“Fractions Of Women In Texas”: When Does Nine Hundred Thousand Seem Like An Insignificant Number Of Women?
How do you count women in Texas, and when do the numbers get big? There is a good deal of bad math in a decision made last week, by the Fifth Circuit Court of Appeals, that had the effect of closing all but eight abortion clinics in the state; until recently, there were about forty. Five million four hundred thousand Texans are women of childbearing age. Almost one and a half million of them will live more than a hundred miles from any clinic; nine hundred thousand will live more than a hundred and fifty miles away, seven hundred and fifty thousand more than two hundred and fifty miles. For a good many, there will be more than five hundred miles to go, unless they want to cross the border and take their chances in Mexico. For a two-to-one majority on the Fifth Circuit panel, that just wasn’t enough women for them to worry about.
The Texas clinics will close because of a law, passed by the state legislature last year, that placed new regulations on clinics that provide abortions. The Supreme Court has found that women cannot be cheated of their right to end a pregnancy before viability by way of laws that place an “undue burden” on them, as standard laid out in Planned Parenthood v. Casey, in 1992. But, as Jeffrey Toobin recently wrote, courts in recent years have become increasingly merciless in what they consider undue for a woman at what is often a moment of profound crisis, to the point where almost no burden seems too heavy.
Several aspects of the new law, like one requiring doctors to have admitting privileges at hospitals within a certain distance, survived challenges. But, in August, the District Court Judge Lee Yeakel struck down a rule that clinics have to be outfitted and operated as ambulatory surgical centers, even if they only provided medication-induced abortions early in pregnancies. Yeakel’s decision came after a trial at the District Court level that included testimony that requirement was not practical for most clinics, would leave no clinics open south or west of San Antonio, and was not based on any sound medical rationale. The state wanted the provisions to go into effect regardless, pending its appeal; Yeakel said no. The appeals court has lifted that stay, saying that it thought the law would ultimately survive the challenge. (It did leave room for a partial reprieve for a clinic in El Paso, though not for one in McAllen.) And so, on Friday, thirteen clinics in Texas began turning patients away.
The Fifth Circuit judges picked up on another phrase in Casey: “a large fraction.” A way to tell if a burden is undue is if it presents obstacles for a large fraction of the women for whom it is relevant. The fraction the Fifth Circuit calculated was one-sixth: nine hundred thousand women who would have to travel more than a hundred and fifty miles out of five million four hundred thousand who could possibly get pregnant—“not a large enough fraction to impress the appeals court,” as Ruth Marcus put it, no matter the absolute number. There are, if one is counting, at least three reasons this logic is wrong.
First, a sixth can be pretty large, depending on what the numerator (one, in this case) and the denominator (the six) represent. (One-sixth of New York City’s population lives in the Bronx.) That is why one uses a word like large rather than something more definite, like majority. When it comes to a decision that can shape a woman’s life, this Texas sixth is a large fraction—and that alone should have been enough for the judges.
Second, it’s not clear at all that the majority chose the right numerator or denominator—that the fraction really is a sixth. First, the numerator: Is it only the women who have to drive these distances who are affected when a state that, until recently, had sixty-to-seventy-two thousand abortions each year, suddenly has only eight clinics—all in a few cities? Or does it also mean that the women in the next clinic over will soon find it hard or impossible to get an appointment? Speed matters a great deal for abortion; Texas’s law also included a twenty-week limit. (In another sign of fractional bad faith, the majority suggested that a woman who had been a hundred and fifty miles from a clinic and was now two hundred and fifty miles away might only be facing an “incremental increase of 100 miles.”)
One can also reconsider the denominator, the bottom number. In Casey, the Supreme Court upheld some restrictions in Pennsylvania but overturned a requirement that married women notify their husbands. The state of Pennsylvania had argued that only twenty per cent of women seeking abortions were married and that ninety-five per cent would tell their husbands anyway, and so the fraction affected was tiny—maybe one per cent, and therefore too few to count. The Court rejected that math, saying,
The analysis does not end with the one percent of women upon whom the statute operates; it begins there. . . . The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.
The denominator that the Court chose in that case was “married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement.” The fraction affected was suddenly very large.
The Texas decision briefly looks at the argument for a different denominator—women whose options will get worse because of the law—but then rejects it, bizarrely enough, because the resulting fraction is too large: it “would make the large fraction test a tautology, always resulting in a large fraction.” But that is only true if the burden on women for whom the law is relevant is, indeed, undue. One can imagine a law that presented X women with obstacles that Y of them could, nonetheless, easily navigate. What the judges see as a “tautology” is a sign that something is seriously wrong with the Texas law.
Third, as the dissenting judge in the Texas case noted, Casey doesn’t just talk about fractions: it talks about a “significant number” of women who, under the spousal-notification requirement, would not have meaningful access to abortion. After reviewing statistics on domestic violence, the Casey decision notes,
We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.
When does nine hundred thousand seem like an insignificant number of women?
There is another factor, involving other numbers: poverty. The Fifth Circuit judges acknowledged that women without much money would be more affected by the law than others: they might not have a car, or a way to take a day off from work to drive six hours. But that didn’t, somehow, change the judges’ calculation.
By: Amy Davidson, The New Yorker, October 5, 2014
“GOP Goons Suddenly Run Scared”: What Three Anti-Women Warriors Want To Hide
When we last checked in on Wisconsin Gov. Scott Walker, he was playing down his problems with women voters and boasting of his strong support among men. Somebody must have read his poll numbers a little more closely, because on Tuesday Walker came out with an ad that brazenly lies about his stance on abortion.
The guy who signed anti-choice legislation mandating an ultrasound and sharply regulating clinics looked straight into a camera and said he did it “to increase safety and to provide more information for a woman considering her options.” That’s not all. Walker had the audacity to claim, “The bill leaves the final decision to a woman and her doctor.”
But Walker wasn’t alone in trying to cut and run on his women’s rights stands this week. In Tuesday night debates, GOP Senate hopefuls Cory Gardner of Colorado and Thom Tillis of North Carolina, like Walker, shamelessly misrepresented their positions as well.
Gardner, Walker and Tillis tried to model three different approaches to hiding their awful records on women’s rights: the cool, the creepy and the clueless.
Gardner’s been the cool one. You’ll recall he decided he backs over the counter birth control pills, so they’re available for all you swingin’ ladies “round the clock” (though as I’ve observed before, birth control isn’t like Viagra or condoms, and picking up a last minute pack at the 24 hour Walgreens won’t prevent pregnancy.) Gardner did even better at his debate with Sen. Mark Udall, bragging that when television ads claimed he wanted to limit birth control, his wife said, “Didn’t you used to pick up my prescription?” Cool guy, always helping the ladies get it on.
Walker is just plain creepy. In his new ad, the dull-eyed governor looks into the camera and tries to feign concern for women who are seeking abortion. It’s a contrast with the way he glibly dismissed imposing the ultrasound requirement last year, telling reporters, “I don’t have any problem with ultrasound. I think most people think ultrasounds are just fine.”
Of course Walker’s not talking about a medically necessary, jelly-on-the-belly ultrasound that most people welcome to either diagnose disease or check on the health of a fetus. This is at best a coercive procedure and at worst, requires a transvaginal wand, in the case of early-term abortion. (Perhaps Walker should mandate that men seeking Viagra undergo a trans-urethral ultrasound.)
Then there’s clueless Thom Tillis, who presided over a radical retrenchment of women’s rights and voting rights in North Carolina’s GOP legislature. Now Tillis, like Gardner, is hyping his support for over-the-counter access to birth control pills and dissembling over his opposition to pay equity legislation. At their first debate, Tillis tried mansplaining the issue to Hagan, and that backfired. So on Tuesday he claimed he believed women deserved “the same pay as men,” but insisted “let’s enforce the laws on the books.” He called pay equity legislation a “campaign gimmick.”
Hagan shot back: “Speaker Tillis, I think you need to read reports. Women in North Carolina earn 82 cents on the dollar. I didn’t raise my two daughters to think they were worth 82 cents on the dollar.”
Gardner has also tried to back away from a personhood measure on the Colorado ballot, insisting he doesn’t support limits on contraception. Yet he’s still listed as a co-sponsor of House Personhood legislation. His explanation: It’s “simply a statement that I support life.” And he wouldn’t promise not to support Senate Personhood legislation if he defeats Udall.
It’s easy to see why Walker, Gardner and Tillis are trying to run from their records: They are being crushed by their opponents among women voters. But will it work? So far, Gardner’s contraception ads haven’t done the trick. “We’ve polled pretty extensively about whether people are persuaded by these ads, and Gardner has a problem,” a Democratic operative told Bloomberg’s Joshua Green. “The problem is that 40 percent of women don’t believe him.”
All three races are going to come down to turnout, and the men may yet pull it out, in a midterm year when Democrats are less likely to vote than Republicans. Still, the fact that all three feel they have to cover up their awful women’s rights records show they’re worried. But whether cool, creepy or clueless, these misleading last minute pitches aren’t likely to fool women.
By: Joan Walsh, Editor at Large, Salon, October 8, 2014
“In Case Anyone Is Confused”: Don’t Fall For The GOP’s Over-The-Counter Contraception Racket
It’s time to call bullshit on the GOP’s embrace of over-the-counter birth control. Several Republican candidates, under fire for radical positions on women’s health, have recently adopted the idea in a naked attempt to woo female voters. These politicians say they’re all in favor of access to contraception. But sudden calls for the pill to be available without a prescription do not signal a real shift in conservative attitudes toward reproductive rights. They simply mask tired opposition to the Affordable Care Act’s mandate that insurers cover birth control.
The list of Republicans that have endorsed the idea includes Senate nominees Cory Gardner (Colorado), Tom Tillis (North Carolina), Ed Gillespie (Virginia) and Mike McFadden (Minnesota). Republicans running for the House have also spoken up for over-the-counter access.
None of these people were championing the proposal before their campaigns. Instead, they were working to limit women’s access to abortion and other healthcare. Gardner, who started the over-the-counter trend in June with an op-ed in The Denver Post, has campaigned for “personhood” measures that would outlaw abortion and possibly some forms of birth control since at least 2006. Early in his campaign Gardner denounced the state-level personhood legislation he’d supported—yet he’s still a co-sponsor on a federal bill that would have the same impact. Gardner has resorted to claiming that bill doesn’t exist.
Then there’s Tom Tillis, who endorsed over-the-counter birth control during a debate with Democratic incumbent Kay Hagan in September. As the top Republican in the state House, Tillis shepherded extreme anti-choice legislation in a decisively dishonest manner, inserting restrictions into unrelated bills like one ostensibly about motorcycle safety. Tillis, like other Republicans trumpeting their support for over-the-counter contraception, opposes not only the ACA’s birth control mandate but the healthcare law in general, which has a range of other benefits for women.
The latest candidate to pivot to contraception when confronted about her record is Joni Ernst, a Senate hopeful in Iowa who supports a personhood amendment as well as criminal prosecution of doctors who provide abortions. “When it does come to a woman’s access to contraception, I will always stand with our women on affordable access to contraception,” she said. Her campaign did not respond to a request to clarify which specific policies she supports that would increase affordability and accessibility.
In case anyone is confused: while affordable contraception does dramatically reduce rates of unintended pregnancy, it does not solve the problems created by cutting off women’s access to abortion services. In fact, attempts to block abortion access—for example, by cutting funds for clinics like Planned Parenthood that provide a range of services besides abortion—can have the perverse effect of making it more difficult for women to get other healthcare, birth control included.
Nor is making contraception available without a prescription an alternative to the birth control mandate (or, needless to say, the entire healthcare law). Over-the-counter birth control has support from the American College of Obstetricians and Gynecologists, a point that several Republican candidates have pointed out when their motives were questioned. Yet the same medical association is quite clear that women still need insurance coverage for contraception. Not all women can or want to take the pill, and other forms of birth control like the IUD are expensive and require a doctor’s appointment. In June, ACOG warned politicians against using calls for over-the-counter contraception “as a political tool.”
That Republicans need such a tool to alter their reputation among women is obvious. Young women are the key demographic in many midterm battlegrounds, and according to a Wall Street Journal/NBC News poll conducted in July and August, they prefer a Democrat-controlled Congress by a fourteen-point margin. (Men, on the other hand, favor Republicans by seventeen points.)
But why over-the-counter birth control, specifically? It’s a win-win-win for Republicans trying to appeal to female voters, while bashing Obamacare and boosting their free-market street cred. Candidates can say they support access to contraption while celebrating a “market-based approach to medicine,” as the editorial board of National Review described it recently. The editors commended Republicans for “running…to get government out of the birth-control business as much as possible, and to free up access to it for the women who want it.”
To understand why this sudden embrace of “access” is a racket, and a dangerous one, consider Kevin Williamson, National Review’s self-described “roving correspondent.” In a recent post titled “Five Reasons Why You’re Too Dumb to Vote,” Williamson characterizes women who care about preserving access to abortion or the birth control mandate as “women who cannot figure out how to walk into Walgreens, lay down the price of a latte, and walk out with her own birth-control pills, no federal intervention necessary.” He goes on to applaud the editorial board’s endorsement of the over-the-counter birth control fad.
A few days later, Williamson declared that women who have abortions should be hanged. “I’m torn on capital punishment generally; but treating abortion as homicide means what it means,” he said on Twitter. To be clear: what “pro-life” Williamson is arguing for is putting one in every three women in the United States to death.
“Democrats are not resisting the GOP’s suggestion because of any quibbles with its policy substance,” National Review said in response to suggestions that the GOP’s embrace of over-the-counter birth control smacks of opportunism. “They hem and haw because they want to continue to depict Republicans as intent on keeping contraceptives away from women.”
It doesn’t matter what Republicans are or aren’t intent on. The bottom line is that a variety of conservative positions, from opposition to the ACA to federal funding for women’s clinics, have had or would have the very real effect of making it more difficult for women to access healthcare in general and contraceptives specifically.
Furthermore, contraception is hardly the sum of women’s medical needs. When conservatives fight to empower women to make decisions about their own bodies in all cases, regardless of income, then maybe we’ll take them seriously. In the meantime, there’s little of substance in an ideology that promotes birth control without a prescription for some women and hanging for others.
By: Zoe Carpenter, The Nation, October 3, 2014
“Pay Close Attention!”: Don’t Be Fooled By New GOP Enthusiasm For Over-The-Counter Birth Control
The hot new trend among Republican candidates is a surprising one, to say the least. As of now there are four GOP Senate contenders who have endorsed making birth control pills available over the counter.
All four — Cory Gardner in Colorado, Thom Tillis in North Carolina, Ed Gillespie in Virginia, and Mike McFadden in Minnesota — oppose abortion rights, and all four oppose the Affordable Care Act’s mandate that insurance policies pay for preventative care, including birth control, with no deductibles or co-pays. Yet these conservative Republicans are touting their deep commitment to easily available birth control. It’s likely that more Republicans will now be asked their position on OTC birth control, and some will embrace it to counter Dem criticism that they’re soldiers in a “war on women.”
The one who has advocated OTC birth control pills most aggressively is Gardner, in large part because he has been the target of relentless criticism from Democrats over his prior support of “personhood” measures granting full legal status to fertilized eggs, which would outlaw not only abortion but some forms of birth control as well. Here’s an ad in which Gardner practically pretends to be Gloria Steinem while a group of women nod and smile their approval.
Democrats telegraphed way back in April that they would make these attacks central in multiple Senate races. The fact that Republicans have come up with this new push-back suggests the Dem attacks may have been working.
The new-found embrace of OTC birth control pills might seem odd, even bizarre. But it makes more sense if you think about it as a fundamentally elitist position. The truth is that conservatives have long been much more concerned with restricting the reproductive choices available to poor and middle class women, while leaving wealthy women free to do pretty much as they please. And allowing birth control pills to be sold over the counter is perfectly in line with that history.
Let’s be clear that making birth control pills available over the counter would be a good thing — but only if insurance continued to pay for it. The cost of the pill can be as much as $600 a year, which is out of reach for many women. And we know that insurance companies seldom reimburse customers for OTC medications. The price of the medication might come down over time if it were sold over the counter, but in the meantime millions of women are dependent on their insurance plans to be able to afford it. By opposing the ACA, all these GOP candidates are putting themselves on record in opposition to requiring insurance companies to pay for any birth control in policies women themselves have bought. And that’s not to mention other forms of contraception, like IUDs, that require a doctor’s care and come with a significant up-front cost.
If you’re well-off, you can afford whatever kind of contraception you like whether your insurance company reimburses for it or not. And abortion restrictions don’t impose much of a burden on you either. The federal government bans Medicaid from paying for abortions, but that only affects poor women. A law mandating a 48-hour waiting period before getting an abortion may be an inconvenience for a wealthy woman, but it can make it all but impossible for a woman without means. In some states, it means taking (unpaid) time off work to travel to one of the state’s few abortion clinics, driving hundreds of miles, and paying for a hotel room.
While they’re going to use a lot of buzzwords like “access” and “choice,” the net effect of the policies these candidates are advocating would be to make birth control less available to women. And I think that’s why we haven’t seen any public blowback from the Christian right on this issue. The articles written about the new Republican enthusiasm for OTC birth control sometimes include a disapproving quote from a representative of the Catholic Church. But none of the bevy of organizations with the word “Family” in their name, which are so vehemently opposed to any kind of reproductive freedom for women, are loudly condemning these candidates. Nor are any of their Republican colleagues. So what does that tell you?
By: Paul Waldman, Contributing Editor, The American Prospect, September 8, 2014
“The High Court’s Highhandedness”: Rulings Are Based Less In Law Than In The Personal Beliefs Of The Men On The Tribunal
It is a case of Supreme hypocrisy.
The adjective refers to that nine-person tribunal at the top of the American legal system, the noun to its latest act of judicial malpractice. Meaning not the notorious Hobby Lobby decision handed down at the end of June, but a less-noticed ruling a few days later.
We have to revisit the former to provide context for the latter. On June 30, the court ruled that a “closely held” corporation may deny employees health insurance covering any contraceptive method that conflicts with the company’s religious beliefs. Writing for the majority, Justice Samuel Alito faulted the government for failing, under the Affordable Care Act, to choose the “least restrictive” means of ensuring women access to all FDA-approved methods of birth control. He pointed out that the ACA already makes an exemption for nonprofit groups with religious objections; simply fill out a form certifying those objections and they are relieved from having to provide the disputed contraceptives.
Alito saw this as a win-win. Employees get the birth control they want — they pay directly to the insurance company — but the government does not “impinge” on the organization’s religious beliefs.
Three days later, the court issued an injunction freeing a Christian school — Wheaton College in Illinois — from having to fill out the certification form. The school had argued that simply doing the paperwork — the form asks only for name, contact information, signature and date — infringed upon its religious liberty because it would trigger the employee’s ability to get the disputed contraception. So the same form that the court held to be a reasonable compromise on Monday was judged an unreasonable burden on Thursday. Or as Justice Sonia Sotomayor put it in a withering dissent, “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”
Indeed, the malleability of the court’s logic suggests these rulings are based less in law than in the personal beliefs of the men on the tribunal. One gets the sense they chose the desired result first, then backfilled whatever “reasoning” would get them there.
Which is not just Supreme hypocrisy, but also Supreme faithlessness. And, yes, Supreme sexism.
I once saw a protest sign to the effect that if men gave birth, contraception would be bacon flavored and dispensed from vending machines. Can anyone argue the truth in that? Would we even be having this debate if some company had a religious objection to Viagra — or vasectomies?
And how far down the line must a company’s religious scruples be honored anyway? If it is too much to ask Wheaton College to fill out a form because an employee will be “triggered” to buy contraception on her own, does the school also have a right to scrutinize and approve other purchases made with the salary she earns from them? If she buys whiskey or pornography with “their” money, does the school have a right to object?
Not to mention the frightening precedent the court is setting in the name of religious liberty. It makes faith a potential get-out-of-jail-free card, exempting the holder from any law he finds onerous. Given that Mormons once embraced a theology of racism and evangelical Christians still deny basic freedoms to gay people, the danger of this is obvious.
In its rush to confer personhood on organizations and constrain women’s choices, the court steers us toward a day in which corporate rights would trump human rights and you could no longer take for granted that you would be served by a given business without first checking to make sure you didn’t offend the owner’s religious sensibilities. It’s hard to imagine what that world would be like.
Pretty soon, we may not have to.
BY: Leonard Pitts, Jr., Syndicated Columnist, The Miami Herald; Published in The Seattle Times, July 13, 2014
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