Friday, August 05, 2005

Who Controls Your Body? Twisted Logic on the Supreme Court

I know that the trendy topic of conversation is John Roberts's sexual orientation, but at the risk of being accused of being a one issue blogger magazinist or a divider, not a uniter, I need to talk about reproductive rights. So let me start with what we call this whole issue. Reproductive rights, "choice," and the like are buzzwords for something profoundly important for men and women. The issue is better framed as "who gets to decide what you do with your body."

This general question has long been sublimated in lots of details with the traditional left generally coming down on the side of 'you get to decide' and the traditional right generally coming down on the side of 'if the government doesn't control you, you're likely to be found having groups sex on the playground of the local elementary school' in spite of the fact that traditional conservatives claimed to have been in favor of smaller government. This split generally continues until today, with the right favoring governmental control of such matters as expressions of different sexual orientation, use of birth control, abortion, and sexual positimons used by consenting adults behind closed doors. The left, obviously, is less likely to favor governmental control over aspects of sexual expression and reproduction.

On the other hand, the left generally favors other types of 'nanny' legislation designed to keep you their version of safe, including motorcycle helmet legislation and anti-smoking legislation. Proponents of other interventions including things like forcing the children of Christian Scientists to have medical treatment and Saving Terri Schiavo are less ideologically consistent. My main point here is that nobody has the right to stand on her or his pedestal and claim to have an ideologically pure perspective on these matters. Including me.

(Ok, I didn't intend a scholarly tome here. I'll focus.)

But Mr. Roberts -- a Supremes wannabe of the highest order -- seems to have a much less ideologically pure approach to these matters than I might consider optimal. And a much greater fog of duplicity surrounding his ideology. In simple words, he seems to be a smooth liar.

To wit: In Bray v Alexandria Clinic he argued on behalf of what are laughingly called protesters (via Echidne). The folks called protesters are actually anti-abortion extremist who, in another context, would more likely be referred to as terrorists.

The injunction being challenged by anti-abortion extremists was based on an 1871 civil rights statute that provided protection against private conspiracies, such as the Ku Klux Klan (KKK) preventing blacks from exercising their new-found freedoms. Applying the KKK Act to anti-abortion violence was a perfect match. It helped cast OR and other such groups in the same mold as the KKK, the difference being that in this case it was women who were being prevented from exercising a relatively new freedom.

But there were problems. Earlier Supreme Court cases had held that that for the KKK Act to apply outside the context of race, there had to be evidence of an "invidious, class-based animus" by the perpetrators against the victims. In this case the perpetrators were OR and similar groups, and the victims were women seeking abortions, as well as the clinics and their staffs. The central legal question became: Are these extremist anti-abortion groups acting with an "invidious, class-based animus" against women when they block clinics or is their animus directed just at abortion and not at women?

At the time that Bray was being heard by the Supreme Court, there was an epidemic of blockades and attacks on abortion clinics. Yet the United States filed an amicus ("friend of the court") brief on the side of the extremists, arguing that the KKK Act should not apply to them because the protesters were opposed to abortion, not to women. The court agreed.

You can hear the audio of the arguments courtesy of The Oyez Project. So not only is Your Justice Department arguing on the side of extremists -- a position that would cause great hue and cry were it the ACLU instead of a rightist federal agency -- but Mr. Roberts adopts a position that seems to imply there is no relationship between abortion and womanhood. He seriously argues that the class is those who might have an abortion, not women. (???) Go listen. This ability to separate the act from the person is beyond bizarre. It's damn close to pathological. But it is argued fervently.

Ok, this is long enough. More another time. This ability to twist logic to suit ones desires, so reminiscent of Mr. Rove, is even more frightening on the Supreme Court.

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