work, and family are to be balanced among women and men. Women are not placed at a disadvantage in school and at work because of their biological capacity to be pregnant and give birth. Instead, women are placed at a disadvantage because the traditional, socially constructed American norm is that students and workers-- men, or women who pretend to have the biological capacity of men-- either do not miss work and school for such things like pregnancy, childbirth, or child rearing, or, if they plan to miss school and work for such things, take themselves out of the game temporarily or permanently. 

Is this just the way it is? No. Societies have traditionally adjusted the educational system to accommodate other individual or social needs, so it is not like Title IX is turning the world upside down or inverting the natural order. For example, the American educational system still excuses students from school over the summer so that they can help their extended family tend to the crops on the farm. We formally and informally adjust the structure of the workplace and the classroom, in other words, to accommodate certain students and workers when we conclude that it is "necessary" and "the right thing to do"-- but what we consider necessary and the right thing to do is based on our socially constructed presuppositions about biology, gender roles, and so on.  

Obviously the United States has come a long way in rectifying gender imbalances in school and in work-- although we have not come nearly as far as many other countries. The law 'on the books,' in this case, Title IX, still runs into pockets of resistance or ignorance. To make Title IX a reality, it takes women like Ms. Kostal-- who already has enough to do as it is-- and organizations like the National Women's Law Center to perform a kind of Women's Studies 101-like educational service for the public. 

So Ms. Kostal should be congratulated on the birth of her child and applauded for helping to effect real change in the educational process. 


Article in (August 1, 2013): Childbirth doesn't count?

Complaint filed by Brandi Kostal with the U.S. Department of Education Office for Civil Rights

Monday, July 29, 2013

Legislative activity on abortion in 2013

Does it seem like every day you are hearing or reading about one state or another attempting to pass some sort of legislative restriction on abortion? That's because it is true. The last four years or so have seen a dramatic increase in the number of legislative attempts to do the following:

  1. Attack the framework of Roe and Casey directly; North Dakota falls into this category, for example.
  2. Chip away at the Roe/Casey jurisprudential framework, with fetal pain legislation, bans on abortions after 20 weeks, and so on. This kind of legislation does not directly defy the Supreme Court's major abortion decisions-- although they are inconsistent with them-- but attempt to encourage judges to subtly rework the Roe/Casey doctrine. This is what pro-life activists successfully achieved with the federal Partial-Birth Abortion Ban Act of 2003 and the Supreme Court case Gonzales v. Carhart. 
  3. Enact regulations that, on the surface, look like they are consistent with Roe/Casey but make it harder for women to obtain abortions. For example, many states have attempted to enact additional regulation of abortion clinics, referred to as TRAP laws (targeted regulation of abortion providers). Clinics find it impossible to meet the expensive and unnecessary requirements and close; this makes access to abortion harder. Other regulations make the process of obtaining an abortion more unpleasant by, for example, forcing women to undergo vaginal ultrasounds and endure lectures on the features of the fetus before being able to have an abortion.
  4. Deny public funding, support, or subsidization of organizations, like Planned Parenthood, that not only provide abortions but also a broad range of women's health and family planning services. 

If you want to get a better sense of the current legislative landscape, read the recently released Guttmacher Institute report on state law-makign activity in the first half of this year. It is eye-opening reading.


Report from the Guttmacher Institute (July 8, 2013): State-Level Assault on Abortion Rights Continues in First Half of 2013

Sunday, July 28, 2013

Misreading pro-life legislator Brian Nieves

In the last few election cycles, pro-life Republican lawmakers and candidates have regularly fed the public diet for controversy, with statements about abortion and rape, medically necessary abortions, and related topics.

There is no need, therefore, to gin up an outrageous statement where it does not exist.

The blog Little Green Footballs (LGF), along with The Raw Story and The Huffington Post, reports that a Missouri state senator, Brian Nieves, got into an argument over Facebook with a priest whom he thought was a reporter. Mr. Nieves has a history of mixing it up with constituents and critics and using rather tactless language and imagery when lashing out at those who criticize him.

In the ensuing exchange, according to LGF, The Huffington Post, and The Raw Story, Senator Nieves threw women under the bus by asserting that the life of a pregnant woman faced with a life-threatening abortion is just a "matter of convenience."

Outrageous! Yet what 'we' knew all along: Pro-lifers don't care about women!

But what did Mr. Nieves say, actually? Here is the text of the senator's statement (from LGF):
“Really?!?! Are you sure you want to stick with that definition of partial birth abortion? Really? Didn’t you say you have an advanced degree? Your statement about ‘Life of the Mother’ is one of the most common yet kindergarten ways of proving that you don’t even know what a partial birth abortion is!! You are a ‘priest’ and you speak about matters of life and death for which you don’t have an ounce of knowledge?!? Shame on you.”
“‘Life of the Mother?’ Your own argument proves it is a matter of convenience! Tell me this - Do you even know what a partial birth abortion really is? No, seriously, do you actually know what it is?? If so, explain to me what a partial birth abortion is.”
What do you think? In my reading, senator Nieves did not mean that the life of a mother is a "matter of convenience." Instead, Nieves was expressing skepticism that the "partial-birth" technique of abortion was ever used as a necessary means to save the "life of the mother." Senator Nieves, like many pro-lifers, believes that "partial-birth" abortion was never medically necessary-- as such, it could be banned without hurting women. Therefore, when the partial-birth abortion technique was used by doctors, it was really used for abortions that were not medically necessary. In other words, "partial-birth" abortion is a "matter of convenience."

In Senator Nieves' opinion, his Facebook opponent asserting that the "partial-birth" abortion technique saves the lives of pregnant women proved that he did not know what he was talking about.

Senator Nieves, naturally, denied that he said that the life of a pregnant woman is a mere matter of convenience. Inexplicably, though, he did not go to the trouble to explain what he did mean. Instead, he chose to attack liberals as nasty and unpleasant creatures who are always the ones who start fights, etc.

The vast majority of Mr. Nieves' Facebook writings are typical chat room drivel and stereotyping about liberals, so I am not defending Mr. Nieves' quality of mind or eloquence of expression. Or his judgment, for that matter-- an elected politician gets into a public argument over Facebook? For crying out loud. He is not exactly elevating the dignity of the office of state senator.

He does not need his comments misread and misreported to look foolish, and if pro-choice writers on the left are going to criticize conservatives for bending the truth, they need to parse comments more judiciously.

UPDATE: Here are a few web sites that interpret Nieves' comment correctly (and critically): Think Progress and The Gloss 


Post in Little Green Footballs (July 23, 2013): Anti-Abortion Politician Admits That the Life of the Mother Does Not Matter

Article in The Raw Story (July 22, 2013): Republican lawmaker: Abortion to save the life of the mother  is 'a matter of convenience'

Article in The Huffington Post (July 23, 2013): Brian Nieves, GOP State Senator: Abortions to Save Mother's Life Are 'A Matter of Convenience'

Post at Women in the World (July 23, 2013): Anti-Abortion Pol: Mom Doesn't Matter

Missouri state senator Brian Nieves' Facebook 'rebuttal' of articles/posts about his stance on pregnant women

Saturday, July 27, 2013

The fight over Chen Guangcheng and the maelstrom of American reproductive politics

Chen Guangcheng is the Chinese lawyer and human rights activist who famously managed to escape house arrest and the country of China to land in New York City and a fellowship at New York University to study law. The fact that he is blind (and quite telegenic in his dark sunglasses) made his escape even more remarkable and compelling.

The American dream honeymoon is over. He is leaving New York University after a year and he is looking for a new position, and there are conflicting stories as to what happened. What is more clear is that Mr. Chen is struggling to adjust to the polarized atmosphere of American politics and how that polarization is represented by, and intensified by, divisions over reproductive politics.

Mr. Chen's story involves reproductive politics because of his activism against forced abortion and government abuses associated with China's one-child policy. Pro-life activists strongly oppose China's one-child policy in itself. They also are outraged by the abuse of the policy, in particular the phenomenon of local officials pressuring and/or forcing women to have abortions to meet population incentives and/or directives from higher up in the political food chain.

Pressured or forced abortion is a practice that many pro-choice activists oppose, too, as China represents another form of anti-choice in its vigorous attempts to limit population growth. It is entirely possible, in other words, to be both pro-choice and anti-one-child-policy.

This distinction tends to be lost in the American public discourse over China's policy, especially among pro-life activists. American pro-lifers see China's policy as the end of the pro-choice slippery slope: This is what happens when we embrace the 'culture of death,' utilitarian ethics, and population explosion panic!

One wing of the original pro-choice movement in the United States was in fact mainly concerned about population control, and early, well-intentioned efforts to promote population control, in the late 1960s and 1970s, did have a kind of "we have to meet our target numbers" flavor-- seeing women in the third world as (exaggerating a bit here) baby-making machines that needed to be dialed back a bit. China's government, as is its wont historically, took the blunt instrument approach to population control to its extreme.

(And, even earlier, in the American 'voluntary motherhood' and birth control movements in the Progressive and New Deal eras, there was some concern among political elites about the drop in birth rates among middle-class and upper-class whites in conjunction with a high birth rate among working-class and/or "ethnic"/immigrant groups. Birth control was seen by some as a way to even the score and limit population growth by what they deemed the less desirable parts of the population.)

Among first-world governments and NGOs, the older perspective has been largely abandoned. American and international organizations that promote family planning were positively modified by a feminist, human rights perspective on population control that focuses on choice-- giving women and families in all countries the autonomy and resources to make choices for themselves regarding the timing, spacing, and ultimate number of children they wish to have. The results of choice-based family planning is that birth rates drop to good levels and families and societies are healthier. Girls and women also benefit from choice-based family planning, as they receive more resources and equal treatment within their own families.

If you read pro-life literature and the pro-life press, you'll see that they haven't gotten the memo. They still see China as the final result of 'pro-abortion' activism and thinking, rather than an affront to basic pro-choice principles.

Back to Mr. Chen. American pro-life activists see Mr. Chen as a great symbol of their cause and would like to claim him for their own.

The danger for Mr. Chen is that affiliating and/or receiving support from American pro-life activists might typecast him as being primarily pro-life-- which he may not be-- rather than pro-freedom and pro-democracy. Mr. Chen could lose his broad appeal and his support among human rights activists on the left. Perhaps sensing this danger, Mr. Chen has been circumspect about his own views on abortion.

It is ironic and unfortunate that Mr. Chen, in escaping China to arrive in the land of the free, finds himself trapped again.


Article in The New York Times (July 10, 2013): After Epic Escape From China, Exile Is Mired in Partisan U.S.

For a good history and summary of American population control efforts and the human rights, pro-choid view of family planning, see the following resources:

An iconic work by a (now) pro-life activist who helped to expose abuses of China's one-child policy is A Mother's Ordeal: One Woman's Fight Against China's One-Child Policy, by Steven W. Mosher

Steven W. Mosher is now president of the Population Research Institute, which is devoted to arguing that overpopulation is a "myth" and fighting "coercive population control." 

Friday, July 26, 2013

Is there a federal power to ban abortions after 20 weeks?

The state of Texas thrust late-term abortion bans into the national spotlight because of legislation passed there over the heroic/infamous filibustering of state senator Wendy Davis. State laws that ban abortions after the point at which a fetus becomes viable are explicitly constitutional under Roe and Casey, so the fact that Texas wants to ban abortions later in pregnancy is itself not a big deal.

Texas' ban is controversial because
  1. it bans abortions after 20 weeks, which is pegged to a specific time (rather than to a specific fetus' attainment of viability) and also weeks earlier than when any fetus is minimally capable of being viable (about 23 weeks); and
  2. the argument for having bans set at 20 weeks is that science has now determined that fetuses feel pain at 20 weeks and so aborting a fetus that feels pain is cruel and should be prevented.
This is the hot flavor in anti-abortion legislation, because
  1. fighting for the right of women to have abortions this late in pregnancy makes pro-choice activists and legislators look extreme;
  2. public attention is focused on the (disputed) assertion that fetuses feel pain, which further humanizes the fetus (a tactic used in the classic anti-abortion film, The Silent Scream); and 
  3. it creates an angle-- fetal pain-- for judges to chip away at the jurisprudential logic of Roe and Casey without mounting a direct assault on those decisions. Something similar was done with success in Gonzalez v. Carhart, a 5-4 decision in which the Supreme Court, in essence, found the "partial-birth" abortion technique gruesome enough to allow the federal government to remove it from the toolkit of abortion doctors. Pro-life lawmakers and activists are working to foster, ultimately, a collective judicial epiphany that abortion is a gruesome and cruel attack on little human beings who feel pain. Banning abortions after 20 weeks based on a fetal pain theory is another step (pro-lifers hope) toward that judicial realization-- "there may be some kind of right to abortion, but it can't include this..."
Now U.S. Senator Marco Rubio of Florida wants to get in on the act. I don't doubt that Senator Rubio is pro-life, but the timing of this has presidential primary politics written all over it. This is red meat for a national pro-life conservative base and meant to scare off any potential 2016 challengers to his status as the early front-runner for the Republican nomination.

The problem is that Senator Rubio wants to pass a federal government ban on abortions after 20 weeks, and that is something that should bother conservatives who fret about the federal government legislating in areas of traditional state regulation and outside the constitutional authority of the federal government.

This is a legitimate question: Does the federal government have the constitutional authority to ban abortions after 20 weeks? I have doubts. As a way of working through this question, consider the flimsy justification for the federal ban on the "partial birth" abortion technique found in the Partial-Birth Abortion Ban Act of 2003 (PBABA).

Championed by then-Pennsylvania Senator Rick Santorum, the PBABA is constitutionally housed under the 'Interstate Commerce Clause' (ICC) power in Article I, section 8 of the Constitution, which allows Congress to regulate "commerce among the states." While the PBABA has a long list of congressional findings about partial-birth abortion, Congress did not include a single factual finding about how doctors choosing to use the partial-birth abortion technique (as opposed to an alternative technique to achieving the same medical goal) had a substantial effect on interstate commerce or the national economy. Instead, the congressional authority to ban a particular medical technique was justified in the following way:
Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. 
That's it.

Conservatives who squinted really hard to find the individual mandate in the Affordable Care Act unconstitutional should blush at the casual constitutional stretching of the PBABA to include regulating a doctor's choice of which technique to use in a medical procedure.

Even Supreme Court Justice Clarence Thomas, who is a jurisprudential radical but more jurisprudentially consistent than, say, Justice Scalia, looked doubtfully on the ICC basis for the partial birth ban. In Gonzales v. Carhart, the Court decision upholding the law, Justice Thomas wrote the following in a concurring opinion:
I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.
Was Justice Thomas uncomfortable or relieved that the Court dodged the question?

Why didn't the litigants challenging the law not raise the ICC issue? Because pro-choice litigants generally do not like the Court's recent Commerce Clause jurisprudence, which has been driven by conservative concern over the expansion of federal power to serve progressive ends during and since the New Deal. Taking this conservative jurisprudential route to attacking the PBABA might constitutionally undermine the broad use of federal power that pro-choice liberals support generally.

In my opinion, under the Supreme Court's recent (post 1995) ICC cases, neither the PBABA nor a ban on abortions after 20 weeks is reasonably within the federal government's constitutional authority.

The main obstacle is that one of the threshold indicia for an activity to be regulated by Congress under the ICC is that the activity is in some way "economic" in nature. For example, the sale of drugs, the minimum wage, labor-management relations, white collar crime, and the payment of health care costs all involve economic activity.

Consider the partial-birth abortion technique: Regulating the specific method a doctor uses in performing a medical procedure is not regulating a fundamentally "economic" activity. Banning partial-birth abortion, like banning all abortions after 20 weeks, is non-economic in the same way that the following are not economic in nature: criminalizing the possession of a gun on school property (held unconstitutional in United States v. Lopez); and allowing an individual to file a civil suit against other individual in federal court for sexual assault (a provision of the Violence Against Women Act held outside Congress' authority in United States v. Morrison).

At the same time, banning a particular medical technique is not akin to criminalizing behavior in order to facilitate the exercise of other federal powers-- which Congress may do-- for example, criminalizing the murder of federal workers or preventing destruction of federal property; or criminalizing the local growing and selling of medical marijuana in order to assist in preventing interstate and international drug trafficking, which the Court upheld as within Congress' authority in Gonzalez v. Raich.

I don't see the ICC logic of the current Court allowing for the banning of abortion after the 20 week mark. Conservative politicians and lawyers might make a case for it, but it will be interesting to see how comfortably it fits with their analysis of other ICC issues. Of course, as long as pro-choice liberals refuse to bludgeon conservative lawyers and judges with their own weapon, the dubious constitutionality of federal abortion laws will remain largely a non-issue.


Article in Politico (July 24, 2013): Marco Rubio wants to be lead sponsor on anti-abortion bill

Article in The Weekly Standard (July 2, 2013): Rubio to Introduce Senate Bill to Ban Abortions After 20 Weeks

Legal Information Institute (LII) version of Gonzales v. Carhart, 550 U.S. 124 (2007)

Text of the Partial-Birth Abortion Ban Act of 2003

Thursday, July 25, 2013

Sex is life in disguise?

From Kristen Luker, When Sex Goes to School: Warring Views on Sex-- and Sex Education-- Since the Sixties (18):
In the nineteenth century, Sigmund Freud famously thought that life was sex in disguise. A joke, a pun, a slip of the tongue, a symptom, were all silent expressions of forbidden wishes in nineteenth-centure Vienna, and the forbidden was very often the sexual. By looking at sex and sex education today, I want to argue the other side of that equation: that sex is life in disguise. When Americans talk about sex, we are simultaneously and covertly talking about all the things going on in our world outside of the bedroom. Gender, power, conflict, cooperation, religion, culture, the future, and even (bear with me) the global economy are there . . .
This is a fundamental insight about reproductive politics. Luker is well equipped to identify and communicate it, as she made the same point regarding abortion in her 1984 book Abortion and the Politics of Motherhood.

Many reproductive politics activists on all sides, I believe, generally agree with Luker's assertion, although they might not articulate it as such. I think that most people active in this area of political life agree that beliefs about one facet of sex, relationships, families, etc. are not held in isolation but tend to be part of a constellation of beliefs, interconnected and (they hope or assume) internally coherent-- a kind of ideology of sex and reproduction.

Where they might disagree with Luker, a sociologist, is the degree of independent choice they exercise over the adoption and development of their constellation of views-- whether they choose to believe a set of views or are socialized to believe them, given their experiences and social context (or some combination of choice and socialization).

Sociologists and other social scientists often conclude something like the following: "You believe X not just because X is inherently correct in your view, but also because it is motivated by Y and the situation Z you find yourself in." They also sometimes conclude something like this: "In your words and in the top layer of your thinking you say you believe 1A and for set of reasons X, but in reality you believe something a little different, 1B, and in reality you believe it for a rather different set of reasons."

Naturally, people do not like to be told that they don't mean what they say and they don't say what they mean! Given that many academic researchers come to conclusions about social life that are seen as "liberal," conservative activists and pundits often accuse academics of arrogant presumption and bias-- "quit telling me that I dislike Barack Obama because of his race!" for example.

Activists-- and scholars, too-- might disagree also about the direction of the causal arrow in Luker's work: Does a person develop views about sex and reproduction first, and then these beliefs affect his or her understanding and interpretation of the larger world? Or, does a person's beliefs about the larger world come first and then shape her or his views about abortion, sex, family planning, and sexual orientation (Luker's general conclusion)? Or do they affect each other?

My educated guess is that, for most people, the causal arrow goes both ways, and the degree to which one affects the other (a person's larger worldview more dominant or a person's narrower set of beliefs about sex and reproduction more dominant) depends on a person's specific life experiences.

Therefore, while Luker's work is extremely valuable and insightful, it should be taken as demonstrating one facet of a more complicated social and psychological dynamic.


Kristin Luker home page at the University of California-Berkeley 

Wednesday, July 24, 2013

What does the contraceptive mandate actually require?

Paige Winfield Cunnigham published an interesting report in Politico about limits on women receiving free contraceptives under the Affordable Care Act.

Set aside for a moment the politics of which organizations are exempted from the mandate and possible constitutional problems with the ACA. Cunningham reports that the administrative language of the mandate allows insurers to partially limit what specific contraceptives a woman can receive without a copay:
[A] woman with employer-sponsored coverage generally doesn’t have free access to every kind of FDA-approved contraception, with some exceptions if her doctor gives a specific prescription for health reasons. And backers of the requirement are concerned that insurers are imposing limits on coverage that go beyond what HHS intended. 
The most in-depth guidance to date — released by the administration earlier this year — doesn’t detail exactly which birth control the health plans must cover without a co-pay. 
Instead, the rule permits plans to exercise “reasonable medical management.” That means the coverage requirement is satisfied if the plan offers options in each of five major contraceptive categories: barrier methods, hormonal methods, implanted devices, emergency contraception and permanent methods.
The Obama administration really can't win politically when it comes to the contraceptive mandate, in the same way that it can't win when it comes to the ACA in general. Supporters of the mandate are disheartened by all of the exempted organizations, which undercuts the individual and social benefits of providing free, effective contraception to women. Opponents, on the other hand, will never be satisfied with anything short of repeal of the whole program.

Now supporters find that the insurers that do provide contraceptives are going to be stingy with them in the say way that they are stingy with all other types of prescription drugs. With the ACA, one more complication is the new normal.


Article in Politico (July 23, 2013): Obamacare's confusing birth control rules

National Women's Law Center FAQ page on the contraceptive mandate (May 22, 2013): Contraceptive Coverage in the Health Care Law: Frequently Asked Questions

Employee Benefits Security Administration FAQs (February 20, 2013)(see in particular questions 14-17): FAQs About Affordable Care Act Implementation XII

National Women's Law Center FAQ page clarifying HHS rules (February 22, 2013): Women's Access to Preventative Services Affirmed by HHS

Tuesday, July 23, 2013

Enforcing laws against adultery-- in the U.S.?

One of the candidates for the governorship of Virginia would like to occasionally prosecute people for extramarital affairs. Politico reports:
Virginia gubernatorial candidate Ken Cuccinelli once suggested that society would benefit from enforcing anti-adultery laws, according to a report dating to the Republican’s days as a state senator. 
Speaking to Richmond’s Style Weekly magazine back in 2008, Cuccinelli defended laws criminalizing extramarital sex, saying that such restrictions “ought to stay on the books.” 
“Frankly it wouldn’t hurt to enforce them more,” Cuccinelli is quoted saying. The magazine paraphrased Cuccinelli drawing a comparison to “perjury inasmuch as the occasional prosecution or two would get people thinking twice.” 
Cuccinelli's spokesperson issued the following statement to Politico:
Ken Cuccinelli is someone who believes in and supports the institution of marriage. The campaign for the governorship in Virginia is about the concerns of voters, which include first and foremost creating jobs and growing the economy.
As a response, this isn't bad: Politico, you are raising an nonissue; the voters want us to focus on things that matter to them; this is a distraction.

Note, however, what the spokesperson did not say: You are misrepresenting the tone and context of Mr. Cuccinelli's remarks. Ken Cuccinelli did not and does not want actual enforcement of anti-adultery laws; he was just making the point, in a humorous way, that people could use a little nudging to respect the institution of marriage more than it is currently.

I was ready to dismiss this story as hyperbole until the spokesperson's statement made me do a mental double-take. Does Mr. Cuccinelli actually believe that anti-adultery laws should be enforced from time to time to keep marriages honest? Seriously?

Of course, one can't imagine local law enforcement officials engaging in an "occasional prosecution or two" against anyone in the political or economic elite, so who would be subject to the law's actual and deterrent power?

Luckily for Mr. Cuccinelli, he is safe from being put to the test by the American judges, who would likely strike down any actual enforcement of anti-adultery laws as unconstitutional in a post-Lawrence v. Texas world.

I did not consult any polls before writing this, but I can guesstimate that a high majority of Virginians-- in particular, the citizens of northern Virginia and others who are turning Virginia purple-- think that wanting to revive the enforcement of laws criminalizing consensual adult behavior is, to use the technical term, bonkers.

UPDATE: This story should also be considered in the context of Mr. Cuccinelli's current campaign to bring back Virginia's anti-sodomy law.


Article in Politico (July 23, 2013): Ken Cuccinelli once backed anti-adultry laws

Article in Style Weekly (May 28, 2008): Adult Supervision

Article in The Huffington Post (July 23, 2013): Ken Cuccinelli's War on Oral Sex

Link to Ken Cuccinelli's web site promoting the reinstatement of Virginia's anti-sodomy law