17 May 2019
Dear Interested Readers,
States’ Rights, Really?
My wife enjoys scanning Facebook where there are many people with no reluctance to speak their mind on any issue under the sun. Over the last couple of days she has observed that there has been a very brisk expression of opinion on the decision by Alabama’s Governor Kay Ivey to sign the harshest anti abortion bill passed by any state since the landmark Roe v. Wade decision by the Supreme Court in 1973 clarified a woman’s right to manage her own reproductive life. Planned Parenthood presents a startling summary of the history of abortion before and after 1973. A good example of the memes that are flying about on Facebook is:
Make no mistake, a state that criminalizes abortion, but ranks 50th in public education, doesn’t give a s–t about children.
I give my wife credit for not just checking “Like” and moving on. She decided to fact check the meme to see just how accurate the observation was and to see what other associations might be connected to a state’s eagerness to limit a woman’s reproductive rights. It takes just few seconds to verify that US News and World Report has published data that shows Alabama is dead last in support to all levels of education. Her research also opened up a huge cornucopia of associations about the health of women and children in the states that have passed measures to limit access to abortion. There is no doubt about the fact that limiting abortions threatens the lives of women, and that in the states that have passed laws to limit access to abortion there is also an increase in maternal death rates. By and large these are “red states” that have also blocked the expansion of Medicaid through the ACA. The poor and other minorities who suffer the added burdens of the social determinants of health are differentially suffering from the attempts to limit abortion. The most disturbing data was published in an article in the Los Angeles Times and shows significantly higher infant mortality rates in the states that have tried to reduce access to abortions through state laws. The article states:
Of the 12 states ranked highest in infant mortality rates, all with rates of 7.0 or higher, 11 are described by the abortion rights organization NARAL as imposing “severely restricted access” on abortions. The one exception, West Virginia, is listed as having “restricted access,” a notch better. But NARAL reports that 90% of women in the state live in counties without a single abortion clinic.
By contrast, of the four states with the best infant mortality rates, all at 4.2 or better—California and Washington offer “strongly protected access,” NARAL says, and New Hampshire and Massachusetts “some access.” But access to abortion clinics in all four is strong—only 5% of women in California live in a county without a single clinic, followed by 14% in Massachusetts, 15% in Washington and 30% in New Hampshire.
Earlier this week in The New York Times Sabrina Tavernise gave us an overview of the scrambling over abortion that is occurring in state legislatures across the country in an article entitled “ ‘The Time Is Now’: States Are Rushing to Restrict Abortion, or to Protect It.” In line with her article, earlier this week Georgia passed a law banning abortion after the baby’s heart can be heard, at about six to eight weeks. Missouri is quickly following Alabama and Georgia with their own version of legislative harassment of women who are struggling to make a difficult decision. The Missouri Senate passed a very restrictive law on Wednesday. The Missouri House will likely pass it in its final session before the week is out. The Missouri governor, Mike Parson, says that he is eager to sign it.
The effectiveness of state laws to limit access to abortion is reflected in the reality that in six states there is only one abortion clinic left in operation: Kentucky, Mississippi, Missouri, North Dakota, South Dakota and West Virginia. The main objective of the restrictive abortion laws passed this year in seven states: Arkansas, Alabama, Georgia, Kentucky, Mississippi, Ohio, and Utah, as well as the law passed earlier in Indiana which is now working its way toward the Supreme Court, is to get the best case before the Supreme Court that will give President Trump’s recent appointees, Brett Kavanaugh and Neil Gorsuch, a chance to deliver what he has promised to his base.
One prong of a multi pronged strategy of the anti abortion forces up to now has been to whittle away at a woman’s access to abortion care by making it difficult get care by harassing abortion providers and clinics with regulations, and moving the dates of eligibility for lawful abortion closer and closer to conception. The New Yorker has put an article online this week by Charles Bethea that is the story of a woman in Alabama who had great difficulty getting an abortion even before Alabama passed its new law. The new Alabama law does it all. It states that as soon as a woman knows she is pregnant the abortion is illegal. Anyone who performs an abortion is subject to a jail term of up to 99 years. Rape and incest do not qualify as reasons for an abortion. Abortion is only possible if there is a very high likelihood of the mother’s death if the pregnancy continues, or if the fetus has a fatal abnormality. The irony of the law is that a rapist who impregnates a woman will get much less jail time than the doctor who does the abortion. The bill is so restrictive that even ardent opponents of abortion are hoping that the Supreme Court will choose to consider some other state’s law.
Governor Kay Ivey really pushed my buttons with her comments reported in the media that were issued at the time of the signing.
To the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.
That comment was so full of self serving hypocrisy that I was delighted when my wife produced a current article that shows that Alabama’s devotion to life does not extend to many of its younger citizens who might as well be living in a third world country. Take a look at these facts that I have pulled from an article entitled “Welcome to the Dystopia of Alabama,” by a Pulitzer Prize winning columnist, Connie Schultz, from the media website Creators.Com. The article is a stinging accusation of the attitudes in Alabama that produced the law, and how it fails its children in ways that will perpetuate poverty and poor health for many of its citizens. Even better than reading my list, take five minutes and read the article yourself.
- Twenty-six percent of [children living in Alabama] — more than 285,280 — lived in poverty in 2018, which is the most recent year for available data. About 30 percent of Alabama’s children living in poverty are younger than 5.
- Poverty has its consequences, particularly for young children. Research has long shown that growing up poor harms brain development.
- Poverty cripples a child’s ability to learn, and not just for a little while… “up to 20 percent of the achievement gap between high- and low-income children may be explained by differences in brain development.”… children who [grow] up in families below the federal poverty line [have] gray matter volumes 8 to 10 percent below normal development.”
- Alabama has [one of] the highest infant mortality rate[s] in the country.
It is interesting to contrast Governor Ivey’s published comments with testimony of Justice Ruth Bader Ginsburg before the Senate Judiciary Committee in 1993 during the Senate process to confirm her nomination by President Bill Clinton. At those hearings back in 1993 she said:
The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.
The larger strategy of the anti abortion forces is to be tightly aligned with the Republican Party in a multi decade strategic effort to control local and state governments. Republicans now control all of state government in 22 states. This strategy persists and efforts to use the their ability to use the power of state government and the increasing opportunity to control the courts that they now have persists despite losing total control of some states, like New Hampshire, in the 2018 elections that gave the House of Representatives back to the Democrats. The control of state governments over the last few decades has enabled gerrymandering that affects local, state, and national elections. Now that we have a president who has been elected by a tightly managed minority with strong feelings on issues like abortion that strategy and the patience to execute it may end legal abortion in many states. The president has held up his end of the bargain with anti abortion advocates, evangelical Christians, the gun lobby, those opposed to immigration reform, and advocates of drastic reductions in the social safety net by appointing Justices Kavanaugh and Gorsuch who join Roberts, Thomas, and Alito to form a 5-4 conservative majority on the Supreme Court that is sympathetic to their causes. Less obvious in the completion of the strategy are the appointments to lower courts where conservative judges, like Judge Reed O’Connor, a federal district court judge in Texas, render decisions that move controversial cases along toward the Supreme Court for potentially ground shaking reversals of “settled law” like the ACA, and previous Supreme Court decisions like Roe v. Wade.
It is interesting to note that at a legal level the issue of the constitutionality of the abortion laws of states will probably end up as pitting the intent of the Tenth Amendment of the Constitution against the Fourteenth Amendment. Let me explain.
The Tenth Amendment is the last item in what we call “The Bill of Rights.” Its origin lies in the concerns of those who were afraid that a federal government could become too powerful at the expense of the right to govern enjoyed locally. It reads:
Amendment X (10): Powers retained by the states and the people
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If you grew up south of the Mason-Dixon line like I did, you were taught that the Civil War was fought over states’ rights, not slavery. Which it is sort of right since the contention of the Confederate States was that it was their right to have slavery if they wanted it. Now, many states want their rights to include their ability to ban abortions and limit entitlements that support the poor and the taxes that fund those entitlements.
The Fourteenth Amendment was passed in the aftermath of the Civil War and the continued concern about the enthusiasm of southern states to curtail the human rights of many by allowing them to be enslaved by de facto limitation of their civil rights. It has five sections, but the important part upon which Roe v. Wade rests is the “equal protection clause” as described below in a review from Cornell Law School.
The Fourteenth Amendment addresses many aspects of citizenship and the rights of citizens. The most commonly used — and frequently litigated — phrase in the amendment is “equal protection of the laws“, which figures prominently in a wide variety of landmark cases, including Brown v. Board of Education (racial discrimination), Roe v. Wade (reproductive rights), Bush v. Gore (election recounts), Reed v. Reed (gender discrimination), and University of California v. Bakke (racial quotas in education).
It’s worth reading section 1 of the amendment which contains the equal protection clause:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
You tell me. Does the state of Alabama have the right to restrict a woman’s access to an abortion or is that action by Alabama an attack on a woman’s right to “equal protection?”
The heart of the problem is that emotional preferences and personally held religious convictions have nothing to do with the law. Our laws are meant to establish norms that allow us to live together even when we have different emotions and religious convictions on issues like abortion that are so controversial. Fervent anti abortionists site allegiances “to higher laws” as the source of their motivation. Advocates for a woman’s right to choose question the validity of applying religious convictions to secular life, and are equally motivated by the differential burdens and the abuses borne through the ages by women in their subjugation to men.
As a connected issue, I believe that the equal protection clause would suggest that all of the inequities in healthcare that exist from state to state should be normalized by national standards of cost, access and quality. Medicaid is a perfect example of my point. The Medicaid benefit of a person in poverty downriver in Mississippi is much less than what a poor person experiences in Minnesota near the river’s headwaters. All Americans should have the same healthcare benefits, even if by chance or choice they live in Alabama.
I have some hope that Justice Roberts will realize that his responsibility as a conservative justice includes a respect for the profound meaning of the equal protection clause and the importance of being extremely careful not to use the courts to force one person’s religious beliefs on another. Alabama’s ludicrous and shameful law and the ridiculous contention from Texas that elimination of the mandate makes the ACA unconstitutional should be thrown out for technical reasons, and for the human reason that they will lead to much greater suffering and loss of life and health than can ever be justified by any rational argument.
If you think that your responsibility as a citizen is satisfied by showing up on election day and casting a vote, I fear that you have been “asleep at the wheel.” You need to think through these issues and then develop a personal strategy, or join others who have a strategy, that makes sense to you to protect what is important to the health of the nation. There is a good chance that the Supreme Court will hear the arguments for one of the pending abortion cases in 2020.
New York State Can Surprise You
Sometimes things just come together in a surprising and delightful way. My wife likes road trip adventures. The only thing that makes her happier than the idea of driving to someplace that she has never been is to leave home with a suitcase and no specific destination in mind. As the winter wore on, I could sense that she needed to look forward to a few road trips this summer. Like most retirees we do our share of travel. She likes to plan big trips to places like China or South Africa, and we spend a lot of time just visiting our children and grandchildren, but she really likes searching for adventure on the back roads and bye ways that can be reached by car in a day’s drive. A quaint B&B, a Manhattan quality restaurant stranded in a small out of the way place, or an old barn filled with interesting antiques might lie around the next turn in the road.
We can’t quite remember how the conversation happened, but about a month ago while a friend from the Boston area was visiting us for the weekend, we learned from her that out in western New York, not far from Rochester, there was a wonderful place that is nicknamed the “Grand Canyon of the East.” Perhaps my wife had mentioned to our friend that she had never been to Niagara Falls and was interested in going there on a road trip, but the “Grand Canyon of the East” did seem intriguing, and closer. We learned that the actual name of the place is Letchworth State Park which sounds a lot less pretentious than the Grand Canyon of the East until you read that it has been voted “America’s favorite state park.” When I looked for it on a map I realized that it was less than two hours from Sayre, Pennsylvania, and that I had driven right by on Interstate 390 when I had flown in and out of Rochester to go to Guthrie board meetings. I was going to Guthrie for board meetings on May 16 and 17, so I invited her to drive with me to the meetings with the plan that we would go to Letchworth first and then come back through Sayre.
Driving across New York is delicious. I love my usual route down I 88 from Albany to Binghamton. It is a lightly traveled scenic road that seems to run high along a ridge overlooking rich valleys with beautiful villages and tidy farms. The New York State Thruway toward Buffalo and Rochester is not as spectacular, but the sky is always high and it feels like you can see forever. It is very different than the terrain in New England. It is more like what you might see out on the plains of middle America.
When I saw the Grand Canyon as a child I was surprised. We were driving through ordinary looking spaces and then suddenly there was this tremendous hole in the ground. The approach to Letchworth is much the same. After we left the Interstate we drove through small villages and past huge dairy farms and large fields that were recently plowed in preparation for this year’s corn crop, and then there it was. The topography changes suddenly from attractive, but ordinary to spectacular. Just to stretch the comparison to national parks, there is a sudden concentration of beauty that rivals the experience one gets at Inspiration Point as you enter Yosemite Valley.
If you go to Yosemite, it is nice to stay at the Awahnee (Now Majestic Hotel). On a smaller scale Glen Iris, the former home of William Pryor Letchworth, is also a great place to stay. The “front yard” offers great views of the “Canyon” and Middle Falls. Today’s header is one of dozens of pictures that we took and was snapped at Letchworth’s own “Inspiration Point. There is a great view of the middle falls and if you look closely you can see the upper falls and the Portage Bridge. There are miles and miles of trails into the woods and along the Genesee River if you get tired of walking through what feels like a seventeen mile long arboretum.
My wife posted pictures of our adventures on Facebook only to learn that there were lots of folks who knew what we had not known, that there was a spectacular canyon in western New York. I would highly recommend Letchworth as a destination if you like taking a road trip.
Be well, take good care of yourself, let me hear from you often, and don’t let anything keep you from doing the good that you can do every day,
Gene
