No, RBG Is Not Embracing Eugenics

[NB: like all my posts here, but particularly on this topic, this is a personal opinion and should in no way reflect upon my employer or any other organization with which I may be affiliated. Thx, JPB]

I so very rarely delve into abortion politics because my personal views are just that, personal, and entirely separate from my thoughts of Roe, Casey, or the broader abortion case jurisprudence as it stands today.* But this hullabaloo over Justice Ruth Bader Ginsburg’s recent comments about not wanting more impoverished kids is absurd. Separate from the context, the statement is perfectly reasonable.

The quote:

It makes no sense as a national policy to promote birth only among poor people.

Uh, yeah. For a party that embraces a smaller (if not non-existent) welfare state, this should be common sense. If abstinence were the context, this would be perfectly acceptable to the right.

The problem is one of philosophical priors, not a lurking embrace of Sangerian ethnic cleansing.

This isn’t a small semantic difference. Progressives and other pro-choice folks don’t see abortion as murder. They just don’t. You can believe it is, that doesn’t change the fact that they don’t. If you want to say that being actively pro-abortion is effectively supporting mass murder, it’s an opinion and it’s consistent. 

Suggesting, however, that RBG and other pro-choicers actively want to wipe-out the people who are poor, not the symptoms of poverty—you know, like teenage motherhood and all its trappings like dropping out of high school, working at a low-skill job that can’t pay for food, shelter and daycare, etc.—is just nonsense. 

They don't see the fetuses as people, so the underlying problem with the statement is that she does not believe abortion is killing children, not the destruction of a class or race of persons. Your problem, if you have one, is her view of abortion, not of poor people, let alone poor people of color.

Regardless of your opinion of abortion’s morality, just because a woman has an abortion at 17 because having a child would financially ruin her doesn’t mean she’ll never have kids when it’s a better time for her. Ergo, it’s not  supporting eugenics to say that, as a matter of public policy, we shouldn’t encourage unwed teenage motherhood. 

The left sees this as an abortion issue, the right sees this as a family/personal responsibility issue—both would agree, in a vacuum, unwed teen mothers are not ideal. The difference comes in what to do after a woman gets pregnant, but I’m not here to say what that should or should not be.

If you want to say abortion is murder, that’s your business. But don’t equate being pro-choice with supporting genocide through attrition. Yes, pro-choicers have a racist, horrific past—but that’s because America has a racist, horrific past. It’s no more racist to be pro-choice than it is to be in favor of small government. 

Both have roots in racism, because they both have roots in America. 

bellum medicamenti delenda est

*Indeed, RBG herself has misgivings about the rationale supporting current abortion jurisprudence.

PS—I’m not going to argue about this on Twitter, so don’t try.

Stare Decisis: Latin for "Because We Said So"

I was writing another post about "situational constitutionalism" and one of the links I was going to use was Justice Scalia's scathing dissent* from the 1992 abortion case, Planned Parenthood v. Casey. I found myself no longer wanting to write the post because Scalia does such a marvelous job deconstructing the plurality's incoherent stare decisis argument that Casey upholds the constitutionality of Roe while it simultaneously guts everything substantive in the opinion. Re-reading it brought back memories of Con Law back at IU--and of a Scalia I admired so much more than I do now.

That said, I have three things to mention before linking to the opinion:

First, I am personally "pro-choice" and legal abortion is my policy preference, for a number of reasons. There is nothing inconsistent with Scalia's dissent and holding these positions because I don't believe abortion access should be a federal matter, for reasons Scalia explains better than I could.

Second, part of the inspiration for this post still requires mentioning, especially in the context of policy assertions divorced from reality: referring to abortion clinics as "reproductive centers" is enough to make Orwell proud. There is no doubt that Ms. Lithwick is not the first person to have used this insultingly absurd misnomer, but I read it and nearly suffered ocular strain from the eyeroll it induced.

Third, I wish the Scalia who wrote this opinion was present in the McDonald decision. Instead, we got a conservative hiding behind insults to the legal academy to capitulate sell-out to substantive due process; proof in a black robe that the Right, just as easily as the Left, can lack the intellectual honesty to be constitutionally consistent.

Unfortuately, I couldn't find a PDF of the slip opinion that isn't behind a pay wall, so HTML will have to do.


*Technically, it's a concurrence in part and a dissent in part, but the text makes pretty clear that Nino isn't being very agreeable.

Situational Constitutionalism: Jurisdiction of Federal Judiciary

Predictably--and certainly not without warrant--the Left is now attacking last night's GOP victor for Kentucky's vacated Senate seat, Rand (son of Ron) Paul. One of the sticking points, as explained by TAP's Adam Serwer, is Paul's desire to restrict the federal judiciary from hearing abortion cases:

He also wants to offer legislation "restricting federal courts from hearing cases like Roe v. Wade."

Yeah, that sounds constitutional.

Unfortunately, it very well may be.

Article III, Section 2 of the Constitution clearly states:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.


In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. (emphasis added)

Whether we like it or not--and I, for one, don't--Congress's authority to limit federal jurisdiction is explicit in the text of the Constitution and thus has the full force of law. Though the "least dangerous branch" of our federal system, the Judiciary is nevertheless limited by a hefty Congressional check on its authority.

That Congress has not often acted to reduce the scope of federal jurisdiction is a testament to the reverence our system typically pays to the Judiciary. But no less important is the political cost that any Congress would be forced to pay if it overstepped its conventional prerogatives, even if they acted within their legal capacity. Between the political pressure and the sort of gentlemen's agreement between Congress and the Court, unpopular SCOTUS decisions tend to be sustained, or contravened only at the margins. This is certainly not the most secure way to maintain the Court's independence--trusting politicians to be responsible--but it seems to be enough to be a large enough counterweight to aggressive overreach when combined with Congressional electoral self-interest.

I engaged Mr. Serwer on this issue before and after my lunch break, and at one point he wrote:

[I]t would make the bill of rights irrelevant if you could strip the court's authority to review cases involving them

This is not actually true. The Court has ruled that where it has original jurisdiction and explicit (enumerated) authority is not within the power of Congress to restrict. Certainly, the Bill of Rights (or any other explicit power or protection in the Constitution) qualifies by its very existence.  Emanations and penumbras? Well...not so much.

The point is, the Constitution means what it says. We can disagree about some of the more ambiguous passages, but we can't just ignore the plain text when the implications give us pause. To do so is the hypocrisy I refer to as "situational constitutionalism."  We can't just toss aside parts we don't agree with because they may lead to policies we don't like--whether they involve right to counsel, habeas corpus, or jury trials for suspected terrorists, or First Amendment expression by third parties in election campaigns. Conversely, we can't just pretend limits don't exist to implement policies we might like, such as federally protected abortion access, eminent domain for revitalization/rezoning projects, or health insurance mandates. All these exceptions are proposed, for the most part, with good intent. But good intent doesn't trump the Constitution any more than bad policy outcomes do. Everybody has a reason why they want to skirt the Constitution--but if we always ignore it for reasons we think important, then the limits placed by the document cease to mean anything once our political adversaries take power. (Or, in the case of libertarians, seemingly when anyone is in power.)

I share Mr. Serwer's disgust with Congressional authority over federal jurisdiction--but that doesn't make it unconstitutional.

Dumb and Dumber at the Golden Dome

I work in DC, a town steeped in the great tradition of thoughtless bullshittery. Most people here make their money swapping, repackaging, and peddling bullshit. DC is sustained on other people's capital--some given voluntarily, most taken coercively--the latter being redistributed according to political will. An honest living, this ain't.

But, every now and again--in spite of the most recent election cycle reminiscent of a hundred year stint in purgatory--the folks in DC decide to export the sole Beltway product to the rest of the country. Most recently, the president decided he was going to take a steaming pile of excrement to the American Mecca of Catholic Academia--and erstwhile home to the greatest team in college football--the University of Notre Dame.

There was much hullabaloo about this trip, given his stance on abortion and the Catholic church's less-than-flexible position on the issue. Personally, I thought it was blown out of proportion, but whatever. Coming from a church that has yet to excommunicate Ted Kennedy, who apparently prefers his abortions in two-for-one auto-aquatic specials, I don't see why extending an invitation to the sitting POTUS is such a big deal. (And I'm going to guess there won't be protests when the Pontiff himself meets with him.)

And while I admire Obama's preference to take controversy head on--or at least to appear to do so, whereas the last administration tended to cover its ears and scream loudly "LA LA LA LA CAN'T HEAR YOU LA LA LA LA!"--the decision to make an overtly political statement during any graduation ceremony, let alone bringing up the A-word at a Catholic ceremony, was just tactless.

The only thing worse than his decision to address it directly was the manner in which he did it. Using his trademark and insincere conciliatory rhetoric, Obama spoke of finding a "common ground" between the pro-life and pro-choice movements and refrain from "demonizing" their respective oppositions. (The word choice was apparently borrowed from a Catholic priest, but still probably not the best idea given that Catholics believe in demons)

If you were to approach the speech knowing nothing of the debate--which, among other things, has poisoned our federal judiciary selection process to an absurd degree--such a comment sounds reasonable, diplomatic, and thoughtful. But really, how much "common ground" do you think exists between those who believe "abortion" to be another word for infanticide and those who believe it is none other than a constitutional right? (FWIW, I subscribe to neither of these positions.) Such a nonchalant treatment of what is a fundamental debate--not of nuance, but essentially of whether or not the government should sanction legal murder--would be laughable if not so obscenely insulting. Again, this isn't my position, but (ostensibly) by addressing a Catholic audience, cutting slack to baby-killers is what he was suggesting.

He can no more bridge this gap in so careless a manner than he could solve the Israeli/Palestinian conflict by buying the world a Coke and singing Kumbaya. More and more, (and I admit, this may be a speechwriter issue) Obama seems less to be a thoughtful man dedicated to confronting serious issues than he does a well-trained actor taught to "feel my pain" while pursuing an inflexible agenda entirely divorced from the sort of administration he campaigned on.

Graduation ceremonies are not the time or place for political speech. What Notre Dame probably wanted, and should have received, was an apolitical and vacuous speech that Obama usually excels at. It is, after all, a ceremony whose musical theme is quite literally Pomp and Circumstance.

It isn't a matter of picking sides in the abortion debate--and not at all because I believe both sides are deeply flawed. And I know presidents have explicitly talked about policy at graduations before, but THIS ideological stance at THIS instiution was simply an exercise in poor judgment. If he wants to engage the Catholic Church on abortion, that's fine with me--but he shouldn't have broached the subject, and in such a cavalier manner to add insult to injury, at a graduation ceremony.