Tag Archives: SCOTUS

The Undue Burdens of Heartbeats on Health Care

We are rightly alarmed. Indeed, red seems the only color to use to map the shrinking territory where women who are pregnant have an option of access to abortion. As abortion has been demonized as if it, too, were poised to join mass-culture society, and Supreme Court justices resurrect the specter of a society collectively endorsing “abortion on demand” as an apocalypse more apocalyptic than climate change or environmental degradation, the fate of life seems to have been projected to the unborn, even as maternal mortality rates remain staggeringly high across the nation–and seem especially high in those places where the strongst opposition to abortion seems to have arisen on a local level, as a new rebellion in which a substantial, and unable to be ignored, part of America is persistently dedicated to worrying about the fate of the unborn, aggrieved this demographic had been failed to be considered in earlier judicial reasoning about abortion rights.

We have, at the same time, changed how we map access to abortion, now part of our civil society, and also a part that would be wrenching to have invalidated as a individual right. Or is abortion poised to become a civil rights issue, more than a medical one, as it is understood through what this post understands is, rather terrifyingly, a theological context, as it is uprooted and removed from a scientific or medical one?

The color spectrum of these charts flip, but the human impact of how we remap abortion access–or have come to remap it in the United States–indeed seems to bears attention, as it can help us map the situation on the ground. If the header to this post suggests the radical contraction of abortion access in the manner of a geographic warper, similar to the distorted global maps of the prolifically virtuosic Ben Hennig, whose Views of the World are worth perusing to orient oneself to a changing world–but far more dramatically shifting the landscape of access to abortion, in ways that would make maps as important for finding legal access to abortion–suddenly made as complicated a question as migrant routes for asylum.

Indeed, even as the landscape of access to abortion had been creepily and rather creepingly changing by 2014, as a spate of local Targeted Restrictions on Abortion Providers–TRAP Laws–were enacted across much of what came to be called the “heartland” of the nation, the sense of “abortion havens” was mapped already by Business Insider, reflecting how imposition of commercial restrictions on abortion providers had forced many to close–as the introduction on a county and state level of specifics from the width of their corridors, the size and equipment of procedure rooms, and admission privileges at local hospitals, if rarely necessary, imposed costs that compelled many clinics to silently close, even as the “rights” to abortion access were nominally intact–and as no clear “burden” was detected in the partisan decisions and policy moves of state legislatures. The divide between “red” and “blue” states is rarely reduced to abortion, but the notions of family planning, women’s control over their bodies, and the privacy of a woman’s relation to her doctor–if all cast in terms of “cultural” differences among regions of this great nation–are now turned to be resolved, the deck having been fully stacked, to the august institution of the U.S. Supreme Court, having been entrusted with multiple landmark cases in the past to move us to a more perfect union.

Yet it doesn’t seem as if that union’s perfection is on the horizon. The rifts portrayed by Business Insider India in terms of havens in the midst of the hopes to expand health care grew in the United States, but debates about that expansion raged on right-wing television, and among evangelists, was shifting toward the terrifying tones of alarming reds in which we seem compelled to map abortion access as a good that is not only scarce but shrinking at an amazingly unfamiliar and unforseeable rate, as our oceans warm, and fill with more bacteria, and rise, as the polar ice caps melt. It is alarming, because the courts do not seem able to resolve this issue, as the opinions issued on a local level seem incapable of being resolved–and belong do differently framed logics and differently dated discursive fields. One cannot have a rupture, perhaps, but there seem parallel realities that the country is yet again either in danger of entering or existing, which any federal legal resolution by Supreme Court justices seems improbable to provide.

In recent years, judicial opinions have gained a unique status in the headlines of national news. As the courts have gained new status as a battleground where judicial positions rehearse divides in our body politic, the new status of abortion rights as a strategically posed issue has distanced debate from public health–or access to better health care–but a return to “first precepts,” to guiding freedoms, to understand the role of the court on maternal health care practices relate to abortion. Mapping the rapidly shifting nature of this medical landscape as a concerted partisan strategy is only part of the point. For the redefinition of maternal health is nothing less than a deep effort of misinformation, recasting the termination of pregnancy as early as six weeks as a criminal act in the community’s–and state’s–interest to protect, even if the actual “topography” of where abortions occurs has become increasingly uneven.

The prospect of the outright banning of abortion in twenty-six states in the nation demands you to read the current statistics of aborted pregnancies not only as a new “culture” of abortion in the northeast, California, and Florida, but a register of the need that these states meet and provide: if there are “sharp edges” to where abortion is accessed, they reflect population density, poverty, and increased stresses on family planing and growth.

For that map, a poor proxy that shows the steep divides across the nation, many sharply drawn in states–perhaps most unevenly in Texas, with its complex palette of light greens, dark green, and pockets of red giving it a sense hardly of a backwater, but state where, even more than North Carolina, Mississippi, and Georgia, sharp dissonances in the availability of medical care for maternity give it a complexion that seems almost as divided as the nation, and unlike the several states–Alaska and Louisiana among them, but also Colorado and the Dakotas, as well as Florida, New York, and California, of far, far greater homogeneity. Compare this county-by-county map to the prospect of “trigger laws” banning abortion in twenty-six states of the nation, local legislatures have staged a bit of a trap for the vast majority of women nationwide, whose legal access to abortion should the constitutional protections of a right for women to access abortion facilities in their pregnancy fail to sustain a local challenge.

The result is nothing less than a crisis in national health care policies, marking red those states either certain or likely to ban abortion, and those likely–Florida, Indiana, Montana, Nebraska and Wyoming–arrayed in an unmistakable echo of the familiar breakdown of our electoral maps, reminding us of the partisan origins of such a challenge–a challenge that has been reframed not in terms of the rights of women, but the rights of the unborn, as if this new demographic and constituency had been discovered by legal sleuths in recent years.

 States Certain or Likely to Ban Abortion Should Supreme Court Weaken or Overturn Roe v. Wade
Guttmacher Institute

Unlike the county-level map of aborted pregnancies, this future map is a prognostication. It dramatically and monitory but maps a landscape of sharp and stark divides, suggesting the remove of women across a sea of continuous states who stand to be placed at a geographic removed from abortion providers without moving themselves. The legislative strategy of rolling back rights that have been presumed for two generations is akin to storming the U.S. Capitol, but reflects a long lain groundwork to secure the state’s compelling interest in protecting the lives of the unborn.

An even starker version of the map by the Guttmacher Institute of amplified monitory value is an image of a brave, new world, with far greater respect for such creatures in it unborn. This landscape, enforced by local legal challenges more arcane assert a compelling interst that the state has in protecting of the unborn, is far more prescriptive than any seen in the twentieth century. It is something of the ground-plan of a strategy that seeks to nail the nation, and its body of laws, to a cross: the red expanse is a sagging net for maternal health care , tracing an opening salvo in a battleground for states’ rights or, more accurately, for the conscription of the unborn fetus in what is cast as a heightened “culture” wars about health care–

–in which the mute protagonist of the unborn fetus is persuasively made a compelling interest of the state. to use its laws to protect, the health or well-being of mothers put aside from any compelling interest that the state might be able to entertain. Unlike the county-level map of clinical practice, which shows variations, the impositions of cookie-cutter prescriptive laws is an intentional an alteration of the terrain, lacking justification or reasoning behind a shift so dramatic, or sense of its implications on the ground in peoples’ lives, out of a deep belief that the previous decision is a pestilence across the land that needs to be contained. But it is also a strategy of promoting the lives of unborn, or of using that line to foster deep social divides.

The seemingly scientific justification of reducing the threshold to permit abortion not only removes the practice from the context of maternal health, but suggests “rights” of the unborn that are removed from the subjectivity of the mother, as soon as they are seen–and “mapped”– within the womb. By overturning the notion that the state had a compelling interest in reproductive health, constitutional liberties, or bodily health, attempts to preserve fetal personhood that lacks medical logic has been increasingly dressed in pseudo-scientific garb, by exporting the visual logic of ultrasound to grow a shifting “legal” landscape entertains the rights of the unborn–rather than the burden on women, the health care system, or the law. And if pregnant women were once forced, in the past landscape of the pre-Roe world, to travel outside the nation for abortions–heading to Mexico or Sweden from the east coast and to Japan or Mexico from the west, many states are bracing for an efflux or overflow of women seeking abortion arriving from Texas, Alabama, and Mississippi–including Florida, already emerging as the go-to sanctuary for female reproductive care, given difficulties of border-crossing, with California, Illinois and to some extent New Mexico more costly alternatives.

The current attempts of states to devise local workarounds that evade the constitutional right of access to abortion–and guarantee of access as a binding precedent of the court–has come up against loggerheads with the concept of the freedom of “unborn children” posing pressing questions of what is a “compelling interest” of the state in a fetus before life can be sustained outside of the womb. The recent focus of on the heartbeat, or rather the appearance or perception of the heartbeat, as an index or sign of value–if without basis in medical science–has become a new basis to increase the burdens on women in most states to access maternal health. For the designation of cardiac contractions as evidence of a “person” or a soul that in the interest to the state to protected is, in fact, a terrifying smokescreen for the radical contraction of a pregnant women’s rights.

Cardiac Activity in a Fetus of Eight Weeks

In ways that have framed the question of access to abortion in the nation in terms of how they are addressed in the U.S. Constitution–reticent or silent of any issue of women’s health–the question of what the role of courts is in preserving states’ rights to restrict access to abortion and health care, or to defend the access of women to be able to terminate a pregnancy, has placed undue stress on the place of legal reasoning in determining access to maternal health care. The current drive to regulate abortion, itself a pronounced response to the expansion of the health care markets from 2008, have become a national divide of striking proportions, so much that they are cast–wrongly, for this blogger–as a cultural divide.

But the storied cultural divide of abortion is a deeply geographic one, as we have long been habituated to preserve access to abortion since reproductive rights first came under attack before Casey, in the 1990s, as preserved by cities as the National Institute for Reproductive Health shifted their ground game to ensuring that cities–not necessarily where abortions were most in demand, but where voters and elected officials were far more sympathetic–lived. As if the riots of January 6, 2021 attempting to stop the end of Trump’s Presidency by a show of force in Washington DC, the latte-drinking liberal city-dwellers before their laptops–a tired political cliché we all love–is also apt. For it is among urban audiences of a certain age that a political precipice seems to have suddenly reached, as constitutional grounds for health care shifted beneath their feet.

John Cole/Scranton Times Tribune, PA

The protection of “abortion rights” by local safeguards in cities emerged in dialogue with, to be sure, the expansion of local restrictions on access to abortion from 2010-2016, and the cumulative weight of three hundred and thirty measures to restrict abortion, and a logic of shoring up rights in a deeply divided polity where rights of migrants, unhoused, and poor were feared to be evanescent or at risk, and the law no longer a stable fabric. Urban preserves where women’s rights to access maternal health care were predominantly coastal, and often, far removed oases from the sites lacking sanctuaries of legal protection, revealing the shifting palette of access to “freedoms” protected in the constitution by standing legal opinion. From 2016, at the end of the Obama era, as battle-lines over Obamacare concealed fights about abortion, reproductive freedom was a mixed bag across the country, reflecting in terrifying ways the 2016 electoral map of a broad continuity of red states as a mythical “heartland.”

The new ground-game of shifting the threshold of permitting abortion–imagined as enacted by local legislatures–suggests an endgame of a territorial fragmentation of once-universal rights to access abortion would shift the clock back five decades overnight. The ground-game is swift, and demands to be drilled into, both in Texas, and in other states, as it may well be poised to be recognized as law of the land, setting off tremors of health care and desperate searches for access to clinics–or potentially unsafe, if used as a last resort, abortion pills designed to simulate miscarriages–across the land, placing pregnant women at only greater risk.

The swift pace of shuttering abortion clinics in Texas by local legislation–magenta dots marking the actual closures of clinics offering abortion in Texas due to local laws, chipping away at or decreasing the actual liberty of access that is ostensibly the law of the land some years ago.

Abortion Clinics Forced to Close by Local Legislation in Texas, 2012-15/ Bloomberg Business Week

The map can be drilled down into far more deeply to describe the distance at which local laws have “placed” women of child-bearing age from clinics–creating a skewed topography in which, by 2014 data, women were compelled to travel nearly two hundred miles, at their own expense, to obtain abortion services, curtailing health services that were available to women and the abortion “deserts” that were quickly–and intentionally–created across the state.

Distances Women Forced to Travel for Abortion, 2014/The Lancet Public Health

The burden of such restricted access to clinics that can offer abortion in a substantial area of the state where women would be demanded to travel upward of 100 miles to a clinic has created exactly such a burden, but has emerged as a state’s right, by expanding the “compelling interest” of state counties to ban abortion not by the yardstick of the trimester of pregnancy–a standard in Roe v. Wade or fetal viability, measured by twenty-three to twenty-four weeks after conception, permitting the procedure up to that non-arbitrary date. Yet the unequal remove of women from abortion providers seems a burden as undue as an other, especially on women without the economic option for extensive travel to locate a provider within the state’s bounds–or, as seems poised to become the need, outside of them.

Should Roe v. Wade fall, and the constitutional right of women enjoy to access abortion as a form of maternal health care vanish overnight, “tigger laws’ already on the books would prompt an immediate jump of average distances of women to abortion clinics from 36 to 280 miles, as 41% of women in the United States would find the nearest abortion clinic closing overnight, no preparatory window or period of adjustment–or alternative–in place. The ground-game, rooted in the election of local Republican officials of a pro-life strip on city councils and state legislative chambers, is an open attempt to erode the affirmation of rights that cut against the , creating something akin to “cities of God” that follow outdated norms of the protection of unborn lives by using the odd index of the sonograph as a proxy for what medieval theologians called “ensoulment,” adopting Aristotelian science to gloss scriptures, in a proscriptive model that has little relation to medical science or health care, or the freedoms to privacy and self-determination that were once protected by the Constitution.

It was another helpful service to American webizens, the Decolonial Atlas, your place to go for go to remedies on the web, posted a travel map of routes to abortion providers in southern states, collating affordable transit routes to clinics that would provide abortion services–services that were still technically “legal” but out of the range of many, and prohibitively expensive for most in need of them. The bus routes women might take to reproductive health service centers in many states–Illinois; Missouri; North Carolina; West Virginia; Tennessee; Florida; South Carolina–would be open, but prompted questions of economics and opportunity. The further question of the fear of undocumented being stopped by a zealous Border Patrol, should they move across and be stopped at checkpoints en route, would be wary to avoid. The feature lending prominence to the “border zone”–an inheritance of the over-policed border of the Trump Presidency–was kept from an earlier map that had gone live September 4, 2021, setting a six-week window for abortions as state law overnight, panicking women across the state who had suddenly lost access to a crucial piece of their health care.

Already, the mobility of women seeking abortion had seemed a steep threat to many in Texas, where an undocumented woman seeking an abortion might risk deportation for traveling from Laredo or Corpus Christi to Health Care Centers in New Orleans or Jackson, or even on her return from Austin.

nTo be sure, the heightened mobility of women seeking abortion is a new iteration of the regular plans that, before Roe, the Society for Humane Abortion offered those with sufficient means to travel to doctors outside of the United States’ borders–from the west coast, Japan was a destination of choice from the late 1940s, if not Mexico, helping some 12,000 with their passage to clinics outside American territoriality. These burdens of travel, indeed, were no small part of the logic for revisiting the placement of “substantial obstacle[s] in the path of a woman seeking an abortion of a non-viable fetus,” a tricky problem that seemed a necessary point of consensus in the modern world of birth defects, often due to other medications. Yet the image of increased out-of-state travel and the burden that this would place in the paths of women was not clearly addressed by the Court, nor does it seem to have since. The rather terrifying image of freedom to access abortion being curtailed or removed due to the orthodoxy of a majority of justices recalls the pamphlet of the same organization protesting the right to “breath unpregnant,” wom the Society for Humane Abortion would happily send forth to another shore, her rights and liberties curtailed in the United States.

Society for Humane Abortion, September 1968

While Roe resulted in the reasoning that voided “the purpose or effect of creating a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus” as placing “undue burden” reflected a standard that a burdensome restriction of constitutional rights could not be imposed by states, a finding of the late nineteenth century. The unconstitutionality of imposing an burden by any state in the union from the late nineteenth century: the standard applied in 1992 preserved women’s right to terminate pregnancy before viability does not relate to counties, only recognizing rights to ban abortion after the “viability” of a fetus outside the womb, save when the pregnancy endangered the mother’s health, and not using the rhetoric of personhood to describe the unborn. Definition of a burden as “undue” “either because [it] is too severe or because it lacks a legitimate, rational justification,” posits protection of rights of mothers, but are argued to deny the rights of “unborn.” But the shifting global limits on abortion are practically unique in multiple standards that are on the books in the United States, with some states holding no gestational limits, and some shifting them to a window as small as a month and a half, producing a forced mobility for obtaining abortions in the horizon. Perhaps this is all to familiar in a nation that experiences multiple realities and opportunities–and now liberties– for different levels of wealth.

Spectrum of Different Global Policies of Legality of Abortion, 2021/Wikimedia

Put another way, equal access to abortion is no longer the law of the land. And the drilling into the data of the multiple laws that have been locally proposed in states reveals not only a partisan strategy, but a deeply unworkable system of different tiers of maternal care. Since 2011, these rights have been attempted to be defined nowhere more prohibitively than in Texas. In the nation, over half of the closure of clinics that offer abortion services to women have closed by local legislation, in a concerted partisan push unfairly argued to reflect “local cultures.” The partisan nature of closures has been a template for “red state” policies from Iowa to Ohio to Louisiana, changing the on-the-ground landscape of access to abortion by forcing many closures due to safety violations, difficult work environments, and business decisions,–already a bleak landscape for maternity care for over the past decade, in eery contemporaneity to a public health option that would provide more maternal health options.

The opposition to abortion that focuses on the “unborn”–and the humanization of the heartbeat of the unborn, rather than the fetus–has become one of the more striking defenses of pseudo-freedoms. These are freedoms not ever articulated in Enlightenment thought, and foreign to it, from freedoms of belief, to freedoms of owning automatic rifles and military-style arms in one’s home, that extend to the protection of freedoms of the unborn. Such freedoms are resonant with full-throated opposition to mandates for mask-wearing, hand-washing, social distancing, or vaccines. The spread of challenges to the access to abortion and abortion pills across the nation deny the life-changing role of pregnancy on all women, and the greater dangers that childbirth–hardly a risk-free event!–imposes on women, let alone the dark topography of sharply disproportionate and increasing rates of maternal mortality in many of the states that have restricted access to abortion.

Maternal Mortality Rates per 100,000 births (2015)
Changes in Maternal Mortality in United States of America 1997-2012/BMC Health

The freedom to restrict abortion is similarly anti-scientific, and theocratic, strategically removed from the undue onus that state laws against abortion would have on women–especially if a good share of the clinics providing abortion to clients–sites marked below in orange and black–cease providing clinical care to women. Although it is argued that this will shift demand to mail-order abortifacients, safely used only in the first ten weeks of a woman’s pregnancy but providing subject to local and state provider restrictions, 99.6% successful if used at nine weeks from conception or less, and require in-person–consultation with a physician to be prescribed in fourteen states that have enacted restrictive abortion laws–including Texas, Oklahoma, Mississippi, Alabama, North Carolina, South Carolina–of thirty-three states permitting only physicians to provide mifepristone, creating divides to access “self-managed” that are poised to sharply grow along clear fault-lines, and perhaps creating a undue underground economy for abortifacients of unseen proportion; states limit abortion pills to being dispensed by physicians, despite that they are as effectively dispensed by nurse practitioners or midwives, create compromised access to health care in thirty-three states.

–and five states that have ban telemedicine for medication abortions, including Louisiana and Arkansas.

The result is a terrifyingly unequal deep, dark landscape distant from abortion facilities, whose loss is indicated by dense orange colored dots, suggests the severe restriction of health options for pregnant women that would result from overturning Roe v. Wade. Twenty-two states have adopted laws that the overturning would ban abortion within their borders.

Distances to Clinics ShouldTrigger Bans on Abortion Go into Effect /Axios

The undue burden on women who unable to provide the option to terminate their pregnancy before viability would grow in such ‘abortion deserts’ and impose a significant burden on states that affirm abortion on their edges, whose surviving centers would face ethical problems of facing a greater demand–if women travel to them, the states are potentially now exposed to the legal suits for violating laws restricting women’s access to terminate a pregnancy they do not want. Concerns that overturning Roe would increase travel to California to seek an abortion by almost 3000% is born out by the map below–restrictive laws in other state long increased out-of-state clients in California; increased demand for access to abortion from women residing in state laws restricting access to abortion would expose California to legal action for violating their laws.

The urgency to address the demographic of the “unborn” recuperates a category from the thirteenth century that enjoying a recent resurgence with the legal parsing of personhood. But while one spoke of the “fetus” in the 1970s, when Roe v. Wade was decided by the Supreme Court, the shift to “fetal personhood” expressed by 2018 in Iowa, then the state with the most restrictive abortion laws yet, which made abortion illegal after a fetal heartbeat is detected, skipped over the question of a woman’s right to abortion, but expanded the ability of states to “regulate access to abortion” to the extreme, by permitting a ban on abortion earlier than most women would be likely to know they are pregnant, putting Iowa in the range of states with court-imposed restriction to abortion, contraception and reproductive services. While not framed as about sexual freedom, anxiety about women’s sexual freedom in 2017 and moral arguments led many central, southern, and midwestern states to adopt court-ordered restrictions parallel to the expansion of health care that included access to abortion–

-and must be seen as a resistance to it that set the basis for the “red states” which emerged as a united front in 2016 and the pro-life candidacy of Donald Trump.

The majority of states in the union adopted restrictions without any basis in scientific evidence at all, or clear roots in jurisprudence. The restrictive laws that were predominantly of proscriptive cast, betraying a terrifyingly theocratic origin in identifying the origins of “life” as a focus of judicial inquiry in a neo-medieval cast. Is establishment of any “heartbeat” law not in itself an undue burden on women, inviting the undue burden of placing a ban on abortion before fetal viability, that would demand to be struck down as such? While placing burdens on women throughout a large number of states, the local laws create new concepts of strict scrutiny around heartbeats, arbitrary weeks since conception, or the detection of reflexive movements in ultrasounds, all of which are coercive controls that serve to undo the undue burden concept.

1. Abortion was historically challenged by the medical profession as a way to restrict the role of women healers–and female agency–in the nineteenth century. But the search for legal obstacles to abortion is wrongly treated as a return to first principles but a shift in freedoms of access to health care. But the question of fetal “personhood”–or indeed of personhood of the unborn–dispensed with the very logic of potentiality that Roe left in the law by reserving for the state an “important and legitimate interest in protecting the potentiality of human life from the twenty-fourth week of pregnancy,” dissolving that interest in favor of shifting the question from “potentiality” or a “Golden Rule” that grew out of attention on the fetus as a focus of protection; the expansion, due to stem cells, in vitro fertilization, and fetal tissue transplants on the moral status of the embryo as a subject in place of the woman’s right to access abortion or abortion providers.

While Aristotle was primarily concerned with the emergence of a rational soul, a concern that was adopted by twelfth century theologians who embraced his notion of the formation of the soul in the developing human embryo—the vegetal soul, the animal soul the intellective or human soul–the notion of personhood dispensed with the epigenetic stages of ensoulment, but focussed on vital signs located in the heart as a sign of life, independent from science, but reflecting the technologization of birth. The adoption of policies hostile to abortion rights in 6 states and of laws extremely hostile to abortion rights in 23 states) to abortion rights, and the hostility expanding to Iowa and West Virginia for the first time, created not only a new map of abortion rights, but mapped the origins of personhood in the womb. The result, according to the Guttmacher institute, placed the majority of American women able to bear children in states hostile or extremely hostile to abortion–without rooting their arguments in science.

Policy Trends in the States, 2017 | Guttmacher Institute

The defense of the “unborn person” flew in the face of science, beyond questions of cultural difference, from “mandated ultrasounds” to regulations on abortion clinics, including removing clinics from Medicaid, to, in Alabama, a state-wide ballot initiative to agree that personhood began at conception, the Human Life Protection Act, signed into state law in 2019, that “defines all unborn children as humans”–and allowing no exceptions for rape or incest. The bill was adopted only to encourage the Supreme Court to revisit Roe v. Wade around the question, in the word’s of its sponsor of whether “the baby in the womb is a person.”

For by redefining the fetus as a “life,” with freedoms and liberties attached and pursuant, Iowa’s legislature abandoned the standard of viability outside of the womb, asserting that the unborn is a person, and abortion tantamount to killing a life, as if “the burdens of carrying a child to term [could] justify the killing of a child,” per the lawyer representing the state of Iowa in 2018. It takes arguments of the potentiality of the unborn to the extreme, not discussing the Thomistic idea of potentiality of human life recently promoted by Catholic theologians as a middle ground, but mapping the heart of the matter–the heartbeat–the visual evidence of personhood. Fueled by the affective relations of ultrasounds that offer the “science” that seems to sever the personhood of the “unborn child” from the standard of viability that had set the threshold for up to what point the protection of a woman’s access to abortion was permitted by constitutional law. The rise of proscribed ultrasounds across multiple states reflect the new focus on personhood and heartbeats, whose mandated display and discussion provided a preventive basis for persuading those seeking abortion to forego the procedure.

Prespcriptive Ultrasounds as a Form of Clinical Counseling about Abortion
States Mandating Women View Ultrasounds if Taken or Ultrasounds Mandated by Law (2015)

Cast as a “Right to Know” legislation that was introduced in Pennsylvania in 2012 mandating all women who are seeking abortions to view the ultrasound designed to determine the gestational age of the unborn fetus–a means of placing the abortion in a window of viability–offered all women seeking an abortion the “right” see the image, and to hear the heartbeat, offering a new way to map life and epigenetic questions of ensoulment around the “beating” of the heart, although no ultrasound was mandated in states protecting abortion rights.

0206righttoknow

The states that have pushed back on this definition for one more consensus hardly appears scientific, gives a scholastic sense of ensoulment first articulated in the thirteenth century contemporary relevance, mapping the unborn on an ontogenic continuity of personhood that reduced the concept of viability that the court once embraced to a relic as quaintly outdated as Plessy v. Ferguson’s ruling that segregation did not violate the fourteenth amendment. The insistence of a Justice on the highest national court that the compelling interests of the “unborn” has become grounds to review the liberty of women to access abortion prior to the line of fetal viability outside the womb. Defining personhood from conception has pushed back these freedoms to the unborn in ways without legal precedent or, championing the court’s role to represent the interest of the unborn, preventing violence against those being carried to term, handing down a sentence against all women asked to carry a child to term.

The imaging tools of the ultrasound after all transformed the fetus to a “baby’s head” and “baby’s heart” able to be recognized on the screen, and indeed labeled for identification, in ways that seemed to deliver a deeper truth, in an age when we have difficulty distinguishing representation and reality, expanding the case in the courtrooms that the presence of a fetal heartbeat offered incontrovertible evidence in a court of law that a “a human child with a heartbeat is a living child,” even if few judges in Iowa were ready to hear the argument, if the state’s lawyer refused to accept that the fetus with a heartbeat was a “potential life”

An ultrasound is performed at Blank Children's Hospital in Des Moines.

Although Roe v. Wade has been discussed as precedent for decades, occasioning only recently clear skepticism about reducing women’s right to abortion by restricting the window of “viability” of the unborn to twenty weeks, in North Carolina, one to two months less than the usual 24-28 weeks, but currently nineteen states take the date as the cut-off for access to abortion, in ways that have made the former standard of viability to seem virtually arbitrary, rather than grounded in embryology. The emptying of any embryological standard–or indeed medical expertise–has come to be cast as a “cultural divide,” out of the court’s sphere of decision making or competence, with seven states on board to limit abortion to the greatest extent possible to twenty weeks: Kansas; Kentucky; Arkansas; Louisiana; Missouri; North Dakota; and Ohio. The critical curtailing of this access in Iowa, the site of the first primary to select the United States President, suggests an undue prominence of an ambivalence to abortion in our national politics.

the latest you can get an abortion in every state map

The effective reframing of rights to access abortion as a question of “states rights,” rather than public health, and of local “liberties,” makes Texas the perfect site at which a national debate about abortion access can be balanced, however, as the current debates on similar local laws in Mississippi–reducing the window to fifteen weeks–it almost even left Chief Justice Roberts flummoxed to ask if the window would always be effectively arbitrary, as if the number of weeks were divorced from a woman’s body or a woman’s womb. The voiding of any constitutional right to abortion in four states of the deep south–Alabama; Louisiana; Tennessee; West Virginia–already pushed the debate away from constitutional rights. Yet the result of shifting the “burden” pregnancy places on women from the nation’s courts suggests a seeming time warp for much of the country, maybe not to the the 1200s, but at least to the years before 1972 at the stroke of a pen–or a verdict of 5-4.

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Chief Justice Roberts Mismaps Voting Rights in America

When Chief Justice John Roberts, Jr. effectively released nine southern states from the oversight of voting procures and practices in a decision overturning the Voting Rights Act of 1965, withdrawing the federal protection of populations against whom there was past discrimination and effectively judging it to no longer warrant federal review.  The decision was to cease to continue such provisions of oversight–the “preclearance” of any changes in voting laws–that interfered unjustly in how states conducted their elections.  Roberts most strongly objected to using maps to guide such active federal oversight of voter suppression.  By rather castigating the U.S. Congress for relying continuously on historical precedent in repeated re-approval of the Voting Rights Act–or “VRA”–the five Supreme Court justices collectively complained that any continuation of policies mandating which states and local jurisdictions must “preclear” with the Justice Department when changing voting laws, suggesting that failures to “update” the “coverage formula” that was repeatedly reviewed and reinstated since 1965 no longer reflected “current conditions,” even though it had been affirmed four separate occasions by previous supreme courts.

What the nature of such “conditions” were was never specified.  For the actual objection of the Court seems to have lain in the unfair distribution of federal authority that the process of review of changing in voting policy created–and the degree to which it distinguished the relation of specific states to the federal government in ways that Roberts claimed he found issue.  The map of those states subject to review constituted undue federal interference, it must be supposed, with state practices.  Ignoring that the map mandating “preclearance” for any changes to voting laws in states had reflected the evolution of voting conditions on a county-by-county basis after having sustained a series of “incident-free” elections where no complaints were registered or found, the Roberts court seems to have treated the map as the problem in its untoward decision–viewing it not reflecting ‘current conditions’ and unfair in its isolation of said counties and states.  They were less able to see a problem as lying in long-running discriminatory histories; such histories were effectively washed from the books.  For the existence of such a policy, despite whatever its benefits might be, ran against the “equal sovereignty” of southern states as part of the union, despite whatever precedents of voter suppression one might find to support its continuation.  Indeed, despite being broadly upheld as constitutional ad as effective on no fewer than four separate occasions by previous Supreme Courts since 1965.

How timely was the 2013 decision?  In scolding the US Congress and federal government for their over-reliance on history, the court may well be accepting and instituting a blind spot in the discriminatory practices that exist in the United States, and are regularly re-inscribed in election laws–and to do so just in time for the Presidential elections of 2016.

 

 

 

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While the Court invited Congress to take time to “draft another formula” which better reflected the “current conditions” in the country, the five justices who supported the removal of protections from the Voting Rights Act, a pillar of national voting practices, seem to have ignored the problem at hand, or its depth.  For they rather petulantly subscribed to a notion of accurate mapping–the need for rendering an accurate record in a map that remained faithful to social conditions–rather than ascertain its benefits.  The argument may have rested on the belief that current cartographical skills vastly outdated those of previous generations, or the belief that history is bunk.

The dangers of the 2013 decision were that they dismissed the effective value of continuing oversight where demonstrable histories of voter discrimination existed–as well as discounted he work that went into rendering a map–or what trying to ascertain what would be the lines of the new map to reflect cases of voter suppression.  Perhaps they imagined that the new map could be drafted in less time than the verbal arguments were presented to the court, and that consensus would be able to be easily arrived at as to its parameters–or that any map would entail similar objections, prima facie.  Although FOX news commentators ridiculed the existence of any practices of disenfranchisement in the states where oversight existed–“nobody is seriously claiming today…that there is systematic efforts on the part of the government in the south to keep people of color from voting,” stated the senior Legal Affairs analyst at Fox News, Andrew Napolitano, ignoring its value in protecting voters from facing discrimination–current restrictions on eligibility for voting in multiple states seem to have multiplied across the country like mushrooms in multiple states, preventing any serious possibility to ascertain their constitutionality in any way, and encouraging the possibility that further policies curtailing voting rights be enacted.

 

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In  a sense, the decision affirmed a strong belief in states rights, but it did so for all the wrong reasons, and in a particularly wrong-headed way.  Chief Justice Robert’s longstanding reliance on constitutional written precedent encouraged him to construe the map of states requiring pre clearance in potentially quite damaging ways–and to change election laws as a stipulation that was no longer historical relevant in ways that could increase disenfranchisement and unease in electoral laws.  Roberts imagined oversight as a vestige of federal interference with states rights, in need of evacuation not only since it had lost its relevance, but since vacating its authority fails struck a blow in defense of the local jurisdiction against federal interference, but he also must have known he was driving a thorn into the side of the Obama administration.  While the repeal of the VRA was hailed by the alt-right as a victory of continued discrimination of whites, as if it was coextensive with Affirmative Action or insinuated the existence of undefined prejudices to what seemed a quarter to a third of the country, the fact that such preclearance reflected actual histories of voter suppression or mythical “voter fraud” in danger of recurring.

Justice Roberts did not only fail to recognize the deeply serious divides in race-based justice across the land, as has been made increasingly evident in the years since, from Ferguson MO to the nation-wide growth of Black Lives Matter; the verdict demeaned the value of protecting voters’ rights or individual access to the ballot.  For Roberts objected to poorly mapping the relation of the Department of Justice to individual regions of the United States–despite their demonstrable history of discriminatory disenfranchisement–on the grounds that “current conditions” did not warrant a review of  local practices of election, he effectively denied the value of such a practice, even while claiming to send the practice back to Congress:  despite notoriously exclusionary practices of the recent past, the continued review of select states’ changes in electoral law lacked “rational” grounds–despite current evidence of ongoing need to protect against discriminatory efforts to reduce the most basic right of citizenship.  Most importantly, the effective “map” of regions of oversight mis-stated the legal question of oversight, by allowing the plaintiffs to frame it as a division of the coherence of how states related to the federal government, rather than an alienation of the most important of all rights to protect to individuals on the ground–whose job the Court should most protect.

 

Coverage by Section 5

 

The replication of the map in news agencies has allowed the debate to be distanced on a map from actual circumstances of voters, orienting many to a question that seems truly unfair–“wait, the Department of Justice is only paying attention to discrimination in these states?  Huh?”–rather than to interrogate the reasons why voters might benefit from such continued protection, or that undue vigilance was demanded of the once-seceded South–and indeed constituted an undue restriction on the “equal sovereignty” of southern states.

 

vra-statesFox News

 

 

Section 2, 1982-2005, 6+ per million

 

 

The suspicion that he shared for the federal government of undue oversight in local liberties however has little to do with what other members of the Court saw as the importance of protecting the universality of the right to vote.  The division of states in the union that merited review of any potentially exclusionary processes of voting was recently accepted by the US Congress.  But Shelby County brought suit against the state of constitutionality of the review of their voting laws in 2011, and brought the case to the Supreme Court, as a case against the Attorney General, with the argument that the federal government lacked the ability to oversee state voting laws–the “extraordinary circumstance” that warranted such a distinction on account of repeated discrimination against minority voters, Roberts held, no longer exists, or had to be renegotiated, because the map used in 1965 cannot be reasonably retained, and need to be redrawn.  This seems a reasonable historicization of the map:  but it threw out any need for the assessment of longstanding historical discrimination of voting rights that had disenfranchised many and institutionalized intimidation of African American voters.  Weren’t such ugly histories of voter suppression come to terms with precisely because of their unconstitutionality?

 

lbj-mlk2Lyndon Baines Johnson Presidential Library

 

“In 1965, the States could be divided into two groups:  those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” the Chief Justice wrote in his verdict.  He then proceeded to strike down key clauses of the 1965 Voting Rights Act on the grounds that the law compelled specific states to seek permission from the federal Department of Justice before changing local voting laws, and in so doing unduly compromised their sovereignty.  The decision had the immediate consequence of opening the floodgates to shifting stipulations of who could vote, from the introduction of Voter ID laws to the ending of voter Registration drives, that seemed designed to –even though the actual map of oversight had been adjusted and redrawn multiple times since 1965, and the notion that an old map was being used for a question to which it was no longer relevant concealed the deep and longstanding historical survival of suspicions on the electoral voice of what were seen as minorities–and for retaining what were presented as the “local liberties” for allowing the continued suppression of the vote.  It is not surprising that the rush to adopt restrictive measures in voting were adopted in time for the Presidential election of 2016, perhaps to disenfranchise  the very populations seen as most egregious in forcing limitations on voters’ access to the ballot box, encouraging states to adopt restrictions on where turn-out could be potential hindered.

The judgement that Roberts so blindly and so forcefully made that “the Nation is no longer divided along those lines” which had been once determined by the discrepancies of “minority” registration and turnout provided grounds to classify Section 5 of the VRA as a historical constraint on states rights without merit because “today’s statistics tell a different story” seems in retrospect to have little merit:  the readiness to introduce new restrictions on voting rights compels the issue to be revisited, perhaps in time for the approaching Presidential election, in order to ensure that full access to the ballot is not only protected but encouraged.  For the occurrence of new restrictions adopted by local state legislatures suggests not only the continuing need for federal oversight–if not a strong tension between local and national policies about voting rights–but a profound misunderstanding of the lack of uniformity in how the nation will be selecting its President, not only possibly privileging the voices of citizens, but effectively diluting the national electorate in untoward ways.  Although the language of the verdict refused to treat the sovereignty of different states in different manner–evoking earlier arguments of states’ rights–the notion that all states are equal in all ways bears revisiting.

When Roberts reasoned that such review of changes in voting policies, from preregistration drives to on-site registration on Election Day, were untoward interferences in states’ rights to hold elections in the manner that they desired, did he indeed encourage the actual differences in how voters were allowed to make their voices heard?  At the very least, forestalling the introduction of new restrictions until their impact is assessed, and constitutionality is reviewed–given the spate of cases in which the constitutionality of Voter ID laws has been questioned–yet the dangers that are associated with a federal trammeling of states’ rights have provoked a broad rejection of the VRA provision for federal oversight of dangerous consequences.

 

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Let’s compare that with the states that were facing mandated federal oversight that was dismissed as outdated and not meriting federal review of electoral policies–not the map of 1965 but a more recent one:  all but one state whose changes in voting policies were subject to oversight in Section 5 of the VRA indeed adopt changes in time for the 2016 Presidential election, but their effectiveness may impact the election.

 

Coverage by Section 5

 

It is difficult to grasp the lack of connection between the decision and the nation being mapped.  Indeed, if Denis Wood and others has argued that national maps are a performance of national identity, the amazing nature of the agreement in 1965 to turn attention to the discriminatory practices on voter registration that existed endemically in many southern states–whose legislatures were particularly resistant to and fearful of the expansion of the franchise, and sought to adopt more voter policies that the federal government could practically review–rested in a refusal to subject states to federal oversight that was blind to race-based divisions.  The decision suggests a serious blind spot about how the nation is currently being mapped.  Chief Justice Roberts’s argument rested on asserting the lack of legal grounds for continued federal oversight over local communities that is unmerited at present, since extraordinary conditions now longer exist in the southern states–many of the same which fly the Confederate Flag in their capitals. The range of counties that turned to adopt restrictive policies of registration and voting in time for the Presidential election of 2016 maps (ochre) nicely onto the regions subject to review by the Dept. of Justice of any changes in electoral laws (hatched regions) and indeed the scope of restrictive policies of voting were indeed often noticeably expanded to cover and include nearby counties were large numbers of minority voters, as if the policies of reducing the electorate grew, particularly in crucial states for Presidential voting, as Florida–where the electoral benefits to the victor can even decide a Presidential election.

 

County by county restriction v. Section 5 coverage.pngThe New Yorker/2014

 

To stamp such a “date of expiry” on the map of vigilance to laws that exclude or encourage the exclusion of voters from an election of national consequence is not only to deny the work that went into the establishment of criteria of oversight but denies the provisional value of the map as a work in progress:  the Roberts court blithely seems to seek to alter the constitution and performance of national identity, and the labor that goes into the construction of any map, while dismissing the effectiveness of that already adopted.

Chief Justice Roberts asserted that the nature of federal oversight over localities must be uniform across the nation, rather than privilege any region was effectively unduly onerous but also unfair.  Rather, he urged the primacy of rigorously respecting rights of localities. But if his opinion suggested such that current practice unfairly singled out regions as in distinct need of oversight from other fifty states, and that the criteria approved in 1965–and repeatedly renewed, with some exceptions–all of sudden no longer reflected current conditions.  The subsequent state of events have shown that the infringement of rights to vote both to exist in areas where the body politic still suffers from exclusionary practices that have survived in new guise, and sadly permits the encoding of racist practices and dogma in new language in existing voting laws.

Yet it raises questions of what sufficient conditions would be, and why there might not be broader oversight over election laws on a federal level at a time when restrictions on voting rights are actually being introduced.  The Roberts verdict oddly comes on the heals many of the criticisms Republican candidates had only recently expressed about longstanding need to eradicate voter fraud.  But rather than address the needs to reform elections or election law, Roberts argued for the compelling need to remove obstructions of self-determination that had been previously determined on a map of those states sharing past precedents of systematically curtailing universal voting.  For Roberts recognized that policies of pre-clearance had stood “for half a century [as] the most effective protection of minority voting rights“–finding that given distinctions between federal attention to local practices, federal pre-clearance of changes in local  election laws constituted unwarranted distinction among the states in the union–despite the clear grounds for concerns in southern states.

If the purported aim of the verdict was to ensure all Americans retained the same voting rights, opening the door to pending changes in electoral law was the basis by which Shelby County was eager to bring suit against the government led the court to take its eyes of the nation. For while determining that the extraordinary grounds for previously constructing a map of states in need of federal oversight unfairly distinguished how the Department of Justice related to states, as if the review were due only to an extraordinary condition now in remission, it ignored the issue at stake.  By inviting the federal government to rely on a more current map the justices seem to have accepted the ease of redrawing a new map in the age of infographics and data visualizations that are produced nightly for the news–as if that process could be accomplished in time for the next Presidential election in a way that could be given binding fource.  The justices on the Supreme Court may have lacked authority to mandate the construction of such a new map of national voting policy or the competency to do so–but in dispensing with any guidelines for oversight, they willfully opened a conundrum which they must have understood.  The particular derision with which the late Antonin Scalia publicly discussed the “Voting Rights Act”–asking who would ever want to tamper or get rid of a piece of legislation with such a nice-sounding name–reveals either a misguided failure to appreciate its benefits, or past need, or the historically embedded nature of many counties’ voting laws–as was soon revealed in the institution of a range of restrictive policies of voting apparently aimed at curtailing voting rights, if cunningly cast in protecting the rights of those who had already registered.  The refusal to retain a map that ostensibly “was biased” against whites was a stroke of genius for a group of white southerners in a minority-majority nation, and also came with clear political pay-off for the Republican party, as those dissuaded from voting would most likely not vote Republican.

 

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2008 Presidential Elections exist polls in Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia

 

Why weren’t the continuation of a danger of disenfranchisement evident to all members of the Court?

The cross-generational continuity believing that provisions of literacy, English literacy, or indeed the predominance of continued violations of voting rights threaten to dissuade participation in the election, and indeed increase the feelings of distrust in members of the electorate.  The very existence of problems of restrictive policies about voting mandate the importance of keeping expanded locations of registration open, opening the ability of those who haven’t voted to vote, and renewing registration until the last minute.   And despite the introduction of  legislation to restore the VRA in the US Senate, the reluctance of Republicans to endorse such legislation reveals the bizarre transformation of the debate to guarantee the franchise along party lines–in ways that echo the terrifying vocalization by Donald Trump of charges that illegal immigrants he would not permit in the country would be accepted en masse to tilt the vote, and his attempts to undermine the legitimacy of an outcome to the election that did not affirm his victory.   Such bullying of the American electorate of course itself hinders and disrespects the electoral process.  For in dismissing the previous map for areas worthy of federal attention to undue limitations on civil rights, Roberts sided with a longstanding argument first framed during Reconstruction, but examined Southern claims to autonomy as undue interference in states’ rights.  Yet the argument that geographical restrictions of federal oversight were no longer warranted depended on an imagined equality due all states, and a willful neglect of the map of local disparities in how voters are allowed equal access to the polls.

 

1.  The map became what he tilted his sword against in the opinion that he wrote, leaving Justice Ginsburg somewhat dumbfounded at its limited reading of the law:  the VRA did not mandate a permanent division among states, but the law specified redrawing of a map over time should disenfranchisement be found to no longer occur–in which case it would expire in regions where such oversight was deemed no longer necessary.

So how could the map be effectively fetishized as grounds for legal objection to the oversight of regions where voting practices had not yet gained a respectable track record for respecting the civil rights of all voters?  In granting the petition of an Alabama county in Shelby County v. Holder, No. 12-96, the court placed the Voting Rights Act in its sights in ways that it had sought to do for some time.  Roberts argued that maps of past discrimination bear little “rational relationship” raise questions of the rational relation of a map of oversight to the law–or whether a map of legal oversight can be warranted in light of histories of racial discrimination.  The verdict raises questions of knowing when a new map should be required of regions that have demonstrated histories of disenfranchisement, when a map becomes overly dated in the eyes of the law–and, given how long Congress had labored to determine how the geographic limits specified in the Voting Rights Act could shift over time, when a new map would ever be collated and compiled.  Oddly, the decision seems to deny a clear perception of the lack of equal access in the last presidential election–and Mitt Romney’s decision attribute his defeat at the feet of the promise of Universal Health Care (“Obamacare’) held to minority voters.  In an age when a Presidential candidate can explain his failure to gain votes among minority voters on “the gifts” promised by his opponents to African-Americans and Latinos, dividing the electorate along racial lines, such distinctions clearly exist:  yet Roberts questions the limited effectiveness of mapping specific states as sites of disenfranchisement as unfairly privileging DOJ oversight of select states.

Does a map of regions requiring federal preclearance divide our national territory, in short, or is it by necessity a necessary tool for preserving equal access to the ballot across our nation?  What map would be sufficiently authoritative for Congress to draw up, for one?  Do the maps of discrimination retain validity on preventative grounds, or must they be actually demonstrated?  If the latter is the case, who is doing the counting and reporting the results?  Is it of any importance that the historical preponderance of complaints about voting laws within the United States as a whole from 1957 to 2006 closely reflect a distribution that would expand the mandate the continuation of a similar map–but include the very same regions as sites historically in need of federal oversight of election laws?

 

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Voting Complaints Voiced at County Level in the Lower Forty-Eight, 1957-2000

 

Unsurprisingly, this map would reflect many of the same counties where the voting group was likely to be one fifth “minority” voters in 2000, where those attitudes against groups defined as “minorities”–Latinos or African American, usually–were sharpest and most likely to be excluded from voting.

 

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Counties with 20% Minority Residence

 

Given the Chief Justice opinion that violations of voting rights “should not be too easy to prove since they provide a basis for the most intrusive interference imaginable,” and must be rooted in the explicitly stated intent to disenfranchise, Roberts would probably question the ability to map a history of discrimination at all, of course.  Given that Roberts openly doubted “Congress can impose this disparate treatment [of states] forever” in oral arguments to a 2009 challenge of Section 5 of the VRA, he might well have recused himself from considering the case, but seems to have been eager to provide a precedent for explaining why the undue interference of the Department of Justice over local procedures and warranted a continued need to mandate states to request federal permission for changing election practices.  In arguing for the antiquated nature of mapping a division among the states in the eyes of the law, Roberts questioned criteria for selecting the procedures of voting and elections in specific states, mostly located in the South, under the supervision of the Department of Justice:  strictures on select states created undue divisions in a nation, he argued, dismissing the need for such oversight as a thing of the past–even while praising the benefits it brought their residents.  Yet maps are difficult to move to a discourse of legal reasoning, and a map of discriminatory practices is bound to be approximate and selective, rather than uniformly divide the national space:

 

Clearance Required

 

 

2.  The 1969 Voting Rights Act introduced to rectify widespread blatant discrimination against the voting rights of African Americans, common in obstructing registration, mapped those regions where clearance was required to change election laws or voting practices.  The above map continued to provide an avenue of legal recourse for minorities who faced any practice or intent of disenfranchisement.  The passage of the original Act responded to registration discrepancies in 1965, but its expansion in 1975 covered a range of other subterfuges and nefarious tactics to reach the same ends–most recently, these have expanded to include from restricted polling hours to the introduction of Voter ID’s.  The Chief Justice argued whatever the potential benefits of federal  oversight, the distinction that the VRA drew in its placement of nine states under oversight created a harmful divide in the harmony of the Union of states, independent of the realities of disenfranchisement.  He hence found lack of a compelling reason to require only nine states to obtain federal approval to alter any existing election laws.  In clothing his argument in a federalist claim to state equality, Robert’s  opinion raises the question as to whether mapping practices that obstruct voting  provide an instrument to monitor the insidious but present evil of disenfranchisement or rather serve to divide states’ rights.  For even if the metric of voter registration differences seems outdated to map distinct regions worthy of oversight, continued tactics of disenfranchisement–often achieved by redrawing maps of districting–both suggest that the drawing of lines on maps of political representation demand federal oversight.

How can one map a compelling need to supervise voting rights?  Roberts might well have asked.  By appealing to the uniformity of standards among states as a guiding rational of his decision, or couching his argument as a “division” of the nation, the Chief Justice invokes the lack of grounds to divide how space is abstracted in a map to strike down civil protections for voters, ostensibly to  maintain equality among the states, but to restore the lack of interference of  federal government in regional elections–despite the increasing hostility showed to the growing presence at polls of formerly minority groups.  Many objections to the Act question its viability as a question of “racial entitlements,” as did Justice Scalia, who described the emergence of “black districts [facilitated] by law” in the House in argument.  But the 14th amendment were less central to the decision than the rationale for renewing oversight of election laws in the fifth clause of the VRA, now on the books for over 40 years, and long a target of Chief Justice Robert’s ire because of the federal oversight it allows, and invites Congress to draw a new map of those “jurisdictions to be singled out on a basis that makes sense in the light of current conditions.”  The Roberts court oddly departs here from an argument based on precedent, to pose a federalist argument against singling out individual jurisdictions that are in need of supervision–notwithstanding documented attempts of disenfranchisement in these regions.  For Roberts, the map has “no logical relationship to the present day”:  things have changed, Chief Justice Roberts tells us now; we no longer need to supervise obstacles in voting laws in select states.  Yet do maps ever have such transparently logical relations to ideas or principles?

 

3.  Maps drawn as tools for determining effective political representation are improperly treated as if they defined entities.  And to argue that the map is simply a division of the polity into separate entities–as Roberts’ decision–obscures the extent to which the purely precautionary nature of review exists to ensure political representation.  Robert’s argument seems to make a categorical confusion between the ways that maps abstract a record of lived experience of disenfranchisement to a region and the abstract categories of rights in legal thought.

The objections of the Dept. of Justice to ‘pre-clearance’ have in fact radically declined since 1965, but this does not undermine the validity of Congressional attempts to map disenfranchisement in the US.

 

Coverage by Section 5

 

Yet the map is not a territory–or a means of conjuring an entity–so much as a tool of oversight.  The Voting Rights Act frames a legal avenue for redressing discrimination at the polls or in redistricting–and redressing a level of discrimination not effectively able to be monitored by pursuing suits of local jurisdictions.  Roberts’ opinion withdrew the existing avenue to appeal such insidious discrimination by finding it to violate the uniformity of a map in which all states–if not all voters–were to be treated as equal.  All law is based on abstractions, but his reliance on the abstract autonomy of the state is an odd substitution or sleight of hand, that preserves the autonomy of states’ jurisdictions for the rights of their inhabitants:  it appeals to the abstraction of the state to question the logic of distributing persistent inequalities , rather than the injustices to specific residents of the states.

In a decision that almost mocks the intent to seek to find distinguish discrepancies in voter registration on a map by sharp divides, Chief Justice  Roberts condemned the VRA as a flawed in its attempt to make reality correspond to a map of actual discrimination, and notes that the divisions it maps no longer reflects actual circumstance.  This denies the flexibility that the Act has long had.  The application of the law was not applied only to states, but to jurisdictions with a history of voter discrimination in any form.  Yet Roberts finds that its criteria, although based on alleviating restrictions on voters, imposed unequal burdens on states’ administration of elections, as if the autonomy of states unified in the map be preserved in the face of history, and the government be protected from meddling with how the fifty states map their own representation or internal affairs–even when the outcome is in the nation’s collective interest.

Roberts’ allegation that how the VRA maps “pre-clearance” disrupts the integrity of states distracts from the actual inequality–manifested in inequality and disenfranchisement–by positing a need for equality among the fifty states.  Yet, as many observers have noted, the increased anxiety at an increased number of minority and Latino voters in central and western states might make this the most dangerous time to shrink the map of where impediments to the “any voting qualification or prerequisite to voting,  or standard, practice, or procedure . . . [deemed intended] to deny or abridge the right of any United States citizen to vote on account of race or color.”  Although these terms written in 1965 echo those in the US Constitution, the Chief Justice seems to find a basis to question the assertion by a rosy-hued map of uniform states rights, as if each state best flourishes when left to practice its own electoral practices no matter what practices or means of impeding a broad vote might be a direct result or consequence of them.

 

us in globe's surface color map

 

Roberts the strict constructionist seems to question the accuracy of a map of “covered jurisdictions” in need of judicial “preclearance” both as an impediment to states’ rights because it maps a divide he argues no longer reflects “current conditions.”  Yet isn’t a map simply a convenience to create grounds for adequate representation?  While finding the map of covered jurisdictions “out of date,” but accepting a map of all fifty states, he finds the previously sanctioned formula for “pre-clearance” “unconstitutional.”  In the name of the specious argument of “states rights,” he seems to have vitiated the compelling nature of an argument to ensure the votes of all.

 

4.  Roberts interpreted the individuation of nine states by historical attempts of disfranchisement as “dividing” the nation.  And since these states are no longer defined in a similar manner by policies of explicit segregation of registration or voting, despite clear inequalities in the history of the regional reception of voters’ inalienable rights to vote, the majority opinion took voter registration and turnout numbers as an index of voter discrimination.  Through such a metric, Roberts questioned whether such discrimination continues, or continued in such a clearly mapped manner as he grants it clearly did in 1965.   The VRA defined those states it mandated to seek federal permission prior to altering electoral laws or voting practices to identify those places with voter turnout or registration of minorities below fifty percent, and hence in need of oversight to rectify deep imbalances.  The  seven states were subsequently augmented to include those where a percentage of voting age citizens spoke only a non-English language–Texas, Arizona, Alaska–as they were judged in need of “preclearance oversight” as well since the Act’s historic passage in 1965–suggesting th flexibility with which the VRA was long employed to ensure the equality of voting rights.

Roberts found the divided national map to perpetuate antiquated divisions that “divided into two groups” a unified country.  But the flexibility of how oversight was framed in the map historically varied in response to demonstrated need, as shown in the maps of  oversight compiled in the New York Times, which traced the coverage of states by the Act, coloring those covered since 1965 in deep purple, and those added in the 1970s in violet, and subsequently judged free from such voting discrimination in tan:  the disparate nature of these regions suggests attention to areas in the country where electoral laws merited continued scrutiny by relatively current criteria.

Areas Covered by VRA-and additions
The shifting landscape negotiated evidence of voter discrimination, rather than disrupting national harmony.

Chief Justice Roberts’ opinion foregrounded data compiled for Congress’ 2006 review of the Act to call into question the relevance with which the VRA maps a uniform division of states Congress kept under coverage.  Yet in citing only one metric–discrepancies in voter registration, the original criteria used in 1965–he oddly adopts an antiquated sense of the relevance of mapping in relation to the VRA, throwing out the map on the basis of its antiquated measurement of obstructing universal suffrage, and opening the door to the introduction of further abuses by removing oversight entirely.  Even while calling for basing such oversight on more current data, he avoided looking at the data that was available–summarized in part in Justice Ginsburg’s impassioned eloquent dissent–by confusing one map with the ends of oversight.   And so a declining registration gap served as grounds to question the need for the continued federal oversight:

Voter Registration Gap 1965-2006

Several of the gaps in these six states survive, and the gap of registration among African American voters has been dramatically reduced in Alabama, Georgia, South Carolina, and Louisiana, which partly reflects the standard set by the Act, but these numbers present only a very partial or selective picture, and a map that does not conform to voting practices.

 

5.  Yet the assiduousness with which attempts to reduce voter turnout have been since developed in many states listed above in the rise of increased minority voting, and indeed with the rise of the proportion of ‘minorities’ among registered voters.  The lack of uniformity that Roberts finds in the ability of mapping disenfranchisement among those states who were mandated to submit any electoral alterations for “pre-clearance” by the Department of Justice perversely became his basis for arguing that the concept of preclearance should be jettisoned as unconstitutional in the undue constraints it imposed on nine named states–as if the question was the ability to map discrimination, or use a map to regulate voting practices, rather than its continued existence to remedy historical prejudice.  So whereas the Voting Rights Act was persuasively linked to the region placed under federal coverage–or “pre-clearance”–of any changes or modifications to electoral laws or procedure, Roberts ruled that the geographic divide in disenfranchisement that was relevant in 1965 was no longer operative or commensurate with actual historical experience or current data–although the measure he chose to highlight does not conclusively demonstrate this assertion to in fact be the case at all.

But rather than look more deeply at actual data, Chief Justice Roberts appeals to the “fundamental principles of equal sovereignty” among states and record of national unity as if it were abstractly represented on a map, rather than something that played out in lived experience and effective political representation.  The opinion seems partly in the question of trusting an earlier mapping of disenfranchisement.  It ignores the extent to which the Act aims to prevent disenfranchisement; it displaces these questions by those concerning the propriety of mapping out a division in jurisdictions, as if to implying that uniform disenfranchisement was the target of the laws more than its inherently undemocratic evil that disrupted the legal equality of the state in the eyes of federal law, before which all states should have equality.

 

Maps of the USA

 

Yet are all states equal in their entitlement to police their own voting rights?  Recent cartographical endeavors to draw maps of political representation by equally distributed units of population reveal that the boundaries of states are approximate realities, rather than the abstract entities Roberts accuses the framers of the VRA of positing.  To distribute population were equally divided to correspond to the shifts in population in the nation, Neil Freeman decided to remap the states to allow chambers of Congress to remedy the disproportionate influence of specific states and prevent gerrymandering.

 

electoral10-1100

 

Freeman’s counter-map reminds us of the political convenience of such abstract entities, and the incoherence of some of our states as entities.   It reveals the poor approximation that the existing divisions of states gives voters in the nation, effectively privileging votes of residents in the more  thinly populated prospective regions of “Salt Lake,” “Ozark,” “Shiprock” or “Ogallala.”

Can the division of federal oversight be understood as an approximate and imperfect but necessary tool analogous to that of the electoral college?  Such abstractions are imperfect tools for considering local electoral practices, but are the units that exist as units of electoral law, rather than as legal abstractions whose jurisdictions are in need of projection.  Indeed, these convenient units for political administration poorly reflect population density–in fact, the limited density of the area of federal oversight seems less densely inhabited, and more isolated from broader cultural norms.

 

Cartogram of US popation on grid

 

 

6.  The Voting Rights Act served as a preventative that decreased a marked discrepancy among the registration of whites and minorities in these states.  Yet in gutting its enforcement, Roberts found poor logic in arguments that preclearance has itself diminished potential electoral abuse, asserting it impossible to prove with rigor this as the case, and noting this lack of rationality contrasts to the undue “burdens” that the division creates.

The Chief Justice may have effectively distorted the question in an optic of states rights.  But this argument seems anything but rational or watertight, with 81 percent of the voter discrimination complaints of voting practice lay in the areas where the VRA sustained “preclearance” of changes and/or modifications in voting law or elections–the region of the states who lost or settled the largest number of cases in favor of minority voters between 1982-2005, as Judge David S. Tatel had noted in the appeals court’s decision, if one focusses on those regions that lost 6 or 7 cases per million people.

 

Section 2, 1982-2005, 6+ per million

Lost or settled cases

 

This map of the settlement of cases that violated Section 2 of the VRA might, Chief Justice Roberts could object, fail to map in identical fashion onto the boundaries that the VRA enshrined–and the second excluding both Virginia and North Carolina, and providing little rational for the validity of the existing map of areas whose election laws merit more careful observation and protection.  But this point denies the imperfect conventionality of all mapped entities–and the confusion in conflating the abstract unity of the map and experience of the jurisdictions it maps.

A map that measures at lest ten successful settlements of cases that minority voters brought of disenfranchisement in the years between 1982 and 2005 defines a similar  region as worthy of oversight:

 

Over Ten Voting Discrimination Cases settled in favor of Minority Voters

 

The question turns on what sort of maps best show current conditions of civil rights.  But a deeper problem in Robert’s argument the difficulty to select a single map  with a level of logical consistency as a record of conditions, given the selective nature of mapping:  the map is not the territory, but construes it.  To object to the divisions a map creates misunderstands its instrumentality.

Roberts found “Today the Nation is no longer divided along those lines” revealed by low registration and turnout, and finds little rational by which the division should be preserved since “today’s statistics tell a different story.”  The story Justice Ginsburg offers for “the completion of impressive gains thus far made” as a way “to combat voting discrimination where other remedies have been tried and failed” against “‘the blight of racial discrimination in voting'” to give, as Oliver Wendell Holmes argued in 1903, “relief from [that] great political wrong.”   The curbing of such a wrong perpetuated either by a state or its residents was the aim of the VRA, and the benefits were directly attributed to its reauthorization in 2006.

But Roberts seems to argue from the map that the unity of law is disrupted by the federal imposition of different norms.  This despite fears of active “redrawing of legislative districts” to dilute the rising power of minority votes,  that  effectively segregate the distribution of minority votes by lines of race, drawing distinctions designed to minimize the effects of those votes, independent of registration or attendance at the polls that actively diminish the increases of minority representation:  Congress found many “second-generation barriers” arising in different forms which demonstrated “the need for continued Federal oversight” in these specific regions, Congress determined, and included among other things the purging of voter rolls of minority voters; dual voter-registration schema; restricting of early voting practices or curbing late voting; openly expressed fears of African-American turnout increasing; and intentional redistricting designed to eliminate those districts where minorities were majorities–a practice noted in Shelby County itself as recently as 2008.  The act, Justice Ginsburg argued in her forceful eloquent dissent, might be retained “[in those] jurisdictions as to which its application does not transgress constitutional limits.”

 

7.  It is accepted that maps of oversight are in fact instrumental tools of political representation.  Abigail Thernstrom of the American Enterprise Institute has written pointedly that the primary reason for defending Section Five of the VRA is to secure African-American constituencies in “racially tailored districts” that protect minority seats; she sustains the abuse of Section 5 by a Department of Justice to block Voter ID laws that would have the effect of limiting the voting franchise.  And instead of protecting against disenfranchisement, the law’s current form has provided a basis for preventing “multiracial coalitions,” Thernstrom argues, and effectively continue to limit the focus of African-American politicians–with polarizing results.  Yet the rise of minority voting blocks has also provided regions which stubbornly tend to support Democratic candidates, making redistricting a partisan issue.  In other words, the law undermines our polity–never mind its accuracy.

The redrawing of electoral maps in response to Roberts’ ruling so that they minimize minority votes is an inevitable irony of Roberts’ failure to see any reason to map of federal oversight on specific states.  Within two hours after the public announcement of the Supreme Court decision–in a move either premeditated or revealing insider pre-knowledge of the decision to come–when Texas’ Attorney General Greg Abbott announced the return of voided voter-ID legislation designed to curb minority voting together with a new redistricting map limiting Hispanic and African American voters–both previously blocked as discriminatory, unveiling a new map of the map of Congressional districts in the state that effectively minimized the impact of a growing number of Latino votes in ways that are not revealed in the limited metric of registration.  In fact, Abbott could barely contain his glee,  tweeting to the world “Eric Holder can no longer deny #VoterID in #Texas after today’s #SCOTUS decision.”

 

Talbot Maps Texas

 

The redistricting in no small part responded to the growth of minority voters in the 2012 election, designed to restrict the effects of district demographics–it can be viewed in clickable form here–that responds to the recent dramatic rise in non-white voters in the state.

 

Texas Electoral Map

 

Both changes had been earlier blocked by the Department of Justice for targeting growing minority communities in the state of Texas, by passing the most stringent Voter ID laws in the United states.  Critics of the map–“drawn in secret by white Republican representatives, without notifying their black and latino peers,” according to Aviva Shen,” or Voter ID, argued that it would effectively diminish minority votes.  Local resident Mack Green observed ruefully, “Travis county looks like something drawn by 5 malevolent and blindfolded pre-schoolers. . . . . Gosh, can this be the rampant voter fraud Republicans are fighting to prevent?”  Unsurprisingly, a range of states are collectively moving to re-adopt previously banned Voter ID laws, in ways that promise to change the electoral map:  Attorney Generals in Alabama, Arizona, South Dakota, and South Carolina all want to institute Voter ID laws that they argued the Voting Rights Act impeded.  Is this related to the election of President Obama with huge majorities of African-American, Asian-American, and Hispanics, but less than half of white votes?  Ari Berman questioned the relation to recent controversies around past evidence of voter suppression: “There’s a particular irony to the Court killing Section 5 just months after a presidential election in which voter suppression attempts played a starring role.”

The map of voting rights will in the coming months quickly be redrawn elsewhere in response to the court’s short-sighted decision to remove preclearance across nine states.  It is ironic that Chief Justice Roberts’ argument began from the imposition of an unfair division of the map that the federal oversight had first created.  One can only hope that “dignity” will re-emerge as a standard by which to enforce a redrawn region of oversight.

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Filed under 2016 Presidential election, institutional racism, minority voters, Southern States, Voting Rights Act