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“Next Year’s SCOTUS Sensation?”: Irresponsible And Blatantly Unconstitutional Abortion Restrictions

As commentators begin to run out of words to speculate about the murky maneuverings of the Supreme Court on same-sex marriage issues as reflected in oral arguments, it’s occurring to some to compare and contrast the trajectories of law and public opinion on gay marriage and that other hardy perennial of the Culture Wars, abortion.

At Wonkblog, Sarah Kliff sums up the anomaly:

Tuesday marked for a watershed day for gay rights activists as the Supreme Court heard oral arguments on a case with the potential to legalize same-sex marriage across the country.

Across the country and 1,500 miles west of Washington, an equally notable event took place: North Dakota enacted the country’s most restrictive abortion law, barring all procedures after six weeks.

For decades, support (or opposition) for gay marriage and abortion went hand in hand. They were the line-in-the-sand “values” issues that sharply divided the political parties.

Not anymore. ”As recently as 2004, we talked about abortion and same sex marriage in the same breath,” says Daniel Cox, research director at the Public Religion Research Institute. “They were the values issues. Now, it doesn’t make sense to lump them together anymore. We’ve seen a decoupling.”

Actually, I beg to differ in part: abortion policy is, more than ever, a reliable and quasi-universal item that divides the two major political parties.

What’s different is that there’s no clear generational trend on abortion that makes the conservative and Republican position doomed, as Kliff notes:

Younger Americans have become increasingly supportive of gay marriage in a way that hasn’t necessarily happened for abortion rights. Young Americans’ views on same-sex unions look nothing like previous generations. But when it comes to abortion rights, Millennials look a lot more lilke their parents.

Millennials, PRRI has found, have similar views to the general population on the morality and legality of abortion. Fifty-two percent of the general public thinks abortion is “morally wrong.” Among Millennials, that number stands at 50 percent. Fifty-six percent of all Americans think abortion ought to be legal, compared to 60 percent of the younger crowd.

In terms of state activity, the irony is that a development adverse to the anti-choicers–President Obama’s re-election–is partially responsible for the wild competition Republican legislators around the country have been undertaking to enact the most irresponsible and–under existing precedents–blatantly unconstitutional abortion restrictions. Now that they’ve been denied a Romney presidency where Supreme Court appointments would be carried out under a strict anti-choice litmus test, abortion-rights foes have clearly decided to initiate a challenge that will test the commitment to Roe v. Wade and Planned Parenthood v. Casey of the existing Court–and particularly its erratic “swing vote,” Justice Kennedy, who opened the door to new abortion restrictions in his bizarre opinion in a 2007 decision upholding a federal ban on so-called “partial-birth-abortion.”

When North Dakota’s Gov. Jack Dalrymple signed that batch of radical bills on abortion yesterday, he might as well have been holding up a big sign reading: “Hey, Anthony Kennedy! These bills are for you!” So I wouldn’t be surprised if abortion is the big issue in oral arguments before the Supremes next year or the year after that.

 

By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 27, 2013

March 28, 2013 Posted by | Abortion | , , , , , , , , | Leave a comment

“Waiting For Mr. Roberts”: Is There A Constitutional Right To Contraception?

Is there a constitutional right to privacy underpinning the right to contraception? Suddenly, in this political climate, you can’t be sure, no matter what the U.S. Supreme Court said in 1965.

The high court ruled 7-2 in Griswold vs. Connecticut the state law forbidding the use of contraceptives was unconstitutional, in part because of due process, but mainly because it violated “the right of marital privacy.”

But the court of nearly 40 years ago that produced Griswold, the Warren Court, was one of the country’s most liberal, far more liberal than the current court and its consistent 5-4 conservative majority.

And Griswold’s finding of a right of privacy hiding in the “penumbra” of the Bill of Rights has been mocked over the years by conservatives. There is no absolute certainty that if the issue were brought before the Supreme Court today that Griswold would survive — though there is no certainty that it wouldn’t.

As recently as 2010, Justice Antonin Scalia, a conservative paladin speaking to an audience at UC Hastings College of the Law, dismissed the Griswold ruling as a “total absurdity.”

What exactly did the Griswold ruling say?

The late Justice William O. Douglas wrote the prevailing opinion. Three other justices joined him, and three more joined the judgment for different reasons.

“The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights,” Douglas wrote.

“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs or social conditions,” he said. “This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.

“The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.”

The Connecticut case “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this [Supreme] Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ … Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The … very idea is repulsive to the notions of privacy surrounding the marriage relationship.

“We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system,” Douglas said. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

The late Justice Potter Stewart, joined by Justice Hugo Black, dissented. Stewart said the Connecticut law might be “asinine,” but he could not find anything in the Constitution to forbid it.

“Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone,” Stewart wrote. “I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.”

Griswold applied to married couples, but has since been expanded by the courts to all adults.

Nearly four decades later, contraception is once again under fire. Essentially, the Obama administration ignored the old adage, “Never poke a bear with a stick.” For bear read the U.S. Catholic bishops, who don’t think contraception is proper practice for the 21st century.

In February, U.S. Secretary of Health and Human Services Kathleen Sebelius issued an interim rule, mandating health insurance plans for all employers, including religiously affiliated institutions, include coverage for birth control, sterilization and other preventive services. The rule caused outrage among Catholic leaders and top officials of the Republican Party.

Feeling the heat, Obama then announced a rule modification: Women may have access to free preventive care, including contraceptive services. But if a woman’s employer objects to birth control on religious grounds, then the insurance company will be required to offer the woman contraceptive care directly, without a co-pay.

The policy was slammed repeatedly on the campaign trail by Republican presidential contender Rick Santorum, a conservative Catholic who said even the amended rule was an attack on religious freedom.

The issue ensnared Santorum’s purportedly more sophisticated rival Mitt Romney.

When Republican senators unsuccessfully tried to enact a measure that would allow employers to opt out of any healthcare coverage to which they objected on religious or moral grounds, Romney at first told an interviewer he was “not for the bill.” When the reaction set in from conservatives, Romney said what he meant was that he “strongly supported” the Senate measure, but misunderstood the original question.

Conservative radio hammer Rush Limbaugh turned up the heat under the dispute after a young law school student testified before a congressional panel that contraception was a necessary part of women’s preventive healthcare, Limbaugh said she wanted taxpayers to pay for her having sex. He also called her a “slut” and a “prostitute.”

Last month, a group of U.S. states went further. Seven filed suit in Lincoln, Neb., contending the amended administration rule violates the First Amendment’s freedom of religion guarantee. The suit was joined by several Catholic organizations.

John Witte, Jonas Robitscher professor of law, Alonzo L. McDonald distinguished professor and director of the Center for the Study of Law and Religion Center at Emory University in Atlanta, told The Christian Post the courts probably will rule against the administration.

The Religious Freedom Restoration Act was enacted by Congress, and signed by President Bill Clinton, in 1993. The act prohibited government from putting a substantial burden on individual or group freedom of religion unless there is a compelling government interest. If there is such a compelling interest, the act said, government must show it is acting in the least restrictive way.

The U.S. Supreme Court, in a 6-3 decision in 1997, struck down most of the law. But the majority, led by Justice Anthony Kennedy, left in place the restriction on the federal government even though it excluded state actions.

That interpretation was confirmed in a unanimous 2006 Supreme Court decision involving the importation of natural drugs from South America for religious purposes. Though the natural substance was banned by federal law, Chief Justice John Roberts said in the opinion the Supreme Court agreed with the lower courts — the federal government had failed to demonstrate a compelling interest in banning the sacramental use of the drug.

That violated RFRA, Roberts said.

One bright spot for contraception defenders: Kennedy wrote the 6-3 majority opinion that struck down the Texas sodomy law in 2003, and told the government to get out of the bedroom. He often completes the 5-4 conservative majority now holding sway at the high court, but in 2003 he joined and led the court’s liberals, saying, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the state is not omnipresent in the home.”

 

By: Michael Kirkland, UPI, March 11, 2012

March 12, 2012 Posted by | Constitution, GOP Presidential Candidates | , , , , , , , | Leave a comment

The Republican Supreme Court Sticks It To The Little Guy (Again)

Once again the United States Supreme Court under Chief Justice John Roberts has shown the nation it will always favor corporations over people even if it means conjuring new law out of thin air.  Like Citizens United, the recent 5-4 ruling in AT&T’s favor gutting the power of consumers to file class-action lawsuits against giant corporations tips the scales of justice against the people and renders the enormous power of corporations even more enormous.

When I first heard about the case, AT&T Mobility v. Concepcion there was little doubt in my mind that the Gang of Five — John Roberts, Antonin Scalia, Samuel Alito, Anthony Kennedy, and Clarence Thomas would figure out a way to ignore Supreme Court precedent and again apply their judicial activism in service to the corporations, and by extension, to the oligarchy they apparently believe the “founders” intended.

It’s kind of funny when we see Republican presidential candidates like Mitt Romeny, Tim Pawlenty, and Newt Gingrich pandering to the “little guy” denouncing “elites” who are trampling on their rights only to remain mute on the fact that their beloved Republican Supreme Court never, ever rules in favor of the “little guy.”

The Republican president Ronald Reagan gave us Scalia and Kennedy; the Republican president George Herbert Walker Bush gave us Thomas; and the Republican president George W. Bush gave us Roberts and Alito.  This cabal has shown over and over again where its true loyalties lie, not to “the law,” not to “the Constitution,” not to “calling balls and strikes,” but to a 21st century version of corporate feudalism.  This new corporate feudalism that the High Court is determined to thrust on the nation is even more exploitative than the earlier brand of Medieval feudalism because it is absent noblesse oblige.

The serfs toiling on the corporate plantation can only continue to pay Chase and Bank of America for their underwater mortgages, ExxonMobil and Chevron for their $4 a gallon gas, and AT&T, Comcast, T-Mobile and the rest for the privilege of communicating in a modern society.  And if the serfs seek redress the High Court will slap them down before they can get anything substantial off the ground.  With Citizens United placing a stranglehold of corporate power over our state, local, and federal system of elections, we cannot turn to our political “leaders” for redress, we can’t turn to the courts, and we certainly can’t turn to trying to morally persuade sociopathic non-human entities called corporations — so where does that leave us?

In the current context of unrestrained corporate dominance it’s unconscionable that the Obama administration has not done more to blunt its disastrous effects.  The Justice and Treasury Departments, the Securities and Exchange Commission, the Internal Revenue Service, etc. could be doing a hell of a lot more in bringing balance to the equation of corporations versus people.  The administration’s lagging performance in holding Wall Street accountable is well known, but it won’t even lift a finger to block grotesque mergers like the one between Comcast and NBC Universal, and AT&T and T Mobile.  In all these mergers and acquisitions it’s always the consumers and the employees who lose, while the CEOs and a select few of shareholders and financiers make out like the bandits they are.

Nothing illustrates the corruption rampant in Washington more than the recent resignation of Federal Communications Commission member, Meredith Attwell Baker, a Republican who Obama appointed to show how “bipartisan” he can be, who is now going to work as a lavishly paid shill for the very industry she was supposedly “regulating.”  Ms. Baker will now make the big bucks serving Comcast/NBC Universal after she voted for the merger of Comcast and NBC Universal.  Sweet.   And few in the Beltway see anything unsavory about it.

Our political leaders, our Supreme Court, our captains of industry and finance, are so out of touch it’s going to be a long, long time before ordinary working people see any relief.  All of our institutions, political, economic, even religious, social, and cultural, all of them, are failing the people miserably in pursuit of the Almighty Buck.  The cunning game of appointing young ideologues to the bench has paid off handsomely for the corporate power structure.  Someone should tell those people running around in tri-cornered hats and talking about the “founders” that it might be wise to save an ounce of their collective wrath for the Republicans who have appointed five Justices who are trampling on individual freedoms in service of corporations.

By: Joseph A. Palermo, The Huffington Post, May 15, 2011

May 15, 2011 Posted by | Big Business, Businesses, Congress, Consumers, Corporations, Elections, Justice Department, Lawmakers, Politics, Regulations, Supreme Court | , , , , , , , , , , , , , , , , , , , | Leave a comment

   

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