Last year, Republican presidential candidate Ron Paul introduced a bill in Congress that would allow states to ban contraception if they choose.
Paul’s “We the People Act,” which he introduced in 2004, 2005, 2009, and 2011, explicitly forbids federal courts and the Supreme Court of the United States from ruling on the constitutionality of a variety of state and local laws. That includes, among other things, “any claim based upon the right of privacy, including any such claim related to any issue of sexual practices, orientation, or reproduction.” The bill would let states write laws forbidding abortion, the use of contraceptives, or consensual gay sex, for example.
If passed, Paul’s bill could undermine the most important Supreme Court case dealing with contraception—1965’s Griswold v. Connecticut. In that case, the high court found that a Connecticut law prohibiting the use of contraception was unconstitutional based on a “right to marital privacy” afforded by the Bill of Rights. In other words, the court declared that states cannot interfere with what happens between the sheets when it comes to reproduction.
Paul’s bill would also keep the federal courts out of cases like Roe v. Wade and 2003’s Lawrence v. Texas, in which the justices found that privacy is a guaranteed right concerning sexual practices and struck down Texas’ anti-sodomy law as unconstitutional.
It’s well known that Paul, like the other remaining GOP presidential contenders, is no fan of abortion or gay people. But the issue of contraception access is one that has not received nearly as much attention.
Paul’s bill hasn’t received much support in the House. It has no cosponsors and has never made it to a vote on the House floor. But that’s not its biggest potential problem: “I don’t think it would be constitutional to strip the court of that power,” said Bebe Anderson, director of the US legal program as the Center for Reproductive Rights. “You certainly couldn’t do it by law—you’d have to amend the constitution to do that.”
Paul’s campaign did not respond to a request for a clarification on the intent of the his proposed law with regard to contraception. But as Addie Stan notes over at Alternet, Paul’s response to a question about the Griswold ruling during a January presidential debate provides hints about what he might say. “As far as selling contraceptives, the Interstate Commerce Clause protects this because the Interstate Commerce Clause was originally written not to impede trade between the states, but it was written to facilitate trade between the states,” Paul said. “So if it’s not illegal to import birth control pills from one state to the next, it would be legal to sell birth control pills in that state.”
Paul is saying, in short, that his bill wouldn’t actually ban the sale of contraceptives, which would be protected under the Commerce Clause of the Constitution. But that’s an extremely unorthodox interpretation of the Commerce Clause, according to several lawyers Mother Jones contacted. The clause typically only deals with whether or not Congress has the ability to regulate interstate business. Paul is correct that the Commerce Clause would prevent a state from banning the importation of birth control pills from another state. But absent a constitutional right to privacy, states could still bar their citizens from buying or selling birth control within the state. “The right to access contraception has not been based on the Commerce Clause in my understanding,” explains the Center for Reproductive Rights’ Anderson.
Just as I was publishing my post about Catholic tribalism on Friday, predicting that the brilliant White House “accommodation” on contraception wouldn’t mollify the U.S. Conference of Bishops, the bishops released a statement that made them seem, well, mollified, at least a little. The new Health and Human Services regulations were “a step in the right direction,” their statement read, and so I softened an assertion that the bishops would continue to wage war against the compromise.
I needn’t have soft-pedaled. Only a few hours later the bishops came out, guns blazing, insisting the only solution they would accept would be for “HHS to rescind the mandate for those objectionable services.” By any employer, for any employee in the entire country — a country where the vast majority of voters, and of Catholics, support Obama’s stand. And at Sunday Mass, bishops and parish priests throughout the nation read aloud the stunningly political letters about the controversy they already had planned. Now, with the bishops’ blessing, Republican are hard at work on legislation that would force HHS to strip the contraceptive coverage requirement for all employers, not just religious employers. Sen. Roy Blunt would allow employers to decline to cover any service they deem objectionable; Sen. Marco Rubio would restrict the legislation to contraception coverage.
I have a couple of reactions to the bishops’ extremism. First of all, as someone raised Catholic, I wonder why they’ve never read letters about any of their social justice priorities: universal healthcare, increased protection for the poor, labor rights, or action to curb climate change? Why does this topic – not even the morally challenging issue of abortion, but the universally accepted practice of birth control – merit such a thundering reaction from the pulpit?
Second, as an American, I also wonder: How do they continue to demand tax-exempt status when they’re railing in their churches about blatantly political – and divisively partisan – public concerns? As the first writer on my remarkably sane Catholic tribalism letters thread remarked, their public support for the extremist GOP position makes me think they should register as a Republican political action committee rather than remain a tax-exempt religious institution outside the bounds of politics.
Even as the bishops became more shrill and extreme, the debate over contraception coverage became smarter and calmer last week. Major Catholic organizations supported Obama’s Friday move, including the Catholic Health Association, Association of Jesuit Colleges and Universities and Catholic Charities USA. Before the president’s announcement, famed attorney David Boies did the most to usher in the new tone by framing the HHS rules as a matter of labor law. Boies doesn’t believe, by the way, that HHS is in any way required to provide the exemption for churches it wrote into its regulations even before the compromise. If the church is employing people, whether co-religionists or not, it has a responsibility to comply with employment law. He proved that even the administration’s initial regulations, exempting churches, was a strong attempt at accommodating anti-contraceptive religious groups.
But maybe the best argument on behalf of the Obama administration’s position comes from a very unlikely source, as Jay Bookman points out: Supreme Court Justice Antonin Scalia. In two different decisions, the conservative Catholic Scalia has sided with the court majority in finding that religious teachings can’t justify religious employers – or employees — failing to comply with labor law. In the 1990 Employment Division v. Smith decision, regarding an employer’s ability to fire a Native American employee who used peyote, despite the employee’s claim that using the drug was a religious rite, Scalia wrote:
“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” In an even more directly relevant 1982 decision holding that Amish employers must comply with Social Security and withholding taxes, though their faith bars participation in government support programs, Scalia wrote:
Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.
I’ve written repeatedly that my inability to quit the Catholic Church entirely comes from the fact that its social teachings formed my social conscience, and to this day some of the people doing the most good for the poor and the excluded are devout Catholics. But the bishops are impossible to defend. Today, they are working on behalf of the Republican Party. “They have become the Pharisees,” says Andrew Sullivan, a conservative practicing Catholic. “And we need Jesus.”
By: Joan Walsh, Editor at Large, Salon, February 13, 2012
Republicans love to harp on deficit reduction when a Democratic president releases a budget. But when they’re in power themselves, they couldn’t care less.
Now we are treated to the semiannual spectacle of watching Republicans pretend they care about the deficit. They will hammer at this repeatedly as discussion progresses on the president’s budget budget, which projects a deficit of more than $1 trillion for this year and $901 billion for next. Obama and the Democrats generally have a history of quaking when this deficit talk starts up. But the best thing they can do now is stick to their guns and quote Dick Cheney: “Deficits don’t matter.” Growth matters. And for growth, we need investment.
First, the Republican hypocrisy. I hope you are aware by now that they don’t actually care about deficits. They just care about money being spent on things they don’t like, which outside of overpriced ships the Navy probably doesn’t need and more reinforced steel for the border fence includes pretty much everything. If, say, instead of seeking to spend more money for transportation, Barack Obama had proposed cutting the top marginal tax rate down to 8 percent, well, that would have had a completely disastrous impact on future deficits. But you wouldn’t have seen Republicans complaining about that, because the rich deserve more of their money back.
You also didn’t see Republicans complaining about deficits when George W. Bush was running them up. Oh, a few did. But the protests were infrequent and mousy. By and large, Republicans shuffled along. It is astonishing, isn’t it, to think back on the prescription-drug benefit from 2003. An unfunded, roughly $500 billion expansion of socialized medicine (Medicare), and Tom DeLay kept the floor open for three extra hours so that the small number of Republicans who tried to take the Republican position on this could be browbeaten into voting with the White House. That episode, engineered by DeLay, was as close as we’ve come to legislative fascism in this country in a long, long time, both in the sense of the strong-arm tactics used and in the way it posited that day is night and black is white.
Of course, in 2003 the deficit was “just” $374 billion. This, remember, was only two years after Bush took office, met by a surplus of $237 billion. So he added $611 billion to the deficit in two short years, by diddling around with indefensible tax cuts for the wealthy (remember how they goosed the economy? Didn’t think so) and passing the aforementioned Medicare expansion to shore up the senior vote. Admittedly, Obama outpaced Bush. He added $1 trillion in a year. But we all know why. Well, some of us know why. The economy was going to die, and it needed money. Wall Street and the banks didn’t have it, so the government had to supply it.
The only problem with this was that it didn’t supply enough. I’ve started reading Noam Scheiber’s The Escape Arti$ts, his new book about the Obama economic team’s successes and failures. Scheiber writes that Christina Romer, the administration’s first chief economist, got all the numbers on the economy from the Fed and other reputable sources and set out to determine how much federal intervention, free of political considerations, would be appropriate to prop up the collapsing economy. The number she and her staff settled on—$1.8 trillion—was so high that she didn’t even dare mention it at meetings. Obama, of course, did less than half that, which was the maximum that was politically possible.
After the heavy artillery fire he took for that, Obama decided he had to placate the deficit hawks, at least rhetorically, and so he did that for a while. But that collapsed, partly because the Republicans wouldn’t consider tax increases as part of the mix, and partly because he and the White House eventually figured out that trying to be moderate on these issues was both bad substance and lousy politics. It’s bad substance because, as much as it infuriates some people, government spending helps keep us afloat in hard times. And cutting that spending causes harm. For example, we are down about 610,000 government employees from the day Obama took office. Most of those are at the state and local level, and while it’s hard to say how many are a result of the drastic cuts in federal aid to states, certainly many layoffs stem from budget cuts. Those cuts reduce the deficit, but they add directly to the jobless rolls. Is that what we’ve needed for these past two years? Obviously not.
And it’s bad politics because, as the White House now seems to grasp, it’s time to draw contrasts, and the public is largely on Obama’s side. People kinda-sorta say they care about the deficit, but they don’t, really, in large numbers. And to the extent that they do care, they’d rather raise taxes on the wealthy than cut programs.
When the economy gets better, the deficit will start to heal itself. If the economy is truly picking up in the way the January jobs numbers suggest—and if unemployment goes down to around 8 percent by the end of the year—we’ll be poised for a recovery that will add jobs and tax revenue. At least, that is, until the next Republican president comes along and slashes taxes on multimillionaires, blowing another huge hole in the deficit (Mitt Romney’s hole, for example, would be $600 billion in 2015 alone). If Romney is actually elected, the same Republicans who are going to spend the next few months nattering about Obama’s irresponsibility will be marveling at President Romney’s courage.
But Obama standing firm against the deficit hypocrites will render a Romney presidency even more unlikely than it already is. Republicans use deficit politics to scare Democrats, and Democrats often respond exactly as Republicans hope. It’s time they stopped being afraid.
By: Michael Tomasky, The Daily Beast, February 14, 2012
Republican delegate Bob Marshall says critics are overstating things when it comes to the personhood bill he is sponsoring in Virginia. Opponents of his bill have argued that not only does the measure grant legal protections to all fetuses beginning at conception, but it could also be construed to outlaw birth control.
The bill is ostensibly less stringent than similar measures that came up in Colorado and Mississippi. As Marshall points out, it does not directly outlaw abortion, but would force the courts to include embryos in definitions of person. “I think I struck a middle ground,” says Marshall.
Try telling that to the bill’s opponents, who fear the bill’s consequences for women’s health. The House rejected an amendment by Democratic delegate Virginia Watts that would have specifically protected birth-control access.
Marshall called the amendment “a vehicle to entrap me,” arguing it would have hurt the bill in court. By specifically allowing birth control, Marshall says, the courts could interpret the bill as prohibiting anything not specifically allowed. “If I were to accept any one of these,” he said, the courts could say “here’s Mr. Marshall, acknowledging unintended consequences.”
But Watts argues the bill already has that problem because it specifically allows in-vitro fertilization. The last section of Marshall’s bill notes that “nothing in this section shall be interpreted as affecting lawfully assisted conception.” In other words, in-vitro is okay. Watts contends that because the bill specifically allows in vitro, it therefore disallows any other acts that would interfere with conception—like birth control. “You said it doesn’t pertain to one thing, therefore it does to everything else,” says Watts. “That’s why my amendment was so crucial … anything that keeps that from being implanted in the womb, kills a person under this bill.”
The bill is headed to the state Senate, where no one seems to know what will happen. While the House committee that dealt with Marshall’s bill was stacked in favor of the Republicans, the Senate’s committee is almost split: seven Republicans who vote pretty consistently with the pro-life advocates, seven Democrats who usually vote pro-choice. Then there’s Senator Harry Blevins, a Republican who’s record is less absolute. Without Blevins’ vote, the bill would probably not make it out of committee. Neither Marshall nor Watts had a clear idea which way Blevins was leaning and the senator was unavailable for comment this afternoon.
Watts is hopeful the debate over her amendment specifically allowing birth control will highlight what’s at stake. “I think that my amendment being so clearly before the body really underscores what’s there,” she said. “Up until then, you could just obfuscate all this with a lot of verbiage.”
Meanwhile Marshall’s busy painting an almost inverse portrait of his bill. “People who are otherwise intelligent keep bringing up these red herrings,” he said, noting that “when it comes to sex a lot of people can’t think straight.” At least that’s something both sides can likely agree on.
By: Abby Rapoport, The American Prospect, February 14, 2012
Republicans finally came to their senses yesterday and realized they were waging a losing battle with their opposition to a payroll tax extension. The two-month extension Congress passed in December was set to expire by the end of this month, and Republicans were adamant that any further extension be paired with equal spending cuts. Democrats balked, instead suggesting a surtax on millionaires that the Republicans would never accept, and another last minute legislative showdown appeared inevitable. Then out of nowhere yesterday afternoon Congressional Republicans announced that they would drop their resistance:
“Because the president and Senate Democratic leaders have not allowed their conferees to support a responsible bipartisan agreement, today House Republicans will introduce a backup plan that would simply extend the payroll tax holiday for the remainder of the year while the conference negotiations continue regarding offsets, unemployment insurance, and the ‘doc fix,’” said GOP leaders in an official statement Monday afternoon.
The last impasse on the tax extension left Republicans limping out of Washington for the Christmas recess. The payroll tax cut—which maintains the current 4.2 percent rate that, for a family earning $50,000 a year, amount to about $80 extra per month than the standard 6.2 percent rate—is a widely popular measure and Republicans faced public scrutiny as their obstinacy risked raising taxes on 160 million people, all in the name of political brinkmanship. By slipping this announcement out far in advance of the deadline on the same day the president released the 2013 budget, Republicans hoped to avoid a repeat of their previous public relations debacle.
Seems like an unabashed win for the Democrats, right? It’s certainly reassuring that the payroll tax extension, a form of stimulus bolstering the still shaky economy, will remain in place through the end of the year. Except unlike the December concession, this change of heart only covers the politically popular payroll tax. Excluded is an extension of unemployment benefits for the long-term jobless and the so-called Doc Fix, which stalls a drastic drop in the fees paid to Medicare physicians.
I imagine Republicans will also find common ground on the latter half—they wouldn’t want to position themselves against your grandma’s doctor during an election year—but the agreement seems designed as a ploy to put an end to the increased unemployment benefits that Republicans have fought against throughout Obama’s presidency. While the payroll tax cut helps keep the economy afloat, the unemployment benefits are the more simulative part of the equation, possibly dropping GDP by 0.3 percent if no extension is passed. But since those benefits aren’t dolled out to as wide a base as the payroll tax, there is less of a public groundswell whenever Republicans hold the extension hostage.
If Democrats buy into the Republicans’ attempts to separate the various measures, it’s unlikely that any offsets would be enough to convince Republicans to support extending unemployment. The party is secretly crossing their fingers, hoping the economy doesn’t improve before Obama is on the ballot this fall. Any form of stimulus that lacks widespread appeal would be a nonstarter.
By: Patrick Caldwell, The American Prospect, February 14, 2012