This cry is heard at political rallies and plastered all over the Internet. For some reason, those who utter that cry think the country was once theirs.
How wrong they are.
Is anyone’s way of life in such jeopardy because of social change that he should seriously be afraid?
Rhetoric in our political realm is dehumanizing. We call each other names like “Socialist” and “Neocon,” but what do we really mean?
The media has enormous power over people’s perceptions. But where are the ideas that really foment change? And why aren’t the ideas that make no sense attacked?
Go to a political rally. Approach the protester with the sign.
Is the sign about taxes being too high? Ask the protester how much is fair. How much is that protester willing to pay to have roads, police, firefighters, clean running water, and pollution standards. How much is he willing to pay to ensure education for his children, affordable food, and safe drugs. How much is she willing to pay to ensure that she can’t be discriminated against at work or in stores? How much are they willing to pay to protect children and the elderly from abuse? How much are they willing to pay to treat the mentally ill? Is it a wise use of tax dollars to regulate oil pipelines? How much are they willing to pay to get government help the next time a tornado destroys their neighborhood?
Is the sign about maintaining a personal freedom? Ask the protester when the freedom should be restricted. Is it permissible for his freedom to curtail someone else’s? Should he be free to cause harm? Does curtailing his freedom prevent him from enjoying a full life? What if the sign is about restricting a freedom? Does that freedom impinge on the protester’s life personally? Does another person’s exercise of freedom compromise his? What is the harm of expanding or compromising that freedom?
DuPage County, Illinois, may not discriminate against Muslims, said a federal court last week. Muslims who sought to build a mosque, complete with a dome and minarets, were denied a building permit because the area where they wanted to locate was already saturated with churches. Obviously, if the Christian community is well-served in a specific
Islam and its attendant issues aside, I think domes and minarets look awesome. (source)
area, there is no need to have other religions present. Christians can take care of everyone’s spiritual needs adequately. The county board pointed out that the Muslims had been using space in a local church to meet, so clearly they did not need their own, separate space. The board also said the domes and minarets were too tall, so the mosque itself had to be redesigned to be smaller and set back further from the street.
Churches other than St. Basil’s in Moscow have minarets. For instance, those towering spires on Sagrada Família in Barcelona look an awful lot like minarets to me. I have personal experience with Sagrada Família and its minaret-like spires, and I have first-hand experience with why it is the exception that proves the Good Minaret Rule.
In 1983, my friend Mishy and I talked our parents into letting us spend the summer backpacking through Europe. Armed with Eurail passes and Fodor’s, we crossed the pond almost as soon as we had finished our spring finals. The ink was not yet dry on Mish’s diploma.
Me, in Mishy’s backyard in Auburn, NY, trying on my gear (June 7, 1983)
We made our way from England to Ireland, where we had our hair permed thinking it wouldn’t show as much if we couldn’t wash it very often. Then we crossed to the Continent, visited Paris and the Louvre, then decided to head south to Spain. I really wanted to see southern Spain, because at the time James Michener’s novel The Drifters was one of my favorite books. (My hippie chick-ness has deep roots.) The protagonists of that book were my age and traveled all over Europe and Africa in an amazing adventure that set my imagination on fire. I wanted to see every place they had been. In their footsteps, I was making my pilgrimage to the beach at Torremolinos. Of course, we stopped along the way at major places of interest. First, as we crossed the Pyrenees mountains, we learned that the train tracks were a different gauge in Spain than elsewhere in Europe. We would have to change trains at the border, high in the mountains. At the Catalan border town of Portbou, we disembarked and climbed the nearby cliffs to take in a multi-country view, socializing with other backpacking college students from all over the world.
Mishy and me on the cliffs above the Mediterranean at Portbou, Catalonia, Spain (June 22, 1983). No, I have never had a tan.
That photo above is one of the last surviving ones taken in Spain with the really awesome 35mm camera my grandfather had given me a few years before. Oh, I tried to take another. That’s where Sagrada Família comes in.
Anyone who has ever been to Europe has experienced the de rigueur cathedral tours. Europe is chock full of cathedrals because the church has always had a metric shit-ton of money to spend on making awesome places to worship the god who said “there’s really no need to worship me in a building.” After buying some awesome leather in the street market at Portbou, including a pair of fringed moccasin boots made of the softest leather I have ever felt, we boarded the train for Barcelona.
We spent only one day in Barcelona. I’m sure there was plenty more to see, but we felt compelled to leave after only a few hours. We experienced an Omen and felt it best to get out of town.
Upon arriving in Barcelona, we made our way to Sagrada Família, which Fodor’s compelled us to visit, claiming that no trip to Barcelona was complete without it. At the time of our visit, the construction of Sagrada Família had been ongoing for a hundred and one years, and even with modern technological advances, it was woefully incomplete. Its primary architect, Antoni Gaudí, had been tragically killed in a traffic accident in 1926 – a mere 43 years into the project. The cathedral was less than 25% complete at the time, by most estimates.
This is what Gaudi wanted the cathedral to look like.
Yes, those are some serious spires. Minarets. Whatever. But despite Gaudí’s golden image of a well-balanced, elaborately detailed work of art, which looked fussy and over-blown to begin with, we have instead a lavishly detailed, clusterfuck of an unfinished building:
The cranes in this image were digitally removed. Despite being under construction for more than 130 years now, this cathedral is still not complete, and no one apparently has any vision as to how it should look when it is done. They just keep building and building and building, and adding more and more overwhelming detail.
Such as the pile of strawberries that tops a spire. Or a Minaret. Whatever.
Such as the column that steps on a turtle.Such as the engraving on the Passion facade of the building, which looks for all the world like an instructional diagram for invading space aliens.Such as the Rose Window that looks like someone colored outside the lines.Such as Christ the Blockhead with, apparently, Poor Yorick’s skull.Such as the Nativity facade, which has so much friggin’ bumpy detail no one can clearly see the beautifully carved classical figures.
There’s more. Lots more. I haven’t even mentioned the Moorish or serpentine gargoyles, or the magic square next to a homoerotic depiction of Judas’s kiss on the Passion facade, or the weirdly bumpy exterior that clashes with the smooth, Gothic arches. I haven’t talked about the kaleidoscope effect of looking up inside the building because of those crazy cubist-deco stained glass windows, nor have I said a thing about the interior supports that look like neural connections. I haven’t mentioned the flying buttresses, necessary in early medieval times but completely superfluous in 20th-century construction. The main thing I thought when I saw the cathedral was, “What the hell is going on here?” Come to find out, no one really knew. Nor, apparently, do they yet know.
In the grassy area near the cathedral, I struck up a conversation with an elderly man sitting on a park bench. He was Italian. I didn’t speak Italian, and he didn’t speak English, but I did speak a little Spanish. We understood each other just fine. As we chatted in our fractured way, I stood to take a photo of the awe-inspiring mess of a monstrous structure that is Sagrada Família.
I put my eye to the viewfinder. As I was about to snap the picture, my camera fell apart in my hands.
Literally.
Fell.
Apart.
The lens came out, exposing the film within. The case would not open, so I couldn’t extract the film to save what photos I had taken. The flash fell off.
I am not lying. Sagrada Família, with its excessive detail and its bizarre spires that look like minarets, is so ugly it broke my camera.
The San Francisco City Supervisor was the first openly gay politician ever elected to office in California. His meteoric political promise went down in a blaze of gunfire at the hand of a political rival in 1978. Harvey Milk was more than a first, though. He was an inspiration, and may be fundamentally responsible for the favorable light that, with his political ascendency, began to shine on gay and lesbian people everywhere in this country.
On more than one occasion, Harvey Milk exhorted gays and lesbians to come out of the closet. He knew that as soon as homophobic people realized that their children, their cousins, their friends, their neighbors, their colleagues, and their respected icons were gay and lesbian, acceptance of homosexuality had to follow.
That philosophy may be why Dick Cheney, of all people, does not condemn homosexuality. His love for his lesbian daughter prevents him from espousing political and civil rights shackles for her.
There are other gay-friendly Republicans out there, but they mostly keep quiet.
One of them has decided to speak up, though. Republican Senator Rob Portman of Ohio has announced that he favors same-sex marriage because – guess why? – his son is gay and he hopes his child will be able to have the same sort of loving relationship that his parents have been able to enjoy, complete with the benefits that come with marriage. And it’s okay with him if that relationship is with another man.
The fact is that women have been trapped. Reproduction is used, consciously or not, as a means to control women, to limit their options and to make them subordinate to men. In many societies a serious approach to reproductive health has to have this perspective in mind. We must seek to liberate women.
Dr. Nafis Sadik Executive Director, UN Population Fund
I am a woman in the Bible Belt. In my state, Arkansas, the most restrictive abortion law in the country just passed. The governor vetoed it yesterday, but I don’t expect that to stop it from becoming law. As I write this, the Senate has already overridden the veto, and the House is expected to do so. For some crazy reason, our state legislature can override a veto with a simple majority – the same as they passed it to begin with. Arkansas gives only lip service to the separation of powers.
Last week our governor vetoed another extremely restrictive abortion bill, HB 1037, but the legislature overrode the veto in less than twenty-four hours. HB1037 is a more permissive bill than the one at issue today. It prohibited abortion for any reason after 20 weeks of pregnancy except in cases of medical emergencies. However, the term “medical emergency” under this new act “does not include a condition based on a claim or diagnosis that a pregnant woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.” That’s right. If she were so psychologically distressed that she attempts suicide because she wants an abortion, allowing her to abort the fetus does not count as a life-saving measure. In making the decision to terminate the pregnancy, the law specifically prohibits considering psychological harm to the pregnant woman. Doctors who perform abortions anyway become felons under this law.
This law makes no exception for severe fetal anomalies, even if the fetus will never be born alive. It does make exceptions for rape and incest. It’s okay to kill “an individual organism of the species homo sapiens from fertilization until live birth” – that’s how the act defines an unborn child – if it was conceived in reprehensible circumstances, because … why? Is that collection of cells “less human” than one conceived intentionally or negligently? This exception makes no sense, except if we accept that there is something morally wrong with forcing a woman to bear such a pregnancy to term.
And who makes the judgment call about when forcing a woman’s body into service is morally reprehensible? Not the woman herself. She is apparently incapable of that.
Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.
— 1994 International Conference on Population and Development in Cairo
HB1037 stops abortions at 20 weeks except for cases of rape or incest or to preserve the health of the mother. It ignores completely the fact that the first ultrasound is not done until about 20 weeks into the pregnancy. At 20 weeks, doctors often get their first clues that an “individual organism of the species homo sapiens” might not be viable, or might have horrific defects. At 20 weeks, testing of fetal anomalies may just be beginning, because that may be when they are discovered.
I have a pair of young friends. Six months ago they were faced with an awful diagnosis and a horrific choice. The husband wrote a letter that was posted on the Arkansas Blog. He sent it there at my suggestion. He and his wife wanted to get the word out, in as visceral a way as possible, that this 20-week abortion ban was wrong.
The day they told me they were pregnant, love and excitement shone in both their faces. They are in their late 20’s, comfortable in their careers – he’s a pilot in the Air Force and she’s a surgical nurse – and their relationship is strong and committed. They were over the moon with the knowledge that they would soon be parents for the first time.
A few days before hitting that 20-week mark, they went for the ultrasound appointment. This was when they would find out if the baby was a boy or a girl. Whether the nursery would be pink or blue. Whether they should prepare for a son or a daughter. The husband, K, described the appointment:
Within moments we were looking at our baby girl for the first time. Her name was Amelia.
Imagine how we felt when our ultrasound technician stopped smiling. … Even flying in combat over Iraq and Afghanistan, I had never fully understood the meaning of dread. Now I know, dread is what occupies the 15 minutes between an ultrasound and doctor’s return.
After a very long weekend, we were seen by a high risk specialist. Two new words were inked into our vocabulary: “encephalocele” and “holoprosencephaly.” Do not Google these terms; the results will break your heart. Of her numerous problems, these were the most serious. We had previously opted for every diagnostic test to ensure our baby’s health, and were one of the first couples in Arkansas to try a new screening of our baby’s chromosomes in blood taken from the mother. We had gotten a false negative. Amelia would not survive to term.
“Devastated” does not begin to describe their reaction to the news. Both K and his wife, AJ, have talked to me at length about that awful day, and the awful days that followed. Despite what K said in his open letter, I do think it is important to Google terms like “encephalocele” and “holoproencephaly.”
Encephalocele is a neural tube defect. After heart defects, neural tube defects are the most common congenital abnormalities. A common neural tube defect is spina bifida. Many children with spina bifida can survive, though. Those with large encephalocele cannot, because their brains protrude through a skull defect of the skull, usually in the back of the head. The protruding part of the brain is destroyed because of mechanical disruption of the tissue – it is not where it needs to be – and a restriction of blood flow to the protruding area of the tissue. Brain tissue around the defect is also malformed and disrupted. Large occipital encephaloceles are always fatal because of inevitable damage to the brainstem.
The embryonic forebrain fails to develop into two separate hemispheres in holoprosencephaly. Like with encephalocele, holoprosencephaly can be very mild, such as with a cleft lip and palate, or it can be so severe as to result in the facial features being seriously disorganized, the brain fails to develop, and brain function is severely compromised. Severe holoprosencephaly causes cyclopia – the fetus appears to have only one eye, usually where the nose would be in a normal fetus. Instead of a nose, a tubular growth extends from the forehead. Even malformations that are not this severe result in miscarriage or stillbirth. According to the National Human Genome Research Institute, most cases of holoprosencephaly cause malformations so severe that fetuses die before birth.
Various Degrees of Holoprosencephaly
Amelia’s holoprosencephaly was not the most severe, but it was severe enough that the doctors did not expect her to be born alive. If she did make it out of the womb, she would likely live only hours at most. With a “reasonable degree of medical certainty,” as we say in the legal arenas, Amelia would never see the light of day. Her parents would never hold her, and if they did she would never know it.
My friend AJ, who was pregnant with Amelia, is a surgical nurse. She knew exactly how grim this prognosis was. From K’s letter:
I cannot adequately describe our grief, fear, and anger, or the agony of days spent on hold with insurance companies and hospitals.
The genetic counselors in the high risk pregnancy center were patient and understanding, but the situation was bleak. We could allow the baby to die naturally, but my wife could feel the tiny baby kicking and that constant reminder would be emotionally unbearable.
“Emotionally unbearable.” What an understatement. Pregnant women are emotionally labile anyway, but knowing that instead of decorating a nursery she was waiting for a miscarriage that might not happen for months would emotionally cripple most women. Instead of decorating a nursery, K and AJ would be in a macabre waiting game with nature. But in the meantime, AJ felt the baby kick and turn. She described to me feeling the baby move inside her in the days after the ultrasound, as she and K waited to see the specialist. With every flutter inside her womb, she cried. K could not bear to bring himself to touch AJ’s swelling abdomen, even though they had spent hours feeling Amelia move in the weeks prior. His emotional response exacerbated hers. If this pregnancy continued for another five and a half months, K and AJ would suffer incredible emotional harm. It hurts me to contemplate the potential damage to their marriage – I really love this young couple.
The doctors did not tell them what decision to make, but they knew they had only one reasonable option: terminate the pregnancy. Or, to use the hot-button term in vogue, a second-trimester abortion.
Again, K’s words:
We returned to the specialist center later and sat down in front of the ultrasound for the last time. The doctor placed a needle through my wife’s uterus to the baby’s heart, which stopped immediately. Two weeks later, our stillborn baby was delivered in a quiet delivery room. She weighed eight ounces, much smaller than I expected.
The two weeks between that last ultrasound and the stillbirth were two very long weeks when A knew that Amelia was gone, but still with them. Her belly was still swollen, but the baby no longer fluttered inside her. She didn’t stop crying as she waited for the miscarriage to begin. Neither did K. They still haven’t stopped crying, but not because of their decision to terminate the pregnancy – they know they did the most reasonable and humane thing for themselves and for Amelia. They grieve for the child that they had hoped would be their daughter. But, they haven’t stopped crying in part because of the pariahs they are made out to be for taking the best action available to them, considering the prognosis and the totality of their circumstances.
Many family friends and coworkers have since come forward with their own stories of abortions, miscarriages, and stillbirths. We had never suspected. As one mentor put it to me, I had joined a secret fraternity of parents who had lost a baby.
The Arkansas legislature refreshed K and AJ’s pain beginning in January with its focus on abortion. The wounds from losing the child they had hoped for are still fresh. They do not regret their decision, but they are very angry. Had this pregnancy happened in 2013 instead of 2012, they and their doctors would be criminally penalized for doing what they believed best in a terrible situation.
As K has said, the 20-week cut-off is arbitrary and wrong.
Our first ultrasound happened at nineteen weeks, as is the case within most pregnancies. It is usually the first opportunity for doctors to diagnose serious problems. By the time we were seen by a specialist, we were past twenty weeks. Recently a coworker came to my wife in tears, sharing her story for the first time. Her own ultrasound had revealed her baby’s fatal kidney failure and she faced the same gut-wrenching decision.
The Arkansas legislation establishes criminality at the very moment when parents and their doctors have to face painful reality. The bill is a product of ignorance and insensitivity to the suffering of parents and their unborn children. This legislation demands that grieving mothers carry their baby as long as possible, without exception. It declares that politicians know better than medical experts in every situation, even ours. This is not an argument about unwanted children. It is about the right of parents and their doctors to make educated and moral decisions with all the facts, not with a calendar.
The debate about abortion is personal for us. We wanted our child.
HB1037 ignores the 1992 U.S. Supreme Court case of Planned Parenthood v. Casey which, because of technological innovations since Roe v. Wade was decided in 1972, moved the date of viability from 28 weeks of gestation to a less definite date. It defined viability as the point at which the fetus could be reasonably expected to survive out of the mother’s uterus. The Casey decision was very careful to point out that the decision of whether, when, and how many children to have was a very personal one, and the individual’s interest in such a decision outweighed that of the state before viability.
The Arkansas legislature apparently believes that if it redefines “viability” as something completely different than the stage of life anticipated in Casey and Roe, it gets around the holding in those cases.
At the capitol, the proponents of this bill were all about “saving children.” With complete disregard for the fact that some children can’t be saved and it is more merciful to end suffering, these people would have us believe that women are cavalierly having “recreational abortions.” Yes, that is an actual phrase that was used. Although there may be some out there, I cannot imagine any woman not thinking very hard about whether to terminate her pregnancy, no matter what stage of pregnancy and no matter what her reasons. Abortion is simply not undertaken lightly, no matter what the anti-choice advocates would have us believe.
They would have us believe that irresponsible women love getting knocked up just so they can have medical procedures done between their legs. Ask any woman: we so adore our trips to the gynecologist, because we get to put our feet in stirrups and have someone go digging around down there. For those people, the worth of a woman is measured solely by the reproductive capacity of her body. She does not have a brain to go along with her genitals, and therefore cannot be expected to use it to make ethical decisions.
There was much testimony pertaining to abortion from women who chose to continue their pregnancies despite fetal abnormalities. Those witnesses ignored the fact that they had a choice to begin with. About 70,000 women die every year from unsafe abortions, and many more suffer infections and other consequences.
Much of the violence against women occurs in the context of sexuality and reproduction. The health consequences of violence often occur in the context of reproductive health and seriously contribute to the burden of disease in women and young people.
Dr. Hiroshi Nakajima Director General of the World Health Organization
I am very skeptical that if their wives were four and a half months pregnant with a fetus diagnosed with severe fatal holoprosencephaly or irreparable encephalocele, each of the legislators – mostly males – who voted for this bill would require her to continue the pregnancy to the point of natural miscarriage or stillbirth, knowing that instead of decorating a nursery they would spend the next five months planning a funeral. I cannot imagine that someone with such controlling demands would soothe and comfort their pregnant wives, wives who would feel every fetal kick as a false promise of a child that would never live. I can easily imagine that they would refuse to touch her belly so they wouldn’t get attached to a child that would never draw a breath – never mind that their pregnant wives have no escape from feeling those fetal movements. And I suspect that they have no appreciation for the psychological trauma suffered by pregnant women in these situations.
We can make the decision to terminate the life support systems for our aged and infirm family members who are already out of the womb, but we can’t make that same decision until they do make it into the world, under these laws. With the passage of these two laws, Arkansas creates an unconscionable double standard that disproportionately affects the young, the poor, and women.
K says,
It is unfair to demand that parents like us come forward with stories of personal loss, now in the state Capitol or later in courthouses. The decision we had to make was painful, personal, and ethical.
After overriding the veto of HB 1037, which would have made AJ’s doctors criminals for terminating her doomed pregnancy, Arkansas’s Tea Party-dominated legislature once again proved that half-baked legislation makes good PR sound bites to a party that eschews freedom and wants to micromanage other people’s lives down to the most personal decisions. These laws make a mockery of a Republican party that once championed a smaller government and greater personal freedom. And mock them we do, as we quiver in terror for the freedoms they take away from us. The Arkansas legislature ramped up its war on personal choice to legislate morality even more restrictively in SB 134.
This draconian bill, which the legislature passed and the governor vetoed yesterday, defines fetal viability as a “medical condition that begins with a detectible fetal heartbeat.” Never mind that the fetus is neither truly viable at that moment, nor that Roe. v. Wade defined viability as the point at which a fetus, when delivered, can survive naturally outside the womb. At 28 weeks, or seven months, the fetus has nearly a 90% survival rate, even though it often needs artificial support to aid its continued development. At 24 weeks, the fetus has about a 50% chance of survival outside the uterus, depending on its weight, development, its mother’s health, and the presence of congenital defects. Viability does not begin with a fetal heartbeat, which begins at around 21 days into the pregnancy.
Human Embryo at 4 Weeks: The heart is beating, so it’s viable in Arkansas
Reproductive rights … rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so,and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence…. In the exercise of this right, they should take into account the needs of their living and future children and their responsibilities towards the community.
– Paragraph 96, Platform for Action, Fourth World Conference on Women, Beijing.
The current version of SB134 was modified from its original form. It is now ever so much more permissive. At first, the bill outlawed abortion as soon as the cells that will become a fetal heart started rhythmically contracting, at about five weeks into the pregnancy, if counted from the last menstruation. Many women don’t even know they are pregnant by this point, especially if they have irregular menstrual cycles.
This bill coerces women to bear children whether or not they want to, whether or not they believe themselves to be financially, physically, and emotionally capable of enduring a pregnancy or rearing a child. It disproportionately affects young and adolescent women, who tend to be in the least powerful position to do something about their situations.
It abuses women, it insults them, and it oppresses them.
The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence.
– Paragraph 94, Platform for Action, Fourth World Conference on Women, Beijing
Roe v. Wade didn’t start abortion, it stopped women from dying from abortions. Women who don’t want to bring a child into the world will abort their pregnancies, one way or another.
As a woman in Arkansas, my stomach has been in a knot this entire legislative session. The Tea Party, with its proud anti-intellectualism, its hyper-Christianity, and its coercive tactics is in charge of the state capitol, and Arkansas women’s rights are getting flushed down the drain.
The fact that these bills make exceptions in cases of rape and incest tells me that their supporters are not truly focused on the purported rights of human tissue that cannot survive outside the womb. If that was the case, it would not matter how those cells came to start dividing and how that fetal heartbeat came to be. It tells me, instead, that they care more about controlling the behavior of women. Only when the woman is pregnant under circumstances they find to be morally reprehensible will they permit her to make a decision about the number, spacing and timing of her children, or give her the means to control it if her first line of birth control fails.
I’m too old to get pregnant, and definitely too old to be personally affected by this law. There is a bigger issue, though. What these two laws say about my worth as a woman, as a thinking human being, devastates me. Solely because of my gender, I cannot be trusted to make decisions about my health and the health of any unborn child I might carry. Nor can anyone else born without a Y chromosome.
I have never liked living here. So many of the people I encounter seem to be willfully ignorant, racist, homophobic, disdainful of education, suspicious of those who are educated, untraveled, and hyper-religious to the point of denying the reality right in front of their faces. But before this legislative session, I never before have I seriously considered what it would take to move away from here, to go someplace like Vermont or Washington State, to live in a place where not only would I be respected as a thinking human being capable of making ethical decisions for myself, but surrounded by like-minded people for a change.
I’ve thought about leaving my extended family, who I know would not follow me. I have wondered how often I would see my son, who is my only child and still is the light of my life, even though he is a grown man. I have thought about leaving my comfortable home, making new friends in a strange place, and who in this new place would care if I lived or died.
I don’t want to live in a place where the law restricts me or people like me – my sisters in gender, if not in generation – from doing what we honestly think is best for ourselves. I don’t want to live in a place that has no respect for my brain’s ability to make decisions simply because of my chromosomal makeup.
I feel trapped. This is a dystopic nightmare.
The Handmaid’s Tale is not fiction in every society of the world, even today. It will not be fiction for long in America.
For some reason, over the last few weeks I’ve gotten a number of irascible Facebook posts, nasty emails, and all around ugly comments aimed in my direction.
This one was more politely worded than most:
Would you be so kind as to show me where In the Constitution or the Bill of Rights you find “separation of church and state”? The key to my question is very simple, it must be in the those two Founding Documents, not some other papers, such as in Personal Letters or what someone thinks those two Documents say. But word for word what you stated above.
And to help you, I will post the Amendment which you are speaking to:
“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.”
Okay, I’ll bite. This is actually a common complaint from the religious far right, especially those who think that since their particular brand of religion is dominant in this country, the rest of us should all bow our heads, shut up, and go along with it.
The questioner apparently knows that the phrase “separation of church and state” was used by Thomas Jefferson in his January 1, 1802 letter to the Danbury Baptists. It has been used by many others to express the intent and function of the Establishment Clause and Free Exercise Clause of the First Amendment to the Constitution of the United States. It has been quoted by courts, and, to the dismay of the questioner and his ilk, is now the law when it comes to matters of the Establishment and Free Exercise Clauses of the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
These are vitally important words. I’ll explain why “separation of church and state” became the phrase used in the law.
But first, a history lesson.
Many of us think that out state constitutions more or less mirror the United States Constitution. This is not true, especially for those states that were originally colonies. In late 1801, when the leaders of the Danbury, Connecticut, Baptist Church wrote the president, Connecticut did not have a state constitution at all. What Connecticut did have was a state religion, through which pretty much all government worked.
Connecticut had been founded by Puritans from the Massachusetts Bay Colony and most of its population still worshipped in Calvinist Congregational churches at the turn on the 19th century. Until it adopted its first formal state constitution in 1818, Connecticut operated under its original 1638 colonial charter, known as the Fundamental Orders, and by a Royal Charter issues about 30 years later. Colonial laws passed by the Puritan founders of the colony required all residents not only to attend Sunday church services, but also to pay taxes to support the local Congregational Church – unless a certificate was signed by an official of a different recognized Christian church, such as Episcopalian or Quaker. The certificate had to state that the resident regularly attended and supported that non-Congregational church. Baptists were frowned upon, and if any minister left the Congregationalist church to preach some unrecognized dissenting form of protestantism, he would be whipped, fined, imprisoned. and otherwise punished. Despite the prevalence of Quakers and Baptists in the neighboring colonies of New York and Rhode Island, Connecticut had only four (yes, 4) Baptist churches by 1731.
An evangelical protestant movement called “the Great Awakening” began in the 1730’s. As with later evangelical religious movements, people left the established churches in droves for the progressive ideas spread in new churches and at revivals. Converts to this new flavor of protestantism chafed under the burdens of Connecticut law that required them to pay taes to support the Congregationalist churches they had left behind,
Jefferson’s letter read, in toto:
To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.
Gentlemen
The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.
Th Jefferson Jan. 1. 1802.
The phrase that Jefferson used, “a wall of separation between church and state,” has been repeatedly cited by the Supreme Court of the United States. In Reynolds v. United States, an 1879 decision by the U.S. Supreme Court, the majority wrote that Jefferson’s comments “may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment.” Reynolds was the case that conclusively decided that Mormons could not engage in polygamy because bigamy was illegal.
Mr. Reynolds claimed that his religion required him to engage in polygamy, and therefore he had a religious duty to violate the bigamy law. Citing Jefferson’s Danbury letter, the U.S. Supreme Court made a distinction between belief and action. Believing in polygamy was fine, and no law would ever stop anyone from believing whatever they believed. Faith, as Jefferson said, “lies solely between Man & his God,” and no person had to “account to any other for his faith or his worship.” However, acting on that belief contrary to the law and public policy was not permitted. Again, as Jefferson had said to the Danbury Baptists, “the legitimate powers of government reach actions only,” and actions taken contrary to law could be punished by the government.
In Everson v. Board of Education (1947), erudite U. S. Supreme Court Justice Hugo Black referred to the Danbury Baptists letter when he wrote: “In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state.” This supreme court case made it clear that the Constitution and all of its amendments, including the First Amendment, applied to the states as well as to the federal government.
The Everson case had to do with reimbursements to parents whose children took public transportation to school. The U.S. Supreme Court split in a 5-4 decision over whether the reimbursements to parents taking public transportation to private school were unconstitutional, with the majority deciding that the reimbursements did not establish religion. What everyone on that court agreed to, though, was that a wall of separation between church and state was critically necessary.
Justice Black’s language was the broadest and most clear:
The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.
There have been lots of decisions since these two, lots prior to these two, and lots between these two. Separation of church and state is not just a catchphrase; it’s the law.
Some people, like the commenter who (more politely than most these last few days) wrote to me, object to the letters of the men who drafted the Amendment being used to interpret it. Courts often look to the intent of the people who wrote the laws in question to determine what was intended. The phrase found in legal opinions that do this is “looking to the legislative intent.” When applied to the constitution, it is called the “looking to the intent of the framers.”
Because court decisions have historically interpreted the Establishment Clause to erect this wall of separation between church and state, and since Congress has never passed any law contravening it, “separation of church and state” is the law of the United States of America.
To demand that the constitution say exactly the verbiage we commonly use is absurd; the document was never intended to cover every possibility, but rather to broadly enumerate basic rights. If anyone wants a more thorough explanation of why the Constitution is worded the way it is, I suggest reading the Federalist Papers compiled by James Madison, Alexander Hamilton, and John Jay during the Constitutional Convention of 1789. The Federalist Papers are a collection of 85 essays written during the Constitutional Convention that describe the process or creating the foundational legal document on which the rest our laws rest. Often the essays of the Federalist Papers were being written in the same room as the debates raged among the attendees of the convention. The Federalist Papers are free in various formats from numerous sites. Get them in ebook format from Project Gutenberg and from the Library of Congress, download a free PDF from Penn State, or get the audio books from Project Gutenberg or Librivox.
For those who need a history refresher, James Madison was the Secretary of State who negotiated and supervised the Louisiana Purchase and later was president of the U.S. during the War of 1812; Alexander Hamilton was the nation’s first Secretary of the Treasury until he was killed in an ill-advised duel with Jefferson’s former Vice President Aaron Burr; and John Jay was the first Chief Justice of the U.S. Supreme Court. Very colorful characters were midwives to the birth of this nation’s laws – gentlemen, rogues, scoundrels, and philosophers all played a part.
But how does a court get to decide what the constitution means? The quick answer is that courts are the arbiters of disputes, and therefore must be able to interpret laws. The 1803 U.S. Supreme Court case of Marbury v. Madison, decided by the famous Supreme Court Chief Justice John Marshall, established judicial review of administrative and legislative actions and cemented the separation of equal powers between our three branches of government – ensuring that each branch checked and balanced the other two.
The Supremacy Clause of the U.S. Constitution establishes the Constitution, treaties, and the laws of the United States as the supreme law of the land. The power of judicial review is implied when Article III, pertaining to the judiciary, and Article VI, containing the Supremacy Clause, are read together. The Supremacy Clause says:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
Therefore, until the United States Supreme Court decides otherwise, “separation of church and state” is the law of the United States of America.
When I was in law school almost three decades ago (now I feel really old!) I clerked in the law office of my older cousin. He is a garrulous, opinionated fellow who regularly both pissed me off and taught me a lot. He once told me, standing in front of a case full of dense law books, that Constitutional Law was only good for cocktail party conversation. Of all that he ever said to me – and I disagreed with him a lot – this is the only thing I seriously take issue with.
Things have been sort of insane in my life over the last few weeks, so I’m horribly late posting legal updates – for which I apologize. I was the target of a home-invasion robbery the night of December 6 – you can read about it on my blog – and the details of putting my home back together right before Christmas have been more than a little challenging and time-consuming. I still don’t have a cell phone, for instance, and my normal Christmas shopping has consisted of just giving up and getting gift cards for everyone – not exactly my usual holiday modus operandi. Hopefully things will return to normal relatively soon.
In the meantime, here are a few updates of important legal maneuverings around the world. I’ve tried to hit the highlights of those that haven’t gotten a ton of press coverage over the last month. If there’s something specific you want to hear more about, just ask.
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An open letter signed by 260 Christian and Jewish religious leaders in Illinoissupports the proposed Religious Freedom and Marriage Fairness Act, which would legalize same-sex marriage in the state. Illinois already has a law allowing civil unions or domestic partnerships. The bill could come up for a vote in early January, before the new members of the state legislature elected in November take office, but its sponsors say they don’t want a vote at all if they aren’t sure the bill will pass.
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In a rare “no” to the Catholic Church, the Philippines has approved birth control even for poor women. According to an LA Times article:
The measure, which President Benigno Aquino III has pledged to sign, would override the de facto ban on contraceptives in Manila’s public health clinics, make sex education mandatory in public schools, and require hospitals to provide postabortion care, even though abortions will remain illegal.
American politicians should pay attention to this, too.
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In a story with a weird twist, FFRF successfully got the illegal nativity scene removed from public property in Century, Florida, but local news station WKRG reports that the proponents of the nativity scene – but not the city officials – claim, “next year the nativity scene will be bigger and better with plans to use the whole building for the manger scene, complete with angels and live music.” I’m not sure if that means that the people who capitulated to FFRF this year are going to dig in and have themselves a little lawsuit next year, or what. Maybe some outside group is fired up to file something. It sounds like what they want ought to be banned in the interest of good taste, not just in the interest of separation of church and state.
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Want to know the real reason that socialist Muslim Kenyan Barack HUSSEIN Obama won the election? According to Catholic Online, the atheists are totally to blame. Seems we wanted a “secular agenda.” And not only do we want a secular agenda, but our numbers are growing so significantly (up to 20% of the whole American population! OMG!) that the voters among us (12% of all the voters nationwide! ZOMG!) can elect whomever we please. I guess this means we’re in charge now, and can run our Evil Satanist Empire™ exactly as we damn well please. What a relief to know that my job here is done! Finally, I can relax and watch Honey Boo-Booin peace.
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I doubt that I have to tell you that Westboro Baptist Church is a hate group if ever there was one. They’ve threatened to picket the funerals of those killed in the Newtown, Connecticut school shooting – because clearly, those 6 and 7 year old first graders were fag lovers who deserved to die for their sins. Someone started a couple of petitions to have the White House declare them a hate group. The Supreme Court has said that these hatemongers have a right to protest, even though to the rest of us it appears that the church members prey on bereaved people at their lowest emotional ebb and at the most stressful moments of their lives.
What will an executive order declaring Westboro Baptist Church to be a hate group accomplish? Not much. But their tax status might be jeopardized, which apparently is the point of the exercise.
The Anti-Defamation League (focused mostly on antisemitism and racism) and the Southern Poverty Law Center both maintain lists of violent and nonviolent hate groups, and Westboro Baptist Church is on bothlists. The FBI monitors the groups, too, but its list of hate groups is not public. The FBI will only act if federal law is violated, which generally means violence must be involved. Unfortunately, Westboro Baptist Church is made up of a family of lawyers, so they know to be nonviolent and they make their money by suing cities whose police forces do not protect them from counter-protests.
Serah Blain, executive director of the Secular Coalition of Arizona, says that the goal is “to stop [the] reign of terror” by the ultra-conservative Center for Arizona Policy, a group with an innocuous name but deadly and horrific ideas for controlling women’s health.
The Secular Coalition of Arizona is not just focused on women’s health. It plans to lobby hard for a death-with-dignity law that resembles Oregon’s, as well as for science-based sex education in public schools.
The Military Association of Atheists and Freethinkers, also commonly known as Atheists in Foxholes, has succeeded in stopping a live nativity that was planned on a US military base in Bahrain. The military atheists’ concerns were twofold: first, that the nativity unconstitutionally promoted Christianity as the official religion of the military base; and second, that local Muslims would believe that the military was Christian rather than secular.
We in the Bible Belt think that we are working behind enemy lines. Given the evangelical bent of much of the military, these guys are not just behind enemy lines, but in the thick of hostile fire. Bravo for their perseverance!
I live in a small village in Ohio just outside of Cincinnati and there is the usual awful nativity scene on what I think is public land (a small park beside main street). As far as I can tell, nobody has ever challenged the Christian monopoly in a place like this, but I’d like to know what you think the best options / available courses of action are.
I’m from England originally, so I’m not always sure what the best course of action is in this country, and people aren’t always exactly willing to help, so any assistance would be appreciated. I’d like to know if what they are doing is legal and what my options are to challenge the hegemony.
Thanks,
Andy
For instance, Lewis County, Tennessee is proudly displaying a Non-Christians-Need-Not-Apply message this season. Does anyone out there want to get in on this one?
Answer:
There are a couple of different ways to go on this.
First, there’s the “Public Property Should Never be Used for Religious Displays Because That Promotes Religion” approach, in which we ask the public entity to remove its religious displays of suffer a lawsuit, and that works and makes a lot of people angry at us. We sue, the court says that by only displaying religious symbols from one religion the government entity is establishing religion, our attorney gets paid by the government entity, and the mission is accomplished.
Then, there’s the “Include My Display in the Public Forum” approach, which means that public property gets littered with a confusing mélange of tacky seasonal displays from many different religions, and hopefully from secular groups as well. Eventually the number of displays becomes burdensome, so they all get nixed. Or, there’s some other controversy, like we saw recently in Santa Monica, California, and the displays get nixed or moved to private property. (There’s no problem at all with moving them to private property. That’s where religious displays belong.)
So first, let’s define the parameters of what we want to accomplish. What are the goals?
The goal of separation of church and state, of non-establishment, of the First Amendment, is to prevent religious favoritism, but without denying anyone the right to practice their preferred flavor of religion.
The goal of good taste is to rid public forums of seriously tacky seasonal displays.
And sometimes we have to jump on the tackiness train – sinking to the level of the worthy opposition – to get our point across and to let good taste prevail.
Once it looks like this at City Hall, people tend to call a halt to things.
But how to get to this point?
The local public square, city hall, city park, courthouse lawn, or whatever has its nativity scene. That’s typically the only thing that is displayed, because churches are more organized and wealthier than anyone else and can afford those life-size graven images of their baby god and his family.
The Nativity Scene at the Arkansas State Capitol is graven of wood. Good thing no one worships any of those images or considers them sacred.
Once the governing entity – city, county, or state – allows one private person to exercise his First Amendments rights in a public area, that area becomes a public forum for anyone to speak. That includes us. It riles the hardcore Christians to allow someone without religion to display something secular next theirs. Oh, they don’t mind the menorahs, usually, because Hanukkah is close to Christmas. But add atheists to the mix and they get testy.
Atheists need to ask to be added to the mix more often. Seriously. The Christians stole this holiday from earlier traditions and even from traditions that competed with them over a thousand years later. They do not “own” Christmas, no matter what this big winter holiday season is called. And if they get to erect gaudy, tacky displays, so do we.
It can be fun, like Santa and reindeer or a maze of giant illuminated candy canes. Personally, I’m fond of the educational displays, which explain the solstice and axial tilt as the reason for the season. How about a display telling about the non-Christian roots of things like garlands, mistletoe, decorated trees, wassailing, and Yule?
We atheists don’t necessarily have to go it alone, either. Even in your small community, you may have local families who aren’t Christian and who celebrate during the Christmas season for other reasons. One way I think to make a great point is to get a group of different kinds of non-Christians together to come up with something appropriately seasonal.
Iranians in your community probably observe Yalda, which is what the original Persian celebration of Mithra’s birth has become. The multi-day celebration is celebrated with feasting and fires.
Is there a Buddhist center nearby? They might never have thought of participating, but they have something to offer, too. Bodhi Day, the day the Buddha achieved enlightenment, is December 8. It is observed in China, Korea, Japan, and Vietnam.
Do you know any Wiccans? Those are some creative folks, and their traditions are well-represented in the Christian season.
How big is your local Asian community? Dong Zhi is the Chinese festival celebrating the winter solstice. Add Chinese lanterns to winter holiday displays!
Find out who organizes Kwanzaa celebrations in your community, and get them involved, too. It can be something as simple as a sign.
Modern Hindus have a five-day celebration from December 21-25 called Pancha Ganapati, during which shrines to Lord Ganesha, the god that takes elephant form, are erected.
Obviously, Hanukkah is celebrated this time of the year, too. Ask Jewish neighbors to erect a menorah and break out the dreidels.
Pretty soon that lawn at City Hall will be so crowded with alternate seasonal displays that the people visiting it will end up getting educated in spite of themselves. They will realize that there are, indeed, many reasons for the holiday season. When they do, their minds are opened to differing viewpoints. And since we won’t have taken away their graven images, so they won’t be quite as mad at us.
Now, in all honesty, you might have to sue to enforce your rights in this regard. Wouldn’t it be nice to have a whole group of plaintiffs representing multiple traditions? Talk about giving power to alternate voices!
Winter Solstice Display erected on the State Capitol grounds by the Arkansas Society of Freethinkers. This outhouse model even comes with reading material already on the walls. See what it says on side 1, side 2, side 3, and side 4.
Yes, Virginia, you DO have a right to erect secular seasonal displays next to the Christians’ graven images.
This may not seem like much, but it really does matter.
Atheist Alliance International has a new project: a census of the world’s atheists.
The purpose of the project is to collect demographic information on the world’s non-religious people. The data collected will definitely help the secularist movement. We will have numbers – even if they are self-reported – to back up our demands on social, political, and legal issues. When we are able to demonstrate the strength of our numbers, we acquire clout.
From the FAQ:
Aggregated to the country level, the information collected by Atheist Census is freely available through the Atheist Census website so that atheists can demonstrate their presence in their own countries. AAI would be pleased to discuss other uses of the information with like-minded groups or individuals.
Even though the Pew Research Center’s Forum on Religion and Pubic Life recently tabulated its own numbers, this census will also collect useful information. To be counted, you will have to submit your email address and click on the validation link emailed to you. If you don’t click on it within 24 hours, you won’t be counted – although you can always try again.
AAI attempted a census last spring, but technical difficulties required the project to be put on hold. As luck would have it, before the new website had been active even a full day, it was the target of a denial of service (DoS) attack.
Does someone out there not want non-theists to be counted? Let’s confound them and get counted anyway. We’ll make ourselves count!
HUGE news from the trenches of human rights warfare:
This afternoon Bloomberg reported that, for the first time, the United States Supreme Court will address issues pertaining to same-sex marriage.
SCOTUS will take issues related to the Defense of Marriage Act (DOMA) and California’s same-sex marriage, which has seemed like a yo-yo the way it has been illegal, legal, illegal, quasi-legal, etc.
Courts that have ordered same-sex marriage in their states have done so pursuant to the Equal Protection Clause of the 14th Amendment to the US Constitution. State constitutional amendments that conflict with the US Constitution are unenforceable, so if the Supremes decide that the Equal Protection Clause applies, all those states with marriage bans based on gender will be forced to comply.
Last week our governor vetoed another extremely restrictive abortion bill, HB 1037, but the legislature overrode the veto in less than twenty-four hours. HB1037 is a more permissive bill than the one at issue today. It prohibited abortion for any reason after 20 weeks of pregnancy except in cases of medical emergencies. However, the term “medical emergency” under this new act “does not include a condition based on a claim or diagnosis that a pregnant woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.” That’s right. If she were so psychologically distressed that she attempts suicide because she wants an abortion, allowing her to abort the fetus does not count as a life-saving measure. In making the decision to terminate the pregnancy, the law specifically prohibits considering psychological harm to the pregnant woman. Doctors who perform abortions anyway become felons under this law.
This law makes no exception for severe fetal anomalies, even if the fetus will never be born alive. It does make exceptions for rape and incest. It’s okay to kill “an individual organism of the species homo sapiens from fertilization until live birth” – that’s how the act defines an unborn child – if it was conceived in reprehensible circumstances, because … why? Is that collection of cells “less human” than one conceived intentionally or negligently? This exception makes no sense, except if we accept that there is something morally wrong with forcing a woman to bear such a pregnancy to term.
And who makes the judgment call about when forcing a woman’s body into service is morally reprehensible? Not the woman herself. She is apparently incapable of that.
HB1037 stops abortions at 20 weeks except for cases of rape or incest or to preserve the health of the mother. It ignores completely the fact that the first ultrasound is not done until about 20 weeks into the pregnancy. At 20 weeks, doctors often get their first clues that an “individual organism of the species homo sapiens” might not be viable, or might have horrific defects. At 20 weeks, testing of fetal anomalies may just be beginning, because that may be when they are discovered.
I have a pair of young friends. Six months ago they were faced with an awful diagnosis and a horrific choice. The husband wrote a letter that was posted on the Arkansas Blog. He sent it there at my suggestion. He and his wife wanted to get the word out, in as visceral a way as possible, that this 20-week abortion ban was wrong.
The day they told me they were pregnant, love and excitement shone in both their faces. They are in their late 20’s, comfortable in their careers – he’s a pilot in the Air Force and she’s a surgical nurse – and their relationship is strong and committed. They were over the moon with the knowledge that they would soon be parents for the first time.
A few days before hitting that 20-week mark, they went for the ultrasound appointment. This was when they would find out if the baby was a boy or a girl. Whether the nursery would be pink or blue. Whether they should prepare for a son or a daughter. The husband, K, described the appointment:
“Devastated” does not begin to describe their reaction to the news. Both K and his wife, AJ, have talked to me at length about that awful day, and the awful days that followed. Despite what K said in his open letter, I do think it is important to Google terms like “encephalocele” and “holoproencephaly.”
The embryonic forebrain fails to develop into two separate hemispheres in holoprosencephaly. Like with encephalocele, holoprosencephaly can be very mild, such as with a cleft lip and palate, or it can be so severe as to result in the facial features being seriously disorganized, the brain fails to develop, and brain function is severely compromised. Severe holoprosencephaly causes cyclopia – the fetus appears to have only one eye, usually where the nose would be in a normal fetus. Instead of a nose, a tubular growth extends from the forehead. Even malformations that are not this severe result in miscarriage or stillbirth. According to the National Human Genome Research Institute, most cases of holoprosencephaly cause malformations so severe that fetuses die before birth.
Amelia’s holoprosencephaly was not the most severe, but it was severe enough that the doctors did not expect her to be born alive. If she did make it out of the womb, she would likely live only hours at most. With a “reasonable degree of medical certainty,” as we say in the legal arenas, Amelia would never see the light of day. Her parents would never hold her, and if they did she would never know it.
My friend AJ, who was pregnant with Amelia, is a surgical nurse. She knew exactly how grim this prognosis was. From K’s letter:
“Emotionally unbearable.” What an understatement. Pregnant women are emotionally labile anyway, but knowing that instead of decorating a nursery she was waiting for a miscarriage that might not happen for months would emotionally cripple most women. Instead of decorating a nursery, K and AJ would be in a macabre waiting game with nature. But in the meantime, AJ felt the baby kick and turn. She described to me feeling the baby move inside her in the days after the ultrasound, as she and K waited to see the specialist. With every flutter inside her womb, she cried. K could not bear to bring himself to touch AJ’s swelling abdomen, even though they had spent hours feeling Amelia move in the weeks prior. His emotional response exacerbated hers. If this pregnancy continued for another five and a half months, K and AJ would suffer incredible emotional harm. It hurts me to contemplate the potential damage to their marriage – I really love this young couple.
The doctors did not tell them what decision to make, but they knew they had only one reasonable option: terminate the pregnancy. Or, to use the hot-button term in vogue, a second-trimester abortion.
Again, K’s words:
The two weeks between that last ultrasound and the stillbirth were two very long weeks when A knew that Amelia was gone, but still with them. Her belly was still swollen, but the baby no longer fluttered inside her. She didn’t stop crying as she waited for the miscarriage to begin. Neither did K. They still haven’t stopped crying, but not because of their decision to terminate the pregnancy – they know they did the most reasonable and humane thing for themselves and for Amelia. They grieve for the child that they had hoped would be their daughter. But, they haven’t stopped crying in part because of the pariahs they are made out to be for taking the best action available to them, considering the prognosis and the totality of their circumstances.
The Arkansas legislature refreshed K and AJ’s pain beginning in January with its focus on abortion. The wounds from losing the child they had hoped for are still fresh. They do not regret their decision, but they are very angry. Had this pregnancy happened in 2013 instead of 2012, they and their doctors would be criminally penalized for doing what they believed best in a terrible situation.
As K has said, the 20-week cut-off is arbitrary and wrong.
HB1037 ignores the 1992 U.S. Supreme Court case of Planned Parenthood v. Casey which, because of technological innovations since Roe v. Wade was decided in 1972, moved the date of viability from 28 weeks of gestation to a less definite date. It defined viability as the point at which the fetus could be reasonably expected to survive out of the mother’s uterus. The Casey decision was very careful to point out that the decision of whether, when, and how many children to have was a very personal one, and the individual’s interest in such a decision outweighed that of the state before viability.
The Arkansas legislature apparently believes that if it redefines “viability” as something completely different than the stage of life anticipated in Casey and Roe, it gets around the holding in those cases.
At the capitol, the proponents of this bill were all about “saving children.” With complete disregard for the fact that some children can’t be saved and it is more merciful to end suffering, these people would have us believe that women are cavalierly having “recreational abortions.” Yes, that is an actual phrase that was used. Although there may be some out there, I cannot imagine any woman not thinking very hard about whether to terminate her pregnancy, no matter what stage of pregnancy and no matter what her reasons. Abortion is simply not undertaken lightly, no matter what the anti-choice advocates would have us believe.
They would have us believe that irresponsible women love getting knocked up just so they can have medical procedures done between their legs. Ask any woman: we so adore our trips to the gynecologist, because we get to put our feet in stirrups and have someone go digging around down there. For those people, the worth of a woman is measured solely by the reproductive capacity of her body. She does not have a brain to go along with her genitals, and therefore cannot be expected to use it to make ethical decisions.
There was much testimony pertaining to abortion from women who chose to continue their pregnancies despite fetal abnormalities. Those witnesses ignored the fact that they had a choice to begin with. About 70,000 women die every year from unsafe abortions, and many more suffer infections and other consequences.
I am very skeptical that if their wives were four and a half months pregnant with a fetus diagnosed with severe fatal holoprosencephaly or irreparable encephalocele, each of the legislators – mostly males – who voted for this bill would require her to continue the pregnancy to the point of natural miscarriage or stillbirth, knowing that instead of decorating a nursery they would spend the next five months planning a funeral. I cannot imagine that someone with such controlling demands would soothe and comfort their pregnant wives, wives who would feel every fetal kick as a false promise of a child that would never live. I can easily imagine that they would refuse to touch her belly so they wouldn’t get attached to a child that would never draw a breath – never mind that their pregnant wives have no escape from feeling those fetal movements. And I suspect that they have no appreciation for the psychological trauma suffered by pregnant women in these situations.
We can make the decision to terminate the life support systems for our aged and infirm family members who are already out of the womb, but we can’t make that same decision until they do make it into the world, under these laws. With the passage of these two laws, Arkansas creates an unconscionable double standard that disproportionately affects the young, the poor, and women.
K says,
After overriding the veto of HB 1037, which would have made AJ’s doctors criminals for terminating her doomed pregnancy, Arkansas’s Tea Party-dominated legislature once again proved that half-baked legislation makes good PR sound bites to a party that eschews freedom and wants to micromanage other people’s lives down to the most personal decisions. These laws make a mockery of a Republican party that once championed a smaller government and greater personal freedom. And mock them we do, as we quiver in terror for the freedoms they take away from us. The Arkansas legislature ramped up its war on personal choice to legislate morality even more restrictively in SB 134.
This draconian bill, which the legislature passed and the governor vetoed yesterday, defines fetal viability as a “medical condition that begins with a detectible fetal heartbeat.” Never mind that the fetus is neither truly viable at that moment, nor that Roe. v. Wade defined viability as the point at which a fetus, when delivered, can survive naturally outside the womb. At 28 weeks, or seven months, the fetus has nearly a 90% survival rate, even though it often needs artificial support to aid its continued development. At 24 weeks, the fetus has about a 50% chance of survival outside the uterus, depending on its weight, development, its mother’s health, and the presence of congenital defects. Viability does not begin with a fetal heartbeat, which begins at around 21 days into the pregnancy.
The heart is beating, so it’s viable in Arkansas
The current version of SB134 was modified from its original form. It is now ever so much more permissive. At first, the bill outlawed abortion as soon as the cells that will become a fetal heart started rhythmically contracting, at about five weeks into the pregnancy, if counted from the last menstruation. Many women don’t even know they are pregnant by this point, especially if they have irregular menstrual cycles.
This bill coerces women to bear children whether or not they want to, whether or not they believe themselves to be financially, physically, and emotionally capable of enduring a pregnancy or rearing a child. It disproportionately affects young and adolescent women, who tend to be in the least powerful position to do something about their situations.
It abuses women, it insults them, and it oppresses them.
Roe v. Wade didn’t start abortion, it stopped women from dying from abortions. Women who don’t want to bring a child into the world will abort their pregnancies, one way or another.
As a woman in Arkansas, my stomach has been in a knot this entire legislative session. The Tea Party, with its proud anti-intellectualism, its hyper-Christianity, and its coercive tactics is in charge of the state capitol, and Arkansas women’s rights are getting flushed down the drain.
The fact that these bills make exceptions in cases of rape and incest tells me that their supporters are not truly focused on the purported rights of human tissue that cannot survive outside the womb. If that was the case, it would not matter how those cells came to start dividing and how that fetal heartbeat came to be. It tells me, instead, that they care more about controlling the behavior of women. Only when the woman is pregnant under circumstances they find to be morally reprehensible will they permit her to make a decision about the number, spacing and timing of her children, or give her the means to control it if her first line of birth control fails.
I’m too old to get pregnant, and definitely too old to be personally affected by this law. There is a bigger issue, though. What these two laws say about my worth as a woman, as a thinking human being, devastates me. Solely because of my gender, I cannot be trusted to make decisions about my health and the health of any unborn child I might carry. Nor can anyone else born without a Y chromosome.
I have never liked living here. So many of the people I encounter seem to be willfully ignorant, racist, homophobic, disdainful of education, suspicious of those who are educated, untraveled, and hyper-religious to the point of denying the reality right in front of their faces. But before this legislative session, I never before have I seriously considered what it would take to move away from here, to go someplace like Vermont or Washington State, to live in a place where not only would I be respected as a thinking human being capable of making ethical decisions for myself, but surrounded by like-minded people for a change.
I’ve thought about leaving my extended family, who I know would not follow me. I have wondered how often I would see my son, who is my only child and still is the light of my life, even though he is a grown man. I have thought about leaving my comfortable home, making new friends in a strange place, and who in this new place would care if I lived or died.
I don’t want to live in a place where the law restricts me or people like me – my sisters in gender, if not in generation – from doing what we honestly think is best for ourselves. I don’t want to live in a place that has no respect for my brain’s ability to make decisions simply because of my chromosomal makeup.
I feel trapped. This is a dystopic nightmare.