It's Gotta Be Those Darn Catholics!

So suggests Professor Geoffrey Stone on the University of Chicago Law School's Faculty Blog, blaming our "faith based justices" for the Gonzales v. Carhart partial birth abortion decision correctly upholding the ban. After making his own factual assertions (including, amusingly, that partial birth abortion procedures are taught at many law schools) meant to show that the bi-partisan legislation enjoying overwhelming public support was completely irrational, he said:

"What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore.
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"By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality." (emphasis added)

That's right. It couldn't have anything to do with the fact that the five justices very correctly believe that Congress as a whole is better equipped to make factual findings than 9 lawyers, or that the "settled precedent" is hardly as iron clad as he claims, or that the entire line of abortion cases were wrongly decided from the start. It was the people of the United States, through their representatives in Congress across the political spectrum, who overwhelmingly came to the moral and factual conclusions - not just five justices who happen to be Catholic.

How typical. If a judge doesn't follow the reasoning of a most learn'd professor, it can't be that the professor is wrong, or even that there could be two legitimate but different interpretations of the existing law. No! There must be some nefarious motive! Perhaps the Court's opinions are now being routed through the Vatican for approval. Maybe the Freemasons have something to do with it. Wasn't it Justice Scalia holding the camera in the studio where they faked the moon landing?

When called out on this absurdity by many comments on his post, other bloggers, and even Professor Rick Garnett on the same blog, Professor Stone responded by resorting to what may be the most tired and dishonest meme in academia - "I was just trying to make people think."

"I also acknowledge that the fact that all five Catholic Justices voted together in this case to make up the 5-to-4 majority might have nothing to do with their religion. These five Justices often vote together on matters having nothing to do with religion. Perhaps Carhart was just coincidence. Perhaps it was a reflection of their common approach to constitutional law that has nothing to do with their religious convictions. The point of my post was to pose the question and to invite people to think about it." (emphasis added)

How good of him to so "acknowledge." But with respect to the Professor, that was not the point of the post. The point, made clear in the title "Our Faith-Based Justices" and made even clearer in the direct statement that "these justices have failed to respect the fundamental difference between religious belief and morality," was to answer a question, and make an (untrue) accusation - that the majority intentionally ignored settled law to make a decision based on their personal policy preference. How ironic that a defender of Roe v. Wade would be upset by such a thing...

Accusations like this seek not to inform the debate over how to use and interpret our Constitution, but to stifle that debate by making it illegitimate. "Limited government or a well documented history of judicial restraint isn't their motive, their real goal is to institute a papal theocracy! No reasonable person could have come to the majority's conclusion, this is what happens when we let those ignorant religious nuts vote!"

This attitude is intellectually bankrupt and profoundly un-democratic. Sadly, neither intellectual rigor nor respect for democracy are de rigeur in academia these days.

More on Being Pro-Pharmacist-Choice

Our very own Professor Jay weighs in today against the freedom of pharmacists to not dispense medications they find morally objectionable.

We've had this one out on this blog before. And I like Professor Jay, who's been good enough to participate in our events in the past. But at the risk of my grade next quarter in Free Expression (kidding), I think a rebuttal is in order.

Professor Jay argues that the administrative board responsible for such things didn't have the authority to issue that kind of regulation because of I-120, an initiative that had little or nothing to do with contraception - it was an abortion bill. Frankly, I think the characterization of I-120 in the article is misleading. The only mention of contraception in I-120 is a policy statement saying people should be allowed to have access to it, which, of course, they still do. Here's the actual initiative as enacted. It's codified in RCW Chapter 9.02.

Interestingly enough, I-120 specifically envisioned the freedom of people to not engage in what they feel as immoral actions:

No person or private medical facility may be required by law or contract in any circumstances to participate in the performance of an abortion if such person or private medical facility objects to so doing. No person may be discriminated against in employment or professional privileges because of the person's participation or refusal to participate in the termination of a pregnancy.

RCW 9.02.150. If "monopoly" is defined as the entire group of private businesses that fall under medical regulations, private medical facilities could be considered at least as much of a "monopoly" as Professor Jay considers pharmacies in his article. But they are still allowed to listen to their conscience and limit their services accordingly under the law, which is as it should be.

His argument is this:

Discrimination occurs when a neutral regulation is adopted with the intent of singling out a specific practice for adverse consequences. The proposed rule, which has grown out of a desire to deny women access to Plan B, clearly discriminates against women under I-120.

This is a completely unfair characterization. There are certainly some people who would like to ban Plan B. But the desire of the Board was to find a balance between allowing businessmen to act according to their principles while allowing those who wish to use Plan B the ability to get it. The desire is to allow pharmacists to operate their business with freedom and conscience. Plan B is still widely available, and there is nothing to suggest that a woman who wants it can't get it within 24 hours. Despite this lack of evidence or support, Professor Jay says:

The Legislature certainly could enact such a misconceived privilege but it will first have to listen to the growing number of women turned away by pharmacists who think they are laws unto themselves.

I would like to hear from one single woman forced to have a baby because she could not get Plan B in time because of this new regulation. Anywhere. Even Professor Jay doesn't go that far - he only says they are being turned away. He doesn't say whether they go to the next pharmacy a block away that still does offer the emergency contraception, an omission that I think matters greatly.

Right now, pro-choice people can get all the Plan B they want in a timely fashion. Pharmacies are on practically every block and in almost every grocery store. There are 816 in the Seattle area alone. Pharmacists who don't think it's morally right can sleep at night without having to choose between their job and their conscience. Ones who don't have a problem with it get more business. Everyone wins.

The only reason to oppose this common sense compromise is to force people to conform with the pro-choice agenda - an irony if there ever was one.

Lying About Alito

This impassioned little piece of hyperbole from the former NARAL Pro-Choice America president is the latest broadside against the nomination of Samuel Alito. The trouble is that it's a bald faced lie.

Notice how she interchangeably uses the words "notification" and "permission." She never, ever, as she claims, had to get the father's "permission" to get an abortion. If the nurse indeed told her that, then her beef is with that nurse, not the law or Alito. The two are quite different, obviously.
Here's what the "burden" ACTUALLY was:

Section 3209 of Pennsylvania's abortion law provides, except in cases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion.

The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of a spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her.

Planned Parenthood v. Casey, 505 U.S. 833 (1993). Note that she didn't need her husband to sign anything. All she needed to do was call him and then tell the doctor she called him. If she had merely the belief that he would hurt her, she didn't have to do that. I agree with Judge Alito that this doesn't constitute an "undue burden," especially if we think fathers have both duties and rights as parents in this country. If NARAL disagrees that fathers matter, I expect to see them oppose child support laws as well.

NARAL wants you to believe that with Alito on the court, burquas and the repeal of the 19th Amendment are inevitable. The trouble is, they're lying to you. Don't believe it. And if you're part of these organizations, ask yourself why they feel the need to play so fast and loose with the truth in order to sell their agenda to the public.

NOTE: My personal views on abortion are still pretty unformed. I don't like it, but I am persuaded that making it illegal wholesale (a) could be more harmful, and (b) have a lot of religious overtones that make me a little uncomfortable. If I were a legislator, I might very well vote to keep legal a scheme not unlike the Roe v. Wade court's recommendation. But the jurisprudence behind that decision is an embarrassment, and allows constitutional protections to shift out from underneath us based solely on the policy predilections of 5 unelected people. Just a preemptive note for the inevitable "obviously you want women impaled with coat hangers!" commentors.

UPDATE: A commenter correctly pointed out that Ms. Michelson was not talking about the PA statute as it was decided in Casey. Mea culpa - I jumped to exactly the conclusion that she wanted me to, that Alito's decision would have had a direct and negative effect on her. In fact, they had nothing to do with each other. Because she implied that it did, I stand by my belief that this is deliberate dishonesty about Judge Alito perpetrated by those who think (a) judges should decide policy by fiat, and (b) this judge doesn't share their policy views and will act accordingly.

Casey Dissent

Alito's dissent in Casey has already been the target of much shameless demagoguery (is there any other kind :-)), and I'm sure Teddy's speechwriters are pulling an all-nighter in an attempt to replicate his (in)famous "In Robert Bork's America" speech. NRO's Bench Memos has a great post that sheds light on the dissent, the statute and the rule Alito was applying -- well worth reading.

Strippers, Choice, and Freedom

These guys have been hanging out around campus lately to get people to sign their petition to overturn the City Council's ban on lap dances. The mayor signed the new rules into effect last week that require a 4 foot spacing between the dancers and customers, waist high railings around the stages, and lights that would be more at home in a Wal-Mart than in a seedy night spot.

Anyone who's ever had to plan a bachelor party in Seattle should be outraged. And frankly, anyone who believes in freedom, women's rights, or property rights should be too.

It's interesting that a council that no doubt would react with abject horror and a lecture about "respecting the rights of women" to a proposed ban on abortion don't see the hypocrisy in a de facto ban on women choosing to dance in a strip club. Why is one more worthy of protection than the other? If pro-choice activists see abortion regulation as an effort by the Religious Right to criminalize the sexuality of women, then where are those same activists now? Either women are adults who can and should be trusted to make their own choices, or they're not. One thing is for sure - if the Mayor was an avowed Christian who stated publicly that he thought stripping was an abomination to God, you can bet that we'd see major protests and all kinds of references to the council as no better than an American Taliban.

I'm not saying that strip clubs can't or shouldn't be regulated, even if those regulations are abjectly stupid. But it's worth noting that these particular rules will almost without question force the clubs to close (there are other options not too far out of town) and put dozens of people out of their jobs, and that it's done for no other reason except either (a) prudishness or (b) a blind adherence to some particular sect of feminism that says women should be free to choose and follow their own path - unless the feminists don't approve of the path, of course.

If the petitioners are unsuccessful and the gentlemen's clubs are forced out of business by the rules, I hope the owners sue the city for compensation for the taking of their livlihoods. It's a shame that our local government is so disinterested in personal property rights.