State Help for More Babies?

Terry H. Schwadron

June 28, 2022

The question is only now beginning to take hold: After a Supreme Court decision that allows states to end abortion, how are these states going to support women and babies?

Among the many real-life questions that the court ignored in its snooty review of historical reasoning was whether they were creating new problems for poor women, infants or states.

The very red states that are proving the most active in shutting clinics and moving to criminalize abortions are the same that score lowest on public services for health, welfare and pre-school aged support for children, to say nothing of public education and mental health services that follow.

Even with state restrictions governing abortions growing, there were about 860,000 in 2017, down from 926,000 in 2014, according to the Guttmacher Institute, a non-partisan group that keeps statistics.  

With about half the states moving to halt abortions, logic says we can probably expect unwanted births to rise by about half that number. Women who can afford it will travel to states where they still can get abortions, and choice advocates are busy raising money for travel grants, so let’s reduce it to maybe a third more babies, still somewhere in the 300,000 range.

Abortion statistics, which remain fairly stable year to year tell us that 58% of U.S. women of reproductive age live in states that were considered hostile to abortion rights, that one of four women will have an abortion by age 45, that more than half were in their 20s, and that clinic patients were about 38% white, 28% Black, 25% Latin. Only 16% were born outside of the United States, which is comparable to the rate of all women aged 15-44.

Fully 60% already were parents, and 75% had an income below federal poverty lines. That is, we know that economics have played a role in abortion decisions, yet the anti-abortion campaigning has reflected such decisions only as antithetical to faith and belief in pre-born life.

Are We Even Asking the Questions?

However the legal and mechanical processes of crossing state lines or distributing medical abortion pills work out, the point is that we haven’t really opened the box yet on services that states might be expected to provide.

After all, these are states that have declined to underwrite an expansion of health access to state Medicaid, for example, or to invest in pre-K, or even food programs. Poverty rates are highest in these states; so is infant mortality; per-pupil spending is the lowest. 

Oftentimes, officials from these states have resisted both the added cost for providing health care access for those who cannot afford it and any attempt by a Democratic federal government to force states to comply.

Suddenly, we now have states moving rapidly to force thousands – if not hundreds of thousands – of new births that disproportionately will emerge from households under economic stress.

As Brent Orrell, a senior fellow at the American Enterprise Institute, argues in The Bulwark,  “As a society with broad, shared agreement on the foundational importance of human dignity, how do we begin creating policies that offer true welcome to mothers and the children who arrive on society’s doorstep unexpected, unbidden—and possibly unwanted? In the new era, there will be more babies born into poverty or with disabilities who would have previously been aborted; what can we do to protect and support them?”

Are those even questions arising in the 26 states expected to stop all abortion in the next weeks?

Rather, the questions we’re hearing from these officials are focusing on enforcement and prosecution, on creating systems as in Texas where neighbors are supposed to spy on neighbors for reward money, and on developing yet more targets for control of private love lives and chosen sex choices.

A Jolt to Our Systems

Even Chief Justice John G. Roberts Jr. wrote in his concurrence with the court’s right-wing majority that the abortion decision would be “a serious jolt to the legal system”—and not just the legal system but to our politics and the administrative state as well. Local elected officials now must determine how to fashion an abortion policy based on the evident splits in our country and that will acknowledge the needs of the women and infants who will inherit the burden of a court decision. It’s not about slogans anymore.

“To create a true culture of life, there is still much more work to be done,” Orrell summarizes.

What happens to the federal Child Tax Credit program, which the very same Republicans have been opposing in Congress, for example?  Among the objections has been an insistence that recipients must be working – something made more difficult by forcing women to give birth without exception.

What will these states do to increase support for public education rather than to continue to lobby to undercut schools for support of private, parochial schools, or to support nutrition and hunger programs or address health access?

What will we make of needs for pre-kindergarten programs or of the Maternal and Child Health (MCH) Block Grant program, programs universally dismissed by Republicans or expanding various voucher-based support legislation. What of food stamp program extension or programs that aim to make men better, more engaged fathers who support their children? What about more attention to domestic abuse, given the number of abortions whose genesis was in broken relationships? 

Shouldn’t states be talking about more visiting nurses or more adoption programs, changes in foster care and keeping new mothers in their homes in a time of skyrocketing rents?

In Texas, when Gov. Greg Abbott was asked about all this, he promised an end to rape as a crime. Have you seen or heard anything since?

States are in a hurry to put their most severe anti-abortion efforts forward and hope that there are not too many gray legal areas. But they just bought into tens of thousands of new households beset by poverty.

It would be nice to hear governors talk about their new commitment to needed social programs.

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Parsing the Firestorm

Terry H. Schwadron

June 27, 2022

We have three emergent, overlapping narratives from the Supreme Court’s summary rejection of any national abortion rights in the United States.

Each is a cause for public anger and a promise of permanent divide in the country and on cultures that will not compromise.

As a country that can’t settle even one issue successfully in anything resembling unity, having multiple problems just guarantees efforts to ignore the reality. As a friend noted, abortions aren’t going away, just safe abortions.

First, we already see the start of what a never-ending set of legal challenges as each state sets up rules and regulations governing abortions that inevitably will conflict with one another and likely with some other Constitutionally protected right, like the right to travel freely between states or to receive abortion medications through interstate mails.

There have been a ton of well-informed articles this weekend following up on the rocky legal and practical road ahead, including this one details the issues with trying to enforce any potential ban on pregnancy-stopping pills like the plan announced by Republican South Dakota Gov. Kristi Noem yesterday.  

The issue has immediately exploded as a main campaign theme for November, with public protests organized as much about the Supreme Court’s apparent view of women as less than able to make decisions about their own bodies as about any concept of law.

Seeing the Court as Political

Second, there is the now widespread expectation that the Supreme Court’s right-leaning majority is aiming to throw out other rights based on the same reasoning as the rights to obtain contraceptives, pursue gay relationships and celebrate same-sex marriage, to say nothing of the right to inter-racial marriage.

Justice Clarence Thomas said it out loud in his concurring majority opinion, though fellow conservative Justice Samuel Alito tried to downplay reading this decision as more than about the perceived right to abortion. It is hard to find pundits and journalists who accept Alito’s words at face value.

The court takes on cases that are presented to it for review, and the nation’s legal minds know how to manipulate the writing of enough cases to force more definition even from a Supreme Court that would want to stand aside from settling culture war skirmishes.

There was absolutely no change in law here, only a change in those declaring what is law. For that matter, there is no venue for these justices to defend or answer to concerns that they simply turned away from the practical effects of their actions.

In any event, this decision underscores that this conservative majority thinks it can run the political table on a right-wing agenda,

The third simultaneous narrative concerns the court itself. The emergent story line across the political landscape is that for good or evil, the court has shown itself to be the utterly crass political entity that it has sought for decades to rise above.

Dozens of articles, including this one by seasoned court reporter Linda Greenhouse or columnist Dana Milbank, and newspaper editorials make clear that the court itself has lost its way, and that Chief Justice John G. Roberts Jr. has lost control of any attempts to keep focus on decisions consistent with precedent or incrementalism.

The abortion decision came about for the simple reason that the conservatives now have the votes to steamroll. Our perception of The Law is now whatever this voting bloc, the fruit of appointments by presidents who never won a popular majority, say it is.

Thus, we’re back into discussions about ignoring the court or replacing it or remaking its membership, as Sen. Elizabeth Warren angrily called for anew yesterday. Even Democrat Joe Biden has been clear that he does not support court packing, and we can anticipate that this debate is going nowhere. But it will be time-consuming and ugly.

Shaping the Rebellion

So, what happens when we don’t agree with as fundamental a decision as this one about abortion rights?

We will have rebellion – and the attendant debates over whether the protests are too strong or threatening against a public policy that on its face demeans women, ignores 70 percent of the nation, and caters to a religious-based fervor that itself is unclear about when “life” begins.

With luck and enough anger, maybe it all turns to votes for a more tolerant bunch in November.  It ought to be the case that even people opposing abortion itself can recognize the need for a right for individuals to choose their medical path. That’s been the argument about covid health measures, why not pregnancy or contraception or picking one’s partner.

We will have endless debate over whom to prosecute, because some states already are indicating that if there is no right to abortion, abortion must be a crime. We will fight over the inevitable clash of how rights to freedom of religion conflict with this new dictate; Jews and Muslims, for example, expressly value efforts to save the lives of mothers in an emergency. We will fight over whether calling someone in the next state for help with abortion is conspiracy to commit a crime.

Conservatives are bringing political guns to a knife-fight; Democrats are asking for rationality.

For a bunch of well-heeled conservative-bound judges who clearly have been thinking about the chance to write this decision for decades, the final product reflected shoddy, inside-out thinking. The tone was sneering, Alito’s main claims were based on a faulty history of abortion feelings and practices, and the insistence that there was no mention of the word “abortion” in the Constitution – as there is no mention of the words privacy or freedom.

There was no effort to revisit the ruling even after the decision’s leak had prompted substantial outcry. There was absolutely no effort to persuade.

It was the job of the Supreme Court majority – even if it voted as a boorishly political bloc – to clarify the issues, not leave them more cloudy. So, let’s add bad judicial writing to the growing pile of hypocrisies that include nominees who misled senators, senators who allowed themselves to be misled, the Republican maneuvers in the Senate to eliminate consideration of a Supreme Court nomination by former President Barack Obama or the hurried move to put Amy Coney Barrett on the bench for life.

What we have inherited is a political mess fueled by emotion not rational debate.

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Spreading Sense of Outrage

Terry H. Schwadron

June 26, 2022

At this point, are the continuing exploration of details in the plotted march to Jan. 6 really “bombshells,” as cable tv tells us, or just more icing on an awful insurrection cake that was anything but spontaneous?

Indeed, after this week’s concurrent, unrelated Supreme Court decisions overturning abortion rights and expanding the rights to carry concealed weapons, there is a yet more overwhelming feeling about being manipulated and overrun by self-appointed right-wingers pursuing their rewrite of law and history.  

Presentations by the House Select Committee and the continuing parade of former Donald Trump appointees who now see the error of what was going on continued this week to fill in horrible and unending disregard for law and values by Trump.

On its own, Jan. 6 is an unfolding story of malice and political ego, but with the court decisions, there is a bigger felling that our reliance on political rights and votes are out of control.

We can’t control the economy, we can’t legally control our medical decisions, we can’t be assured that our votes will be fairly counted – all at the same time. The hearings still offer one path that we can address a system gone wild, and seek accountability, and thus remain important – despite the continuing denials from Trump supporters that what we saw never happened.

Knowingly Violating Law

At the minimum, the degree to which the Trump ego would manipulate state and federal agencies to work as an extension of his own political campaign to remain in office should be disqualifying for any renewed run for the White House. The legal dithering about what exactly has constituted prosecutable federal crimes should be easier than not – and thus we saw court-approved FBI searches for evidence and new Justice Department subpoenas emerging even as the committee continues to air its findings from its months-long investigations.

But it is the insistence of those Republicans officials and staffers who knowingly violated the law and the Constitution in his behalf that may have become a new fascination.

The committee’s call-out of a half-dozen Republican congress members, lawyers and political operatives planted in various agencies who actively sought blanket pardons in Trump’s waning days provides a unique display of disgust, for example. They knew they had violated the law as well as having tried to overthrow our votes.

And yet, rather than reflect humiliation, most of them are continuing to run for office anew, planning for a Republican majority in Congress to launch punitive campaigns against Democrats and are still crowing about a rigged 2020 election in which it has become painfully obvious that Trump’s forces had absolutely no evidence.

Deeply Weird Plotting

In our best-of-TrumpWorld, worst-of-TrumpWorld recitations through these committee presentations, the questions increasingly are focused on what those around Trump possibly could have been thinking. That Trump was morally and probably legally bankrupt now seems obvious, but where were these truth-tellers while it was all going on through two impeachment trials and innumerable scandals.

We now know that Trump put staying in office over concern for law, that he lied repeatedly to supporters and the country at large, that he was central to the overlapping legal, political and finally physical schemes to overthrow an election, even while inciting or encouraging violence.

And yet, he remains leader of his party, and is acting as if a re-run in 2024 is a foregone conclusion.

Testimony this week from Trump-appointed Republican officials underscored the degree of institutional and personal pressure brought on state and federal agencies to just declare an election fraud to allow him to take over. Along the way, an increasingly desperate Trump repeatedly brushed aside law and Constitutional bars on how elections are run and counted, prepared to install unqualified people in Justice to carry out his political desires, ready to send federal law enforcement or the military to seize voting machines, willing to plot with white supremacist militia groups for violence at the Capitol.

The possibilities for fraud claims in a White House that spent every day on the plot to stay in office got increasingly strange in the committee’s retelling, from satellite manipulation of voting machines to video clips that apparently were totally misinterpreted. The weirdness matched the machinations that could have resulted in the appointment of Trump advocate Sidney Powell, who is facing disbarment based on faulty voter fraud allegations she presented in court, as a special counsel for fraud investigation.

It remains remarkable that Trump couldn’t pull off the coup.

Spreading Involvement

Now, we’re getting to inclusion of yet more people, including Republicans in Congress. Testimony showed that at least four  Republican House members — Reps. Matt Gaetz (Fla.), Mo Brooks (Ala.), Louie Gohmert (Texas) and Andy Biggs (Ariz.) — asked Trump for pardons. Rep. Scott Perry (R-Pa.) had asked for a pardon as well, according to earlier testimony as well as Trump legal adviser John Eastman. And an aide testified that Rep. Marjorie Taylor Greene (Ga.) also sought a pardon.

The FBI showed up pre-dawn to seize documents and electronics from Justice’s Jeffrey Clark, who Trump apparently was ready to name acting attorney general to declare a national election fraud and set the stage for setting aside election results, and who, like Eastman, has pleaded the Fifth Amendment against self-incrimination before 100 committee questions.

We’re hearing that Sen. Mo Brooks (Ala.), who lost his primary this week, is ready to testify, though he oddly thinks he has leverage in setting the conditions. We’re hearing odd, ill-explained backdoor maneuvers by Sen. Ron Johnson (Wis,) to seek to put the names of alternate Electoral College electors into the hands of former Vice President Mike Pence to stop the certification proceedings, and then denying it happened – all coordinated with a Trump lawyer, Madison.com reported. We’re hearing new names emerging as apparatchiks placed in Justice. We’re hearing a relentless campaign on the single subject of Trump political survival while covid was causing real death and the nation’s economy was tanking.

New video of the Trumps from an invited filmmaker has emerged that show his distance from the reality we all witnessed and that raise yet new questions about differences in family testimony under oath to the committee.

Republican response has varied from reports that Trump donors are turning away to criticisms that House Minority Leader Kevin McCarthy should have ensured that more Republicans, including those caught up in the plotting, should have been on the investigating committee.

It all smells of fear of criminal liability for a group broader than Trump himself.

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Abortion Conflict Goes On

Terry H. Schwadron

June 25, 2022

We may never get over the emotions roused by abortion.

But it was clear even minutes after the Supreme Court decided 6-3 to toss 50 years of legal abortion as a right that, as a nation, we’re not done with arguing about the moral issues, the political fallout or even the extended legal aspects of the abortion issue. With half the states immediately or nearly immediately shuttering abortion clinics, we already are seeing signs of more turmoil.

Rather than settle an issue, the Supreme Court’s conservative majority has merely piqued the country’s moral outrage on all sides, and set us up for a ton more debate and divisiveness. Chief Justice John G. Roberts Jr. voted with the majority but said he would have taken “a more measured course,” stopping short of overruling Roe outright.

Forget about the early leaks of this split decision: The obvious upheavals in the streets and in our legislative halls on when the leaked version went public did not change much at all in the final decision.

This is a Supreme Court cocksure of itself, and deaf to the world around it.  While there were immediate answers in halting any perceived federal right to abortion, there was also the launch of a thousand ways to rebel.

So, in the absence of any court-backed Constitutional right to abortion on the one side, we can fully anticipate congressional attempts to capture a national ban in legislation. At the same time, we can expect the opposite, a congressional campaign to enshrine exactly that right to abortion reflected in Roe v. Wade.

Unsettling and Unsettled

The decision to leave abortion decisions to the states means there are a ton of gray areas left behind, from handling of justice cases arising from incest and rape to actions that will impinge on women’s health to the fate of pregnancies in which emergency life decisions will still require intervention. In at least one state, abortion is being criminalized.

And to ensure legal chaos,  Justice Clarence Thomas opined in his concurrent argument that the perceived rights to contraceptives, same-sex marriage and relationships are fair game for the same court majority that has just rejected the underlying principles to legal abortion.

Thomas said that “any substantive due process decision is ‘demonstrably erroneous,'” quoting a 2020 Supreme Court decision. “We have a duty to ‘correct the error’ established in those precedents,” he added.

By contrast, Justice Samuel Alito, author of the majority opinion, specified that the decision was narrowly focused on a federal right to abortion, not to other rights reasoned in an understanding of privacy rights.

Thirteen states will outlaw abortion within 30 days with “trigger bans” designed to take effect as soon as Roe was overturned. These laws make an exception for cases where the mother’s life is in danger, but most do not include exceptions for rape or incest.

Some states already are moving next against distribution of abortion-aid pills by mail. Other state legislatures are talking about trying to limit the ability of women to travel to abortion-approving states for treatment.  Republican lawmaker in Missouri proposed legislation earlier this year that would allow private citizens to sue anyone who helps a Missouri resident access abortion outside the state, using the novel legal strategy behind the Texas abortion ban, which empowers private citizens to enforce the law through civil litigation, The Washington Post noted.

Calls for Action

“This fall, Roe is on the ballot,” intoned Joe Biden, along with the other rights based on the same Constitutional understanding. Biden openly called for election of enough members of Congress who would vote to codify the provisions of Roe to federal law.

Biden vowed to protect interstate travel for abortions and for distribution of mailed drugs approved by the Federal Drug Administration.

Biden joined with various governors and mayors in calling for protests that are free of violence. Biden made clear that he believed the court majority was not only wrong, but unrepresentative of popular opinion.

Senators who felt hoodwinked by the various remarks by Justices Amy Barrett Coney, Neil Gorsuch and Brett Kavanaugh about Roe as settled law during their confirmation hearings to join this conservative majority were especially vocal. 

In New York, Gov. Kathy Hochel declared the state “a safe harbor” for abortion, noting that anticipating the decision, the state has set up a $35 million fund for reproductive health clinics to help them with an expected surge of out-of-state patients. The legislature also has passed bills meant to protect medical providers from being brought up on charges in other states or otherwise penalized for providing abortions.

We already have seen groups file lawsuits claiming abridgment of freedom of religions that do not accept that life begins at conception, as an example of what is to come.

If the court majority thought that it was bringing finality to differences over abortion among states, it was mistaken. If the court thought that this was a resolution of legal issues in principle only, it likely was mistaken. If the court believed it represents consensus American values, it certainly was wrong.

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Protect Gun Owners, Not Cities

Terry H. Schwadron

June 23, 2022

Was it a strike of psychic irony that the Supreme Court decision to vastly expand concealed handguns on our streets came as the Senate finally voted its first substantial law about gun violence in 30 years?

Was it an expression of noblese oblige that the conservative justices for whom Congress just voted to have armed guards at home think it is perfectly fine to unleash more concealed guns in my neighborhood?

Was it a supreme height of arrogance for the conservative court majority to vote 6-3 to overturn a totally reasonable process in New York State on historical principle and ignore, as outlined in Justice Stephen Breyer’s bristling dissent, the reality of a mass shooting every day this year in America?

The whole point of the Senate bill, a measure dealing as much with mental health as access to weapons, was to skirt Second Amendment concerns but find a way to address gun violence.

The court’s decision to undercut the simple test in New York – asking a legal gunowner for a reason to carry a concealed weapon outside the home — may help cement fulfillment of the Right-wing allegiance to a totally opaque Second Amendment right to personal guns.

But it is not going to help quell reports of violence in my neighborhood in Harlem or those in cities across the country.

Over-simplified Reasoning

Given their length, the reasoning of the court’s gun decision and its concurring opinions was pretty simple: Nothing should get in the way of legal gun ownership. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,” Justice Clarence Thomas wrote.

While the historical record shows that “states remain free to ban guns in sensitive places, giving a few examples: schools, government buildings, legislative assemblies, polling places and courthouses,” that doesn’t mean New York City or Manhattan or apparently even my neighborhood in Harlem which has been tagged by the mayor and NYPD as needing more anti-gun cops. Thomas wrote that courts “can use analogies to those historical regulations” of sensitive places.

A concurring decision from Justice Sam Alito underscored that the Second Amendment right is to “people,” not just those organized as a “militia.”

Justice Breyer’s opinion was just as straightforward.  Ignoring the contemporary context of violence is sticking one’s head in the sand. Breyer asked: “So where does that leave the many locations in a modern city with no obvious 18th- or 19th-century analogue? What about subways, nightclubs, movie theaters, and sports stadiums? The court does not say.”

California, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island all have laws similar to New York’s.

Of course, the guns in my area generally are not legal and their holders certainly are not turning to the local authorities for permission to carry them concealed on their bodies. We have epidemic type numbers of gun deaths in this country and more guns than people, and as a governing public, we can’t even figure out how to talk about them.

In the streets, any cop will tell you that the potential for more citizens carrying their own guns for self-protection simply will complicate response to already confusing law enforcement situations.

What We’ve Wrought

At the end of the day, we found again that we have a Supreme Court that relies on political principles rather than on real life solutions.

In the Congress, Republican opponents of the too-little-too-late effort to address out-of-control gun violence were gathering steam towards amendments and whipping votes to kill the bill in the House.

The New York governor and the New York City mayor were hustling to get the state legislature back into special session to hammer out legislation that would fit within the prescriptions of the new decision. Gov. Kathy Hochul said, “This decision isn’t just reckless. It’s reprehensible. It’s not what New Yorkers want.”

The court’s decision is out of step with public opinion. About half of voters in the AP VoteCast 2020 presidential election and any number of polls since said gun laws in the U.S. should be made stricter. An additional third said laws should be kept as they are, while only about 1 in 10 said gun laws should be less strict. About 8 in 10 Democratic voters said gun laws should be made stricter, VoteCast showed. Among Republican voters, roughly half said laws should be kept as they are, while the remaining half closely divided between more and less strict.

Apparently, you needn’t bother with a covid mask on the subway – it apparently is an unwanted intrusion on keeping our communal health.  But do watch where you step: The people in your crowded car may be carrying concealed weapons.

We’re protecting guns and owners, not neighborhoods and schools.

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