The First Amendment: The Crux Of It

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By Judith Gayle | Political Waves

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

–The First Amendment to the United States Constitution

It appears that Donald Trump, who has pranced through the 2016 political process with the less than perfected skill of a Dancing With The Stars contender, has finally put his foot in it. Speaking off the top of his head (which is unarguably the least attractive part of Donald, both literally and figuratively), he blurted out the naked truth about abortion, suggesting that when/if he makes it [sic] illegal, then women would need to face punishment for seeking the procedure.

Simple logic, that, calculated to earn the ire of liberal and independent women everywhere, yet his own [also sic] party sucked in their breath as though he’d kicked over the Holy Grail.

Donald is a caution, as my great-grandmother liked to say (and thanks to him, I now understand the reference). He speaks without thinking, shotgunning ideas out as if he’s brainstorming in a strategy session, not presenting himself to the public. In this instance he inadvertently put the Republican’s war on women in the spotlight in a way that even (poorly reported) prosecution of the doctored Planned Parenthood tapes couldn’t.

This stumble in conservative candor by the Republican front-runner produced quite a dust-up on cable news. Pundits pronounced, Trump spokeswomen (for heavens sake!) defended, and voices layered one over another lifting the decibels to shrill. I did find one island of sanity in a Planned Parenthood representative who asked, essentially, so what’s new in this pronouncement? Trump just articulated the traditional Republican position on abortion, with those who engage in it routinely punished.

Hillary spoke to this as well, pointing out the obvious hypocrisy of Cruz back-peddling when he commented, creepily I might add, on the need to create a culture that respects mothers of the unborn and embraces life (even, you know, murderers who refuse to behave like devoted little incubators). Unfortunately those she needs to impress with her commentary would not, ummmm, dump a bottle of water on her if she were on fire. The level of hatred aimed at Hillary even exceeds the disdain in which Obama is held on the right.

Still, she did her campaign good by speaking aggressively on the topic. She has the support of many women who fought the good fight for choice and find it astounding that, thanks to an entrenched right-wing, a woman’s constitutionally protected right to the functions of her own body is teetering on the edge.

Since the rise of the right wing, women dealing with unwanted pregnancy have been put in the cross-hairs of dilemma. There have been almost 300 restrictions placed on abortion services in the last four years, with individual states creating a hostile environment by mandating ridiculous procedures, closing clinics, and making access to services too costly or inconvenient for those who need them.

This has produced an up-tick in self-inducing. I think of this as the return of the ‘coat hanger’ years, something that generations of women cannot truly understand, since — gratefully — it has not been their experience. But all that is changing now. There are already millions of women in this nation without access to safe abortion. According to “The Nation“:

Thirty-eight states have some sort of fetal homicide law, according to the Guttmacher Institute. Some exempt pregnant women, specifically, but many don’t. At least 17 people have been arrested or convicted for self-induced abortions in the United States, including Purvi Patel, who was sentenced to 20 years in prison last year for feticide. In 1990, a Florida teen who couldn’t afford an abortion shot herself in the abdomen, and was charged with third-degree murder. In 2009, a teenager in Utah paid a man $150 to beat her up, hoping it would cause a miscarriage; she was charged with solicitation to commit murder.

In Texas, where clinics have been cut by 50 percent in these last years, women are being forced to carry their dead fetus to term. That level of cruelty disgusts me and seems a far cry from the “small government” that the conservatives insist they want. But women’s issues? Much too dangerous (read that threatening to the patriarchy) to allow women to decide for themselves!

Over at Hullabaloo, Digby quoted Salon’s Amanda Marcotte on the logic of Trump’s position, which flies in the face of the upside-down and backwards Pro-Life rhetoric:

[T]he official stance that Republicans are supposed to take is that women are victims of abortion and therefore cannot be held responsible for it. Yes, it’s true that women pick up the phone, make the appointment, talk through their decisions with medical professionals, sign paperwork and then either take a pill or let the doctor perform an abortion, but none of this should be taken, in conservative eyes, as evidence that women are the people responsible for the abortion happening. Women are regarded by conservatives as fundamentally incapable of making grown-up decisions. If they choose abortion (and by implication, if they choose sex), it’s because the poor dears were misled.

Yes, the same people that conservatives treat as literally too stupid to understand what making a medical decision entails are then expected to raise children.

To which Digby commented:

The party line is that abortion is murder but the woman who solicits it is not guilty by reason of insanity or mental defect. Keep in mind that one third of American women have an abortion at some point in their lives. That’s a whole lot of defective crazy ladies we’re allowing to roam free in society.

The Republican culture war — with its assault on women’s choice at the heart of it — has largely failed on a national level under a Dem administration, although they keep on trying. In 2012, my senator, Roy Blunt, proposed an amendment “allowing any U.S. employer, not just those affiliated with a religious institution, to deny contraceptive health coverage to its employees based on religious or moral objections.”

The legislation was co-sponsored by Marco Rubio, and failed by a mere handful of votes with every Pub but one — a woman, Olympia Snowe — supporting it. This came on the heels of Obama’s mandate that employers provide birth control in their health care provisions, with exemptions for religious institutions and those affiliated.

At the time, it prompted this commentary from McConnell and Kerry — the right and the left:

“Look: this is precisely the kind of thing the founders feared,” McConnell said. “It was precisely because of the danger of a government intrusion into religion like this one that they left us the First Amendment in the first place, so that we could always point to it and say, ‘No government, no president has that right. Religious institutions are free to decide what they believe. And the government must respect their right to do so.'”

Democratic Senator John Kerry, of Massachusetts, argued the opposite point.

“The Blunt amendment is in fact an assault on” First Amendment objections, he said. “It imposes one view on a bunch of people who don’t share that view, or on those who want to choose for themselves.”

Here’s the crux of it, then, what it all comes down to, politically. It’s another of those donnybrooks over constitutional interpretation that divides the parties, and on issues of religion, has done so since the rise of a politicized church with Jerry Falwell’s Moral Majority in the mid-’70s.

Because SCOTUS has become polarized along those same lines, what happens next in the High Court is crucial. At this moment, the Court is still understaffed by one, with the Pubs determined to allow Trump or Cruz to nominate. If anything would get a fractured and disenchanted Republican party out to vote this year, the very thought of a liberal court will do it. For both parties, what happened this week should prove how important it will be to get out the vote, whether we’re annoyed at the eventual candidate or not!

When Scalia died, all the pending cases in which he held an opinion had to be done over. One such was Friedrichs v. California Teachers Association, a case poised on weakening public sector unions, which seemed all but decided during oral arguments in January. The conservative branch of the Robert’s court has routinely depended on first amendment arguments to water down the organizing power of unions, and seemed ready to do so again.

This week, a decision was passed down — or perhaps a non-decision would be more accurate. Without Scalia to cast his vote against the teachers union, the vote broke even between conservative and liberal jurists. With the vote tied, the earlier decision of the Ninth Circuit Court of Appeals stands, ruling that the union shops do not violate the first amendment. At least for the moment, the conservative attack against union organizing is halted, but not all the news is good.

According to Mother Jones, choice is up next :

Women’s Whole Health v Hellerstedt and Zubik v Burwell: The court is poised to hear several major challenges involving women’s reproductive health rights. In Women’s Whole Health, the court will decide whether Texas’s restrictive abortion law, which has already resulted in the closure of many clinics and, if fully enforced, would close even more clinics and force women in Texas to travel long distances or leave the state in search of a legal abortion, is constitutional. The conservative Fifth Circuit upheld most of the law, but the Supreme Court blocked parts of it from taking effect until the case could be heard. If there’s a tie at the Supreme Court, the abortion clinics are all but doomed.

This week, Donald Trump displayed his political naivete, stumbled over his own tongue and made us all look at something very important. This week, we’ve discovered how the court will operate unless it is fully staffed and why that selection is so important. This week, we got a sense of how crucial the outcome of this presidential election will be, with up to three additional appointments to the court in the near future.

Much as a vote for Hillary continues to be my distasteful Plan B (for a long list of reasons), I’m counting out the Susan Sarandon Plan in order to encourage Bernie’s political revolution. The result of taking that purity test produces more of my ‘pony in the horse shit’ theory because, true enough, everything works to good, however painful, depending on how it informs us and how we respond to the challenge. But with theocratic Ted Cruz coming up right behind, the whole of Roe v. Wade is on the line — and plenty more where that came from.

Perhaps this week we’ve seen why no matter who ends up as the candidate for POTUS, not only do we need to put aside our differences in order to vote for the democratic principles we believe in and a progressive interpretation of our first amendment rights, we also need to encourage everyone we know to exercise this critical responsibility to self and others. If we’d done that in 2014, we’d be a heckuva lot better off today.