osewalrus (osewalrus) wrote,
osewalrus
osewalrus

Turns Out Gonzales v. Carhart NOT End of World, but could be.

O.K., brief survey. Of all the people who reacted to the Supreme Court's opinion in Gonzales v. Carhart (aka the "latest Supreme Court case on abortion rights"), who actually read the opinion first?

I ask because I have now read the opinion. And while I will certainly agree that the Court here has begun a retreat from its previous holdings around reproductive rights -- one which should certainly stir activists out of complacency -- the decision is far more complex than reported and, in many ways, constitutes something of a victory for reproductive rights activists.

Which brings me to another point. The strategy of shouting that "the end is upon us" is not very productive. People who care about this issue are going to have to start taking an interest in the goddamned details and start fighting this like a war of attrition they want to win. And sooner rather than later. Because while this opinion represents only a modest and subtle shift in the existing precedent, it is the first crack that signals a possible avalanche.

My analysis below the cut.


One of the reasons I rarely bother with the reproductie rights debate (other than as an occasional kibbitzer) is that its most vocal proponents have not lost enough yet. They are still to interested in feeling justified than in winning. In my opinion, that's why they keep losing. By contrast, the Environmental Movement completely reinvented itself in the last 6 years because after the 2000 election they recognized that if they did not change how they did business and work furiously to revamp their image, they were going to lose everything -- and lose it so completely they would never hope to win it back.

Case in point, the the Supreme Court's recent decision in Gonzales v. Carhart. Reading the reactions of the folks at NARAL and at NOW, one would imagine that Carhart had reversed the basis of Roe v. Wade or had eliminated the protections in Casey v. Planned Parenthood. (The fact that these doomsday predictions link to fundraising appeals doesn't exactly impress me either.)

Actually reading the opinion reveals a much more complex picture. The Supreme Court did an interesting little dance in narrowing the scope of the statute to avoid a direct contradiction with either Roe or Casey. To avoid constitutional conflict, it focused on the requirement in the statute that the fetus be alive when delviered, and that the criminal penalty only kicks in if it is the intent of the physician to deliver a live fetus and then take a subsequent intentional step to terminate the fetus post-delivery (what lawyers refers to as the "scienter" requirement). The court explicitly held that a procuedure in which the physician injected a poison into the fetus in utero, following it by removal of the fetus whole or in pieces, would not violate the statute.

My point here is not to praise Carhart as a wonderful piece of jurisprudence, although it does have some interesting nuggets for me on the issue of when Congress makes legislative findings that are patently untrue or are superceded by subsequent fact-finding. My point is that the reproductive rights movement, apparently in the belief that fear is the only motivating force for its movement, has chosen to proclaim a vast defeat as loudly as possible rather than attempt to claim even a partial victory.

This is a continuation of the tactics that the reproductive rights movement has followed for the last 6 years and, to some extent, for the last 30 years. Whatever success this had before, it has clearly run its course.

Because always declaring that the sky is falling and that we are on the verge to the return of back alley coat hangers and the enslavement of women -- while possibly true -- is not working to get members or get support outside of the small group of people who already agree with the basic goals and agenda of the movmement. Folks in this movement are going to need to figure out how to speak to people who are not themselves, who do not share the same priorities, but whose support is critical.

Allow me to point to the environmental movement again. In 2001, environmentalism was poison in the Rockies. Now it is embraced as essential to the western way of life. What happened? Environmentalists learned to explain to hunters and farmers and others that developers were a heck of a lot more of a threat than "tree huggers." No conservation=no hunting, no fishing, and none of this "way of life" y'all cherish. They recurited locals to explain how spoiled rich kids from the coasts were following the terrain with snow mobiles in the national parks, and how big out of town developers and international mining companies were destroying the rivers. Result -- a movement in a region that was hostile, and which did not require any reversal of principle or goals. All the above was as true as everything else ever said about protecting Spotted Owls and others "passengers on space ship Earth."

Returning to Carhart. There are real issues, both with the law and with how it will play out. Odds are good some women will not get legal D&Es (as opposed to the "intact D&Es" prohibitted by the statute), and that agressive law enforcement in a number of regions of the country will have a chilling effect well beyond the narrow construction plaed by the Court. So yeah, the statute is bad news, the deicision upholding it is bad news, and the movement has a real problem on its hands.

That said, it is a Hell of a stretch to convince the average uncommitted American that the decision is going to roll back Roe and that the end is nigh. And those are the people a movement needs to convince. Not just the faithfull. Not the handful of people who thought the Court would overturn the statute and who now realize that fundamental rights are again in play. That doesn't take you nearly far enough.

To win, the reproductive rights movement needs to start coming up with a real communications strategy that persuades the uncommitted rather than panics the converted. That is hard slogging, and doesn't happen over night. It takes the development of new arguments and potential new allies (one of my chief complaints as an activist with the reproductive rights movement is that it does not play well with others).

But one place it begins is real analysis of actual law. The Carhart case represents a signifcant step back and raises serious concerns about the availability of D&E procedures for second trimester abortions. If the movement spent more time explaining real world impacts instead of waiving coat-hangers, it would get a lot more traction and respect.

I predict, however, that the reproductive rights movement will need to get the snot beat out of it a lot more before it starts changing tactics to something more effective. Because, rhetoric to the contrary, critical rights under Roe are not yet really in danger. The majority of abortions -- and the availability of contraception -- will remain as legal tomorrow as they were before Carhart

The problem is not with this year or even in the next year. It is how quickly it can all slip away once a tipping point is reached. Which is where we get the real danger of Carahart. The Carhart case is an invitation to pass laws carefully tailored to erode the fundamental bedrock of Roe (and, ultimately, Griswold v. Connecticut). But that real world danger, a rational danger that intelligent women and men can understand, is lost in the rush to make doomsday predictions that undermine the credibility of the movement as a whole.
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