Thoughts on Christine Ford and Brett Kavanuagh

Like most of you (at least those of you that live in the United States) I was completely engrossed by the testimony of both Christine Blasey Ford and Brett Kavanaugh in the 2nd round of the Kavanaugh confirmation hearings.

So the first thing to notice is that one cannot believe both Christine Ford and Brett Kavanaugh at the same time. She was 100% certain that it was Kavanaugh; he was 100% certain that he didn’t do it (although, he conceded, it might have been “someone, somewhere at some time”). Now, if a friend (or even just a well-known acquaintance) had punched me in high school, I might have been confused about why I was punched, but I would not have been confused about who did the punching. I also found it significant that Ford so vividly remembered Kavanaugh laughing, along with his friend Mark Judge.

Speaking of Mark Judge, that guy literally wrote a book named “Wasted,” subtitled “Confessions of a GenX Drunk.” This was Kavanaugh’s running buddy throughout high school.

Kavanaugh’s great outrage seemed like false outrage to me. My sense was that he had been told to go with the Trump playbook and to double-down on his previous denials. And to “hit back harder than he had been hit.” That, as we know, is the Trump playbook. To be sure, I also believe that Kavanaugh might have been genuinely distressed that his path to the Supreme Court – for which he had been groomed for years and years – was suddenly running into a serious roadblock. Sure, his privileged white frat boy future was being confronted, and he definitely did not like that. But I think his fake outrage was so awkward in large measure because it was such a put-on. He was playing for an audience of one: Donald Trump.

Also playing for an audience of one was Senator Lindsay Graham, who, as is common knowledge, has been angling to succeed Jeff Sessions as Attorney General. Graham has been positively schizophrenic this year, sometimes kowtowing, sometimes pretending to be independent, sometimes playing the spoiler.

Kavanaugh is a Republican Hack. This, also, is well known. He was on the Ken Starr investigative team and authored a memo that suggested that Bill Clinton should be required to testify in detail about his sexual habits and preferences. Since then, he has (of course!) done a 180, and now argues that a President shouldn’t be distracted by the possibility of an indictment, because that’s against the national security interest. Kavanaugh was part of the Bush White House, where one of his jobs was to help shepherd Bush Supreme Court nominees through the confirmation process.  Somebody unearthed a fantastic picture of Kavanaugh and Karl Rove arm-in-arm, clearly already the best of friends. Republican hack all the way!

Kavanaugh lied repeatedly under oath, not only through these hearings, but also in previous hearings. For example, at previous confirmation hearings he lied about emails he received in 2003 containing documents stolen from Democratic senators and staff. He has also lied about his involvement in the nomination of controversial federal judges William Prior and Charles Pickering, and about his role in the nomination of William Haynes, the Pentagon general counsel involved in creating the Bush administration’s interrogation policies. In the hearings last Thursday he clearly lied about claiming not to know what the terms “devil’s triangle” and “boof” meant, or about the meaning of “Renate Alumnius” in his high school yearbook.

Kavanaugh distorted what Leland Ingham Keyser, Ford’s friend and classmate, said about her recollections of the party at which Ford said Kavanaugh assaulted her. Keyser never “exonerated” Kavanaugh, as the judge claimed. She simply affirmed that she had no independent recollection of the incident (because Ford, as she herself has acknowledged, did not share what happened that night with Keyser or anyone else).  Ford doesn’t remember how she got home (as the Republican’s hired-gun prosecutor, Rachel Mitchell established).[1]

We all have some responsibility for empowering Kavanaugh. The defense that the “rules were different” thirty-six years ago does have some merit. But I do have to say in response to the notion that “boys will be boys” that by 1982 I had participated in “Take Back the Night Marches” and would never ever have thought it appropriate to throw myself on a woman or grope her or do anything sexual without her consent. So it’s not that men of my (or Kavanaugh’s) age didn’t know better in 1982. It’s just that back then nobody held Kavanaugh to account.[2]

The FBI investigation will confirm what we already know: that Christine Ford is certain that Kavanaugh assaulted her, but that there is no independent corroborating evidence that is available now. Leland Keyser will tell them that she has no recollection of the incident, but believe Ford now when she was assaulted. Mark Judge will also tell them he has no recollection of the incident (and he has every possible motive to lie).[3] Who knows what Deborah Gonzalez will tell FBI investigators, but like with Christine Ford, there is unlikely to be any corroborating evidence from that incident at Yale (this one only 35 years old) either.

The purpose of the investigation is not to ferret out the truth but mostly to give comfort to those Republicans who need comfort before voting for Kavanaugh. Like Jeff Flake and Chris Coons. Or Susan Collins. Flake said the other day that he might not vote for Kavanaugh if the FBI investigation proved that Kavanaugh had lied. He did lie. Not only the lies already detailed above, but also lies about his own character. While Kavanaugh totally soft-pedals his drinking (and the effect it had on him) we now have people like Charles Ludington[4], a former varsity basketball player and friend of Kavanaugh’s at Yale, who told The Washington Post on Sunday that he plans to deliver a statement to the FBI field office in Raleigh on Monday detailing violent drunken behavior by Kavanaugh in college.

It won’t make any difference. The Republicans will get their man. Trust me on this. They’re all going to vote for Kavanaugh, and they’re all going to say that the FBI investigation was not conclusive and that the debate between Kavanaugh and Ford boils down to a he-said she-said scenario. It doesn’t. But it doesn’t matter. The fix is in. The GOP will have completed the “weaponizing” of the Supreme Court, and we’ll end up with two justices who have committed criminal sexual assault (but were never indicted for it) making judgments about women’s bodies and the balance of power between corporations and labor and all the other item’s on the right wing’s “to do” list.


[1] That, of course, doesn’t make Ford any different from thousands of other rape or assault victims, who don’t remember how they got home after their traumatic experience.

[2] And frankly, although I didn’t know Kavanaugh, it’s doubtful that I would have held him to account back in 1982 because he was a jock, because I would have doubted that he would have cared about anything I said, and because I wouldn’t felt that the system would have backed me up if I had tried to hold some frat boy like Kavanaugh to account.

[3] If there is no corroborating evidence against Kavanaugh, there also won’t be any corroborating evidence against Mark Judge.

[4] Charles Cameron Luddington is currently an associate professor in History at North Carolina State University.

Posted in History, Law, Politics | Tagged , | 2 Comments

Remembering the Anita Hill hearings

As we head toward the 2nd round of Kavanaugh confirmation hearings, with Christine Blasey Ford prepared to testify, it’s useful to go back and look at the Clarence Thomas confirmation hearings, and the testimony of Anita Hill.

Let’s go back in time to 1991, when Clarence Thomas was nominated by President George H.W. Bush to replace Justice Thurgood Marshall on the Supreme Court.[1] Prior to his nomination, Thomas had been the Director of the Equal Employment Opportunity Commission, which is the federal agency that administers and enforces civil rights laws against workplace discrimination. Towards the end of the confirmation hearings, allegations were brought forward by Anita Hill, a law professor who had previously worked under Thomas at both the U.S. Department of Education and the EEOC. She claimed she had been sexually harassed by Thomas while she was working for him.[2] This produced a set of televised hearings and an extraordinary side-show.

According to Hill, Thomas asked her out socially on a number of occasions during her employment. He discussed sexual subjects in the office, including on women having sex with animals and films showing group sex or rape scenes. Thomas graphically described his own sexual prowess and the details of his anatomy, among other things.[3]

During the hearings (which were chaired by future Vice-President Joe Biden) Thomas categorically denied that he had harassed Hill, and claimed that he was being subject to a “high-tech lynching for uppity blacks” by white liberals (which included, other than Joe Biden, Ted Kennedy and Howard Metzenbaum).

Thomas’ supporters went on a character assassination of Hill (of course!), noting among other things that there had been a ten year delay before she brought these allegations forward, that she had followed him to a second job, and that she had had other subsequent personal contacts with Thomas (including once giving him a ride to the airport).

My Thoughts at the Time

I remember these hearings from 1991. I was about seven years out of law school, and was riveted by the proceedings. I also remember the moment that I was sure that Hill was telling the truth and that Thomas had harassed her. It was when Hill reported the story that Thomas had asked during a meeting, “Who has put pubic hair on my Coke?”

Why did that convince me?

Because nobody would make up something that stupid.

If Hill were going to make something up, she would have made something up that makes some sense.[4]

I also remember being struck by something else at the time, and it was Thomas’ use of the phrase “high-tech lynching for uppity blacks.” Let’s just be clear about a few things:

  1. There was nothing “high-tech” that was part of these proceedings.
  2. This was not a metaphorical lynching. Lynchings – as some of you may remember – frequently happened when black men were accused of touching white women. They never happened when black men were accused of touching black women.
  3. Thomas used this occasion to play the race card in spades. He played it so boldly that he successfully tied white liberals (like Biden, Kennedy and Metzenbaum) in knots.

Thomas was, of course, confirmed to the Supreme Court (if by one of the narrowest margins ever). Since his nomination, Thomas has consistently thrown his own people under the bus, voting against affirmative action and the Voting Rights Act, to name a few examples. The only thing Thomas did not do (which quite a few of his supporters expected he would) was to overturn Roe v. Wade, the seminal (pun intended) abortion case about which controversy still rages, 45 years later.

Thomas is 70 years old now, and if he’s like Ruth Bader Ginsberg (the “real RGB”), he could easily be on the bench of another 15 to 20 years. This was a total home run for conservatives, and Thurgood Marshall is still rolling over in his grave knowing that this guy replaced him.

Looking Back Through History

I think there is now a general consensus that Thomas did harass Anita Hill, and that he effectively lied at his confirmation hearings. Not everyone agrees, of course.

Thomas himself wrote an autobiography entitled  My Grandfather’s Son, in which he claimed that Hill had been his “most traitorous” adversary, that she was “touchy” and “apt to overreact,” and that her work at the EEOC was “mediocre.” On the other side, Jane Mayer[5] and Jill Abramson, two reporters for the Wall Street Journal, wrote a book concluding that Thomas lied under oath.  Mayer and Abramson argue that Biden abdicated control of the Thomas confirmation hearings and was effectively responsible for failing to call the four corroborating witnesses to the stand.[6]

The appointment of Thomas is what it is. It happened a long time ago, and there is no way to reverse it now. The only question now is whether we’re going to make the same mistake with Brett Kavanaugh.

What We Can Expect from the Kavanaugh Hearings

Kavanaugh has, as of this writing, been accused by two women of sexual improprieties (although there may be a third in the wings, represented by Michael Avenatti, who might either have her own allegations or can simply provide corroboration for one of the other two). In brief:

  • Christine Blasey Ford, a professor at Palo Alto University, alleged that Kavanaugh (and classmate Mark Judge) corralled her in a bedroom at a high school party, pinned her to the bed, groped her, ground against her, and tried to pull off her clothes. She also alleges that Kavanaugh covered her mouth when she tried to scream. Ford was 15 at the time while Kavanaugh was 17.
  • A second woman Deborah Ramirez, alleged that while both she and Kavanaugh were freshman at a Yale University party, Kavanaugh stuck his penis in Ramirez’ face, and (urged on by other party-goers) tried to get her to touch it. Kavanaugh was already 18 at the time.

In an effort to defend his reputation, Kavanaugh appeared on Fox News and alleged that he was a virgin throughout high school and for “many years after.”

That’s nice, although it obviously doesn’t prove that he didn’t sexually assault these two women. If anything, it might have made Kavanaugh a precursor to those men now known as Incels, young men who take revenge on women because they can’t get one to date them.

So, the character assassination of Ford and Ramirez has already begun. Kavanaugh, if he doesn’t claim simply not to have been there, will claim that this was just “roughhousing” or something like it, just like what Donald Trump said on the Access Hollywood tape was just “locker room talk.”

This is good timing right before the mid-terms. Many women are already outraged by Trump’s behavior (and that of many of his Republican colleagues). If this brings more women to the polls as part of the Blue Wave – while we can fear for what will happen to Ford and Ramirez and anyone else who comes forward personally – at least there will be something positive that comes out of all of this.


[1] For those of you who don’t remember, Marshall had been a civil rights champion and had argued Brown v. Board of Education before the Supreme Court before arriving there himself.

[2] Note the irony that Thomas was THE person in the United States government who had the most direct responsibility for enforcing the nation’s workplace discrimination laws, including those against sexual harassment. In effect, the allegations were that the #1 enforcement officer had engaged in exactly that activity which his agency was designed to protect against.

[3] Four female witnesses reportedly waited in the wings to support Hill’s testimony, but they were never called.

[4] Subsequent to the Thomas hearings, I became a professional workplace investigator, and I can tell you that it’s those kind of details which really do establish or vitiate against credibility.

[5] Jane Mayer, along with Ronan Farrow, is part of the reporting tandem that more recently has been noted for helping to uncover the allegations against Harvey Weinstein, Les Moonves and NY AG Eric Schneiderman, which effectively helped to start the #MeToo movement.

[6] The Mayer and Abramson book also included evidence that Thomas had a substantial interest in pornography although, as critics of the book have noted, that obviously doesn’t prove harassment.

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Propaganda in Action: the tarring of Christine Blasey Ford

If you want to see an example of propaganda in action, you couldn’t do much better than to see the accusations currently being made against Christine Blasey Ford, the woman who has accused Supreme Court nominee Brett Kavanaugh of sexually assaulting her back in 1982, when he was 17 and she was 15.[1] The right wing propaganda machine immediately went into overdrive, and began leveling accusations against Professor Ford.[2]

In a September 19, 2018 article in the New York Times, Kevin Roose (a columnist for Business Day and writer-at-large for the NY Times Magazine) went about debunking the 5 viral rumors about Professor Ford. It’s a great piece, worthy of a complete read, and it really demonstrates how propagandists on the right go about their work.

The Five Rumors about Professor Ford

  1. Professor Ford’s students left negative reviews on her RateMyProfessors.com profile, calling her “unprofessional” and citing her “dark” personality.
  2. Judge Kavanaugh’s mother (also a judge) once ruled against Prof. Ford’s parents in a foreclosure case.
  3. Ford made similar sexual assault accusations against Justice Neil Gorsuch during his nomination process.
  4. Ford is a major Democratic donor with a long history of left-wing activism.
  5. Ford’s brother (Ralph Blasey) worked at a law firm with ties to the Russia investigation.[3]

The Five Responses about Professor Ford

  1. The RateMyProfessor reviews were about Christine A. Ford, a professor of human services at California State University Fullerton, and not Christine Blasey Ford.
  2. There was, in fact, a 1996 foreclosure case involving Judge Martha Kavanaugh and Prof. Ford’s parents. But the Blaseys settled with their bank, and Judge Martha Kavanaugh dismissed the case.[4]
  3. There is no known letter sent by Prof. Ford about Justice Gorsuch, or any other Supreme Court justice or nominee other than Kavanaugh. This one is an outright lie.
  4. It is no secret that Prof. Ford is a registered Democrat who has given money to progressive organizations and campaigns[5]. However, according to data from the Federal Election Commission, her donations to Democratic committees and campaigns from 2013 to 2017 total less than $100. That is far from a “major Democratic” donor.
  5. While it is true that Baker-Hostetler hired Fusion GPS as part of a Russian money-laundering investigation (and that Fusion GPS later worked with Mr. Steele on the Russia dossier) Ralph Blasey left the firm in 2004, more than a decade before any investigation into Russian collusion began.

So there it is, my friends, a good and tidy example or right wing propaganda in action.  While there are kernels of truth in all the accusations against Prof. Ford, they have neatly and quickly been distorted beyond recognition. Once again, the Republicans are proving to be the Party of Hypocrisy.


[1] For those of you doing the math, yes, that means that these allegations are 36 years old.

[2] Christine Blasey Ford, born in 1966, is an American psychologist and professor of statistics at Palo Alto University. During her academic career, Professor Ford has worked as a research psychologist for Stanford University‘s Department of Psychiatry and a professor at the Stanford University School of Medicine Collaborative Clinical Psychology Program.

[3] Liberty Counsel, a conservative legal group, said that Prof. Ford was an unreliable accuser because her brother had ties to the special counsel investigation into Russian interference in the 2016 election. The argument goes that Baker-Hostetler, the law firm where Prof. Ford’s brother worked, had once hired a consulting firm called Fusion GPS as part of a Russian money-laundering investigation. Several years later, Fusion GPS subcontracted with British intelligence officer, Christopher Steele, to produce the infamous Russia dossier. Therefore, they implied, Prof. Ford’s brother was connected to the Russia investigation.

[4] Citing court records, Snopes noted that Judge Kavanaugh’s ruling actually allowed the Blaseys to keep their home.

[5] These facts were reported by the Washington Post in the original story naming Prof. Ford as Kavanaugh’s accuser.

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Anonymous should not have been published in the New York Times

Include me among those who think that the “senior administrative official” who authored that anonymous op ed in the New York Times didn’t do anyone any favors. I don’t think the Times should have published it.

First of all, I don’t think the op ed adds much to what we know about the Trump administration, especially since the Bob Woodward book is being released next week. The early excerpts from that book describe the same kind of environment as is described in the op ed.

Second, knowing that there are adults in the White House does not make me feel much safer. The Donald is still the President. And now he’ll be much more vigilant and much less trusting. It will be that much harder to “police” the Donald’s impulsive behavior.

Third, to all the conservatives arguing that the President should have the loyalty of his staff and not be undermined by them, for once they are right. The President should have the loyalty of his staff. If they think he’s gone so far off the rails that he should be replaced, there is always the 25th Amendment. That’s a pretty serious remedy, but it’s the one provided for by the Constitution.

Besides, I don’t think it’s going to take long for them to find who the author is. Not only does the Trump administration want to know, but all of the rest of the media that is not part of the editorial department of the New York Times wants to know as well.

It’s funny, senior Trump administration officials have been falling all over themselves denying that they are the author. Some people have been pointing at Vice President Mike Pence because the author used the word “lodestar” – which is not a term that most people use – and which is one of the favorite words of the Vice President.

Good Lord, wouldn’t that be something!

Mike Pence, the #1 Sycophant in the administration.

Consider that the Donald couldn’t fire Pence. He’d be stuck with him for another two years.

But I don’t think it’s going to be that beautiful. That is just better than anything could get.

Posted in Law, Politics | Tagged , | 1 Comment

The Abortion Wars, Part 2

Yesterday we spent time talking about the legal underpinnings of the Roe/Casey decisions.  So, the question now is, what would happen of Roe v. Wade/Planned Parenthood v. Casey were actually overturned.

What Would Happen if Roe/Casey were Overturned?

If Roe/Casey were overturned, what actually happens on the ground might not change all that much.

Why do I say that?

Because there have been so many restrictions enacted by state legislatures that in many states, there are barely any abortion clinics still operating or any abortions taking place.

Consider the following: here are the number of abortion clinics operating in certain selected mid-west states:

•	North Dakota:	1
•	South Dakota:	1
•	Nebraska:	3
•	Kansas:		4
•	Oklahoma:	3
•	Montana:	5
•	Idaho:		3
•	Wyoming:	1
•	Utah:		2
•	Missouri:	1

That’s 10 states with only 24 abortion clinics.  Or not even 2.5 clinics per state.[1] Compare that to the 152 clinics in California or the 95 clinics in New York state or even the 71 clinics in Florida.

As a practical matter, legal abortion is already almost non-existent in the ten states listed above (and in many other states that have limited access to abortion).

States Have their Own Constitutions

States have their own constitutions, and many of those constitutions could come into play if Roe/Casey were overturned. Remember that more than ten years before the Supreme Court authored Obergefell v. Hodges, 576 U.S. ___ (2015), the decision making gay marriage constitutional under the U.S. Constitution, the Massachusetts Supreme Judicial Court had already decided Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003), which made gay legal under the Massachusetts Constitution.

Many states never got around to tackling the question of the right to an abortion under state constitutions because the issue had already been decided by Roe v. Wade.  That federal decision pre-empted the question of state constitutionality by making it clear that no state could just ban abortions outright, regardless of what was in their own state constitution.

Overturning Roe/Casey would not mean that state constitutions cannot be found to incorporate a state right to abortion. It would simply mean that this right is not to be found in the federal constitution.

Even without finding a basis in their own constitutions, states can also go about the task of protecting the right to choose simply by changing legislation. Using the example of Massachusetts again, the Commonwealth recently passed (and the Governor signed) Chapter 155 of the Acts of 2018, An Act Relative to Reproductive Health, which, among other things, repealed a 150-year old law that banned abortion in the Commonwealth.

Other pro-choice states are, of course, free to do the same.  States which are not pro-choice – which includes at least the 10 states listed above – are not likely to follow suit.  In most of those states, it’s likely that the number of clinics which can offer abortions would drop to zero, and that abortion would be completely prohibited.  But again, in many of those states, access to abortion is already effectively non-existent.

Abortion in Other Countries

There seems to be quite a range relative to the number of abortions performed in other countries.  The highest rates of abortion take place in Greenland (who knew!) and Belize[2] Some of the lowest rates of abortion have been reported in countries like Chile, Panama, and Trinidad and Tobago.

The rates here are calculated per 1000 women between the ages of 15-39.  Some significant countries include:

•	Russia:		        37.28%
•	China PR:		26.07%
•	France:			20.79% 
•	United Kingdom:	        20.21%
•	United States:		17.13%
•	Italy:			10.87%
•	India:			02.87%
•	Mexico:			02.50%

The United States, as one can see, is in the middle of the pack. Not nearly as high as Russia or China, but quite a bit higher than India or Mexico.[4]

Let’s take a closer look at two countries which are on opposite sides of the spectrum with respect to legality: Belize and the Netherlands.  The rate in Belize, where abortion is basically illegal, is an extraordinary 59.59%.  The rate in the Netherlands, where abortion is mostly completely legal, is about 12.1%.

What does this prove?

It proves that there is not much of a relationship between the legality of abortion and the number of occurrences.[5]

Changes in Technology

One thing that has changed dramatically in the intervening 45 years since Roe was decided is how abortions can be performed.  Whereas abortion used to be a surgical procedure, it can now be a “medicated” procedure through the use of the abortion pill. Commonly known as the RU486 pill, this is actually two medications that are used together: Mifepristone and Misoprostol. These medications, which do require a prescription in the United States, can be used safely (with a few exceptions) up until about 70 days after a woman becomes pregnant.

In a world where we have a very serious opioids crisis, it seems hard to imagine that there wouldn’t also be a vigorous traffic in abortion medication. It wouldn’t be much harder than trafficking in opioids. So, this alone – that abortion can now be performed through the ingestion of a couple of pills – changes the equation. While it’s obviously much better for abortion to stay legal, at least now, if abortion does become illegal, women would not have to resort to going back to coat hangers to get it done.


[1] There are plenty of other states, most of them in the South, who also don’t have more than two to three clinics. Most of the states listed above are in the far west.

[2] Although to be fair, the statistics reported from Belize date back to 1996.  Some other countries also have their most recent statistics from 2001 or 2004, and their reliability cannot really be verified.

[3] It’s interesting that all those Christians who are recently converted Russophiles that the country they’ve recently become fans of has one of the highest abortion rates in the world.

[4] These figures include both legal and unsanctioned abortions. Especially with respect to the unsanctioned abortions, it’s not clear to me how reliable this data really is.

[5] This one example does not, by itself, prove that point. But if you examine many other countries, you will see that there really isn’t much of a relationship. Some catholic countries (Mexico, for example) have a very low incidence of abortion; other catholic countries (Belize and French Guiana, for example) have rates that are very high. It seems to be the local culture which is determinitive.

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The Abortion Wars, Part I

I was 15 years old in January of 1973, when Roe v. Wade was decided. At the time I think I barely knew what an abortion was. However, one thing I’m sure of is that I never, ever imagined that is that 45 years later we’d be having the same fucking debate! In 2018, we really can’t yet agree that a woman should have control over her own body?

The impetus for renewing this discussion now is, of course, the nomination of Judge Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court. It’s not certain, of course, the Kavanaugh would be the fifth vote to overturn Roe. He will huff and puff mightily during his confirmation hearings that he is a faithful follower of judicial precedent, while promising nothing. But this possibility is one that the right wing has been working very hard at for a very long time. And they’ve done a remarkably good job at it, one must admit.

In any case, this is the first of two articles on the abortion wars. I will be posting about:

  1. The legalities involved in the Roe (and subsequent) decisions.
  2. What would happen if Roe were overturned?

The legalities underpinning the Roe decision

Just like the Bible, the Constitution says nothing specific about abortion. At the time that the Constitution was written abortion was not unknown, but also not a particularly common practice. Advances in medicine over the intervening years have changed that.

Before we got to judicial determinations on the constitutionality of abortions, we first had cases determining the constitutionality of birth control.  The two cases in question were:

To make that determination the court had to find two things: first, that there was an inherent “right to privacy” implied somewhere in the Constitution, and second, that this right could be applied to the states through the Fourteenth Amendment.[1]

The Ninth and Tenth Amendments

I have argued for some time, that both the contraception and abortion decisions were decided under the wrong amendment. Instead of looking for some implied “right to privacy” there are two amendments that could have created “natural law” rights for procreation in general, and birth control and abortion in particular. These two amendments are:

  • The Ninth Amendment, which states that [t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
  • The Tenth Amendment, which states that [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[2]

One of the set of rights that should have been retained by the people are those that relate to procreation.  Questions about whether or not to have a child is about as personal as a right can be.  It shouldn’t really be an issue that the Government weighs in on at all.

What Roe v. Wade Actually Said

Building on the Griswold and Eisenstadt cases, the Court found in Roe v. Wade, 410 U.S. 113 (1973) that the decision to become a parent was part of the “liberty” protected under the due process clause of the 5th and 14th Amendments. The right to terminate a pregnancy, the Court wrote, must be balanced against other considerations, such as the state’s interest in protecting “prenatal life.”

Justice Blackmon, the author or the Roe decision, divided the nine months gestation period that is normal for pregnancy into three trimesters, and assigned the following legal consequences:

  • First trimester: abortions cannot be prohibited (but may be regulated in certain minimal ways).
  • Second trimester: abortions can be regulated in ways that are “reasonably related” to maternal health.
  • Third trimester: abortions can be prohibited except if necessary to preserve the life or health of the mother.

How Roe was amended by Planned Parenthood v. Casey

A mere nine years after the Roe decision, the Supreme Court decided Planned Parenthood v. Casey, 505 U.S. 833 (1992).  In those nine years the liberal justices William Brennan and Thurgood Marshall had resigned and had been replaced by the much more conservative justices David Souter and Clarence Thomas. Opponents of abortion rights thought they could get another bite at the apple. They thought Roe would just be overturned. But that did not happen.

What did happen is that Roe was amended in a way that is largely technical and mostly of interest to attorneys. But here are the big changes:

  • Casey threw out the “trimester” framework and replaced it with a “viability” framework.
  • The court allowed government regulation of abortion prior to viability so long as it did not create an “undue burden” on the women seeking access to an abortion

It is the Casey case that is now the law of the land. When people say they want to overturn Roe, what they really mean is that they want to overturn Casey, or at least the portion of Casey that allows access to abortion prior to viability.[3]

What has Happened Since Planned Parenthood v. Casey

Since the Planned Parenthood v. Casey decision, legislatures around the country have enacted more and more restrictions, and the Supreme Court has found more and more of these constitutional.  This includes:

  • Waiting periods
  • Informed consent requirements
  • Fetal viability tests
  • Reporting and recording requirements
  • Medical procedures (i.e., how doctors actually perform abortions)
  • Prohibitions on “partial birth” abortions
  • Parental notice and consent requirements
  • Spousal notice and consent requirements

Please note that the Supreme Court has limited some of these restrictions, and that the case law around these proposals is complicated. Too complicated for this post or this discussion. That discussion would be more appropriate for a law school class.

Tomorrow I will take a look at what would happen if Roe/Case were overturned.


[1] Remember that inherent in it’s nature, the U.S. Constitution only applies to the federal government. The Bill of Rights (first 10 amendments of the Constitution) only regulate what the federal government can and cannot do. It is the 14th Amendment that applies these rules to state and local governments.

[2] Part of the problem with the 10th Amendment is that it lumped together the reserved rights to both the states and the people. Really, those two concepts should have been separated.

[3] As medicine advances, it should be noted that “viability” has become a “moving target” and may eventually move to the point that viability is achieved before the woman really knows that she’s pregnant.

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Rest assured, Brett Kavanaugh will be confirmed

For those of you wondering if Brett Kavanaugh will be confirmed: despite this morning’s circus, you can be assured he will be confirmed.

All of the so-called Republican moderates (looking at you Susan Collins, Jeff Flake and Lisa Murkowski), useless as they are, will vote for Kavanaugh. John McCain is dead (and he probably wouldn’t have been any help anyway). And a few spineless Democrats will vote for Kavanaugh (Joe Machin and Claire McCaskill, for example).

As Barack Obama famously said, elections have consequences. This will be one of those times. Of course, Trump (who wouldn’t recognize a constitutional amendment if one were sent to him in a greeting card) will have had almost nothing to do with this. No, this is the work of the Federalist Society, which is why it will be a big victory for Republicans. Unlike so much of the other shit engineered by President Trump and his administration.

It’s amusing to hear Aholes like Orrin Hatch imploring us to “take the politics” out of it when the entire point of his nomination is politics.

Will Kavanaugh overturn Roe v. Wade? Maybe, maybe not. People thought that Clarence Thomas would overturn Roe v. Wade, and it didn’t happen. Of course, we might not get that lucky a second time.

Maybe Roe v. Wade should be overturned, so that the youth of America can figure out what we’ve been fighting about for all these years, and why voting is really, really, really important.

 

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