John McCain’s Plan for Women’s Health Care

Thanks to Matt for the link.

Here’s what Obama and McCain had to say about abortion rights and Roe v. Wade at last night’s debate:

In other words, neither of them would have “litmus tests,” except that they would.

I know the threat of overturning Roe gets tossed out every election as a way to scare pro-choice voters into supporting Democrats. There’s a market Roe fatigue, I think — and it seems like it’s coming up far less this election than it did in the last one. But the next president will likely be appointing three Supreme Court justices. Our last Republican president appointed two. The entire future of the court rests with this presidency, and that’s not small beans — not just for Roe, but for the face of American law and policy for generations.

Because Roe isn’t just about Roe; it’s about a greater judicial philosophy that influences and extends into our most fundamental rights and liberties.

It’s already been a scary eight years of Supreme Court decisions. Power is increasingly centered in the executive with little oversight, and the valued balance between the legislative, judicial and executive branches has been thrown thoroughly off-kilter. Even the good decisions — like Kennedy v. Louisiana, where the court ruled that you can’t use the death penalty as punishment for child rape, and Roper v. Simmons, which held that it is unconstitutional to execute children, among others — are marked by narrow splits: Scalia, Thomas, Alito and Roberts (where Alito and Roberts were on the court) consistently side together, and consistently produce dissents that promulgate some very scary views.

Throw on even one more conservative justice to replace one of the liberals and we’re in for an incredibly regressive next few decaes. Replace three justices — which is what the next president very well may do — with people in the vein of Scalia, Thomas, Alito and Roberts, and I quite honestly would not raise my kids in the country we’ll likely have.

It’s about much more than Roe. But it’s about Roe, too, and what Roe stands for.

Roe v. Wadeis based on a right to privacy that more conservative justices and students of the law will tell you is made up. And it’s true that nowhere in the Constitution does it say that you have a right to privacy. But part of the reason that we have a Supreme Court is because the Constitution is a fairly short document, and it can’t possibly cover the full range of issues that are going to come up — it demands interpretation. Many of the most important decisions in our nation’s history were premised on rights that aren’t explicitly stated in the Constitution, or that can be evaluated differently under changed social circumstances (Brown v. Board of Ed, Skinner v. Oklahoma and Lawrence v. Texas are two illustrative cases). And, in my view, Constitutional interpretation should err on the side of giving citizens more rights, not fewer. The Framers didn’t detail every minute right for a reason: The idea of America is premised on a broad set of rights and liberties, and the purpose of the Bill of Rights is to restrict the federal government, not to restrict the rights of the people. If we evaluate the language of the constitution based on what it meant precisely at the time of its writing, we’re going to end up with some mighty problematic decisions. If I ever got to sit down with Scalia, I would like to ask him how he would have decided Brown — after all, Plessy was decided not long after the 14th Amendment was ratified. Certainly the justices on the court then were closer to knowing the intent and purpose of the 14th Amendment, and they held that “separate but equal” treatment of blacks didn’t violate the law. That’s Constitutional literalism for you. And Scalia’s former colleague and fellow Constitutional literalist, William Rehnquist, apparently agreed when as a law clerk during the Brown proceedings he wrote:

“I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues but I think Plessy v. Ferguson was right and should be reaffirmed.” He continued, “To the argument… that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.”

That is not a responsible view for Supreme Court justices to take, particularly given the fact that we have a court specifically to make sure that minority groups aren’t railroaded by the majority. “Constitutional literalism,” it seems, is less about reading the actual words and spirit of the Constitution, and more about trying to cram the document into a narrow, conservative ideological box.

As Obama pointed out last night, this isn’t a question about “state’s rights,” it’s a question about fundamental freedoms and our rights as human beings and as citizens. And questions as fundamental as that of privacy and bodily integrity should not be turned to the states to regulate and restrict as they see fit.

What many also fail to appreciate is that overturning Roe wouldn’t just be about Roe or abortion. Unless the Court overturned Roe solely on the grounds that the fetus is a person — which they won’t — they’ll do away with abortion rights by doing away with those much-maligned privacy rights generally. And if there’s no right to privacy that can be inferred from the Constitution, then a whole series of other important decisions are up for grabs. Griswold v. Connecticut, the case securing contraception access for married couples (which was followed by cases securing such access for unmarried people) is premised on the right to privacy. So is Lawrence v. Texas, the case that overturned Texas sodomy laws. Overturn Roe on privacy grounds and there is no longer strong legal precedent to keep the government out of your bedroom and out of your reproductive decisions.

Some argue that overturning Roe wouldn’t be a big deal, because abortion would remain legal in several states. Even pro-choicers and feminists make the argument that Roe is already effectively overturned, because abortion is inaccessible for many women, so we shouldn’t put too much focus on it and just let the Court go.

Well, that’s crap. Abortion is inaccessible or incresingly difficult to access for too many women, and that is a huge problem that requires more of our attention. But 1.3 million women still have abortions every year. A lot of those women go through significant hardship to do so. I’ve met a few of those women, and I’ve walked them out of the clinic. Believe me, Roe still matters. There are levels of inaccessability, and there are a lot of women who live on the fringes. There are a lot of women who live in red states surrounded by other red states, where the only abortion clinic is a five-hour drive and requires a two-day waiting period between visits — but some of them can get there. They can’t get to New York or California. Overturn Roe and those women are thrown under the bus.

And it’s not just a state-by-state issue. There’s a whole lot of talk about “state’s rights” when it comes to abortion, but that talk mysteriously disappears in the Republican Party Platform:

We support a human life amendment to the Constitution, and we endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children.

Overturning Roe is just the beginning. The ultimate goal is to make abortion illegal, for everyone, in every state. That’s why the people who argue that we should just drop the “divisive” abortion question, let Roe go and call the matter settled are delusional. For the GOP, overturning Roe is a first step, not a conclusive victory. And if anti-choice groups continue to exercise strong influence over the Republican party, you can bet that outlawing abortion won’t even be the end — contraception is on the list, too.

This is bigger than one election, or one justice, or one issue. It’s about the most fundamental underpinnings of our democracy, and what our country is going to look like for decades. Supreme Court decisions aren’t easily overturnable, and the calls that get made now are going to be with us for the duration of our lifetimes. Many of them will be around for all of our children’s lifetimes, too.

That’s something I hope everyone thinks about when they’re pulling that lever on election day: Who do you trust to appoint the justices that are going to shape the legal landscape of our country for generations?

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24 comments for “John McCain’s Plan for Women’s Health Care

  1. Dreamweasel
    October 16, 2008 at 1:21 pm

    I too was surprised that Roe V. Wade wasn’t even mentioned until the end of the fourth debate. Thank the Wall Street crash, I guess… most of the divisive social issues (God, gays, guns) have been downplayed this time around.

    McCain basically said that any judge who would support Roe v. Wade has an inferior understanding of Constitutional law, pretty much by definition. That’s almost as absurd as his claim that people who demand that nuclear power be “safe” are just loony environmental extremists.

  2. October 16, 2008 at 1:44 pm

    And it’s true that nowhere in the Constitution does it say that you have a right to privacy

    The problem with Roe is that it set up an absurd trimester-based scheme that was so obviously a legislative function, and pretended that it was not deciding when life begins although it basically picked viability as the point. It wasn’t making some grand, universal point about fundamental freedoms or privacy. It if were, it would have abolished state regulation of abortion altogether

  3. October 16, 2008 at 1:51 pm

    Well, no. As the Court has held in many, many other cases, rights — even those explicity delineated in the Bill of Rights — are not absolute, and must be weighed against other compelling interests. Freedom of speech, for example, can be curtailed when it comes to certain kinds of expression — yelling “fire” in a crowded theater, to give the obvious example. Roe was a reflection of that — the right to privacy is an important one, but it is not absolute, and the court made an attempt to balance that right with the state’s interests of fetal life.

    I personally think that the trimester framework — which has been scrapped, by the way — was a stretch. I also think Roe was problematic in many ways, although not in the ways that are usually criticized (that’s a different post). But the idea that rights are balanced against other compelling interests isn’t regulated to Roe.

  4. Fuzz
    October 16, 2008 at 2:06 pm

    The literal interpretation of the constitution has got to be the most egregious example of an idea whose public acceptance and respectability is totally out of kilter with its merits. I’ve never heard a good response from a conservative to this: The constitution makes the President the Commander-in-Chief of the US Army and Navy. Every President for the better part of a century, however, has also acted as Commander-in-Chief of the US Air Force and Marines. The constitution makes no mention of an air force, for obvious reasons. Under a literal interpretation of the constitution, POTUS is acting illegally when he orders the Air Force. This is, of course, ridiculous, and highlights the ridiculousness of literally interpreting a very short 220 year old document.

    Why members of the nation’s highest court promote it as the only legitimate approach is absolutely mindboggling.

  5. ElleBeMe
    October 16, 2008 at 2:25 pm

    “Why members of the nation’s highest court promote it as the only legitimate approach is absolutely mindboggling.”

    Well, it isn’t if you consider the fact that these very conservative judges ALSO happen to be extremely religious – following LITERAL interpretations of the Bible or what their church tells them.

    It is no wonder why they are so favored amongst the religious right – they are dispensing law, as if they are dispensing advice from the bible/church. God’s work…..

  6. October 16, 2008 at 3:16 pm

    As Obama pointed out last night, this isn’t a question about “state’s rights,” it’s a question about fundamental freedoms and our rights as human beings and as citizens. And questions as fundamental as that of privacy and bodily integrity should not be turned to the states to regulate and restrict as they see fit.

    I couldn’t agree more.

    When will the regulation of the private decisions women are and are not allowed to make for themselves end? Where will it stop? I don’t think they’ll be happy until we’re all living in a country where women can be criminally prosecuted for mere evidence of a past abortion.

    Yes, I know it’s a slippery slope and people will likely say, “How can you use a developing country as an example?!” but I can’t help but think it’s not that far off.

  7. Angela
    October 16, 2008 at 3:18 pm

    Actually Fuzz, the Marine Corps is a component of the Department of the Navy. Originally organized as the Continental Marines on November 10, 1775 as naval infantry, the Marine Corps has evolved in its mission with changing military doctrine and American foreign policy. The Marine Corps has served in every American armed conflict and attained prominence in the 20th century when its theories and practice of amphibious warfare proved prescient and ultimately formed the cornerstone of the Pacific campaign of World War II.

    The Air Force was initially born as the United States Army Air Corps, the USAF was formed as a separate branch of the military on September 18, 1947. It was the last branch of the U.S. military to be formed.

    So the POTUS is not acting “illegally”.

  8. Angela
    October 16, 2008 at 3:32 pm

    ElleBeMe, I disagree. Everyone on the Supreme Court is a pure jurist. The only difference between them is how they interpret what the founding fathers intended what the Constitution meant without destroying the integrity of the law. No religion or ideology plays a part.

  9. October 16, 2008 at 3:34 pm

    Angela, do you really think that’s true? Have you read Gonzales v. Raich? And can you really read it and say that ideology played no part?

  10. ElleBeMe
    October 16, 2008 at 3:42 pm

    “ElleBeMe, I disagree. Everyone on the Supreme Court is a pure jurist. The only difference between them is how they interpret what the founding fathers intended what the Constitution meant without destroying the integrity of the law. No religion or ideology plays a part.”

    No ideology or religion plays a part? Are you so sure? If their religion or views had NO bearing why then choose such reactionary, religious justices who have records of following/supporting conservative policies?

    One thing I remember well from Grad school is that EVERYONE is biased, and like minds seek out other like minded people. It’s why a democratic president would have never nominated an Alito or Roberts. They are ALL picked for their views and how they may interpret down the line.

    In an ideal world what you claim waould be the rule. But we don’t live there.

  11. Koren
    October 16, 2008 at 3:43 pm

    I could go into a deep analysis of the constitution’s implied right to privacy — but I don’t feel like it.

    John McCain is out of touch. with women. mainstream Americans. the middle class. He just doesn’t get it. Maybe it’s because he’s been in Congress and never on the front lines. Maybe it’s because he’s wealthy. I don’t know. What I do know is that my jaw dropped at his dismissal of women’s health as if it is a secondary thought to being a baby factory. What’s even more frustrating is the deafening silence of this statement on mainstream, “elite liberal” news outlets.

    As a woman, that was the most shocking and scary part of the debate.

  12. Lizzie (greeneyed fem)
    October 16, 2008 at 3:44 pm

    The first video is no longer available. Can someone give a quick description?

  13. aproustian
    October 16, 2008 at 3:45 pm

    Angela: No religion or ideology plays a part.

    Seriously? Then how do they decide how to interpret the intentions of the founding fathers? If religion and ideology play no part, why are the decisions so often split down the same lines, the same justices voting in the same ways?

  14. Angela
    October 16, 2008 at 3:51 pm

    Aighmeigh, what you listened to from Obama was nothing but “lawyerspeak”. The “fundamental right” to privacy is not a part of the Constitution. The current privacy laws on the books are acts of Congress which were passed into law. But like a good little lawyer, Obama isn’t going to tell you that in order to make “privacy” a right, Congress must agree to ratify (amend) the Constitution.

  15. October 16, 2008 at 3:57 pm

    The “fundamental right” to privacy is not a part of the Constitution.

    Very good, the word “privacy” is not in there. However, the issue of privacy is discussed in numerous amendments and many of us believe that the various specific kind of privacy protected under the Constitution — privacy from unwarranted government search and seizure, privacy of religion, privacy from forced housing of troops, etc. — points to an overall understanding that privacy is indeed a right. Also, see the 9th amendment — the Constitution explicitly says that just because a certain word doesn’t appear in it, that doesn’t mean the fundamental right in question does not exist.

  16. Angela
    October 16, 2008 at 4:07 pm

    Jill, ElleBeMe,

    Yes, I do believe that. Also Elle, you are correct to say a lot of folks are biased, however, when the justices hand down different opinions or dissents regarding a court decision, they speak as one.

    Aproustian, it’s not about religion, it’s about interpretation. For the justices, it’s a matter of keeping the overall scope of the Constitution’s foundation in its truest form. The split you speak of comes from whether or not the Constitution’s focus should change to meet the current times or do they keep it as is.

    In other words: is the Constitution considered a living or dead document?

  17. October 16, 2008 at 4:11 pm

    Angela, have you read Raich? How do you explain the stance of most of the otherwise conservative, “state’s rights” justices? How do you explain the fact that justices — like Wililam O. Douglas — have come out years after decisions and said that they believe they were wrong about certain things?

    And how do you separate ideology from interpretation?

  18. Angela
    October 16, 2008 at 4:29 pm

    Cara, the Ninth Amendment to the U.S. Constitution is somewhat of an enigma. It provides that the naming of certain rights in the Constitution does not take away from the people rights that are not named. Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect.

  19. Koren
    October 16, 2008 at 4:35 pm

    Angela . . .

    1. Barack is not a “little” lawyer — he’s a lawyer and Con Law Scholar.

    2. SCOTUS has long recognized that there exists an “implied” right to privacy Thus the Constitution implicitly protects our right to privacy. This implication arises from a review of our enumerated/fundamental rights as outlined in the following amendments: 1A, 2A, 4A, 5A. Since SCOTUS has recognized this right, they would need to now denounce it in order for the right to go away.

    3. In reaching this conclusion and many others, I believe, as many other lawyers and jurists do, that the justices were doing their job-as delegated to them via the Framers- in interpreting the constitution. a decision needs to be made that the USC hasn’t specifically dicussed, it is left to interpretation.

    4. The Constitution is a living document. The framers weren’t capable of predicting the future and there are many ambiguities. The Constitution is given life by the scholars and jurists that address modern questions arising from the constition.

  20. ElleBeMe
    October 16, 2008 at 4:36 pm

    “And how do you separate ideology from interpretation?”

    I would sure like to know…

    Just for examples sake:

    YOu have an Holocaust historian who uses facts and data from that time to conclude the Holocaust did happen and was a human tragedy.

    You have a Holocaust revisionist historian as well who uses the same facts, but deduces that the Holocaust in fact didn’t happen, and was not a human tragedy, but rather a lie.

    In both cases, the same facts are used, but different conclusions are drawn based upon their interpretations and ideologies.

    In the case of the SCOTUS, it is no different. The Justices may have an exemplary knowledge of the law and the constitution – but they are chosen on how they interpret that law to further promote or uphold an agenda. You *cannot* separate ideology and interpretation if working within the same constructs!

  21. Angela
    October 16, 2008 at 4:51 pm

    Jill, I reviewed the Gonzales v. Raich case and the stance the justices had (IMO) was not ideological at all. Majority opinion (liberal and moderate) in that case was delivered by Stevens and joined by Kennedy, Souter, Ginsburg, and Breyer. Justice Scalia’s issued a separate concurrence. The dissenting opinions were delivered by O’Connor (liberal), who was joined by Rehnquist (Moderate) and partially joined by Thomas. Justice Thomas also wrote a separate dissent.

    It was about the law and nothing more. As for William Douglas, he still interpreted the law, regardless of his personal views. I think Roe vs. Wade is a bad law (not for religious reasons, but because is was poorly written to begin with), but that does not mean I’m in favor of it being overturned either.

  22. October 16, 2008 at 5:23 pm

    Angela, no, the Ninth Amendment doesn’t specify which unspecified rights it protects. That’s kind of the point.

  23. ACG
    October 16, 2008 at 5:44 pm

    Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect.

    Thus the entire point of the Ninth Amendment. Well grasped.

    9A was included in the Bill of Rights as assurance that the government wouldn’t try to infringe on the people’s unenumerated rights with the excuse, “Well, the Constitution doesn’t say you have the right to do that.” 9A is the framers’ way of saying that the Constitution doesn’t grant rights to the government but, conversely, limits the government to the rights listed. All other rights are reserved for the people until someone can adequately convince the legislature that there’s a good reason to take them away.

    So, yeah, until Congress passes an amendment saying, “The government reserves the right to take up residence in ACG’s uterus and regulate all intercervical traffic,” the Ninth Amendment protects my right to not have them in there.

  24. October 17, 2008 at 1:59 am

    Koran, I am always so shocked, shaken to my core by humankind’s indecency. The way we treat animals, the way we treat our food sources, the way we treat the ill, the elderly, the damaged, the wounded…and yet we are so self-righteous and opinionated. As though we can BE good just by saying we are. We women – though so many of us are just as responsible as men for the negligence of compassion and right-thinking across the board while still giving lip-service to it – hold the keys to life, to consciousness, to birth and rebirth. And as soon as we are able to wake up en mass and take this power we so already HAVE, and stand up for ourselves as the keepers of our own bodies and the keepers of the beings we can create inside us, and enforce our privacy and expand decency and equality and compassion and indifference to human and animal differences throughout our world – things will change. I believe the tide is generational, and that it’s about to turn. Thank you for the brilliant legal explanations – very helpful and eye-opening. Rori

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