The Republican “War Against Women”: Pre-Abortion Transvaginal Sonograms Make Their Way Into Law
As a bill requiring transvaginal sonograms passes in Virginia, Texas goes about implementing the version that it passed last year.
The Virginia Legislature has been busy passing legislation to limit abortion and promote pro-life agendas. I wrote Tuesday how the state House passed a bill changing the legal definition of “person” to include fetuses starting at conception. But the body also passed a measure requiring women seeking an abortion to first have a sonogram 24 hours ahead of time. The state Senate already passed an identical measure and the state governor has said that he supports the initiative—which means it will almost definitely become law.
The measure requires a medical professional to administer the sonogram and then offer the woman the chance to hear the fetal heartbeat and listen to a description of the fetus. Because abortions occur early in pregnancies, these ultrasounds aren’t the ones most people imagine with a bit of jelly smeared on a woman’s stomach. No, these require a more invasive procedure: a transvaginal sonogram. A probe—with a lubricated condom covering it—is inserted into a woman’s vagina. The probe is attached to a monitor to show images in real time. While the bill allows woman to say they don’t want to see the images, in many cases, the monitor will generally be showing the images right next to her.
Not surprisingly, the debate got fairly brutal. One Republican delegate said most women seeking abortions do so for “lifestyle convenience.” In a statement later, he said he regretted the choice of words. Ultimately the bill passed the House by a vote 62 to 36, with six Republicans voting no.
As I wrote earlier, the personhood measure raises many questions regarding implementation, since Virginia would be the first state to successfully pass such a law. But such is not the case with the sonogram bill. Oklahoma and North Carolina have passed similar laws that are currently winding their way through the court system. And Texas’ measure is already in place, both in law and in clinics across the state.
Texas began enforcing its version of the sonogram requirement last week, after the 5th U.S. Circuit Court of Appeals overturned a temporary ban and issued an opinion that the law is constitutional. While a lawsuit against the law makes its way through the courts, clinics are already reporting logistical difficulties. The measure requires a 24 hour waiting period between the sonogram and the abortion procedure, a requirement which was also included in the Virginia bill, which forces women to arrange for two days of medical appointments. (Both states allow women who must travel a significant distance to have the sonogram only two hours ahead.) However, in Texas, the doctor performing the abortion must also be the one to perform the sonogram. That requirement has produced many problems for clinics, as sonograms are often performed by other medical professionals. Virginia’s measure has no such requirement. Similarly, Texas law requires that women hear a description of the sonogram procedure, whether or not they want to, a caveat that isn’t in Virginia’s law.
Don’t think that makes Virginia’s law less stringent though: unlike Texas, the bill offers no exemption for victims of rape or incest, who would also have to have the transvaginal sonogram and then be asked if they want to hear descriptions of the fetus and listen to the fetal heartbeat. It will also mean victims of rape will be forced to have a probe inserted into their vagina. Only in cases of medical emergencies can the requirement be waived.
By: Abby Rapoport, The American Prospect, February 16, 2012
“Outlawing Contraception”: Virginia House Passes Personhood Bill
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
Rick Perry, Newt Gingrich Hit By Republican’s Drive To Block Voters
Rick Perry said the laws were “among the most onerous in the nation,” and possibly even unconstitutional. Newt Gingrich compared their impact to Pearl Harbor. Michele Bachmann, Jon Huntsman and Rick Santorum were so intimidated that they simply slunk away without a fight.
Social Security? Obamacare? Dodd-Frank? Nope. Virginia’s ballot-access laws. Of the seven candidates still in serious contention for the Republican nomination for the presidency, only two of them — Mitt Romney and Ron Paul — will be appearing in the Virginia primary on March 6.
Republicans are furious. Some of them blame the candidates who failed to qualify. Ed Morrissey, writing at the conservative website HotAir.com, says Perry and Gingrich are “failing the competence primary.” He’s more sympathetic to Bachmann, Huntsman and Santorum, as he sees their failure to qualify in Virginia as“a strategic deployment of very finite resources.”
But other Republicans — and most of the candidates — have turned their fire on Virginia. Ken Cuccinelli, the state’s attorney general, was particularly unsparing about the access laws. “Virginia won’t be nearly as ‘fought over’ as it should be in the midst of such a wide open nomination contest,” he wrote in an e-mail to supporters. “Our own laws have reduced our relevance. Sad. I hope our new GOP majorities will fix this problem so that neither party confronts it again.”
He hopes, in other words, that Virginia will make it easier for Republican candidates to get on the ballot, so Virginia’s voters are better able to participate in the election. It’s a noble goal, and one many Republicans share right now. But it runs directly counter to the efforts Republicans have mounted in dozens of states to make it more difficult for ordinary Americans to participate in the 2012 election.
Block That Vote
In a paper published by New York University’s Brennan Center for Justice, Wendy R. Weiser and Lawrence Norden described the changes made to the voting laws since the 2008 election particularly bluntly. “Over the past century, our nation expanded the franchise and knocked down myriad barriers to full electoral participation,” they wrote. “In 2011, however, that momentum abruptly shifted.”
The changes take a few different forms. Thirty-four states have introduced — and seven have passed — strict laws requiring photo IDs. That may not seem like a big deal, but as Weiser and Norden note, “11% of American citizens do not possess a government-issued photo ID; that is over 21 million citizens”– and poor and black Americans are disproportionately represented in that total.
It’s not just photo ID laws, of course. Thirteen states have introduced bills to end same-day and election-day voter registration. Nine states have introduced laws restricting early voting, and four more have introduced proposals to restrict absentee voting. Two states have reversed decisions allowing ex-convicts to vote, and 12 states have introduced laws requiring proof of citizenship. Nationally, House Republicans voted to do away with the Election Assistance Commission.
As Ari Berman detailed in an article this summer for Rolling Stone, these laws have mostly been introduced by Republicans, who have justified them largely on fraud-prevention grounds. The only problem is that it’s been extremely hard for advocates of more restrictive voting laws to prove that fraud is a problem.
As Berman wrote, “A major probe by the Justice Departmentbetween 2002 and 2007 failed to prosecute a single person for going to the polls and impersonating an eligible voter, which the anti-fraud laws are supposedly designed to stop. Out of the 300 million votes cast in that period, federal prosecutors convicted only 86 people for voter fraud — and many of the cases involved immigrants and former felons who were simply unaware of their ineligibility.” Joked Stephen Colbert: “Our democracy is under siege from an enemy so small it could be hiding anywhere.”
Changing the Rules
One of the most restrictive laws in the nation, in fact, was signed by Texas Governor Rick Perry. The bill, which Perry fast-tracked by designating it as “emergency” legislation, enforces a photo ID requirement that can be met by a concealed handgun permit but not by a student ID from a state university. And under the law only a Texas citizen who has passed a mandatory training program can register voters.
That would be the same Perry who is now challenging Virginia’s rules. But the differences between the law Perry signed, and the law he’s challenging, are instructive.
Perry is an experienced politician who has hired a professional staff for the express purpose of navigating the logistical hurdle of ballot access. And he still failed to make the Virginia ballot, despite the fact that the rules were well known and unchanged since the last election.
In Texas, however, Perry has sharply changed the rules, changed them on people who do not have a staff dedicated to helping them vote, and in fact made it harder for outside groups to send professionals into the state to help potential voters navigate the new law.
I would normally end a column like this on an ambivalent note. Something like: “Perhaps Perry’s recent experience with applying for Virginia’s ballot will make him — and his colleagues across the country — rethink the laws they have passed making it harder for ordinary Americans to get their ballots counted.” But they won’t. The open secret of these laws is that they hurt turnout among Democratic constituencies –students, minorities, low-income voters, etc. — which helps Republican politicians get elected. Virginia is just an odd case where restrictive ballot-access laws are hurting Republican politicians.
By: Ezra Klein, The Washington Post, December 28, 2011
Rick Perry To “Activist Judges”: Save Me
Rick Perry appears to be riding into the sunset, but he is not leaving the stage without exercising a true politician’s prerogative of cheerfully sacrificing any principle, no matter how strongly stated, when it becomes inconvenient.
If there’s one thing we know about Perry — one dry-gulch bedrock to his cowboy constitutional philosophy — it’s that he just hates them activist judges and all the perverted things they have done to the Fourteenth Amendment. “[T]he Fourteenth Amendment is abused by the Court to carry out whatever policy choices it wants to make in the form of judicial activism,” he lamented in his book, Fed Up! Our Fight to Save America from Washington. In particular, courts “should be particularly protective of our founding structure — a unique structure of dual sovereigns that placed power as close to the people as was practical so that the people could govern themselves.”
Surely that would mean that the people of Virginia should have a right to determine what level of support a candidate needs to be a serious presidential candidate, deserving of a place on its primary ballot? Or should that decision be made by “unelected judges”?
Well, actually, unelected judges are suddenly looking right good to Gov. Perry.
Perry last week failed to qualify for the Virginia Republican Primary ballot, both a humiliating blow to his dignity and a concrete setback to his hope of remaining in the presidential race after his expected low showing in Iowa.
Well, that don’t sit right with Perry, and now he is shopping for a judge who will agree. In a lawsuit filed Monday, Perry asks the federal courts to step in on his behalf. Nothing too startling about that — if Perry feels the Virginia authorities had cheated him in some way that violates federal law or the Constitution, he has every right to invoke these sources of law in a court. But what’s remarkable is the second count of his suit, in which he asks the District Court for the Eastern District of Virginia to invent a new constitutional norm about how many signatures a state can require for its ballots. (Newt Gingrich so far has not filed a suit, and his campaign contented itself with a characteristically nuanced statement comparing the long-announced ballot-access rule to the Japanese attack on Pearl Harbor.)
To qualify for the ballot, a presidential candidate has to collect the signatures of 10,000 registered Virginia voters who would attest that they intend to vote in the GOP primary. It’s steep — the 2008 Republican primary attracted just shy of 500,000 voters, making this a requirement of 2 percent of the votes cast — but hardly a staggering burden in a commonwealth of more than 5 million registered voters.
Perry didn’t fall a little short of his goal. He fell real short. By his own admission, he filed more than 6,000 valid signatures — 40 percent less than the required total.
In his suit, Perry makes two claims. One has some support in the caselaw — he says that by requiring the signature gatherers to be eligible Virginia voters, the state violates a line of cases that say that the First Amendment protects the right to use out-of-state personnel to gather signatures on some ballot petitions.
But the second claim comes screaming out of the clear blue Texas sky. “Virginia’s requirement that a presidential primary candidate collect signatures from 10,000 qualified voters, including 400 qualified voters from each Congressional district in the Commonwealth… violates freedom of speech and association protected by the First and Fourteenth Amendments to the Constitution,” Perry’s complaint alleges.
I’m no election-law specialist, but I don’t know any caselaw supporting this. Perry sure doesn’t cite any. In the context of minor-party ballot access, the Supreme Court has repeatedly held that (as it determined in Anderson v. Celebrezze) states have “undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot….” In 1986, it approved a requirement that the Socialist Workers Party get signatures amounting to 1 percent of the voters in the state to qualify for the ballot. Perry was required to get 2 percent of the ballots cast — or, to put it another way, one-fifth of one percent of the eligible voters. His signers had to state that they intended to vote in the Republican primary, which limits the field somewhat, but the opportunity was still there.
Why is 10,000 too many but 6,000 is not? What’s the rule? Texas requires 4,500, meaning 300 each from at least 15 Congressional districts. Is that reasonable, but 10,000, including 400 from each of 11 Congressional Districts, is not? Perry’s suit is a request — a desperate plea — for a court to invent a rule. Even if you or I might see a problem with the signature requirement (I admit I don’t), this is precisely the kind of federal court meddling in local affairs that he thumps his chest against when it benefits criminal defendants, gay men and lesbians, or religious dissenters.
Why is there never an activist judge when you need one?
By: Garrett Epps, The Atlantic, December 29, 2011
How Ron Paul Should Address The Newsletter Controversy
Michael Tomasky of the Daily Beast helpfully suggested that Rep. Ron Paul could quiet the furor over the newsletters that bore his name by giving an Obama-style “race speech.”
It’s not a bad idea.
In particular, Paul should adopt the following passage from Obama’s speech and make it his own:
“The profound mistake of Reverend [Jeremiah] Wright’s sermons is not that he spoke about racism in our society. It’s that he spoke as if our society was static; as if no progress has been made; as if this country … is still irrevocably bound to a tragic past.”
Libertarianism in America is bound to that same tragic past.
Dr. Samuel Johnson famously asked, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”
To read the racialist screeds found in Paul’s newsletters of the late ’80s and early ’90s is to be reminded that, in the darkest corners of the libertarian right, that yelping has never really stopped.
It’s a deeply rooted, Virginian-English yelp that grates on the ears of modern liberals and Burkean Yankee conservatives alike.
In Albion’s Seed: Four British Folkways in America, historian David Hackett Fischer wrote:
“The libertarian ideas that took root in Virginia were very far removed from those that went to Massachusetts. In place of New England’s distinctive idea of ordered liberty, the Virginians thought of liberty as a hegemonic condition of dominion over others and—equally important—dominion over oneself. … It never occurred to most Virginia gentlemen that liberty belonged to everyone. It was thought to be the special birthright of free-born Englishmen—a property which set this “happy breed” apart from less fortunate people in the world.”
In his hypothetical race speech, Ron Paul could acknowledge this “tragic past”—but insist that 21st-century American libertarianism need not be bound to it. Paul could say that the black community is being harmed by the sort of paternalistic government that, 50 years ago, secured their political liberty.
Granted, since he remains adamantly opposed to the letter of the 1964 Civil Rights Act, this would be an awkward straddle for Paul. But he has made a version of this argument in the context of the war on drugs.
Paul could remind us, too, that the Virginia conception of liberty was only half-hierarchical. Re-read the above citation and Fischer’s phrase “dominion over oneself.” This points to the libertarian ethos of self-reliance and independence that doesn’t require historical de-odorizing.
I doubt Paul would seriously consider giving such a speech. Yet even though I trace my conservatism to New England rather than Virginia, I’d still like to see him deliver something like it.
All conservatives have a dog in this fight.
By: Scott Galupo, U. S. News and World Report, December 27, 2011
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