Almost without warning, the explosive issues of sex, birth control, and abortion are thrown like cluster bombs into the 2012 presidential election. We may be in for a gender war centered on women’s rights on top of all the divisions we already face.
We’ve been building for that since 1972 and the Supreme Court’s Roe v Wade decision making abortion legal nationwide, with limitations. That was also the year that saw the start of a 10-year effort to put a gender-based equal-rights amendment into the Constitution. It fell three states short of the necessary 38 needed for passage.
None of the combatants in either of those 40-year-old battles have forgotten the intensity of the combat, but for many young women the topic scarcely causes a glance from their cell phone. That may be changing.
Consider that already this month, big headlines surround these sensitive issues. The Susan G. Komen Foundation made a big boo-boo by cutting its funding support for Planned Parenthood, the iconic name in women’s health and reproductive freedom. Before the pink ribbons could hit the wastebasket at Planned Parenthood, an anti-Komen backlash brought Planned Parenthood $3 million in contributions in just three days and forced Komen’s leadership to backtrack — at least for now — and resume its funding.
It may be a sign of what will be seen not just in the presidential race but also in congressional contests, even in the Pacific Northwest. In December, a Republican challenger, state State Sen. Michael Baumgartner, criticized U.S. Sen. Maria Cantwell for her position disputing an Obama administration decision against making emergency contraception pills available behind pharmacy counters to girls 16 and younger.
The Komen affair gave legs to a dispute between the Catholic Church and the Obama Administration on how to interpret the Affordable Health Care Act (aka Obamacare) in terms of what must be covered by health insurance under the new law. Kathleen Sebelius, Secretary of Health and Human Services, declared that religious organizations — with some rather narrow exceptions — must provide employees with health insurance that includes family planning prescriptions and procedures.
The 2010 health care law says insurers must cover “preventive health services” and cannot charge for them. The new rule, as summarized by the New York Times, “interprets this mandate. It requires coverage of the full range of contraceptive methods approved by the Food and Drug Administration. Among the drugs and devices that must be covered are emergency contraceptives including pills known as ella and Plan B. The rule also requires coverage of sterilization procedures for women without co-payments or deductibles.” Sebelius’ Jan. 20 ruling had been running below the radar in the mainstream media but, suddenly, pundits of all stripes were talking about it.
Even the normally mild-mannered liberal Mark Shields erupted on the PBS News Hour on Friday, blasting the president for an insensitive tin ear toward the Catholic hierarchy. Liberal columnist E.J. Dionne voiced a similar opinion. Obama, said Dionne, left “hanging out to dry” Sister Carol Keehan of the Catholic Health Association, a critical ally in passing the Affordable Health Care Act. Shields and Dionne are Catholics, as is Secretary Sebelius.
Immediately, the question is whether the president, like Komen Founder Nancy Brinker, may find refuge in a strategic retreat. Obama needs Catholic votes in November, just as Komen needs support from feminists.
Then again, maybe it would be a good time to have it out over the matter of equal rights for women vs. the right to life (whenever life is deemed to begin), because the 2012 election could be of huge importance on this front.
The present Supreme Court appears to have a 5-4 majority in favor of further limiting abortion rights and perhaps even the right to universal access to family planning. A Republican win in November could nail the lid shut on that 5-4 margin, which assumes that Justice Anthony Kennedy, the Court’s elastic man, reverses some earlier positions and votes to overturn Roe v. Wade or limit it enough to make it irrelevant. Kennedy voted to uphold the heart of Roe v. Wade in a 1992 case, Planned Parenthood v Casey, but with the shift to a more conservative court Kennedy has moved increasingly toward overturning Roe v. Wade.
Yet the current Court has not found the proper case to do that job. Almost without doubt, the next four years will see a test of Roe and, perhaps even further, a test of the access to birth-control prescriptions and procedures under universal health care.
Normal mortality tables would predict at least one opening on the Supreme Court in the next four years, and mortality coupled with retirement raises the possibility of two openings. A Republican president who feels loyal to the pledges he made in the 2012 primaries would be obliged to appoint an anti-abortion and perhaps anti-birth-control justice. Obama could be expected to do the opposite.
The Senate, with neither side expected to reach a filibuster-proof 60 seats, would then engage in a long and nasty debate with uncertain results. Democrats in the past have been more willing to compromise on judicial results, most notably in the Clarence Thomas case. Sooner or later, the Court needs nine justices.
Mitt Romney circa 1994 would be expected to appoint justices supporting Roe v. Wade. But the reinvented Romney since at least 2005 has proclaimed himself firmly anti-abortion, and has reiterated that stand frequently during the current Republican primary campaign. In the recent birth-control case, he has sided with the Catholic bishops against the president.
The conservative majority on the Supreme Court is Republican-appointed and the issue of abortion rights (and to a lesser degree access to birth control) has become a mantra of the Republican “base” in 2012. The entire conservative bloc on the court is Catholic. So is Justice Sonia Sotomayor, an Obama pick, but she is unlikely to join her co-religionists on this issue. The court has never before had a Catholic majority; only 13 Catholics have served on the court since its creation, and six are now serving. The other three justices are Jewish, leaving no Protestants on the court for the first time in history.
Injecting the twin issues of abortion and family planning into the race may play into the hands of anti-abortion organizations that have never given up their opposition to Roe v. Wade. Their success during the Republican primaries may give them hopes of making the critical breakthrough toward obtaining a solid majority on the Supreme Court.
Look for them to ramp up their rhetoric in upcoming GOP primaries to be assured of a locked-in nominee and a platform plank as well. If they feel particularly bold, they may go for bans on public funding for family planning as well.
But the reaction to the Komen-Planned Parenthood dustup should give pause. Planned Parenthood was flooded with contributions as a result of Komen’s action; more than 10,000 people donated in some way, according to President Cecile Richards, including New York City Mayor Michael Bloomberg’s $250,000 gift. Komen went into serious crisis-control efforts on the public-relations front.
Komen clearly stepped into a political minefield, but it may not have been an accidental error. Writing in the Washington Post, liberal theologian Susan Thistlethwaite, former president of Chicago Theological Seminary and an ordained United Church of Christ minister, illustrated the split opened up by Komen. “A huge trust gap has opened up for Komen after the charity decided to pull funding for Planned Parenthood,” she wrote, attributing the Komen decision to partisan Republicans in policy positions at the foundation.
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