Abortion

Sparks is a George H.W. Bush appointee and scion of Texas sheriffs who suggested that the ultrasound law was the “Texas Legislature wish[ing] to prioritize an ideological agenda over the health and safety of women,” and even that the law would drive out qualified practitioners who didn’t want to submit to state-compelled speech. “Forcing pregnant women to receive medical treatment from less-skilled providers certainly seems at odds with ‘protecting the physical and psychological health and well-being of pregnant women,’ one of the act’s stated purposes,” he wrote. He barred the law from being enforced — which held until it got to the circuit court headed by Jones.

Jones, a Ronald Reagan appointee who has written that she “fervently hope[s]” that the Supreme Court reevaluates Roe v. Wade, had previously expressed her annoyance with Sparks for the manner in which he refused to allow exhibits of aborted fetus photos in the court. “The Court has already turned down two extremely tempting offers to transform this case from a boring old federal lawsuit into an exciting, politically-charged media circus,” Sparks replied to the attorney who wanted to submit them. “As any competent attorney could have predicted, the Court declines this latest invitation as well.”

Jones responded by copying all of his colleagues on a stern email to Sparks, saying,  ”It has not escaped my attention, or that of my colleagues or, I am told, nationally known blog sites that you have issued several ‘cute’ orders in the past few weeks.” She referred to them as “caustic, demeaning and gratuitous,” and added, “Frankly, this kind of rhetoric is not funny.” Of course, the email itself promptly ended up on several more “nationally known blog sites.”

Jones was one to talk. Days later, she slammed her fist down at the table in oral argument and told her fellow circuit judge to “shut up” or leave.

But this isn’t ultimately about courtroom civility or entertaining invective — it’s about a judicial philosophy that holds that it’s within the state’s right to try to talk women out of their decisions, or at least make them as grueling as possible, versus one that sees women as people capable of making life-changing decisions for themselves. When Jones and two fellow circuit judges ruled on the Texas law last week, Jones’ opinion disagreed with Sparks that the so-called “Woman’s Right to Know Act” was a case of forced speech in violation of both the woman and the doctor’s constitutional rights. That was indeed a relatively novel approach, since the Supreme Court in Planned Parenthood v. Casey had rejected a First Amendment argument. On the other hand, the law at question in that case did not involve a medically unnecessary wand up the vaginal canal.

Jones denied that making the woman (and her doctor) go through these procedures constituted “ideological speech,” even though she seemed to believe would further the state’s “interest in protecting life.” (In a footnote, she said Sparks “misunderstands the term” ideological, and helpfully provided a link to Merriam Webster’s entry on the word.) She said information about the fetus was as relevant as information about possible health risks to the mother, because “only if one assumes … that pregnancy is a condition to be terminated, can one assume that such information about the fetus is medically irrelevant.” Well, yes, given that the procedure in question is taking place when a woman has already elected to terminate her pregnancy and gotten all the way to the abortion clinic, you can assume it is a “condition to be terminated.” The ideological speech in question is the one that assumes that she doesn’t know her own mind and needs to be subjected to potentially humiliating or difficult processes first.

In her decision on Jan. 10, Jones not only overturned Sparks’ temporary injunction — she rapidly granted Texas’ request to make the decision effective immediately so it could soon start enforcing the law. And she said all further actions had to come through the same panel. The Center for Reproductive Rights, which is representing abortion providers in the case against the law, has asked for a rehearing with the entire Fifth Circuit, and not just the three judges led by Jones. Still, there will be no avoiding her.

What are these legitimate concerns? Milbank does not tell us. He does, however, amble through the schedule of Washington, D.C., events for the Roe v. Wade 39th anniversary commemoration, and attend (at least I think he did) a single press conference held by abortion provider and author Merle Hoffman. The resulting column has all the hallmarks of everything worth hating about Beltway punditry: Each side is solely represented by the D.C.-based organizations that send out the press releases. It’s as if it’s all a “West Side Story”-like face-off in which only rhetorical points are at stake, as opposed to the lives of non-professionals actually affected — in this case, women. And Milbank concludes that if those two groups, both behaving ridiculously in allegedly equal measures, would just compromise and meet somewhere in the middle — perhaps at a D.C. happy hour! — he would stop having to listen to them caterwaul.

To say this smacks of the airy privilege of someone who isn’t directly affected by the situation is an understatement. As blogger Abigail Collazo put it, “I suppose that’s easy to say when the sky isn’t falling on him.” That’s not just because Milbank is a man; it’s also because he probably doesn’t know anyone who can’t afford an abortion, can’t access one, or was forced through intentionally odious obstacles before getting one. (And if somehow he does, he needs an empathy check.) The same goes for his mockery of Hoffman’s position that abortion can be a moral or “life-affirming” choice, in which he adopts a smug posture toward a woman who actually had an abortion and works daily with other women who have too. Somehow, he knows better.

He sniffs that “anniversary observances have devolved into fact-free spectacles that have less to do with abortion than with raising money for advocacy groups on both sides.” It’s true that organizations have to maintain a sense of urgency to stay solvent, but not all advocacy groups are created equal. Some, like Planned Parenthood, are in the business of providing substantial medical services in addition to legislative and political action. Meanwhile, the anti-choice movement’s idea of providing medical care is spreading intentional falsehoods about the risks of abortion and telling women they’ll go to hell unless they convert to Christianity.

Milbank has the solution: To stop holding events and “get to work on the one thing everybody agrees would be worthwhile — reducing unwanted pregnancies.” Does everybody actually agree that would be worthwhile? Milbank seems to know that they don’t, since he actually, correctly, calls out the antiabortion movement — if they wanted fewer abortions, he writes, they’d stop “throwing obstacles in the way of birth control and make sure it’s cheaply provided as part of preventive care and not blocked by ‘conscience clauses.’” But he still chides pro-choicers that “not every compromise means a slippery slope to the back alley,” and claims each side has “strong financial incentives to avoid consensus and compromise,” instead of acknowledging that the main disincentive is that each side has wildly different ideas about the role of women, sexuality and childbearing.

So let me ask Milbank. How do you split the difference with groups like Americans United for Life and the United Conference of Catholic Bishops that are actively hostile to birth control — sorry, the “contraceptive mentality”? The ones who are working, one incremental law at a time, toward a ban on all abortions with no exceptions, including the ones that Dana Milbank personally considers OK?

Any real observance of the anniversary of Roe has to acknowledge that although it’s the ultimate bulwark, the real operating framework comes from Planned Parenthood v. Casey, the Supreme Court decision that has an even snazzier birthday this year, its 20th. That would be the “centrist compromise” crafted by the court’s moderates that opened the door to the restrictive state laws that actually affect whether a woman can exercise the right to an abortion — bans on public and then private insurance funding for abortion, parental notification and consent laws, waiting periods and more.

As I wrote in a year-end piece, some of the newest and more innovative laws were indeed stopped in their tracks by the judiciary. But some, like bans on later abortions, weren’t challenged at all, and some of those legal victories were short-lived. Just last week, the preliminary injunction on a Texas law preventing the state from forcing women to view ultrasounds before an abortion was overturned by a higher court notorious for its far-right allegiance. In other words, no one should take for granted that the legal status quo will remain in place. And that status quo already isn’t much if you can’t afford an abortion or can’t access one.

Wait, I’m sorry, were we talking about actual people’s lives? Milbank was just reviewing a spectacle.