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Ruling on an issue that had divided progressive groups for the better part of two decades, the Supreme Court on Tuesday issued an 8-0 decision that federal extortion and racketeering laws cannot be used to ban demonstrations outside abortion clinics.
The decision is being portrayed as a victory for anti-choice groups such as Operation Rescue and the Pro-Life Action Network. That is surely the case, as the court has conclusively rejected arguments for an on-and-off nationwide injunction that had been used to prevent anti-abortion groups from protesting outside clinics in a manner that, by all reasonable evidence, was intended to prevent the clinics from operating.
Effectively, the high court has rejected arguments, formulated by lawyers for the National Organization for Women in the 1980s, that civil provisions of the 1970 Racketeer-Influenced and Corrupt Organizations Act, which was adopted as a tool to combat organized crime, and the Hobbs Act, an older anti-extortion measure, could be used to bar protests by groups that clearly intend to prevent clinics from operating.
But from the beginning of the long fight over clinic protests, some progressive groups have argued that, even if the anti-choice organizations involved were noxious players, broader issues of freedom of speech and freedom of assembly were also in play.
It is for that reason that the AFL-CIO, which filed a friend-of-the-court brief on behalf of the position of the anti-choice groups, will see itself as having secured a sort of victory with this particular court ruling. While they disagree officially, and often passionately, with the anti-choice groups on fights over court nominations and other issues, labor organizations weighed in on the side of the clinic protesters because of honest fears that lawsuits and injunctions based on a broad interpretation of racketeering and extortion laws could be used to undermine strikes, anti-sweatshop protests and similar agitations on behalf of social and economic justice that target businesses.
Bob Blakey, a former Congressional aide who drafted the RICO Act has argued that its use in litigation against anti-choice groups "will unconstitutionally chill social protest." Many anti-choice activists have cynically echoed Blakey's line, while conveniently failing to stand up for the rights of labor, environmental and anti-war groups to engage in protests of the sort they defend.
NOW President Kim Gandy countered Blakey's argument by writing that, "As a national officer of NOW, I know that the National Organization for Women has a strong interest in preserving free expression. As former counsel in this case, I know that we have been scrupulous in addressing issues of violence, not speech or peaceful demonstrations.
"NOW's marches, informational pickets and sidewalk demonstrations are effective and legal. Anti-abortion activists have the same right to distribute pamphlets and display signs and make their voices heard. But no group has a right to use violence or threats of violence to force others to give up their constitutional rights.
"Racketeering is not free speech. Marching in front of a clinic, carrying signs and distributing literature is free speech. When that picket becomes a brutal blockade . . . when those signs are used as weapons . . . when prayers change to overt threats . . . then the "protest" has crossed the line into violence and lawlessness, and has left the First Amendment behind."
But that line of reasoning did not convince the AFL-CIO, which historically has eschewed taking an official stand on abortion rights but has worked closely with pro-choice organizations such as Emily's List in recent years, and AFL affiliate unions and groups -- some of which, such as the Coalition or Labor Union Women, are ardently pro-choice. The AFL's lawyers argued against the broad interpretation of racketeering and extortion laws, on the grounds that unions could be targeted by similar civil suits in efforts by corporations to restrict pickets by labor unions.
Justice Stephen Breyer picked up on the AFL's arguments. Noting that there is a specific federal law that bars the use of force, threats or blockades to interfere with access to reproductive health care -- the 1994 Freedom of Access to Clinic Entrances Act -- the justice suggested at one point during the long deliberations on these issues that allowing the use of racketeering and extortion laws to restrict protests would "transform virtually every threat of violence anywhere in the United States into a serious federal crime."
To Breyer's view, that would "make a major change in (how) threats of violence (are handled) on the picket line."
The Supreme Court's ruling will not eliminate differences of opinion on where exactly protests enter into the space where they have "left the First Amendment behind." But the unanimous ruling would appear to put an end to the practical legal debate, as the broad interpretation of these laws has been broadly rejected.
In matters of this kind, it is usually best to err on the side of dissent and dissenters. NOW made a credible argument for an exception, but the AFL and other groups made what many considered toi be an equally credible argument that a good exception could become a bad rule. The legal fight, for all intents and purposes, is now done. Unfortunately, with the recent appointments of John Roberts and Samuel Alito to the high court and with the move by South Dakota legislators to effectively ban abortion in that state, the national political fight over reproductive rights is heating up. And it is certainly reasonable to suggest that labor organizations, which split with pro-choice groups in the battle over clinic access, citing concerns about protecting the right to protest, have a greater responsibility than ever to work with those pro-choice groups to defend another endangered right -- that of women to make the most fundamental of all choices.
Today's question: What's more dangerous -- hunting with Dick Cheney or bike riding with George Bush?
For background, we offer this report from Murdo MacLeod, the able political correspondent for Edinburgh's Scotland on Sunday newspaper:
US LEADER CRASHED BY TRYING TO 'PEDAL, WAVE AND SPEAK AT THE SAME TIME'
He may be the most powerful man in the world, but proof has emerged that President George Bush cannot ride a bike, wave and speak at the same time.
Scotland on Sunday has obtained remarkable details of one of the most memorably bizarre episodes of the Bush presidency: the day he crashed into a Scottish police constable while cycling in the grounds of Gleneagles Hotel.
The incident, which will do little to improve Bush's accident-prone reputation, began when he took to two wheels for a spot of early-evening exercise during last year's G8 summit at the Perthshire resort.
After a hard day's discussion with fellow world leaders, the president was looking for some relaxation. Instead, he ended up the subject of a police report in which the leader of the free world was described, in classic police language, as a "moving/falling object".
It was "about 1800 hours on Wednesday, 6 July, 2005" that a detachment of Strathclyde police constables, in "Level 2 public order dress [anti-riot gear]," formed a protective line at the gate at the hotel's rear entrance, in case demonstrators penetrated the biggest-ever security operation on Scottish soil.
The official police incident report states: "[The unit] was requested to cover the road junction on the Auchterarder to Braco Road as the President of the USA, George Bush, was cycling through." The report goes on: "[At] about 1800 hours the President approached the junction at speed on the bicycle. The road was damp at the time. As the President passed the junction at speed he raised his left arm from the handlebars to wave to the police officers present while shouting 'thanks, you guys, for coming'.
"As he did this he lost control of the cycle, falling to the ground, causing both himself and his bicycle to strike [the officer] on the lower legs. [The officer] fell to the ground, striking his head. The President continued along the ground for approximately five metres, causing himself a number of abrasions. The officers... then assisted both injured parties."
The injured officer, who was not named, was whisked to Perth Royal Infirmary. The report adds: "While en-route President Bush phoned [the officer], enquiring after his wellbeing and apologising for the accident."
At hospital, a doctor examined the constable and diagnosed damage to his ankle ligaments and issued him with crutches. The cause was officially recorded as: "Hit by moving/falling object."
No details of damage to the President are recorded from his close encounter with the policeman and the road, although later reports said he had been "bandaged" by a White House physician after suffering scrapes on his hands and arms.
At the time Bush laughed off the incident, saying he should start "acting his age".
Details of precisely how the crash unfolded have until now been kept under wraps for fear of embarrassing both Bush and the injured constable. But the new disclosures are certain to raise eyebrows on Washington's Capitol Hill.
Jim McDermott, a Democrat Congressman, last night quipped: "Not only does he break the law over here on eavesdropping and spying on our own citizens, but it seems he can't even keep to your law when it comes to riding a bike. It's another example of how he can't keep his mind on the things he should be thinking about."
Bush often takes to two wheels for exercise, after pain in his knees forced him to give up running. He regularly rides at secret service training facilities near Washington, and the G8 accident is just one in a long list of mishaps. In May 2004, he fell off his mountain bike, grazing his chin, upper lip, nose, both knees, and his right hand, while riding on his ranch in Texas. In June 2003, he fell off his hi-tech Segway scooter.
In Scotland, an accident such as the one at Gleneagles could have led to police action. Earlier this year, Strathclyde Police issued three fixed penalty notices to errant cyclists as part of a crack-down on rogue riders. Legal experts also suggested lesser mortals could have ended up with a fixed penalty fine, prosecution, or at least a good ticking-off from officers.
John Scott, a human rights lawyer, said: "There's certainly enough in this account for a charge of careless driving. Anyone else would have been warned for dangerous driving.
"I have had clients who have been charged with assaulting a police officer for less than this. The issue of how long the police officer was out of action for is also important. He was away from work for 14 weeks, and that would normally be very significant in a case like this."
No-one was available for comment from the White House.
Mr. MacLeod's only error was to contact the White House. For an official response to an incident of this sort, he should have called the woman who owns the Armstrong Ranch in Texas. Notably, she got the story out within 24 hours. This tale of executive excess did not come to light for six months. Still, considering recent developments, the timing could not be better to set Bush and Cheney up for the great bikes vs. bullets debate.
The decision of the Democratic Party in rural Walworth County to call for the impeachment of President Bush, which Katrina vanden Heuvel recounts on this blog, is an encouraging one, indeed. If there is talk of impeachment in Walworth County, a bastion of Badger State conservatism where the president personally campaigned last fall and won almost 60 percent of the vote, then this movement is spreading much further than most national Democratic leaders have dared imagine.
Indeed, in Wisconsin, it has spread far beyond Walworth County. The Democratic Party of Wisconsin overwhelmingly endorsed impeachment of Bush, Vice President Cheney and Secretary of Defense Donald Rumsfeld at its state convention last June.
Wisconsin Democrats aren't alone on this front. Last month, after the warrantless wiretapping scandal blew up, the executive committee of the North Carolina Democratic Party backed a resolution urging the state's representatives in Washington to support efforts to impeach Bush, Cheney and Attorney General Alberto Gonzales.
The Wisconsin Democratic Party resolution of last June was primarily focused on concerns about the actions taken by Bush, Cheney and Rumsfeld to promote the invasion and occupation of Iraq. It was advanced by rural and smalltown activists with groups such as the Stoughton Area Democrats -- Stoughton, population 12,354, has been a hotbed of anti-war sentiment going back to World War I, when voters there were big backers of U.S. Senator Robert M. La Follette.
Here's the text of the Democratic Party of Wisconsin (DPW) resolution
CALLING ON THE UNITED STATES CONGRESS TO INITIATE IMPEACHMENT PROCEEDINGS AGAINST PRESIDENT BUSH, VICE PRESIDENT CHENEY AND DEFENSE SECRETARY RUMSFELD FOR HIGH CRIMES AND MISDEMEANORS
WHEREAS, the Downing Street Memo shows that Bush, Cheney and Rumsfeld began planning and executing the war on Iraq before seeking Congressional and UN approval;
WHEREAS, UN weapons inspectors showed prior to the invasion that there were no weapons of mass destruction in Iraq; and
WHEREAS, there is further mounting evidence that the Administration lied or misled about "mushroom clouds," "connections to 9/11," and "war as a last resort" as they sought UN, Congressional, and public approvals;
THEREFORE, RESOLVED, the DPW asks Congress to immediately begin impeachment proceedings against President Bush, Vice President Cheney and Defense Secretary Rumsfeld.
How serious are Republican -- and some Democratic -- politicians who go on and on about the need to restrict embryonic stem-cell research?
Stem cell research, which scientists believe holds the promise of cures or treatments for everything from diabetes to Alzheimer's disease, is popular with the American people. But it is unpopular with the faction of the anti-choice movement that tends to be most active in Republican primaries. So a lot of prominent Republican politicians tip their hat to the "pro-life" crowd by backing so-called "anti-cloning" bills that purport to restrict mad science but that are really written to prevent promising research projects from going forward.
The cloning critics seek to energize the faithful by backing these silly bills, while at the same time hoping that no one in the broader electorate will notice.
When the issue does become the fodder for a general election campaign, however, all best are off as, suddenly, stem-cell research critics become stem-cell research advocates.
That's what has happened in Missouri, where Republican U.S. Senator Jim Talent has a long and ugly record as an outspoken advocate for the sort of restrictions on stem-cell research that are favored by the anti-choice movement.
Talent, who has never been a particularly popular senator, faces a tough challenge this year from Democrat Claire McCaskill, the very popular state auditor. McCaskill has actually been running ahead of Talent in some polls. She's a supporter of stem-cell research, who is highlighting that stance in her campaign. "We should be promoting hope for people suffering with Alzheimer's, Parkinson's, diabetes, ALS, spinal cord injuries, and other debilitating diseases," said McCaskill, when she announced her support for a Missouri ballot initiative that seeks to guarantee that research into lifesaving cures can be done in the state.
"Stem cell research holds the promise of saving lives and alleviating the pain and suffering endured by so many of our people," added McCaskill. "This initiative enables Missouri doctors and researches to be at the forefront of lifesaving research and it has my support."
In a state where polls show voters favor embryonic stem-cell research by a 2-1 margin. Talent felt the heat. So, last week, he withdrew as a co-sponsor of a federal anti-cloning bill that that seeks to outlaw what many scientists see as one of the most promising forms of embryonic stem-cell research. Talent's tortured speech announcing his new stance, in which he announced that he had come across "an ethically untroubling way" for obtaining embryonic stem cells that can be used in research, was an attempt to blunt McCaskill's appeal. But, as McCaskill noted, Talent still supports many restrictions on stem-cell research.
"Unfortunately," McCaskill says of Talent, "like too many politicians, he's trying to hide his opposition by dancing around science for politics. In a 30-minute long speech chock full of scientific jargon, he attempted to obfuscate his position and distract Missourians from the real issue: why does he think we should criminalize research instead of providing hope and cures for our people?"
McCaskill adds, with the directness that voters should expect of candidates on these issues: "I don't need 30 minutes or even 30 seconds to tell you where I stand. I support hope, I support science, and I support lifesaving cures. Because desperately ill Missourians deserve hope, not political cover -- and scientists deserve support, not handcuffs."
Bob Hagan has for decades been one of Ohio's most progressive-minded and intellectually adventurous legislators. So it comes as no surprise that the Democratic state senator from Youngstown would blaze a new policy-making trail with a plan to reform adoption laws.
Hagan's proposal: Ban Republicans from adopting children.
In an email dispatched to fellow legislators last week, the senator announced his plan to "introduce legislation in the near future that would ban households with one or more Republican voters from adopting children or acting as foster parents."
Explaining that "policymakers in (Ohio) have ignored this growing threat to our communities for far too long," Hagan wrote that: "Credible research exists that strongly suggests that adopted children raised in Republican households, though significantly wealthier than their Democrat-raised counterparts, are more at risk for developing emotional problems, social stigmas, inflated egos, an alarming lack of tolerance for others they deem different than themselves, and an air of overconfidence to mask their insecurities."
"In addition," the Democrat noted, "I have spoken to many adopted children raised in Republican households who have admitted that 'Well, it's just plain boring most of the time.'"
Hagan acknowledges that the "credible research" to which he refers cannot he quantified. But that should not be a problem, he explains, as a bill proposed by Republican state Rep. Ron Hood, R-Ashville, which would prohibit adoptions of children by gay and lesbian couples, suffers from a similar deficiency.
Since Hood's homophobic legislation is not backed by evidence that gay and lesbian parents are in any way detrimental to children, Hagan argues, why should his Republicanphobic legislation have to be grounded in anything more than emotions or ideology. (Hood's proposal, one of many similar measures being pushed around the country in a move by Republicans to stir up their voter base in advance of the 2006 and 2008 elections, would bar children from being placed for adoption or foster care in homes where the prospective parent or anyone else living in the house is gay, lesbian bisexual or transgendered.)
Hagan has no cosponsors for his bill at this point, a circumstance that may have something to do with the fact that the legislation has been proposed, as he says, with "tongue was planted firmly in cheek."
But Hagan does have a point for legislators in Ohio and other states who are wrestling with questions of whether to discriminate against upstanding and responsible citizens whose sexuality does not meet with the approval of the homophobic wing of the Republican party.
"We need to see what we are doing," explained Hagan, who notes that, while Republicans seek to score cheep political points, there are close to 3,000 Ohio children awaiting adoption and close to 20,000 in foster care.
The conservative Cincinnati Enquirer agreed.
Noting that "(Republican Representative) Hood's offensive and discriminatory bill would hurt, not help, children," the usually pro-Republican newspaper observed in an editorial that, "perhaps Hagan's modest proposal gave some folks a taste, however fleeting, of what it would be like to be labeled as a class somehow incapable, unworthy or unacceptable."
But Hagan has the best counter of all to the repeated attempts by Republican legislators to fake up issues involving gays and lesbians -- from amendments to ban same-sex marriage or their new nationwide push on the adoption front. Speaking of Hood's proposal, Hagan says, "It flies in the face of reason when we need to reform our education system, address health care and environmental issues that we put energy and wasted time (into) legislation like this."
Bill Moyers is hitting the road in California for an eight-city speaking tour to raise issues of money and politics. And, as usual, he's got a lot to say about the withering state of our democracy.
But how could anyone think that the Texas-born observer of the American Zeitgeist would avoid comment on the vice presidential "peppering" spree that recently took place in Moyers' home state.
Moyers promises to leave "the rich threads of humor to pluck from the hunting incident in Texas" to The Daily Show's Jon Stewart. But the man who once served as press secretary for former President Lyndon Johnson is intrigued by the backstory of Dick Cheney's trevails that is rich with insight and righteous indignation about what has become of our politics and our public life.
"I can accept Dick Cheney's word that the accident was one of the worst moments of his life. What intrigues me as a journalist now is the rare glimpse we have serendipitously been offered into the tightly knit world of the elites who govern today," says Moyers, who did such a good job of shining the light of public scrutiny on those elites when he hosted PBS's NOW program that Bush administration allies set up a covert campaign to get him off the air.
"The Vice President was hunting on a 50-thousand acre ranch owned by a lobbyist friend who is the heiress to a family fortune of land, cattle, banking and oil (ah, yes, the quickest and surest way to the American dream remains to choose your parents well)," adds Moyers in remarks prepared for his California speaking tour.
"The circumstances of the hunt and the identity of the hunters provoked a lament from The Economist. The most influential pro-business magazine in the world is concerned that hunting in America is becoming a matter of class: the rich are doing more, the working stiffs, less. The annual loss of 1.5 million acres of wildlife habitat and 1 million acres of farm and ranchland to development and sprawl has come "at the expense of ‘The Deer Hunter' crowd in the small towns of the north-east, the rednecks of the south and the cowboys of the west." Their places, says The Economist, are being taken by the affluent who pay plenty for such conveniences as being driven to where the covey cooperatively awaits. The magazine (hardly a Marxist rag, remember) describes Mr. Cheney's own expedition as "a lot closer to ‘Gosford Park' than ‘The Deer Hunter' – a group of fat old toffs waiting for wildlife to be flushed towards them at huge expense.
"At the heart of this story is a metaphor of power. The Vice President turned his host, the lobbyist who is also the ranch owner, into his de facto news manager. She would disclose the shooting only when Cheney was ready and only on his terms. Sure enough, nothing was made public for almost 20 hours until she finally leaked the authorized version to the local newspaper. Ms. Armstrong suggested the blame lay with the victim, who, she indicated, had failed to inform the Vice President of his whereabouts and walked into a hail of friendly fire. Three days later Cheney revised the story and apologized. Don't you wonder what went back and forth with the White House that long night of trying to agree on the official line?
"We do know someone from the hunting party was in touch with Karl Rove at the White House. For certain Rove's the kind of fellow you want on the other end of the line when great concoctions are being hatched, especially if you wish the victim to hang for the crime committed against him."
Describing the whole affair "a study of the inner circle at the top of American politics," Moyers reflects on a recent article by Sidney Blumenthal that notes how incestuous that inner circle has become.
"Armstrong's father invested in Rove's political consulting firm that managed George W. Bush's election as governor of Texas and as president. Her mother, Anne Armstrong, is a longtime Republican activist and donor. Ronald Reagan appointed her to the Foreign Intelligence Advisory Board after her tenure as Ambassador to the United Kingdom under President Ford, whose chief of staff was a young Dick Cheney," explains Moyers. "Anne Armstrong served on the board of directors of Halliburton that hired Cheney to run the company. Her daughter, Katherine Armstrong, host of the hunting party, was once a lobbyist for the powerful Houston law firm founded by the family of James A. Baker III, who was chief of staff to Reagan, Secretary of State under the first George Bush, and the man designated by the Bush family to make sure the younger Bush was named President in 2000 despite having lost the popular vote. According to Blumenthal, one of her more recent lobbying jobs was with a large construction firm with contracts in Iraq."
Moyers sums things up with an observation of our times that is as telling as it is chilling: "It is a Dick Cheney world out there –- a world where politicians and lobbyists hunt together, dine together, drink together, play together, pray together and prey together, all the while carving up the world according to their own interests."
John Nichols's book The Rise and Rise of Richard B. Cheney: Unlocking the Mysteries of the Most Powerful Vice President in American History (The New Press) is available nationwide at independent bookstores and at www.amazon.com. Publisher's Weekly describes it as "a Fahrenheit 9/11 for Cheney" and Esquire magazine says it "reveals the inner Cheney."
The federal officials who are busy assuring Americans that they've got their act together when it comes to managing port security are not inspiring much confidence with their approach to airline security.
When Dr. Robert Johnson, a heart surgeon who did his active duty with the U.S. Army Reserve before being honorably discharged with the rank of Lieutenant Colonel, arrived at the Syracuse airport near his home in upstate New York last month for a flight to Florida, he was told he could not travel.
Why? Johnson was told that his name had been added to the federal "no-fly" list as a possible terror suspect.
Johnson, who served in the military during the time of the first Gulf War and then came home to serve as northern New York's first board-certified thoracic surgeon and an active member of the community in his hometown of Sackets Harbor, is not a terror suspect. But he is an outspoken critic of the war in Iraq, who mounted a scrappy campaign for Congress as the Democratic challenger to Republican Representative John McHugh in 2004 and who plans to challenge McHugh again in upstate New York's sprawling 23rd District.
Johnson, who eventually made it onto the flight to Florida, is angry. And, like a growing number of war critics whose names have ended up on "no-fly" lists – some of them prominent, many of them merely concerned citizens – he wants some answers.
"Why would a former lieutenant colonel who swore an oath to defend and protect our country pose a threat of terrorism?" he asked, in an interview with the Plattsburgh Press-Republican newspaper.
So far, he's not getting satisfactory responses to his questions.
No one at the Syracuse airport would tell him why he was on the list.
Nor has the federal Transportation Security Administration, which compiles the "no-fly" files, been forthcoming – except to say that names are added to the watch lists on the "recommendations and information received from federal agencies, including intelligence and law-enforcement agencies."
The story's gotten a good deal of media attention in upstate New York, and Johnson is speculating with reporters about whether his name ended up on the list because he ran against McHugh as a veteran who boldly declared that: "I know the ravages of war and I know the sacrifices that have to be made when a war is in our national interest. This war is not in our national interest."
McHugh's office denies any wrongdoing by the Republican congressman, a senior member of the powerful House Armed Services Committee who brags about working closely with the Pentagon and intelligence agencies.
Johnson's not backing off his call for an explanation.
The physician-candidate told the Plattsburgh paper that the secrecy surrounding his name's addition to the "no-fly" list, and the prospect that it might be there because of his anti-war views, is outrageous.
"This is like McCarthyism in the 1950s," says Johnson.
The Onion may have grounds for legal action against the Bush administration for unfair competition.
After all, the administration is supposed to make its best effort to manage the affairs of state in a responsible manner. The Onion, a weekly humor publication that plays the news for laughs much as John Stewart's "Daily Show" does, is supposed to satirize the inevitable mistakes, missteps and misdeeds.
But the month of February has seen the administration stealing The Onion's thunder on a regular basis.
First, the vice president shot a guy in the face and then kept the story under wraps for a day.
Then, before the furor over Deadeye Dick's "peppering" incident had died down, the administration got itself embroiled in a controversy over the determination of the president to approve a deal that would put six major U.S. ports under the operational control of a country that the bipartisan 9-11 Commission warned suffers from "a persistent counterterrorism problem."
The absurdity of the moment was placed in stark relief Thursday afternoon, when senior administration officials from the Departments of Defence, State, Treasury and Homeland Security trooped up to Capitol Hill to brief the Senate Armed Services Committee about the plan to let Dubai Ports World, a firm owned by the government of the United Arab Emirates (UAE)in charge of ports up and down the east coast.
Noting a particularly concerning line in the 9-11 Commission -- "The United Arab Emirates was becoming both a valued counterterrorismally of the United States and a persistent counterterrorism problem" -- U.S. Sen. Carl Levin, D-Michigan, asked the administration representatives: "Just raise your hand if anybody (at the witness table) talked to the 9-11 commission," said Levin.
The senator's request was met with blank stares.
It was a priceless moment, indeed, an Onion moment.
That's the problem.
The way the administration is handling L'Affair Dubai is simply unfair to The Onion. How can a satirical newspaper satirize that which is beyond satire? What next? A plan to "fix" Social Security by betting the retirement security of millions of Americans on a stock market gamble? Oh, well, never mind.
It is rare that a decision by the South Dakota State Senate merits national attention. But there is simply no question that this week's vote by that chamber to ban abortion ought to be on the radar of every American who thinks that the right to choose is an issue. Certainly, opponents of reproductive rights recognize the significance; after the South Dakota vote, the Rev. Patrick J. Mahoney, director of the militantly anti-choice Christian Defense Coalition, said he saw the foundations of the Supreme Court's 1973 Roe v. Wade decision crumbling and announced that, "With several states waiting in the wings to ban abortion, momentum is clearly building nationwide to overturn Roe."
Mahoney's allies in South Dakota agree. "The momentum for a change in the national policy on abortion is going to come in the not-too-distant future," says Republican Representative Roger W. Hunt, who has spearheaded the drive to make South Dakota the first state to pass a broad ban on the prodecure since the Roe decision of 33 years ago.
There's a reason this fight is playing out in this state.
South Dakota is one of three states -- North Dakota and Mississippi are the others -- with only one abortion provider.
With an overwhelming 23-12 vote to make it a felony for doctors to perform abortions, the South Dakota Senate has joined the lower house of the legislature -- which backed the bill by a 47-to-22 margin -- to endorse a move that could force the shuttering of that state's last clinic.
The fight is not over. South Dakota Governor Mike Rounds, an anti-choice but somewhat sensible Republican, still must decide whether he wants to sign the bill. But the wide margins in favor of the ban in both houses of the legislature suggest that, even if Rounds determines that the measure goes to far, his veto could face an override threat.
If the South Dakota ban becomes law, it will face an aggressive challenge in the courts. But, as everyone is, by now, well aware, the courts have changed a great deal since the last time they weighed the basic question of whether women will have a right to make decisions with regard to the termination unwanted pregnancies.
Just how dramatically unwanted a pregnancy might be is of little concern to the South Dakota legislators who backed the ban. While a narrow exception was allowed for procedures that would save the life of a pregnant woman, the South Dakotans rejected amendments to the bill that would have provided exceptions in the case of rape or incest or serious threats to the health and well-being of the woman.
Representative Hunt was blunt about why he and other took a hard line: Providing protections in "special circumstances" -- such as cases where children are raped -- would have diluted the bill and muddied the push for a Supreme Court decision overturning Roe.
The court fights that may evolve over this particular measure are, in large measure, beyond the control of the great majority of Americans who support maintaining access to safe and legal birth control procedures. The failure of U.S. Senate Democrats and the handful of pro-choice Republicans in that chamber to filibuster the nomination of Justice Samuel Alito has created an opening that the anti-choice movement has for years been preparing -- on a meticulous state-by-state basis -- to exploit. The Supreme Court may still have a narrow pro-Roe majority, but that will only be known when and if a case involving the South Dakota law, or another one like it, is reviewed.
That does not mean, however, that supporters of reproductive rights have to stand by the sidelines and watch as the momentum builds to overturn Roe. As Nancy Keenan, the president of NARAL Pro-Choice America notes, "When you see them have a ban that does not include exceptions for rape or incest or the health of the mother, you understand that elections do matter."
In 2006, 36 governships, including South Dakota's, will be up for election. Additionally, the vast majority of state legislative seats in the 50 states will be selected.
The fight over choice has often played out at the margins of our national politics, exploited by cynical strategists on both sides of the partisan aisle more as a tool to mobilize the passionate than to convince swing voters. Rarely, for instance, are television advertisements seen raising the issue on behalf or against a particular gubernatorial or legislative candidate. But the decision of the South Dakota Senate ought to change the equation for 2006, not merely in that state but nationwide. If ever there was a moment when the debate over reproductive rights was ready for the political primetime, this is it.
In the moment of executive excess, when abuses of the powers of the presidency and -- thanks to Dick Cheney's contributions to the crisis -- the vice presidency are so threatening to the Republic, it is important to remember that this is not a new fight. Cheney was the prime defender of the "right" of the executive branch to disregard Congress and the Constitution during the Iran-Contra scandal of the late 1980s, contributing a chilling dissent to the bipartisan Congressional report that accused the Reagan administration of "secrecy, deception and disdain for the law."
In that dissent, the man who then represented Wyoming in the House chastised Congress for "abusing its power" by seeking to limit the ability of the president and his aides to spend money as they chose in support of the Nicaraguan Contras. "Congress must recognize that effective foreign policy requires, and the Constitution mandates, the President to be the country's foreign policy leader," argued Cheney, it what remains one of history's most dramatic misreads of the Constitutional mandates with regard to the Constitutional system of checks and balances.
This messianic faith that the executive branch is above the law, which Cheney first spelled out as a member of Congress, has only hardened during his tenure as the most powerful vice president in history. Now, with the war in Iraq fully degenerated into quagmire and with the "war on terror" being used as an excuse for everything from warrantless wiretapping to extension of the Patriot Act, the Cheney doctrine infects the body politic as a cancer so widespread that is raises honest concern about the health and future of the American experiment.
It is important to recall, however, that the dangers inherent in Cheney's views were diagnosed almost two decades ago, in the aftermath of the Iran-Contra debacle.
Historian Theodore Draper, who has died at age 93, penned a brilliant assessment of the specific scandal and the broader concern, A Very Thin Line: The Iran-Contra Affairs (Hill & Wang: 1991) which used congressional testimony and private depositions to explain the controversy that erupted after it was revealed that the Reagan administration had set up an entirely illegal scheme to sell arms to Iranian fundmentalists in order to raise money that funded Contra terrorism against the Nicaraguan government and people. The title of the book refers to what Draper saw as "a very thin line (separating) the legitimate from the illegitimate exercise of power in our government."
To Draper's view, the Iran-Contra scandal was "symptomatic of a far deeper disorder in the American body politic" -- a malady characterized by the misguided view that the United States can or should disregard the system of checks and balances in order to create "a president almighty in foreign policy."
Draper warned us well about that "deeper disorder. Unfortunately, his was a warning unheeded. Now, as we struggle with its deadly ramifications, we would do well to return to Draper's text -- not merely to honor a visionary historian who saw both the past and the future, but to arm ourselves for the fight over whether this country will be governed by the rule of law or the rule of Cheney.
John Nichols's book The Rise and Rise of Richard B. Cheney: Unlocking the Mysteries of the Most Powerful Vice President in American History (The New Press) is available nationwide at independent bookstores and at www.amazon.com. Publisher's Weekly describes it as "a Fahrenheit 9/11 for Cheney" and Esquire magazine says it "reveals the inner Cheney."