The partial birth abortion ban ruling is a watershed moment in the abortion debate. It isn't because it "restricts a right for a woman to choose" or that "it is the beginning of the end of abortion", it's that it is a vindication for a common-sense understanding of the Constitution.
The foundational rights of this nation at the time of its creation were freedom of speech, freedom of religion, and due process. These ideas were supreme and everything else was built from there. Many laws were struck down simply because they conflicted, even tangently, with those rights. With Roe v Wade, something quietly but dramatic occurred.
The foundational right of the nation changed to be a "right to abortion". Even if one were to argue that abortion was a constitutional right encapsulated in a right to privacy that simply does not translate into a "right of abortion" that overrides all others.
Want to express your free speech in protest? You can't do it if it is too close to an abortion clinic because it might interfere with someone else's "right of abortion". Want to express your free association in forming a crisis pregnancy center to provide alternatives to abortion? You can't do it without significant government oversight, regulation and outright suspicion because it might interfere with someone else's "right of abortion". Want to be a pharmacist and still hold true to your religion? You can't due it because it might interfere with someone else's "right of abortion".
Skipping past the absurdity of applying the Bill of Rights to relations between people (as opposed to people and the government which it is supposed to do), the "right of abortion" became the foundational and formative governing principle of this country. If a right of abortion and free speech conflict, free speech must give way. If a right to religious expression and abortion conflict, religion must give way.
Not only in conflicts of rights, but also in the application of the law abortion has held pride of place. Children have no rights outside their parents consent, except in the sole case of abortion. Statutory rape laws and mandatory reporting laws apply universally, except when abortion is in the picture. Even normal medical regulations for clinic safety often go flouted by abortion clinics.
The partial birth abortion ban is nothing more than the government exercising regulatory oversight of medical practice. It does this every day. Procedures are restricted, drugs are restricted, medical providers are restricted. Yet, opponents argued that the partial birth abortion ban was unconstitutional because it supposedly conflicted with a "right of abortion".
The ban was also called unconstitutional because it was supposedly born in a "religious" idea that life begins at conception versus the idea born in convenience that life starts when… well, whenever it's convenient. The sweeping aside of ideas on church-state grounds simply because they may also be held by the religious is an absurd concoction of the First Amendment that very clearly requires institutional separation not state-mandated atheism.
The partial birth abortion ban ruling is a return to common-sense constitutional jurisprudence. While we continue to argue about the constitutional status of abortion, the Supreme Court has ruled that abortion isn't the formative governing principle it has become. Regulation is possible and the abortion-industrial complex simply cannot ignore the law anymore. The Court has finally moved back towards a more sane conception of rights and that is a tremendous victory.
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Friday, April 27, 2007
Thursday, March 29, 2007
The Right to Choose: Legalize Homebirth Midwives in Illinois
Senate Bill 385 is currently before the Illinois General Assembly. This bill directs the state to create a professional license for midwives to attend homebirths. Our current laws allow a woman to give birth at home, but make it illegal for midwives to attend those births. This essentially takes away a woman's right to choose where she will birth her baby. Women should not only be allowed to but be supported in working with their bodies during birth.
I am familiar with this topic because my wife had a homebirth with our first son, Michael. My wife was quite adamant about having our child at home, and I wanted her have the birth any way she wanted. The medical literature shows that homebirth is a safe alternative for low-risk pregnancies, so my only concern was that I was not to be the one to catch.
My wife knew several midwives in the area who, despite the law, provide homebirths for women. Going to the meetings to prepare for the birth was an interesting experience. They were held in secret with instructions on confidentiality. The meetings seemed to me more like trying to get an underground abortion before Roe than an empowering and legitimate alternative to hospital childbirth.
The midwife made my wife feel comfortable throughout her pregnancy, and unlike the cold, clinical method of treating "patients", the midwife empathized with my wife and treated her with respect. She worked with us to find the best way to accomplish what my wife wanted to do. We combined the homebirth meetings with classes in the Bradley method of natural childbirth (which I highly recommend even for women who choose a hospital birth). The result was the "wonderful" (my wife's word) birth of our son that was joyous for both of us.
My wife went into labor around noon on January 7th. Even though she was having contractions she remained remarkably relaxed and followed the signals from her body as to what position she should be in. She labored briefly in a birthing pool, and ate and drank when she felt like it. She was so relaxed that neither the midwife nor I could sometimes tell when she was having contractions as she entered the transitional stage of labor. For someone with a pretty low tolerance for pain, she managed her contractions so well that she didn't ever really appear to be in pain. She insists now that her relaxation and positions were the two reasons she never felt overwhelmed or in great pain during her labor.
The impact of stress on the body is a well-studied problem. Stress during childbirth is even more troublesome. My wife insists that because she was at home she was truly free to labor the way she was most comfortable and believes if people had been trying to interfere with what she wanted to do (she ended up wanting things very quiet during her labor) that she would not have been able to relax and would have been in much greater pain. Laboring in a hospital, for her, would have been very stressful and made the childbirth experience potentially more prone to complications.
This potential of unforeseen complications happened to my wife. After several hours of pushing, she failed to progress. Her body was fatigued and the midwife suggested she be taken to the hospital. So I drove her to the hospital where she received a C-section, and both mother and baby were fine. My wife says now that when we left for the hospital and she became stressed, she was then in "real pain." Having a homebirth isn't a license to be stupid. If problems develop, transporting the mother to a hospital is not a difficult operation.
One of the main objections to childbirth is a question of safety. No one is suggesting that untrained people simply do nothing during labor and blindly hope everything will go fine. Licensed midwives can be well-trained to identify problems early and respond appropriately.
My wife's birth experience was a joyous and life-changing event. Even though we ended up having to go to the hospital, she is very pleased with laboring at home. In an era when a woman's autonomy over her own body is considered a foundational right, it is unfathomable that the government deny her this truly empowering childbirth option.
The Illinois General Assembly should pass SB 385 so that women in
Thursday, March 22, 2007
A Constitutionally Protected Right to Market Pornography to Children?
A federal district judge has recently ruled that the Children's Online Protection Act is an unconstitutional suppression of free speech. The law requires porn site operators to verify that patrons are 18 years old before giving them access to pornography. The lawsuit, brought by the ACLU on behalf of several sexual health sites and salon.com, states that this is a burdensome requirement and has a chilling effect on free speech. This position is absurd.
The law has been in effect now for 9 years. There is a clear track record to how the law is applied and to what content it applies to. If the law was signed 9 days ago, one could make a claim about a potential problem. However, after 9 years there have been apparently no cases in which a legitimate sexual health site has been prosecuted or that other speech has been curtailed.
More importantly, this law requires no change to the content of these websites. People remain as free before and after this law to peddle pornography. The law is only a regulatory requirement on how the content is accessed not on what content can be produced. It is a rather silly argument that sexual health sites would be blocked when they contain similar content as most comprehensive sexual education classes in public schools taught to 7th graders.
There is no apparent evidence that any sexual health site has been shut down because of this law. Even more apparent is that salon.com (a news and commentary site) has never been targeted by this law. It says something that salon.com is concerned about an on-line porn law, and I'm not sure it's the message they want to convey. Apparently politically pornography is not limited to Rush Limbaugh anymore.
The ACLU, apparently, agrees that there is a legitimate interest in keeping minors from pornography. They simply argue it would be a better policy to have parents install internet filters on their computer. This would help if parents controlled every computer a child might access.
Considering that a majority of home computers on the internet don't even have anti-virus installed, however, means that likely parents, as a rule, aren't technically proficient to install and maintain these filters, much less keep their technically-savvy children from bypassing those filters. They do make a good point that parents should be responsible for what children see online, but that point should be made to the Legislature not the Judiciary.
The argument that the law is burdensome on websites is simply false. After a one-time installation of the software and arranging a credit-card verification system (that would likely have to be in place anyway considering most porn sites are in the business of making money), there is next to no maintenance on such software. The burden is on the consumer to enter their information. That burden is about 30 seconds. It is hard to see what the entire weight of the US Constitution needs to be brought to bear to save internet chat room perverts 30 seconds in getting to their porno.
The most dangerous thing about this lawsuit and those like it, is that it is an obvious usurpation of the Legislature. By taking this case to court there are only two parties who get to influence the outcome, one solitary lobbying group (the ACLU) and a government lawyer who is accountable to no voter. The ACLU could have lobbied Congress to change the law, they have not. Since the argument isn't over the right of children to access porn, but for regulation on how a website distributes content, it is obviously a political question that has no place in the courts. No one seems to be arguing that children have an absolute right to pornography; it is simply the means by which their viewing can be restricted.
The constant running to a court to change democratically passed laws indicates contempt for the voters of this nation. Yet again, the ACLU has created another issue in which the voters cannot be trusted. The issue of how children should be restricted from access to pornography could easily be solved in the legislature, apparently voters and legislators can't be trusted to act appropriately. So much for freedom.
After 9 years of this law being in place, there is no reason to strike it down for "chilling" free speech that is in no way regulated by this law. There is no legitimate fear that sexual health information will be restricted. There is certainly no fear that political pornographers will be taken offline. This is a brazen attempt by the ACLU to end-run the legislative process and the will of the voters to impose values on America that Americans obviously don't want.
The law has been in effect now for 9 years. There is a clear track record to how the law is applied and to what content it applies to. If the law was signed 9 days ago, one could make a claim about a potential problem. However, after 9 years there have been apparently no cases in which a legitimate sexual health site has been prosecuted or that other speech has been curtailed.
More importantly, this law requires no change to the content of these websites. People remain as free before and after this law to peddle pornography. The law is only a regulatory requirement on how the content is accessed not on what content can be produced. It is a rather silly argument that sexual health sites would be blocked when they contain similar content as most comprehensive sexual education classes in public schools taught to 7th graders.
There is no apparent evidence that any sexual health site has been shut down because of this law. Even more apparent is that salon.com (a news and commentary site) has never been targeted by this law. It says something that salon.com is concerned about an on-line porn law, and I'm not sure it's the message they want to convey. Apparently politically pornography is not limited to Rush Limbaugh anymore.
The ACLU, apparently, agrees that there is a legitimate interest in keeping minors from pornography. They simply argue it would be a better policy to have parents install internet filters on their computer. This would help if parents controlled every computer a child might access.
Considering that a majority of home computers on the internet don't even have anti-virus installed, however, means that likely parents, as a rule, aren't technically proficient to install and maintain these filters, much less keep their technically-savvy children from bypassing those filters. They do make a good point that parents should be responsible for what children see online, but that point should be made to the Legislature not the Judiciary.
The argument that the law is burdensome on websites is simply false. After a one-time installation of the software and arranging a credit-card verification system (that would likely have to be in place anyway considering most porn sites are in the business of making money), there is next to no maintenance on such software. The burden is on the consumer to enter their information. That burden is about 30 seconds. It is hard to see what the entire weight of the US Constitution needs to be brought to bear to save internet chat room perverts 30 seconds in getting to their porno.
The most dangerous thing about this lawsuit and those like it, is that it is an obvious usurpation of the Legislature. By taking this case to court there are only two parties who get to influence the outcome, one solitary lobbying group (the ACLU) and a government lawyer who is accountable to no voter. The ACLU could have lobbied Congress to change the law, they have not. Since the argument isn't over the right of children to access porn, but for regulation on how a website distributes content, it is obviously a political question that has no place in the courts. No one seems to be arguing that children have an absolute right to pornography; it is simply the means by which their viewing can be restricted.
The constant running to a court to change democratically passed laws indicates contempt for the voters of this nation. Yet again, the ACLU has created another issue in which the voters cannot be trusted. The issue of how children should be restricted from access to pornography could easily be solved in the legislature, apparently voters and legislators can't be trusted to act appropriately. So much for freedom.
After 9 years of this law being in place, there is no reason to strike it down for "chilling" free speech that is in no way regulated by this law. There is no legitimate fear that sexual health information will be restricted. There is certainly no fear that political pornographers will be taken offline. This is a brazen attempt by the ACLU to end-run the legislative process and the will of the voters to impose values on America that Americans obviously don't want.
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