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Next entry: The Great Saturday Night Fever Hoax Previous entry: When Newt Gingrich is your moral standard-bearer…..

Why Stupid Questions About Stupid Contraception Are Smart

Irin Carmon has a great rundown of Mitt Romney's botchtastic answer on the constitutional right to contraception at Saturday's GOP debate, which can be fairly summarized as such:

"It is silly that you would ask me about whether something is constitutionally protected. After all, nobody is threatening it. It's constitutionally protected!"

Ignoring that personhood amendments by and large do exactly that (as do the initiatives of any number of other conservative religious groups focused on the alleged sexifying effects of latex tubes and daily prescriptions), the question was important for another reason.

Romney (Harvard Law, when he admits it) replied with an ethic of constitutional interpretation that boils down to not thinking about it unless you have to, even when your main legal advisor is a guy who was denied a seat on the Supreme Court in part because of his stance on Griswold. Ron Paul chimed in by saying that the Commerce Clause would prevent the banning of birth control sales by states or localities, which would make a lot of sense if that was in any way what the Commerce Clause did. Earlier in the week, Rick Santorum declared that marriage was a privilege rather than a right, meaning that he's against the Supreme Court's decision in Loving v. Virginia, legalizing interracial marriage.

Add in Santorum and Gingrich's desire to abolish part or all of the Ninth Circuit (which would almost certainly lead to a massive due process and equal protection suit after a third of the nation loses access to federal courts), and the GOP has a widespread problem: their concern now is not stopping "activist judges". It's reliving a glorified costume party from the late 1780s, where we presume that the Founders sat down, calmly discussed every issue that could ever possibly pop up, wrote a document to cover it - except for the part about slavery, which would work itself out after a bit - and then got back to discussing what a pompous dick Ben Franklin was.

Conservatives increasingly aren't having problems with judges. Conservatives are having a problem with courts.

Courts get in the way of the executive and the legislature. They're supposed to. They constitute a deliberative branch whose purpose is to analyze the actions of the other two branches and determine whether those actions comport with the law. Are they always right? No. But neither are the other two branches.

The GOP field's hostility to courts comes, largely, from the fact that courts are able to say and do things the other two branches can't, without the sort of rapid political changes that have led to Congress' position as a well-respected institution and the foundation of public life. Courts interpret and, yes, enshrine rules that the other two branches missed entirely. No matter how strong an executive is, after he has appointed a judge, his ability to constrain a federal court's discretion is limited mainly to the laws he or she signs. 

By threatening the dissolution of courts and even entire circuits, or by deciding that entire swaths of Supreme Court precedents are wrongly decided because of stuff and things despite having almost zero familiarity with the underlying law or facts, the message is not that rogue judges can be constrained. It's that courts are no longer as untouchable as they thought they were, and if they don't step in line and rule along a particular ideological zeitgeist, they'll find themselves subject to the same punishment as a rogue legislator or insufficiently lockstep presidential candidate.

The Founders, of course, put in safeguards for just that purpose. Not that it matters, of course; should those Founders fight too hard for their beloved "Third Article", they're gonna find themselves the Founders of Finland, and we'll replace them with proper historical heroes, like Von Mises and Margaret Thatcher. Check yourself before you wreck yourself, oldheads.

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Posted by Jesse Taylor on 12:53 PM • (22) Comments

Conservatives are against courts because they are against conflicts being resolved.  This is because they hate America and want to burn it to the ground, and they don’t want any brakes on that train.

Comment #1: Punditus Maximus  on  01/09  at  01:44 PM

Ditto (or up vote) PM above @ 1.

Also, love the post’s art.

Comment #2: helen w. h.  on  01/09  at  01:57 PM

anyone who believes that the early debates over the constitution were calm need only google “rats and anti-rats” (the search works better if you include the quote marks).

Comment #3: astro  on  01/09  at  02:06 PM

I would also add that conservatives are against courts in the same way they “support states’ rights,” as was discussed on the previous (ongoing?) thread.  Conservatives don’t like courts when courts prevent them from getting their way.  They’re not looking to overturn Citizens United anytime soon…

Comment #4: ScottInOH  on  01/09  at  02:06 PM

Conservatives are also against courts because, historically, courts have been an important driver of progressive change. When it comes to its role as check and balance on the other two branches, the court’s job is essentially to keep them consistent, ie, “You’ve already said everyone gets equal protection under the law, but this new law doesn’t provide that, so it’s void.” And consistency, intellectual honesty, and reality are largely liberal values, so by paying attention to inconvenient things like “facts” and “the actual meaning of laws,” courts are clearly a lefty conspiracy.

Comment #5: Triplanetary  on  01/09  at  02:07 PM

I’m still trying to figure out how the Christianists think the outlawing of contraception would work.  Would birth control become a controlled substance?  Would the possession of condoms be treated like an unlicensed firearm?  Would we prosecute doctors for practicing back alley vasectomy and tubal ligation?

It would be the war on drugs, run by bigger and dumber clowns.

Comment #6: prufrock  on  01/09  at  03:20 PM

The GOP field’s hostility to courts comes, largely, from the fact that courts are able to say and do things the other two branches can’t, without the sort of rapid political changes that have led to Congress’ position as a well-respected institution and the foundation of public life.

It comes from the fact that, although it’s changing slowly, judges still by and large aren’t elected, and thus the Kochs can’t buy them.

Comment #7: RickMassimo  on  01/09  at  03:22 PM

“And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

Replace “laws” with “courts” and it still hangs true

Comment #8: phalamir  on  01/09  at  03:25 PM

I’m still trying to figure out how the Christianists think the outlawing of contraception would work.

Not too difficult to figure it out…

Comment #9: Phoenician in a time of Romans  on  01/09  at  03:46 PM

Would birth control become a controlled substance?  Would the possession of condoms be treated like an unlicensed firearm?

You’ll notice, of course, that female-controlled forms of contraception are already being restricted and controlled.  Plan B, for example.  Condoms are still on general sale, but I think a religious right winger mind, thinking as it does of a man as in possession of an uncontrollable sexual urge, doesn’t mind a man in control of the consequences of sexual intercourse so much as a woman.  Still, all those abstinence programmes weren’t exactly pushing condom use, were they.

Comment #10: Katherine  on  01/09  at  04:36 PM

And this, mind you, after a 30-year project of packing federal courts and the supreme court with reliably right-wing, pro-business judges.  The republicans have moved so far right that judges appointed by Reagan and Bush I regularly rule against what they want. You need to the cohort that was actively advocating torture and mass detention to find judges willing to say the current GOP agenda is lawful.

It’s like you installed Al Capone as your police chief and suddenly found yourself complaining about how tough he was on crime.

Comment #11: paul  on  01/09  at  05:30 PM

without the sort of rapid political changes that have led to Congress’ position as a well-respected institution and the foundation of public life.

Milk out the nose.  Thank you for that.

Katherine:

Condoms are still on general sale, but I think a religious right winger mind, thinking as it does of a man as in possession of an uncontrollable sexual urge, doesn’t mind a man in control of the consequences of sexual intercourse so much as a woman.  Still, all those abstinence programmes weren’t exactly pushing condom use, were they.

I don’t think the right wing would worry too much about banning condoms if they thought it would save a few more sperm.  Sex is to be punished, after all.  And there’s nothing that will settle down those reckless young liberal boys like parenthood.

Beyond that, I’ve always felt the religious right was less concerned about controlling women than controlling young people in general.  Making young men feel ashamed about masturbating and looking at naked pictures and wanting sex without the sanction of the clergy is as much in the church as punishing dirty sluts.  If the religious groups ever do manage to ban oral contraception, I have no doubt condoms will be next.  Assuming the old guard anti-sex Christian boomers don’t start dying off at last and leave us in peace.

Comment #12: Zifnab  on  01/09  at  05:35 PM

@Piator

As I said, the war on drugs run by bigger and dumber clowns.

@Kathrine

Still, all those abstinence programmes weren’t exactly pushing condom use, were they.

No, they aren’t.  In fact, when I was a Marine in the early 1990s, I actually had to sit through a video shown by the Battalion chaplain that advocated abstinence only.  Many of the Marines in that room had spent time in the Philippines and Thailand.  We were amused.

Comment #13: prufrock  on  01/09  at  05:49 PM

Conservatives have such an interesting relationship with the Courts, don’t they?  And in fairly recent times, the primary types of “Activism” we have seen from the bench are pro-Conservative positions (instead of their hyped meme of Liberal Activists Judges).  An easy and stunning reminder is the Terry Schiavo debacle which had some members of Congress begging for such activism. 

And they (often with JDs, mind you) cannot keep their case law straight in their heads.  (Romney, Santorum, etc.).

This weekend I was at the comments site of Mediaite on this issue and found it amusing how much the meme of “this is irrelevant!” was pushed and that “President’s don’t do this, so…”  and my favorite, “Who cares?”.  Well, women, for one. 

But a lot of these Cons don’t see me (a female) as a person but as a walking uterus apparently capable of bearing a child all the while apparently not being emotionally/mentally/physically sound enough to determine whether to have such a child or not. 

But what really galls me about the Santorums of the world is that not everyone taking BC is taking it b/c they are having sex.  My (Catholic, non-sexually active) friend in HS had such awful periods that her doctor put her on BC to regulate her cycle and abate the anemia that would creep up post-2+ weeks of straight menses.  That’s right, Rickie. 

Even good Catholic girls need the pill sometimes.

Comment #14: avoidswork  on  01/09  at  06:22 PM

It’s like you installed Al Capone as your police chief and suddenly found yourself complaining about how tough he was on crime.

That made my day.  Thank you.

As far as not making condoms harder to access, I think it’s just been easier to put more roadblocks in place for something that already has an access barrier in place than something that’s so plentiful and cheap that you can find it for free if you know where to look.

Comment #15: Jayn Newell  on  01/09  at  06:32 PM

But what really galls me about the Santorums of the world is that not everyone taking BC is taking it b/c they are having sex.  My (Catholic, non-sexually active) friend in HS had such awful periods that her doctor put her on BC to regulate her cycle and abate the anemia that would creep up post-2+ weeks of straight menses.  That’s right, Rickie.

Even good Catholic girls need the pill sometimes.

Quite so. An ex-girlfriend of mine was put on birth control in high school in an attempt to prevent her frequent ovarian cysts. Her roommate in college was a conservative Catholic who was also on birth control for reasons relating to her menstrual cycle. She still managed to feel ashamed of it, because the Pope doesn’t want to hear women’s silly excuses about horrifying pain in their nether regions.

But yes, it’s a safe bet that the Santorums of America are largely unaware of the particulars of women’s reproductive health, and to the extent that they are aware, they certainly don’t give a shit. They like to keep things simple: vaginas pop out babies, and birth control is for sluts who enjoy murdering babies. Why would a man need to know any more than that?

Comment #16: Triplanetary  on  01/09  at  07:25 PM

Please.

The Santorums deny that they had a therapeutic abortion.  They certainly don’t want anyone else to exercise that choice.

Comment #17: Caren-Sun-blocking Creator of Animorphic Pancakes  on  01/09  at  09:47 PM

“It’s constitutionally protected” by the right to privacy (laid out in Griswold and Eisenstadt) - a right most conservatives, including Ron Paul, believe is a fiction. So no, Romney is either so incredibly stupid he doesn’t know this or he’s lying.

Comment #18: mythago  on  01/09  at  11:06 PM

Oh, Caren, they don’t have abortions, dontka know?  They might induce labor of an immature fetus, virtually guarenteeing instant death upon birth or an exceptionally brief agonizing life and possibly giganormous medical costs, but they don’t have abortions.
I find what they do to avoid having to admit what they did is for all practical purposes abortion to be beyond sick.

Comment #19: helen w. h.  on  01/10  at  10:18 AM

The right to marry as one sees fit is a trivial codicil to the general right of Assembly.

Comment #20: Punditus Maximus  on  01/11  at  11:34 AM

#9: from the link:

Any detected pregnancies were followed until birth.

I didn’t need to read that right now, as I had just discovered a few days ago that Brazil has a shiny new National System of Registry, Vigilance and Follow-up of Pregnant and Puerperal Women, and I’m already freaking out enough.
I thought women would register themselves with the government, and was afraid that, in the future, they’d have the labs register you automatically if you tested positive for pregnancy, but then I read the law and discovered it’s already in there: seek healthcare while pregnant and the doctor registers you, your condition, any STDs, etc. Also, it created a “right to birth” that threatens even the few legal abortions allowed here (rape, life of “mother”). Also, it creates a minuscule benefit for poor pregnant women (R$50 = US$27), and the data of the poor women desperate enough to take the benefit will be put as public access on the internets. Plus there’s punishments for doctors who don’t cooperate, and even coroners are forced to give data on pregnant women who die (as much of the maternal mortality is from illegal abortion complications, the data could be used to find the abortion providers and prosecute them.)
I had already decided to get an IUD, but once I read about this law I sped up the process. I swear it was easier to get my health insurance company to approve (elective) eye surgery. They gave me the authorization in 10 minutes. For the IUD, I’m already in the 3rd visit to the doctor to get extra documents justifying the need for it. They finally approved the IUD today, but asked for more documents to approve sedation.
The anaesthesic drugs needed for the eye surgery were already included in the authorization last year, and the ones required for removing 2 moles were included in the authorization I got today, so it’s only the IUD that needs my doctor to write a report saying “really, believe me, it hurts.” I might be bitter but I keep thinking they think sluts who want sex without kids should suffer pain.

Comment #21: colorlessblue  on  01/11  at  06:36 PM

Colorlessblue - And most of us would agree that you are very likely to be right for those who set up the law and the insurance requirements (on the order of 99.9999….%). 
More for the “yes, pro-life movement people really do hate women and women being able to have sex without constant concern of pregnancy” files, general and international.

Comment #22: helen w. h.  on  01/12  at  11:06 AM
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