"Why did they start with abortion clinics? Because it begins with the letter 'A'?" asked Judge Richard Posner.

At the oral argument in the 7th Circuit Court of Appeals yesterday.

The subject was Wisconsin's new law requiring doctors at abortion clinics to have access to hospitals within 30 miles, which has been temporarily blocked by the lower court.

At times appearing exasperated, Posner repeatedly interrupted [Wisconsin assistant attorney general Daniel] Lennington, asking why lawmakers — if it's true they saw the law as primarily a public health measure and not an anti-abortion bill — focused on abortion clinics and not other outpatient clinics, such as those performing laparoscopic surgeries....

Lennington professed to have no idea why. One suspects that the reason is: Because it's only abortion that we disapprove of and therefore want to encumber. If that's the real answer, Lennington wouldn't want to say it, because it lays the groundwork for finding the law to be the kind of undue burden that violates privacy rights.

Posner also cited figures that just .3 percent of abortions have medical complications. Asked if there were records of women dying in Wisconsin after abortions, Lennington said he didn't know.

At that point, Posner said about the law, "It doesn't sound reasonable. It sounds irrational."

Lennington didn't even know if there were records?! If you actually want to get away with imposing these burdens, you ought to build a foundation for showing that there are strong medical reasons for the new requirement. But then it would be less obvious that the law expresses opposition to abortion. I'm going to presume that the legislature wanted to flaunt its opposition to abortion — for political reasons — and the law is more of a gesture than a genuine health provision that can and should be upheld.

Part of the plan, perhaps, is a tempting invitation to the judges to strike it down. Can a judge resist? If not, the social conservatives will bray about "activist judges," and they'll overplay their hand, in all likelihood, and we'll be back in the throes of the "war on women" just in time for the next presidential election, which, of course, will be won by Hillary Clinton, who — through judicial appointments and federal statutory law and health-care regulations — will save The Right To Choose.

"If someone says I believe God requires me to wear a hat..."

"... it's considered completely inappropriate for the authorities or people who aren't intimate with the person to pressure him about whether there really is a God and whether that God cares about who's wearing hats."

The last sentence of my long comment at the end of the thread on the post "Not much is getting said about the Chelsea/Bradley Manning transgender announcement."

"Perhaps Regina Marcia Benjamin should suggest teaching pro-abortion-rights bloggers that masturbation is part of human sexuality."

Says Meade, here, in the discussion of the ugliness of the mockery of the "masturbating fetus," and alluding to Benjamin's predecessor in the role of Surgeon General, Jocelyn Elders, who was fired by Bill Clinton in 1994 for saying that children should be taught that masturbation "is a part of human sexuality, and it's a part of something that perhaps should be taught."

(She meant taught about, but there was much mockery, as people assumed or pretended they believed that she thought that school teachers should be showing children how to do it, as opposed to simply teaching that it's something that many people do, that isn't physically harmful, and that avoids pregnancy and disease.)

This mockery of masturbation is quite fascinating. I'm drawn to Scalia's notorious dissenting opinion in Lawrence v. Texas, in which he defended the state's power to criminalize sodomy:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.

Imagine a state today attempting to prosecute the crime of masturbation. Of course, the defense would be the right of privacy, and the courts would hear masturbation described in the loftiest terms. It would parallel what we heard — over the past few decades — about homosexuality, which was initially viewed as a lowly or ridiculous matter that didn't belong in the treasured realm of constitutional rights.

Given the importance of privacy rights to the pro-abortion-rights bloggers, I think their laughing at the masturbating fetus shows the poverty of their understanding of the very rights they'd like to pressure others to believe in.

By the way, that much-produced theater piece "The Vagina Monologues" gets reverent about masturbation:

I lay back and closed my eyes. I put the mirror down. I watched myself floating above myself. I watched as I slowly began to approach myself and re-enter. I felt like an astronaut re-entering the surface of the earth. It was very quiet this re-entry, quiet and gentle. I bounced and landed, landed and bounced. I came into my own muscles and blood and cells and then I slid into my vagina. It was suddenly easy and I fit. I was all warm and pulsing and ready and young and alive. And then, without looking, with my eyes still closed, I put my finger on what had suddenly become me. 

As the Supreme Court said: "one's own concept of existence." Or as the commenter at the fetus-mocking pro-abortion-rights blog said: "'I fap, therefore I am'? Sounds like a plausible slogan for today’s GOP wankers. Jesus God." Exactly. Jesus. God. Cosmic.

"If states are using DNA to verify paternity on births to underage women..."

"... why not use it to verify paternity on all births?"

"Is It Time for Off-the-Shelf Birth-Control Pills?"

A NYT "news analysis" written by its environment and health reporter Elisabeth Rosenthal plays off the news that "a federal judge recently ordered the Food and Drug Administration to make the morning-after pill available to women of all ages without a prescription." We're told that was "a political embarrassment for the Obama administration."

Was it a political embarrassment? I thought it was exactly what is helpful to the Obama administration. Instead of being responsible for cheapening contraception and perhaps risking women's health in the process, Obama et al. can say the judge made it happen. It's great political cover.

But that controversy may look like a tempest in a teapot compared with a broader and no less heated discussion that is roiling the medical community: should birth-control pills of any type require a doctor’s prescription? Or should they be available, like Tylenol, on pharmacy shelves?

Last December the American College of Obstetricians and Gynecologists released an official position paper concluding that the time had come for birth-control pills to be sold over the counter. It was the first time the group had endorsed such sales, concluding that scientific evidence suggested that the practice was safe and calling it “a potential way to improve contraceptive access and use, and possibly decrease the unintended pregnancy rate.”

After having won reelection by demagoguing contraception, Obama is mired in the horrible — how horrible? — problem of implementing the Affordable Care Act, with its promise of contraception coverage. What would be more helpful than birth control pills sold over the counter like Tylenol? Oh, it's safe enough say the obstetricians and gynecologists. What are their economic interests here? Do they want a big new stream of patients coming in for simple prescriptions? Perhaps they fear the piddling reimbursements they'll get for this work. If only the federal courts would take the heat for the decision to block access to doctors for routine birth control care. The federal courts could make it seem like it's about — yay! — Women's Rights and not — boo! — cost cutting.

But the NYT analysis is not about the economics of Obamacare and things that might disturb liberals. It's about the Warriors on Women, the religionists and pro-lifers. They've been questioning the safety of the morning-after pill, which, unlike regular birth control pills, entails the abortion issue. Making righties seems like the opponents of over-the-counter birth control pills is a great distraction from the cost-cutting in the implementation of Obamacare. If righties are the opponents, opposition — to lefties — is toxic.

That legal dispute [over morning after pills] has highlighted the Obama administration’s hair splitting over the sensitive issue of contraceptive policy. Even though F.D.A. doctors said in 2011 that studies showed that it was safe to sell Plan B, the most common emergency contraceptive, to adolescents over the counter, the administration refused to approve the practice. (It was already available to older women.) That set the stage for the ruling earlier this month by Judge Edward R. Korman of the Eastern District of New York, who called the administration’s action “politically motivated and scientifically unjustified” — essentially an attempt to appease religious conservatives.

Surely, the Obama people are privately thanking Judge Korman. Opposition to the need to go to the doctor for birth control is religious conservatism. The judge says it's women's rights!

Politics aside, there are procedural hurdles to clear before packs of birth-control pills can be sold without prescription. First of all, a drug maker would most likely have to apply to the F.D.A. to make the switch....

Most likely. Unless the judges step up.

As expected, I got some pushback for saying "I hope the Supreme Court blesses us with" a right to same-sex marriage.

That was a provocative way to say that it will be a blessing if the upcoming Supreme Court cases resolve this issue that is dogging and distorting the political discourse in our country.

Even to say "it will be a blessing" would have been provocative, since it seems to give God credit for whatever good happens. But that usage of "blessing" has constitutional text to support it:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. 

Liberty is a set of blessings, our Founders told us. The human task is to secure the blessings. If the Supreme Court says it has found a liberty — let's say a right to same-sex marriage — we may say that it is securing a liberty that is already there. When someone says "bless you," that doesn't mean that the blessing emanates from the speaker. It's short for "God bless you." It's asking God to deliver a blessing. In the Constitution, what we see is that the Framers believed that God had blessed us with liberty.

So to say "I hope the Supreme Court blesses us" is to identify the Court as the source of the blessing, to put the Court in the place of God, and to prompt and tease those who think the Court improperly makes up rights. That was deliberate and devilish temptation. Thanks for succumbing!

Below the fold are the comments that inspired this post:

1. Gahrie:

This is a perfect example of our country's problems right here. You, a Constitutional law professor, our hoping that the Supreme Court will create a "right" that you favor.

The Supreme Court doesn't "bless us" with rights, or create rights. It protects the ones given to us by our creator and enumerated by the people in the Constitution.

2. MayBee:

Yes, the "blessing us" idea is troubling from a constitutional law professor. Perhaps it is some of her famous humor.

3. alwaysfiredup:

"I hope the Supreme Court blesses us with the requisite constitutional right"

Oh dear lord...

Surely, SURELY, as a law prof you could phrase this to be less off-putting.

4. Chuck:

Prof. Althouse;

Huh?

You "hope the Supreme Court blesses us with the requisite constitutional right..."?

Say what? Since when was the Supreme Court in the business of 'blessing us with constitutional rights'? I thought they were in the business of constitutional interpretation, and working on judicial review of legislation. Not "blessings."

I hope that the Supreme Court "blesses me" with a new Cadillac and a Rolex watch.

Since you are a highly intelligent person, and an expert in constitutional interpretation, I am curious what you think is a plausible basis for the Court to extend such a blessing. Given that whatever the Court decides to bestow as a "blessing," it is taking away from individual states. If the test for reviewing DOMA and California's Prop 8 is not "rational basis," what is the proper test? And if the test is rational basis, how does DOMA or Prop 8 offend?

5. Hagar:

The Supreme Court cannot "bless us" with a non-existent Constitutional right.

It is the word "marriage" that causes the problem for people.

It is not that hard for the Federal Gov't and the States to get out of the "marriage" business. Just declare that for the future "marriage" is a religious ceremony outside their purview, but existing "marriages" will be accepted as Civil Unions for taxes and other secular purposes.

6. ed:

@ Gahrie "The Supreme Court doesn't "bless us" with rights, or create rights. It protects the ones given to us by our creator and enumerated by the people in the Constitution."

You're forgetting the penumbra of the umbrella of the awning of the cockleshell of the reflected shadow on a latrine wall of unenumerated rights as recognized only when someone on the Supreme Court has a wet fart.

Because evidently I do not have the right to not have a federal drone hovering over my yard or a DEA SWAT team breaking down my door, shooting my dogs and handcuffing me on the say-so of a drug abusing informant looking to buy his freedom but two gay men have the right to bugger each other in privacy.

But then again if you look at the various opinions set forth by the multitude of SCOTUS decisions you can find just about any kind of idiotic retarded nonsense because it appears to be more of justifying what the justices want rather than what the Constitution actually has written.

7. Unknown:

I thought Althouse's original post was a tounge on cheek [sic] reference to how we just moved on after the Supreme Court blessed us with Roe v Wade. Her follow comment leaves me scratching my head.

I think the "follow comment" of mine that he's referring to is: "The GOP will be better off if the Supreme Court trumps this political issue. Democrats will may [sic] rejoice publicly, but privately they should curse." I used the word "curse" in deliberate counterpoint to "bless." And this actually should make sense in connection with Roe v. Wade. Politically, the decision undercut the liberals who would have fought for the right and gave huge energy to those who opposed it.

But I don't think a right to same-sex marriage will play out politically the same way. The pro-life movement is propelled by the belief that what's going on in the zone of privacy is the murder of helpless, innocent human beings. Pro-lifers can never move on. There is no corresponding moral compulsion to continue to agonize over what's happening inside someone else's marriage. Even if you think it's terrible and sinful, you can move on. That's the political blessing I foresee.

"Lots of people are opposed to the kind of late-term abortion that preceded the death of a woman in Maryland last week...."

"But everyone should be opposed to the blatantly illegal violation of her privacy and the exploitation of her death by protesters using it to make their point."

Writes Petula Dvorak in the WaPo.

I don't understand the "blatantly illegal" part. Dvorak is only guessing that someone in the clinic leaked the information, so shouldn't "blatantly" be something like "possibly"? Dvorak's opinion goes beyond the question of whether any law was broken. She portrays what happened to the woman as something intensely private that ought to have been mourned within her circle of family and friends and never disclosed to the rest of us, who have various opinions about a matter of important public concern related to this death.

To shift the topic slightly: Remember the immediate aftermath of the Benghazi attacks, when we kept hearing — from Hillary Clinton and others — that the primary concern is for the families of the men who died.

I think we need to be a little skeptical when we hear the argument this is private, this is for the families.

What belongs securely in the private realm and what should come out into the public light? Consider the old slogan: The personal is political.

When we hear the statement this is private, we need to test its truth with the opposite proposition: This belongs in the public debate. And consider whether we are looking at something that can be divided up into private and public. We can be respectful to the family, we can avoid using the woman's name and photographs and and so forth, and extract the part of the story that properly belongs in the public debate. Those who demand absolute privacy may have complex motives. They may say: What I care about is the very personal suffering of the victim's family and friends. Why would they give voice to less admirable motivations?

Why are gun-death statistics inflated with gun-suicide numbers?

"I thought we had a right to die...."

Obviously, one reason is: to get bigger numbers. But I think the people that lump gun deaths together believe (or want others to believe) that guns are really dangerous. When it comes to suicide, there are 2 ways to think about the deadly effectiveness of guns: 1. For those who really want to kill themselves, guns are a sensible choice, or 2. The scary deadliness of a gun tempts weak/impulsive persons to go ahead and do something that wouldn't happen otherwise.

You can easily see that those 2 ways to think represent the mindsets that lead to libertarian or authoritarian answers to all sorts of questions. #1 would allow the individual to make his own decisions and to take care of himself, and #2 thinks the individual — call her Julia — needs to be helped and protected (even from herself).

Sorry to go all gender-y, but I'm interested in talking about suicide and attitudes about guns in the context of gender difference, because 4x as many men as women commit suicide and 56% of male suicides use firearms compared to only 30% of female suicides. Those statistics are skewed by the fact that guns are an effective method. It might be that the gender disproportion is because men choose the method that leaves fewer survivors of attempts at suicide. I note that 40% of female suicides use "poisoning" (presumably, that includes drug overdosing). What's the proportion of females attempting suicide by poisoning to females succeeding in killing themselves with poison?

If you have a fantasy of rescuing those who are in the process of committing suicide, you might think taking guns away will give you a better shot.

ADDED: It occurred to me, after the Sandy Hook murders, that blaming guns is a secular substitute for blaming the devil. People find it too challenging to figure out why a human being would do this terrible thing and they latch on to the idea that the gun made it happen. Suicide presents a similar challenge, and one way to fathom it is to say: It was the gun. Isn't it like saying the devil made him do it? The gun/the devil is a great go-to answer, freeing you from wracking your brain about the workings of the human mind.

"I’m not so sure why we want more people on our crowded, overheated planet..."

"... where world population is projected to increase by 2 billion before finally beginning to fall. But if [NYT conservative columnist Ross] Douthat really thought through what it means to have and raise a child these days, I’m sure he could come up with a lot of great ways to help women and families. The trouble is, he couldn’t be a Republican anymore. He’d be a socialist."

That's Katha Pollitt over at The Nation, reacting to Douthat's reaction to the plummeting birthrate in the United States, which we were talking about here. I'd asked:

If it is an emergency, what could be done? Is there a role for government? What if government wanted to get involved, really deeply involved? Suggestions? Don't violate any rights. This is a government of laws, in which women have reproductive freedom. But there is the taxing power and the spending power and so forth.

So I agree with Pollitt on where the solution to the problem lies... except that she's not ready to see how it's a problem.