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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, February 29, 2012

Griswold Again

Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy by John W. Johnson is one of the better examples of various "landmark cases" books.  It goes somewhat off the rails after discussing the case, the summary of privacy cases after Roe a bit weak.  Nonetheless, it provides a good account of the case overall, including a brief history of privacy rights from the colonial days to the 1960s.  Cases and events can provide a good way to address broad principles and themes, this book being a timely example.  I read and noted it already; the times show the need to continuously re-examine such things, lessons slipping away. 

Unlike some, I think the majority opinion is overall a useful approach, ironically given the author, a more conservative one than the open-ended "liberty" stance later used.  Some like to ridicule talk of "penumbras" and "emanations"* like childish people laughing at funny sounding words.  The principle was in fact repeatedly cited, "penumbra" itself used over twenty times in past opinions.  Brennan (with support from Goldberg and Harlan) but shortly before noted the overall theme:
It is true that the First Amendment contains no specific guarantee of access to publications. However, the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.
The ruling cited the First, Third, Fourth, Fifth and Ninth Amendments in particular as having aspects of privacy.  I have spoke of in the past of the Ninth Amendment, but suffice to say, as Justice Goldberg noted in his separate opinion, there are liberties beyond the four corners of the text and the spirit of the text is one way to find them.  The Supreme Court never had much occasion to deal with Third Amendment, but the opinion notes how the First and Fourth raised privacy interests. Shortly after, another ruling (citing an earlier opinion) noted the right against self-incrimination is in place partially on account of "our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life.' "  Years later, the Supreme Court said the Second Amendment is particularly important in the home as well.  In Bowers v. Hardwick, Justice Powell also suggested criminalization of private acts raised Eighth Amendment concerns. 

The book notes the long concern of privacy, including Justice Story in his Commentaries speaking of "liberty of private sentiment" and the threat of "cold and formal severity" if private correspondence was not protected.  The proper role of the state (public v. private) was an essential theme, including privacy of family life and religious belief.  The preface speaks of a "judicially constructed right," but I do not accept that. I think the right was always there, if not fully recognized.  As is normal in common law jurisdictions, at some point, a slew of cases show a theme, which is set forth as doctrine.   Such was the case here.

Special note should be given to Justice White's concurrence.  His opinion, like Harlan's just his own, recognized a substantive due process liberty interest in the privacy of family life. As he noted, precedent so recognized, warranting heightened scrutiny here.  Any alleged state interest here to a law that burdened the use of contraceptives (if never directly enforced against actual use, White noted that the law in practice unequally burdened the right by blocking distribution and advice in ways mostly felt by the less well off; the dissents in Poe v. Ullman also fleshed out the dangers of the law, a point the majority opinion here barely did except with a passing comment about invading bedrooms) is of "marginal utility to the declared objective."  I find that is the best approach to answer the "premises" provided to block same sex marriage, ones "whose validity has not been  demonstrated and whose intrinsic validity is not very evident." 

White notes the various uses of contraceptives -- family planning, health or protecting of "life itself" (pregnancy more lethal at that time; some also noted the abortion ban, unlike the law against birth control, had a life exception -- thus, a different sort of "life" also was at stake).  The effort for legalization was in large part one driven by doctors.  It was seen as a matter of public health.  This is now controversial according to some people. "Pregnancy is not a disease."  Here too the absurdity increasing the chance of abortion is left open as funding of contraceptives is threatened.  The Church for years blocked legalization for non-Catholics. Now, such members of the hierarchy wishes to do so indirectly.

It is true that the ruling could have been more detailed, including in comparison to the dissents in Poe v. Ullman.  Connecticut courts over the years focused on the argument that the law should be interpreted to have a health exception or at least one for physicians.  By the time the rulings tied to Poe and Griswold were involved, they were tired and largely just cited precedent.  The privacy argument was not really addressed (see, e.g., a case referenced by Justice White, Trubek v. Ullman, which directly raised the privacy of family life argument and the court below noted it didn't add anything to past rulings focused on doctors and health).  It was only a back-up argument for those behind the Griswold case and the confused oral argument never really got around to it.**

Some cases did flesh things out though Roe v. Wade was tellingly lacking in this regard, though the concurring opinions in it and a companion case did provide helpful context.  Griswold was an easy case, involving marital privacy and clear intimate activity (including medical treatment and private advice)  that most accepted as protected.  But, the principles logically led to harder cases, if ones reasonably decided.  Things were still in flux post-Roe, as noted in a somewhat obscure ruling involving providing certain information to obtain prescription drug, one that also providing a helpful summary:
The concept of a constitutional right of privacy still remains largely undefined. There are at least three facets that have been partially revealed, but their form and shape remain to be fully ascertained. The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.
Planned Parenthood v. Casey and Lawrence v. Texas [focusing on intimate association, well discussed in this law review article cited by Justice Blackmun's earlier Bowers dissent] also later provided helpful summaries of basic themes, if relying on "liberty" instead of "privacy" as such. Those wanting more discussion can always do keyword searches on this blog, since I believe the right to privacy is basic.  As Prof. Allen noted:
We should care because privacy is important.  I urge that we think of it as a “foundational” good like freedom and equality.  Privacy is not a purely optional good like cookies and sports cars.  Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions.  I agree with moral, legal and political theorists who have argued that privacy is a right.
A lot of stuff to ponder.  John Johnson helps us along in this book.


* The much maligned principle:
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.
This provides a limiting principle -- "specific guarantees" or textual limits provide the launching point, thus reference to "the home" (Fourth Amendment) or associations (with First Amendment content). The Court (two justices not even joining in there, Warren not overly enthused about it even when he did) did not hold to this theme, Roe v. Wade speaking of general "liberty."

** Listening at Oyez.com, Poe v. Ullman was even worse, a very labored performance with the end of the audio garbled. Also, imagine a justice now -- like Harlan -- politely taking back a planned question (on free speech implications of a law that covered "counseling" and other things) to allow the advocate a chance to address other issues.  Emerson very well might have been better off answering the question -- it might have helped Justice Black find something wrong with the law. 

USSC Rejects Another Last Minute Claim

There might be some difficulties applying execution protocols, but this is not a great representative for the anti-capital punishment crowd. Then again, even he was on death row for over twenty years so far. I'd just leave him there. The system is still broken.

Ziva David (NCIS)

One charm of NCIS are the characters and Ziva, our cute (does she practice those flirty faces?) Israeli-American team member is but an example. The Slate article referenced is notable as are the comments.

Tuesday, February 28, 2012


Wordplay is the funhouse of lawyers, but we should not be fooled into believing sophistry, even if we respect its skill.

Fiction Honored

"Every American" does not have to "buy" insurance under the PPACA to avoid a "fine" as epluribus notes here.  The poll question is a mistruthful push-poll.  Prof. Kerr pats the person promoting it on the back.  Educators should not honor and help promote ignorance.

Slings and Arrows

To be, or not to be, that is the question:
Whether 'tis Nobler in the mind to suffer
The Slings and Arrows of outrageous Fortune,
Or to take Arms against a Sea of troubles,
And by opposing end them: to die, to sleep
No more

One charm of this Canadian series is how it honors the wonders of Shakespeare, including a great monologue by "Geoffrey" on the thought processes of Ophelia in Hamlet, various insights on staging Macbeth (including audience reactions) and the actual sexual energy possible playing things on the stage.  Such insights and passion is often not found on our shows these days, many of them procedurals that have their charms (I'm liking NCIS these days) but not having such intimate depth. 

I never did (reading a few and watching movie versions) but it makes me want to see a live performance of Shakespeare.  I am a bit concerned about a full length production with its language and such but something like Romeo and Juliet (here the star was so intimately connected to his Juliet, that he had his first heterosexual affair)  or Hamlet seems approachable. 

Silliness of Originalism

This tidbit from a law professor working on a bio of someone sometimes seen as the Madison of the Fourteenth Amendment is but one more example of the subject.  See also, long articles like this, which provide disputed analysis of one Framer's views.  It is a shame so many rely on this angels on a pin method as authoritative.

Monday, February 27, 2012

Slings and Arrows (S2)

Typical sophomore jinx -- first episode basically closes S1 plot lines as if everyone is ready to leave.  New plots not as interesting.  Hits a certain stride mid-way and the cast is still likable.  Still, somewhat disappointing. More evidence that you can say "fuck" on Canadian TV.

2012 Oscars

Didn't watch (Billy Crystal? yawn) except for the touching speech by the Iran film winner, alluding to current controversies but the glory of the arts win out.  Like many, haven't see The Artist. Midnight In Paris, Rango and The Beginners bored me.  MHP scared me from The Help but maybe later.  Will try to see a few others later on as well.

Saturday, February 25, 2012


Going down the list of Oscar films, The Help is being discussed on Melissa Harris-Perry (she was insulted and used it to talk about various issues) right now and Beginners meant well, but the turgid pace and style made it unwatchable for me after a short time.

Stolen Valor Case

Volokh Conspiracy often is best read for its comments.  As is sometimes the case, they can have the better of the argument than contributors, though others simply go off the rails.  It is interesting to read the responses to these people too (and helpful to read the wrong-minded ones) as it was back in the day when I started commenting privately to op-eds, which provided convenient abbreviated summaries of issues of the day. So it went with the "stolen valor act" case that just was heard by the USSC, this time Prof. Volokh supporting criminal penalties for certain categories of speech, certain viewpoints in fact.  Contra:

In 2007, Xavier Alvarez of Pomona, Calif., was elected to the board of the Three Valleys Water District. At a board meeting, Alvarez introduced himself by saying: “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” Alvarez did not just lie about being a war hero; he lied about many things. His catalog of untruths include playing hockey for the Detroit Red Wings, marrying a Mexican starlet, and rescuing an American ambassador during the Iranian hostage crisis.

Now, out of all the lies he told, one of those is punishable by the Government. Why? Well, because. Because it pisses some people off. But why stop there? What if you falsely claim to be a postman to your friends? What if the government sets up a database of other facts that you shouldn’t contradict?

What if the Government really, really like the Detroit Red Wings?

Look, don’t get me wrong. False statements have (almost) no value. And they can be actionable (see, inter alia, fraud). But America, for lack of a better word, was built on puffery, exaggeration, re-inventing yourself, and, yes, lies.
Prof. Volokh (the USSC link provides his brief) wants to draw the line at knowingly false statements of fact (mistake or satire not the issue here) via neutral laws such as against false statements regarding all medals of honors.  This would allegedly get around R.A.V. v. St. Paul, which struck down a hate crime speech law (a law only about cross burning, that is, perhaps like the long ago law about wearing medals, was treated differently later on)  that targeted only some types of class based hate.  The ACS Blog link above dissents from the "this law is neutral" argument particularly since the law doesn't criminalize false denials.  Also, the law narrowly addresses one sort of honor, just like the other law was criticized for targeting only certain types of hate. 

Volokh also belittles (contra to a strong concurrence by his former boss, Judge Kozinski) the possibility that a whole list of possible lies might be criminalized.  Not likely to happen.  Oh?  A silly argument by a scholar who is aware of a slew of petty laws out there against speech.  This very law is petty, particularly if the thing is interpreted narrowly (as any law targeting speech should be).  The very name -- stolen valor?  This sounds like the stereotypical primitive who thinks his/her soul is stolen via photographs.  What is "stolen" in any real sense by some liar here?  If lies of this sort will now be criminally actionable theft, where is the stopping point?  There isn't one, so we will have selective prosecution depending on what particular viewpoint we find important at the moment. 

If the issue is that it influenced the obtaining of a job or something, that might be different, though a neutral law about lying on a government application can easily apply there.  But, this is speech and as the appellate court opinion noted, strict scrutiny should apply unless some exception is involved.  Yes, false statements of fact were deemed not by themselves to have constitutional value, but criminalizing them all would be problematic since free speech needs breathing space.  Thus, it is hard to claim libel when matters of public importance are at stake, even if the statement is untrue.  Judge Kozinksi also noted the importance of personal expression, litigating personal lies could be problematic on that level.  The original  (Kozinksi concurred on en banc review) appellate court panel noted:
In sum, our review of pertinent case law convinces us that the historical and traditional categories of unprotected false factual speech have thus far included only certain subsets of false factual statements, carefully defined to target behavior that is most properly characterized as fraudulent, dangerous, or injurious conduct, and not as pure speech. We are aware of no authority holding that the government may, through a criminal law, prohibit speech simply because it is knowingly factually false.
Like cases involving animal cruelty and violent video games, this law provides a somewhat novel question that forces the point, a type of "pure" false statement that an overly literal (see the dissent below) application of dicta might be thought to allow. This case is not about lying to a federal agent or as Volokh (with his co-writer) suggests about lying online to talk to a minor about sexual matters.* A special relationship or protecting minors CAN possibly be a compelling state interest.  There is no compelling state interest in this case. It is a symbolic piece of legislation to provide a type of shame to those who lie about military records.  It is not even about someone who actually was in the military who has some additional responsibility.  This interest is not totally trivial, but not enough when speech is involved.

The best case that might be imagined is to think of it as a type of trademark security, though again, not all government honors are so protected even there.  It is also a somewhat strange trademark law, even if one argument was made to shoehorn it in.  The government is clearly not really relying on that argument. As SCOTUSBlog notes, it will try to uphold the most they can by interpreting it more narrowly than its language suggests.  This is common practice.  I'll stick with the NYT and others to argue it is not worth the effort and trivial as the case might be on some level, the underlining principle is not.  Petty laws targeting speech are not only shallow but set forth dangerous precedents. 

I listened to some of the oral arguments and it was somewhat disconcerting to hear the defendant's counsel (who after all won below) sound so disjointed.  Judge Kozinski wrote a strong opinion about the troubling nature of the law but for a significant amount of time, you failed to get a sense that much was at stake but general principle.  The advocate even made a "concession" that it might not chill any speech.  Rather striking.  Contrast Judge Kozinski, cited by the LAT:
"Lying about being a military hero is despicable and may have some impact on the government's ability to recruit genuine heroes, but it's hard to understand why it's so much worse than burning an American flag, displaying a profane word in court, rubbing salt into the fresh wounds of the families of fallen war heroes," or other unpopular speech held to have constitutional protection, Kozinski said.
"Some impact" is not a reason to criminalize speech and if other speech or speech-like acts can cause similar harms, why are they not chilled?  Santorum, e.g., (h/t TPM) had an ad that mentioned his "Armed Services" experience, alluding to his time on the Armed Services Committee.  Arguably, this misleadingly sends the message he was in the armed services.  The government would likely argue that the (the literal reach of the statute possibly notwithstanding) that this does not count since he didn't intend to falsely send that message.  Is the court of law a place to determine such statements by politicians?  Some statement in some media interview or the like? Add this to the "Without the robust protections of the 1st Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship" argument, you had an opening for a strong case against the law.  Not quite at the USSC earlier in the week, however. 

An appellate court as this case was pending upheld the law and a better case should have been made here, even if one does not think oral argument matter that much.  Bottom line, criminal penalties should be used sparingly given "Congress shall make no law."  Special interest exceptions need not apply.  And, even putting aside that, this is a petty piece of symbolism while more important protections are not provided. 

[And Also: Prof. Volokh and some others also do not find much to be upset about in regard to proxy baptisms by Mormons, particularly of Holocaust victims like Anne Frank.  To briefly comment, particularly since I'm taking a break from doing so there, I'm inclined to be with those who find it at least somewhat troubling on respect grounds.  Since this law is largely about just that, there is a connection.  And, here too, the main concern is what should be done, not something that should be legally actionable.  The former means a lot more at the end of the day. 

I find it troubling that some go on and on about how religion is rubbish, so who cares?  I find much religious belief wrong, but I find a disconnect with some who I agree with on other issues when they find it necessary to rub their nose in it.  After all, there are quite a few liberals who practice Christianity and other faiths that have beliefs that seem irrational. Why gratuitously take potshots? When they want to remove rights from others, sure, but in general, it seems bad manners.  And, the idea of some that even being offended is stupid seems rather much.] 


* Any exception to the general prohibition against censorship tends to bring with it problems, underlining the misguided approach by Prof. Volokh here in the pursuit of doctrinal purity.

As someone online for years, I can tell you that even this apparent no-brainer matter is not without complications. For instance, in chatrooms, people often knowingly pretend to be someone else for role playing purposes, including being another sex or age.  Criminalizing lying in this context can be problematic, particularly when entrapment is mixed in. 

Friday, February 24, 2012

Ho Chi Minh City

This received some hits previously but not sure about from Vietnam.

Rum Diary: Rating etc.


Rum Diary was rated 'R' -- "for language, brief drug use and sexuality."

The brief drug use was something of a tacked on scene (much more drinking in the book -- the fact the lead comes off as somewhat boring at times here is one problem with the film) involving some mysterious psychedelic drug provided by a crazed roommate and applied via eyedropper.  Nothing much happens for a bit, then our young Hunter stand-in sees his buddy's tongue get real big and soon the two are wandering around a bit in the dark night.  Johnny Depp's animated film Rango was more psychedelic by far (if to me, more boring). 

The language was not noticeable.  They might have used the dreaded "f" word at some point, but I did not get any sense of it being adult level language as a whole.  As to "sexuality," how that even gets you a rating where you cannot go with an adult if you are under seventeen is unclear.  Notice it didn't say "nudity."  Nudity is hinted at times, but you never actually see it.  You do see a quick scene of sex in the distance without anything being explicitly seen.  Another sex scene is interrupted before it barely gets started.  Amber Heard has some sexy moments here and she looks like a young actress to watch.  Still, not seeing that rating here.

A bit on the story.  The movie takes the basic outline of the book, removing one character and giving his girlfriend to the no principle money guy that tempts our hero,* the usual sort of movie compression as was omitting Paul's actual plane trip into Puerto Rico.  A local watering hole that provides the opening scene of the book is also mostly ignored, a more questionable choice.  The changing of the boyfriend results in some plot changes involving the girl (Amber Heard) and causes some plot confusion.  His pal (standing in for someone else) comes along at one point when it doesn't make much sense for him to do so. 

The overall idea of a young (but to him getting old fast) writer experiencing some life stuff in Puerto Rico, including with a colorful press photographer (Giovanni Ribisi adds some color too as a crazed crime/religion reporter)  staid largely the same.  As fleshed out more in a "making of" segment, the idea is the writer/reporter cannot find his voice and the experiences here makes him develop into his "get those bastards" persona.  You do not really see it, to be honest.  The movie promises more craziness than it really delivers, even the striking rape (we see the lead up) found in the book watered down here, down to much less sexiness on the dance floor.  Depp seems strangely toned down here repeatedly. 

And, the ending sort of comes in a rambling way (involving a cockfight to suddenly make some money for some last bit of justice that came off as unlikely, which they do not actually use and then a thing with a boat and ... a tacked on "happy ending" final crawl that really seemed ill advised)  that I found badly done.  The book was somewhat disjointed there too but handled things better (no cockfight, for one thing), without the happy ending business. It left things more appropriately hanging.  The film had charms like I said earlier but in a disjointed fashion, including various supporting characters and some good scenes.  Tellingly, I watched it in dribs and drabs, getting bored.

The extras were a "making of" segment that was pretty good and a rather drawn out home movies flavor documentary regarding the real Hunter Thompson editing the work and trying to get (a decade ago) it made into a movie.  This over forty minute segment could have been shorter.  


* Aaron Eckhart is well cast here but after awhile, has not enough to do.  The same might be said for the great character actor Richard Jenkins, playing the editor.  The others, besides the three cited in the text, were generally okay, but nothing special.  Michael Rispoli as Sala was very good though at times he was a bit too talky. 

A Room with a Zoo

Had some bad luck finding a book recently to read through so tried  a safe choice -- this charming book with cute illustrations.

Rum Diary

The book read like a rough draft of a young writer that was left unpublished for years.  Some good parts but not good as a whole.  The DVD extras (with Hunter Thompson) showed how long the film was in development.  Similar result really with Depp et. al. still providing enough to make it worth a look. Last part still rather weak.

"sex should be free from consequences"

This thread like others raises some ugliness, including this seen before trope.  The idea is that somehow Griswold or birth control being covered equals protecting licentiousness.  Such ignorance. A small nod too to Dilan -- usually worth reading, but on religion, uh ...

Thursday, February 23, 2012

Girl Scouts

A comment at BTC News etc. alludes to a Republican legislator's shot at the Girl Scouts, but on religious issues, gays and so forth it actually is saner, more so than the Boy Scouts. Also, they are for girl empowerment. Anti-conservative! Yes, rather ridiculous too.

Sandra Fluke Talks About Contraceptives

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.

-- Article I, § 3 of the New York Constitution
We here in NY manage to have religious freedom as well as a requirement for religious employers to provide insurance coverage that includes contraceptives. It is noted that the First Amendment does not have a proviso like this one has but as noted in the past, it still protects religious exercise more than the current official understanding of the federal Constitution as applied to laws of general applicability. I covered this issue back in 2006 (tempus fugit) here.

The controversy that an application of a similar rule pursuant to the PPACA has received a lot of coverage, but various details are often missed. The important points might still be cloudy. For instance, what is a "religious employer" for purposes of federal law here (note that this is pursuant to this administration's interpretation of the law, underlining the importance of who controls the executive department)? With apologies to Rachel Maddow, this site lets us know:
A religious employer:

• Is a nonprofit organization

• Has the inculcation of religious values as its purpose

• Primarily employs persons who share its religious tenets

• Primarily serves persons who share its religious tenets
Thus, even for religious schools, not merely churches, you do not have to provide birth control to nuns, but it could be different if non-faith employees make up a significant part of the facility and staff. If the institution is so insistent to not provide coverage, or even indirect fund those that do (or, as in reality is the case, some of them), don't hire non-Catholics in this situation and only serve those who follow your tenets. If you don't want to do that, yes, you will have to follow some general laws. Since you are no longer doing something purely religious, but something that can be regulated to deal with the general public affected. They want to have their cake and eat it too, however.

The "threat" to religious liberty led Rep. Issa to hold an oversight hearing (and I wonder if anyone picked up on this) with even the url to the video being politically charged. There was controversy because of the lack of women on the first panel, but he noted: "The hearing is not about reproductive rights and contraception but instead about the Administration’s actions as they relate to freedom of religion and conscience."  [I would add that is wrong for another reason -- the witness was concerned not just about that, but women's health as a whole.]

Sure, that's why there wasn't a woman on the first panel (the stupidity of this underlined by the presence of two on the second -- there are women against even the compromise policy out there) and giving the minority party all of ONE witness. And, "freedom of religion and conscience" is not absolute, nor is it non-germane to have the other side there to address the question. Reasonable opposition recognizes such things. Ms. Fluke was represented on the hearing's website via a link to a press conference that included others like her, which is nice, but it would have been nicer if they were represented on the actual panel. She also came in for a special Democrat only hearing today. Instead, we have talking past each other, made worse given that even the Catholic Charities and Catholic Health Association (why weren't they there?) support the proposed solution.

A real debate on this issue would be represented by having the Democrats' side represented for a few witnesses, instead of the one sided affair that took place. If something that has bipartisan, broad Catholic support results in this, well, that's rather telling in itself. One concern raised by the panel was that Plan B is covered.* That sort of thing has a shred of logic, more than harping on the fact that "pregnancy is not a disease." A moronic statement -- the issue is the real health effects of pregnancy, which is a major reason why Catholics do not generally have ten children, even if they have the money to care for them. But, real debate of possible sticking points is not the point here. Major fail.

One of the women panelists (in the second round) offered "reasonable alternatives" to having the insurance company provide the coverage without charging the institution. I still find this akin to that bit on The Daily Show where it was noted that there are just so many ways for the government to pay for abortion, so what we really need is special money (dollar bills) so that pro-life people will not be corrupted. After all, we pay the salaries of building inspectors to clinics. Pacifists also ridicule them on what the government forces them to do.

Anyways, these "alternatives" would include the women paying for it themselves, their employers or via their spouses. Ms. Fluke notes that contraceptives could cost $3000 over the span of one's attendance at law school. The point of insurance is avoid out of pocket costs. Many of these people are not married, particularly those at college. Many are not employed -- why do they need insurance at all if they can get it that way? -- and many opponents would like to let many employers not cover insurance either. So, these "alternatives" are weak, leaving the option of individual credits. Where will this money come from? Unless this is some sort of unfunded mandate, it will come from somewhere. Perhaps, less funding to education institutions and so forth?

I guess finding not overly credible distinctions is something Catholicism has had a long history putting forth, but the bottom line is that money is fungible and at some point, the religious institutions have to recognize the lines they are drawing here are silly. They are not being asked to directly promote, distribute or even fund contraceptives or even those that do so. They interact with various institutions, down to those who build their campuses and serve their food, that in some fashion support violations of doctrine. Do all cafeteria food come from companies without same sex couples being given benefits? If not, is not the Church funding the promotion of same sex marriage? Seriously, why is that different?

Ms. Fluke's remarks (she doesn't appear to have been sworn in, so it isn't "testimony" as such) underlined the importance of the drugs in question for women's health. It is my understanding, though some appear to be confused here (I say this in part from reading blog commentary), that non-birth control related use of these drugs is not the issue. But, as with narrow "health" rules for abortion, one problem is that once you make it controversial, those who need it for ovarian cysts or whatever will have a hard time. Some providers (and students) will not understand the after all unreasonable lines being drawn. After all, the basic idea of preventive health apparently is too hard for some to understand, sneers of "pregnancy is not a disease" being made.

And, it bears remembering that even Catholic organizations accept the compromise, most Catholics (e.g., Rep. Nancy Pelosi) realizing even the original ones were not some big insult or threat to Catholics as a whole. This plus the thousands of students, employees, patients and others covered by these institutions that are well respectful of "religious liberty" underlines the shallowness of the alleged "threat" here. The modern regulatory state is a major driver for the felt need for some religious exemptions of general laws, even if the institution in question received government funds and serves the general public. It also shows the need for respect for all views and some middle ground. Most seem to respect that.

A hopeful sign.


* See here for discussion of a district court ruling striking down as a sort of religious gerrymander a local policy held to be applied in a discriminatory fashion. Seems to depend on the facts, which those interested can investigate further. As I noted, if anything, for what it is worth (it's only a district court ruling in a special case), it's possible the logic there would hurt the dissenters here because Obama's proposal seems to be a problem in the other direction!

Anyway, this Plan B issue has received less press. Since some think it is an abortifacient given there is a small chance that it will not merely block conception but implantation, it raises the abortion red flag. Looking at the written testimony of the two women panelists, and this really deserves to be underlined, their main concern (not saying it was their only concern) was in fact this issue. One in fact underlined her institution DOES cover contraceptives (but not sterilization) generally.

The year delay is well used to deal with issues of this sort and if a bipartisan modification merely exempts this sort of drug, it would be acceptable though probably with some sort of rape exception. Those with health problems would still get contraception coverage. It is not ideal, but no compromise is. Rushing this slanted panel for political effect is again not productive to the general welfare, the ultimate bailiwick of Congress under the Constitution.

Wednesday, February 22, 2012

Privacy Quickies

A district court struck down section 3 of DOMA and it's nice and all for a Bush43 appointee to do so, but as I said here, probably went overboard on the reasoning. Virginia's forced ultrasound bill's (possible fix) is still bad, but somewhat less so without direct bodily invasion.

The single issue voter

In my recent comments on President Obama's treatment of medicinal marijuana, I referenced a blog post where I first saw the Rolling Stones article on the subject as well as certain comments in particular. This includes those that to me seemed more visceral than a rational look at events, including belittling what Obama did in respect to gays.* I find that sort of thing annoying, but should be somewhat more philosophical about the state of mind expressed by such comments. Perhaps, for Lent, I will try to take a breath and do more observing.

Also, someone bothered me because (other than also wrongly diminishing Obama's overall actions) of what I saw as a myopic view arising from personal experience with those helped by medicinal marijuana. One person in apparent response to my comments spoke of "partisans" who miss "deal breakers," referencing a "pro-life" Democratic candidate. I guess he did not mean Sen. Casey, who underlines that no one issue should decide an election by its lonesome, especially in comparison to candidates like Rick Santorum. If you live in a safe state or district, perhaps, but overall, as I noted, even if Obama's position (at least after 2010 -- the thread mostly ignored the article on that point; standard case of not addressing hard questions) here is wrong, the very same people you care about will be helped in some other fashion.

And, politics like religion should not be just about you. I was said to be deluded or holier than thou on this point, but it's true. And, those who really care about these issues realize the fact, sometimes "holding their nose" because they know the alternative is worse. Public policy affects a lot of people. If your single issue dominates, screwing other people (I think it was at least partially b.s. anyways -- even if the person voted for Obama in '08, the belittling of him overall did not suggest a person much sympathetic as if this was the "tipping point") by helping to support bad public policy (again, even "me and mine" cares about more than one thing) is selfish. We as a society are supposed to not be just for our own interests. I find it easier to be less selfish because it is actually in the long run also beneficial.

Some disagree. They have a myopic vision and to me it is pretty sad. And, leads to bad results for "me and mine." And yours.


* The theme of this discussion is the same with some other candidate, some other issue, but I do find a disconnect at times for those who imply I'm some sort of "Obama lover," when I find him too moderate on various issues ... I don't "love" him, but do realize his moderation is not just some sort of reprehensible hypocrisy, the sentiment of some. 

As to being some sort of "partisan," if that means some basic respect for the coalition known as the Democratic Party or some other organization, realizing that I am not merely some lone actor standing in the ether, fine, but that is also rather misleading.  I feel more comfortable reflecting that I have been targeted from both sides, the sign of valor of my sort. 

USSC Case Best Likely To Be Fictionalized?

Sounding a bit like a Law & Orders: Special Victims episode, talk of "bitches" and "passing strange" in an interesting clash of Roberts v. Sotomayor (Kagan in the middle) in a Fourth Amendment case involving gangs and such. Again, glad Sotomayor is there.


A local professor with the wonderful name Zephyr Teachout was on Chris Hayes recently. She wrote an interesting article on how "corruption" is a major concern of the Constitution, but how far she takes that is questionable. I am not, e.g., appalled at corporations funding ads against candidates, even shortly before elections.

Tuesday, February 21, 2012

Supreme Court Watch

Rachel Maddow had a good segment last night on the Republican presidential candidates' billionaires, particularly Mitt Romney's (well one of them) who did things like out gay journalists in efforts to stop criticism and full disclosure of his activities promoting certain viewpoints.  I'm sure, though his blog seems selective on the issues (where are all the posts on commandeering physicians and patients to give ultrasounds etc.?), that Eugene Volokh types would find this sort of thing ill advised.

All the same, it does provide evidence of the power of deep pockets and helps point to the motivation for campaign finance laws.  RM notes how things are going after Citizens United, but we aren't talking corporations here, but powerful individuals.  Since there is so much focus, including from her, about the whole "corporations are people my friend" (didn't McCain have such an affectation?), this would have been a good chance to remind (like Justice Ginsburg did in supporting taking the Montana Supreme Court case for review) that it goes beyond that.

The problem is the "fact" that this sort of spending is not "corrupting," no matter who does it. Well, at least outside of judicial elections, non-citizens, government employees in some cases and perhaps some other exception Kennedy and at least four justices will find. Maddow should think about having Rick Hasen on to talk about this issue, since I think people are not fully aware of the fact, especially since so much focus has been put on the corporations angle.  She and others can also remind people that eight justices upheld disclaimer and disclosure limits, showing the value of DISCLOSE Act type legislation. 

Meanwhile, the Supreme Court today accepted for review a University of  Texas affirmative action case, Kagan recused.  The university had a "top 10%" policy of accepting the top tenth of high school graduates, which  promoted "underrepresented minorities" without specifically using race as a factor, though that clearly was the intention.  After all, why else accept the top tenth of very different academically successful schools? This sort of approach just might satisfy Justice Kennedy, who left open the possibility of some concern for racial balancing, but not in a way that directly affected a student. The plan had some success and then the university added another race conscious policy, here argued to be unnecessary.  Will AK again fail to find a policy he can uphold? Will Alito help water down another O'Connor keynote opinion?*

To round things out, the USSC came back from their hiatus (putting aside the previous orders, including the one alluded to above on Montana) to split time in the health care orals, hand down some orders and some mostly uncontroversial opinions. One of mild interest involves a Kagan/Sotomayor split, Sotomayor joining the other liberals in partial dissent involving applying defining "in custody" pursuant to Miranda to the prison context.  Another such split the other way involved another of a handful of "per curiams" in recent years that appear to be fairly trivial in nature, a sort of fact correction approach that the USSC is not usually involved in, this one from Alito's old haunting grounds. 

And, the Prop 8 defenders reportedly are going -- somewhat surprisingly -- to seek en banc review, delaying USSC involvement. Their chances are unclear, the likes of Judge Kozinski showing some interest in same sex rights.  One complication is that given size of the circuit, the norm is not to have every judge take part.  To be continued yet again.


* The NYT article explains things helpfully:
Students in the top 10 percent of Texas high schools are automatically admitted to the public university system. Ms. Fisher just missed that cutoff at her high school in Sugar Land, Tex. She sued in 2008, challenging the way the state allocated the remaining spots using a complicated system in which race plays an unquantified but significant role.
The LAT article is a bit more vague. 

Questions I Would Have Asked

Rachel Maddow had Dahlia Lithwick on to talk about the Republican war against women, the Virginia bill in particular, referencing the Texas ultrasound law and failed challenge on free speech grounds (forced script).  She noted that the physicians were the focus of that challenge, reflecting my sentiment that these things should be challenged on various grounds, not just abortion rights directly.

But, what about the non-abortion liberty ground of the transvaginal invasion?  Anti-abortion 5th Cir. judge?  Things might be different in another circuit.  As I said at some point, Casey not only opened the way for more regulations by loosing the standard of review, but more chance of split votes in the lower courts.  O'Connor friendly balancing tests do that sort of thing.  She was off the Court when they decided the second "partial birth" abortion case, the first one a state law struck down 5-4 in part because of the lack of a "health" exception.  Kennedy dissented.  Alito, who dissented as an appellate judge regarding the one provision in Casey (spousal notification) that was struck down, switched things 5-4 the other way.

As with Judge Jones' anti-abortion vote in the Fifth Circuit (I linked her desire years back to actually bring back the actual Roe case), this underlines how the membership of the courts matter. This is a major reason why the Republicans are doing so much, even when the ultimate vote is ridiculously not close, to delay nominations.  More neutral matters such as many more federal judges taking senior status doesn't help with the vacancies.  As DL noted, Kennedy's opinion did not trust women, opening the way up to these ultrasound laws. The opinion notes:
Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g., Nat. Abortion Federation, 330 F. Supp. 2d, at 466, n. 22 (“Most of [the plaintiffs’] experts acknowledged that they do not describe to their patients what [the D&E and intact D&E] procedures entail in clear and precise terms”); see also id., at 479. It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State.
The interesting thing is that this "decision so fraught with emotional consequence" does not seem to warrant full disclosure in respect to the problems of having a child and raising one without full knowledge of all the risks and responsibilities.  We also do not require people before getting married to get marital counseling or listen to the numbers regarding divorce rates.   When various other key moments, including involving health and life, is involved, we do not force, against the will of the participants, them to have "clear and precise" knowledge of the intimate details of what will occur.  This is not just a matter of availability and full disclosure, but selective disclosure and freedom of choice.

The irony here is that (as the dissent notes but DL did not) full disclosure was not the path chosen there.  The case was not one debating the need to supply a biased informed consent script.  It was about a particular procedure, which during the oral arguments of one of the cases it was noted choices regarding it had a moral significance to the woman, different women having different beliefs.  No, the path chosen was to remove the choice, according to health experts the most safe for certain patients, away from them.  This mentality only furthers the idea that you cannot trust women, so force them to have ultrasounds, even those that require putting probes into their vaginas.  The latter is one better than the script challenged unsuccessfully in Texas, but the mentality leaves us open to it. 

Rachel raised the question of how this was "small government," but come on.  Let's be serious.  These are conservatives.  We know this; let's not pretend to be surprised.  Conservatives, yes even to some extend the anti-abortion, gay rights etc. Ron Paul (big libertarian thinks Lawrence v. Texas is wrongly decided) are all for government intrusion into personal moral choices when it is for our own good.  There are some Republicans, though more and more the best place to find them is in the state legislatures, who understand the folly of this path.  That though some balance might be warranted (one I might disagree with but respect), bottom line, some things are private. As Justice Stevens noted in his concurring opinion in Casey, dissenting on even the more limited opening there (waiting period/mandatory biased counseling) the state "must respect the individual's freedom to make such judgments."

Economic trauma should not be an opening for this sort of thing.

Monday, February 20, 2012

Franklin Pierce

Once, someone annoyed at how originalism was not properly respected and all cited Franklin Pierce to show how FDR suddenly perverted the constitutional order.  Yes, we all know how respected Mr. Hawthorne's pal is as a constitutional guidepost. Happy PD!

Pan Am

Season (series?) finale had a certain forced feel at times but by now we care about the characters and (well at least me) want to see more.  Time for Army Wives (actor on this show) to come back yet?

Sunday, February 19, 2012

More on Contraceptives Issue

Support of the likes of Bill Moyers and even various Catholic groups underlines the contraceptive compromise is not "anti-religious" or "anti-Catholic."  Interesting comments by MHP this morning on the "schematics" of not having religious women voices, but even her law professor didn't talk about RFRA and what about Sister Carol Keehan?

Rev. Joe

As I noted before, a replay of a Karen Armstrong interview was on yesterday and she noted she was a type of free range monotheist (and was starting to love the Buddha too ... that was a decade ago, so who knows now? she might just be a free range -ist now).  She was open to finding meaning where it could be found, rejecting the ability of one person (like the pope) or group finding the ultimate truth.  Religion for her also was basically a release of the ego to something higher.  Armstrong also welcomed a symbolic understanding of religious experience, dealing with psychological needs, a too literal approach something of an immature one.  Her short book on Genesis covered some of that ground well. 

I like that sort of thing.  I do not like when people who generally agree with me on public issues disdain "religion" per se.  As Armstrong notes, "atheists" were traditionally seen as those who did not properly believe in God.  They did not generally disbelieve in God, just the form the common people recognized as the true one.  Do the critics of "religion" find fault with Karen Armstrong types? What about Unitarian-Univeralists:
  • The inherent worth and dignity of every person;
  • Justice, equity and compassion in human relations;
  • Acceptance of one another and encouragement to spiritual growth in our congregations;
  • A free and responsible search for truth and meaning;
  • The right of conscience and the use of the democratic process within our congregations and in society at large;
  • The goal of world community with peace, liberty, and justice for all;
  • Respect for the interdependent web of all existence of which we are a part.
Now, I reckon Rick Santorum (h/t Chris Hayes) might not recognize this sort of "mainstream" Protestant trend (shared by many lay Catholics) as the true cross, shall we say.  When "secular" is tossed around, it seems to me to often apply to the sorts who do not go to church regularly or have strong sectarian religious beliefs akin to the type found in the Nicene Creed but these people are not "atheists" nor do they in the least all have no "religion" as such.  Many have deep beliefs that objectively sound religious in another context and some even belong to certain communities with rituals and the like that some believe "religion" must have.

Some rather give this sort of thing, at least outside the likes of UU or some Society of Ethical Culture context, other names like "conscience" or "spiritual" subject matters.  A rose by another name is still sweet.  If one wants, we can see this sort of thing as a respected alternative to religion, a choice on such questions, or an aspect of religion that should be protected in its own right without being religion freestanding.  I personally don't know if we can pigeonhole things so neatly and wonder how much it ultimately matters. The personal believer can have a "religion" even without a physical church attached to it.  And, I am not talking basketball or some limited political or economic theory here. 

Individual conscience, finding meaning and truth as you can.  


* I referenced a NY Court of Appeals ruling on a state contraceptive requirement that was applied to the Catholic Charities.  I'm not a big fan of Oregon v. Smith, but think this state alternative is a good idea for general applicable laws. A broad view of "religion" is proper, and if we do so, some balancing of interests will be necessary.  I'm being somewhat repetitious but the issue is important and repeatedly I have seen coverage of the issue that does not cover all the bases, though happily many do get the basic idea of a middle ground when no malice is intended. 

Obama on Marijuana

In a ruling significant for the upcoming PPACA case because of its ruling on how local personal activity can be regulated under the Commerce Clause, the USSC upheld the constitutionally under the provision of the federal policy against medicinal marijuana, even applied to mere possession in states where it is allowed under state law. It also notes "most domestic drug regulations prior to 1970 generally came in the guise of revenue laws," the clear "regulatory" nature not making them not "revenue laws." Telling for the tax prong of the PPACA arguments.

It is a case where preferred policy conflicted with constitutional law, Stevens and O'Connor (particularly the former, who expressly noted this in a later interview) not following what they though was good policy when applying the law. Stevens' had years before expressly written separately to leave open a medical necessity defense for individual use, referencing someone else's position [apparently contra the claim of the person cited in the footnote]:
Cf. Feeney, Bush Backs States’ Rights on Marijuana: He Opposes Medical Use But Favors Local Control, Dallas Morning News, Oct. 20, 1999, p. 6A, 1999 WL 28018944 (then-Governor Bush supporting state self-determination on medical marijuana use).
As to the Raich ruling, I'm really of the O'Connor sort who is willing to be a bit wishy-washy there, having a "this isn't enough" standard of interstate commerce.  I am with the majority on various things as to the basic principles involved and as applied to the interstate health market, the insurance law is clearly constitutional.  I can also, though I'm not really happy with the idea, accept the opinion as compelled by precedent. But, and the same thing pops up really in U.S. v. Lopez (federal law involving mere possession near schools unconstitutional), my real concern here are liberty interests. And, there, it fails. 

Someone in this thread* somewhat selfishly notes a personal connection. I'm not going to gainsay the underlining concern there. And, when the connection to interstate is weak and local law allows it, the federal government should not, arguably constitutionally not merely on policy grounds, interfere.  I'm with Justice Douglas on "the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf."  So, combine questionable interstate commerce link, local option/federalism and liberty interests, the case against the policy is strong.  One way or the other.

Anyway, the impetus here (see link) is an article on Obama's marijuana policy.  The Rolling Stone article started thusly, opening up for the usual suspects the usual screeds against Obama, his imperfections making him a phony, everything positive he did tossed aside as some footnote:
Back when he was running for president in 2008, Barack Obama insisted that medical marijuana was an issue best left to state and local governments. "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue," he vowed, promising an end to the Bush administration's high-profile raids on providers of medical pot, which is legal in 16 states and the District of Columbia.
And, this doesn't matter much to some people, "in its first two years, the Obama administration took a refreshingly sane approach to medical marijuana." The change in approach per the article seems to be connected to appointing an ex-Bushie as the head of the DEA.  As Mark Green in the comments noted, it might also be that insiders were not a fan of the new approach, which had to face increasing medicinal marijuana us as liberalization of state laws made this a major industry.

The new DEA head might have lead to an unbalanced "counterattack" that took things too far in the other direction. Also, it is telling that the change came after the House was won by the Republicans. This is not the only issue (see yesterday's Up with Chris Hayes on expelling aliens)  where Obama plays tough on crime. This is a valid criticism, though again, it is not merely about Obama (what about Congress allowing local option? like ending the AUMF 2001 that authorizes drone strikes, where is Congress? Ron Paul? one commenter even wants Obama -- how little we remember -- to fire some prosecutors for following the law here). Skewered and politicized drug policy goes across the board. And, the Administration has done some sane things overall here. 

Yes, Obama has not done enough and the change on marijuana policy is horrible.  It's like the Gitmo thing -- the non-audacity of hope. He made an effort, he had some push-back and scampered back.  Exaggeration of how horrible he is across the board (e.g., he isn't for same sex marriage yet; what good is he to gays?)  is counterproductive.  People might not care, but I do.  Sorry.  Anyway, yes, the first of the noble eightfold path to nirvana is "viewing reality as it is, not just as it appears to be."  He can laugh off questions about marijuana, but not when "a retired police officer with the group Law Enforcement Against Prohibition" makes them.

We are debating contraceptives (remember when someone got in trouble for raising masturbation during the Clinton years?). Chris Hayes noted yesterday that there isn't one "Obama Administration" but a bunch of shall we say sub-fiefdoms or something.  This is how it would generally be unless you have a really top down sort of guy ala LBJ and I bet even he couldn't control every department over the long term.  This leads to a mixed result, especially when (like in the economic area), you basically determine the conservative path is the de facto norm. 

Things had gone off the rails here.  I'm with you guy and the alternatives (yeah, even Ron Paul ... hands off the uterus, bub) are no better, much worse (Gary Johnson might be sane on this, but on economic matters? not so much) but you have screwed up here.  Started off well and unlike Gitmo, you don't need funds to not go after these guys. There are enough questionable providers to show that you are doing something.  Leave the others alone.


* "whit" in that thread annoyed me with a particularly moronic -- I know, you should be polite, and I started to get sarcastic there which is self-defeating, but damn, give me a f-ing break -- argument on Obama, who only the "deluded" would support and is clearly worse than Bush on most things.  From a progressive view.  People, including people I respect, toss some of from of this out, if not so baldly, and it is like religious belief.  It is more emotional than rational, a matter of faith. 

Saturday, February 18, 2012

Booknotes/Karen Armstrong

At the new and improved Booknotes website you can catch Karen Armstrong's appearance that was re-broadcast earlier. I like her idea of "religion" as the elevation past the "ego" and her universalist approach at truth. I read some of her stuff. Worthwhile.

Weekend Mornings on MSNBC

And Also: Victorious was amusing today, bringing back an old favorite and having subplots that allowed the supporting cast to shine. Cat also was not quite as over the top here. The deus ex machina ending at the dog sitting was a bit much though.

There is a lot out there for those who wish to find out about current affairs, online and on the air, but it is something of a mixed bag. 

As I noted at BTC News, I find Up With Chris Hayes (8-10 A.M. weekends) worth noting specifically, a panel discussion show for progressives with some effort to include a conservative voice (and at times guests) as well.  The format lets the show cover topics in a more extended fashion than is sometimes provided outside of PBS and documentaries.  The topics are big enough that everything is not covered but it is impressive. And, I think the fact the host seems relatable to me personally (him playing basketball in high school notwithstanding) helps too. It seems fitting that by chance it came out he grew up near here. 

Melissa Harris-Perry (previously Lacewell) followed starting today, she too often seen on Rachel Maddow's show (Maddow a Rhodes scholar; MHP is the only tenured professor serving as a cable news host, according to a recent NYT article that also talks about Hayes).  It seems like she follows the same basic approach, perhaps providing a bit more personal commentary along the way, Hayes in effect having a permanent panel there.  She is a professor after all, and has that vibe.  To toss it out there, she's biracial, though generally doesn't bring it up -- she's in effect black, underlining (like Obama) race is somewhat variable. 

MHP started today by herself and then interviewed some Republican Party representative and only later had people there ala Hayes.  Didn't start well for me -- the guy spouted some talking points, including the tiresome b.s. about the filibuster proof majority (Dems had one, for a bit of time here and there, when Specter switched and three different senators were not too sick to attend, one dying eventually, and even then, only with conservative Democrats who didn't sign on for various things) and later having a rather poor summary of privacy rights over history. 

A bit on that, since she used it to discuss the contraceptives policy.  Various issues are raised by Obama critics, though they aren't quite consistent about things.  For instance, in the long (over 500 comments) thread over at Volokh Conspiracy (not for the first time) there is criticism of use of preventive health care as the hook as if only liberal "experts" care about that.  When this sort of total different wavelength is involved, you tend to get replies so fill with assumptions that it takes a paragraph to answer a sentence. Another issue is the "problem" is pregnancy is deemed a "disease."  As my discussion earlier noted, the actual idea is that it raises various health concerns that makes unwanted pregnancy not ideal.  This seems obvious to most of us, which is why even the Church supports certain "natural" means of birth control. 

A person suggested that the individual at the covered religious employer is not really burdened here because they can simply get another job or pay for the birth control themselves. Or, anything under the sun a particular employer finds religiously or morally suspect perhaps. Not really. The great number of other work activities, well, what time period are these people living in?  The same thing is true for public accommodations generally.  You need not only shop at places the owners share your faith.

Second, employer based insurance is of fundamental importance, since it is how many obtain health care.*  And, oh guess what, this is the logic to that provision in the PPACA too, shared risk pools further that end.  If individuals had to randomly deal with various things some employer finds morally suspect, it would be a lot more complicated.  Finally, this is where "privacy" pops up too -- a church, sorta private.  A hospital or school, especially one getting lots of federal funds? Somewhat less so.  Complicated lines at times, but the balance here is logical and it is after all ultimately the employee's money.  It is not a free service for the public.

I noted last time that abortion funding (which I realize is treated differently, but not to my liking) is seen as something the government can deny since it is not a direct barrier to the choice involved.  But, the importance of insurance to contraceptives (and other) coverage underlines (as the dissents in cases like Maher v. Roe understood)  why practically it is a problem.  Health insurance is a general fund, which individuals have the ability to use as they see fit in various respects.  Some might oppose some uses, just as some might oppose uses of taxes generally or how one uses a government salary.  But, with such diverse beliefs, the decision overall should be left to the individual user.

This reflects an individual right of privacy that had origins -- even for women MHP -- long before Roe v. Wade, but apparently still needs to be understood, even today as applied to contraceptives.


* Some note that is the problem, we need to have health insurance independent of employment.  Sure.  We have some of that now for minors, seniors, the poor and some others.  But, the entrenched system in place was largely built around employment.  Change is hard.  Sorry.  Again, we are debating contraceptives.  We have a ways to go. Viewing reality as it really is, right up there on the eightfold path

Friday, February 17, 2012

Sexual Assault / Health Care ... Tomato/oe

Life has a looking glass quality at times. The Republicans are concerned about "voting fraud" but can't handle (as Rachel Maddow notes) to count votes properly in more than one state. They don't like abortion or threats to religious liberty or wasting money, but a means to save money, further the religious liberty of employees and cut down abortions is a problem. Over at Volokh Conspiracy, we even have talk about how prevention isn't really part of health care, really, it is sort of a "liberal" ideological trick. BTW, talk about judicial activism -- January 1, 2014 is the due date here and court challenges are up already.
So the problem is not just that the woman and her physician (the core relationship protected in Roe) no longer matter at all in deciding whether an abortion is proper. It is that the physician is being commandeered by the state to perform a medically unnecessary procedure upon a woman, despite clear ethical directives to the contrary.
Dahlia Lithwick (via here) is but one person who shows us more situational ethics (and you thought it was some sort of leftist thing). The non-mandated insurance requirement ("mandate" = some people paying more income taxes) is according to some a nefarious "commandeering" of the people, per Paul Clement a means to avoid "upfront" accountability. Yeah, because no one knows what is going on there. Meanwhile, Virginia wants to join the "forced ultrasound" club* and who but the choir knows? A procedure as DL's links note will sometimes require an actual vagina penetration, an amendment to require consent there rejected.

Unwanted "penetration of a woman’s vagina without her consent is sexual assault" (to cite a RH Reality Check story linked). Such a threat to "bodily integrity" was a key aspect cited by Planned Parenthood v. Casey as a reason for the right to choose an abortion. If removal of a bullet or pumping the stomach to expel contraband swallowed is problematic, this should be too. As with other cases, including biased informed consent requirements or religiously slanted funding moves, this problematic above and beyond merely being an undue burden on abortion. The argument is that the medically unnecessary procedure is important for full informed consent, but it is clearly not compelling on that front since it is not common practice or anything.

[Update: informed consent material inserted here.]

I abbreviated that last paragraph for editing purposes but it really should be added that this type of regulation is a direct effect of Casey, particularly when it burdens early abortion choices and is largely about prenatal life. Casey removed the trimester scheme which blocked legislation that was only about the last interest, except in the third trimester and when it didn't directly block abortion choices (funding was seen as not doing this, since poverty is not the government's fault).  Now, you can do that sort of thing, unless there is a substantial burden on abortion.  The ultrasound law adds expense and hardship and should be considered "undue," but it seems to me to be debatable enough that the non-abortion "liberty" concerns must be added to put it over the top.

Casey also shoehorned women's health here though Blackmun and Stevens were wary about some of the material provided given its slanted quality.  Also, as Stevens noted, the fact an interest in potential life might be present does not mean it can trump the woman's interests here. Do we require newly pregnant women to hear about the costs and hardships of pregnancy and children, particularly for certain people, since it might lead them to be upset about carrying it to term later on? Perhaps, pictures of children in foster homes, after their parents couldn't care for them?  Some do (as in marriage and so forth) after all regret their decision and when it comes to teenagers (and probably others), it is particularly important for them to know what is coming.  Spoiler alert: we do not compel that sort of thing; we trust the women. 

Informed consent is not a bad thing, but the below sentiment from Casey should be evenhandedly applied with the full interests of the patient (client) taken into consideration, including other constitutional interests:
It cannot be questioned that psychological well being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible.
In the so-called "partial abortion" case, there was a fear that if the procedure was allowed, doctors would (for the sake of the sensitive women) avoid fully informing them of the procedure, so perhaps, it was best just not to have it at all.  This approach is a tad better, though we are not merely talking about "information" (see footnote for a link to the importance of "ethical" use of informed consent)  here, but forced medical procedures on patients.  It is one thing to require abortion providers to offer ultrasounds for those who want them (some find patients appreciate the option, so do so voluntarily) but forcing the issue is different, particularly when probes need to be put in vaginas. The effects on abortion decisions are at best cloudy, so there is (even if we accept them at face value) no compelling need to force the women here. The implication that the main value is to shame women and force them to serve as conduits of a certain ideological / moral viewpoint is rather strong. 

Next month some alleged big threat to individual medical choices (inactively done) will be heard by the Supreme Court. Meanwhile, the right of women with her doctor to make a health choice following her conscience will be continuously invaded by the same side that uses this as a big issue.  Women are not trusted here to make their own choices, adding a choice to have an ultrasound not the point here.  The refusal to accept the amendment requiring consent when a transvaginal (never a good idea to have "vagina" as club against you) was involved underlines the point.  As with the contraceptives situation, trusting the individual is not the rule here.  We yet again await the true libertarians. 

Also, as seen today in NJ, same sex marriage should be left to the legislature, except when it should not, moving past "civil unions" to same sex marriages must for some reason be done by public referendum. After all, if given the chance, wouldn't blacks have done that in the 1960s contra using the legislature to pass civil rights acts?  Unfortunately, I'm not just being snarky -- the governor who vetoed it made that comparison.


*  According to the Guttmacher Institute, twenty states have ultrasound laws as of 2/12/12, a "mid-90s" (post-Casey) trend.  Seven states require it though only Texas (two other states in legal limbo) require showing and explaining the image. If performed, nine states say the provider must allow the woman to see the image while five others require such an opportunity even if the physician would not normally perform it.

Since it often is not normal procedure (adding cost and time), particularly for early abortions, this would add costs. A report on informed consent linked by the above notes that it "can add $50–$200 to the cost." Images also might be misleading, which might be a problem at biased crisis pregnancy centers, not there to give full information and not necessarily staffed by those fully trained in prenatal development.  This is why full disclosure upfront, something they repeatedly resist doing, is so important.  Not just when it might promote one viewpoint. 

"Yale Kamisar on the Rise and Fall of Miranda"

See here and reference is made to another scholar's works, including "mourning Miranda." It is a good discussion but Miranda wasn't some be all, end all. It was a start of sorts and continues to be tweaked, in various ways negatively. Aspects still useful.

How I Learned to Drive

I saw this years back when Mary-Louise Parker starred (also saw her on stage in Proof) and it's back out there with Elizabeth Reaser, who I liked in Sweet Land and Puccini for Beginners. Good luck.

Thursday, February 16, 2012

Slings and Arrows

A review of a new stage drama let me to this old Canadian series with some familiar faces, including the lead of Due South and Rachel McAdams about a Canadian theater company. Pretty good so far.

PPACA Taxation

It's a tax folks:
Folks here who are arguing about “honesty” and “dishonesty” in the interpretation of federal statutes, or about the “letter of the law” as opposed to the substance and purpose of the law, or who believe that a “magic word” will make the difference between whether a law imposes a “tax” or a non-tax “penalty,” are obfuscating. They want ACA to be struck down, and don’t much care how it is done.

The actual provisions of the ACA tell a different story. The provisions relating to the minimum health insurance requirement (commonly, but not accurately, called the mandate) are all geared to income taxes. They provide that, beginning in 2014, non-exempted federal income tax payers who fail to maintain a minimum level of health insurance coverage for themselves or their dependents will owe a penalty for each month in the tax year during which minimum coverage is not maintained. 26 U.S.C.A..5000a. The amount of the penalty will be calculated as a percentage of household income for federal income tax purposes. 26 U.S.C.A.. 5000a(c). The penalty will be reported on the taxpayer’s federal income tax return and assessed and collected by the Internal Revenue Service. 26 U.S.C.A.. 5000a(b)(2) and (g). Individuals who are not required to file federal income tax returns for a given year will be exempt from the penalty. 26 U.S.C.A.. 5000a(e). Looking at these provisions, and analyzing what they actually require, it is clear that the so-called “penalty” operates as a tax; is imposed as a tax; is measured by taxable income; is collected as a tax. And it is an income tax.
Truth doesn't always win out, but it kinda matters all the same.  

It's about religious liberty AND women

The refusal to allow a women student on a panel discussion on "religious liberty" (not absolute) about the contraceptives ruling (what is this Pan Am?) got some pushback about it being about women. Yeah, women whose religious liberty includes choosing birth control.

30 Years On Death Row, Unlimited In The Grave

A person convicted of a heinous murder was executed after thirty years, this post discussing why Florida seems to drag things out.  Justice Breyer has long been on board as being against such a thing.  There is a logic to carrying things out but it seems rather pointless.


Not a basketball fan, but this Lin stuff is fun though even Steve Somers on WFAN, not known for his hard eyed realism, seems to be taking it as a "enjoy it while you can" thing.  Spring Training almost here.  Yes, still care about the NYM. Long term, hope it will be ok.

Wednesday, February 15, 2012

Lovings on a day for Loving

There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
HBO, a black history/VD two-fer, had a nice documentary on tonight.  Mildred Loving later supported SSM.

Tuesday, February 14, 2012

Pan Am

Good episode on Sunday though no reference to the JFK assassination. [IMDB  Message Board flags that the episode was aired out of order.] Next week will be the season [series?] finale.

Monday, February 13, 2012

Religion and Public Officials etc.

And Also: A helpful analysis of SOPA.  [More]

There is concern when people of a certain religious faith wish to guide public policy in a direction that matches their beliefs, both on substantive policy grounds and a desire to separate church and state.  It is a bit ironic, but not really, that we ban religious tests for public office (Art. VI and the First Amendment) while religion is such an important part of many who run for office.  The barrier is not to a person promoting a certain religious viewpoint; it is in effect a guarantee that this will be in place for all comers.  This doesn't mean it is always a great policy or that unofficially, the public decides certain faiths are more "proper" than others. 

As noted in McDaniel v. Paty, there once was an effort to promote separation of church and state by preventing ministers (widely defined*) from running for office. This is no longer the policy, the outlier there declared unconstitutional as a violation of the First Amendment (one justice arguing it is a violation of voting rights).  The right to equal access to public office also applies to the general believer, religious freedom based on individual belief, not merely associated with an established faith.  It is left to the voter to decide who is best there.

The ruling was of the pre-Oregon v. Smith era, where equal application of general laws could still be a violation of the First Amendment, the old rule still statutorily protected under RFRA and allowed if state law requires it.  The plurality here noted "free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other similar religious functions."  This seems obvious to me. "Free exercise" cannot merely be "belief," but surely must entail other basic religious acts like going to services and so forth, though the core stuff often overlaps with speech and association (the "ministerial exemption" tends to involve religious associations having additional freedom of movement) in such a way that an independent right need not be focused upon. 

Still, there seems to be something beyond belief and other First Amendment activities, noting that originally said activities might have been more limited than they are today (e.g., a focus on political assemblies; the Free Exercise Clause would add religious assemblies, leaving open various others that might be banned). Sacraments, for instance, involves meetings, words and acts.  Thus, my concern regarding the ULC Church / marriage officiant controversies that religious freedom is hindered. Special favoritism or burdens on religion, especially certain religions, is particularly problematic.  It also has arisen in the same sex marriage area, if we want to see a real religious freedom burden in place arising from that issue.

So, the proper approach is to accept that a Rick Santorum is allowed to run for office, but to be concerned with the merits of his plan for public policy. Also, "free exercise" involves various things, not just belief. The NY Court of Appeals in fact touched upon this when dealing with the contraceptives coverage issue a few years back (see here and my allusion here), the Supreme Court denying cert. NY took a half-way approach, providing limited heightened scrutiny to protect religious acts even respecting general applicable laws, such as one that might prevent use of ceremonial wine. Nonetheless, since the Church need not distribute contraceptives, non-believers are broadly affected and interests in sexual equality and health care arise etc. on balance made the requirement acceptable.

Anyway, Paty was a rather short oral argument, the state spending about seventeen minutes, might have spent less if a few questions added to his time.


* The state ruling defined "priests" this way:
"1: one who performs sacrificial, ritualistic, mediatorial, interpretative, or ministerial functions esp. as an authorized or ordained religious functionary or official minister of a particular religion."; [and] "2. A minister in a non-Christian religion. 3. One whose role is considered comparable to that of a priest."
A question in the oral arguments referenced a possible religion where each member is considered a "minister," another suggesting the Mormons so recognize.  Quakers are specifically singled out in some marriage laws, e.g., since their "self-uniting" marriage ceremony has no officiant given the equal roles in that faith, the discussion there noting a federal court in at least one case suggested there was a federal right involved to equally application of marriage laws in such cases.