The social conservative “death by a thousand cuts” strategy
by digby
Ed Kilgore’s take on the future of the “religious liberty” strategy that has Arizona (and other states) proposing a gay Jim Crow legal regime and a War on Women is persuasive. He concludes his survey of how this is backfiring, with this:
On many fronts in the culture wars, the momentum has usually been possessed by those who can best identify themselves with the ambivalent attitudes of a mushy middle “swing vote”—favorable to contraceptives and early-term abortions but not late-term abortions; increasingly accepting of LGBT folk but indulgent of their parents’ and grandparents’ “ick factor.”
After years of shedding crocodile tears for the victims of late-term abortions, anti-choicers are now finding themselves defending businesses who in open court argue that the dividing line between acceptable contraception and murderous abortion occurs moments after sexual intercourse — when women instantly transition from autonomous individuals to “hosts” for a state-protected zygote. And after years of arguing against marriage equality on behalf of the positive “rights” of men and women in “traditional marriage,” those who actually think gay people in love are abominations unto the Lord are being exposed for who they really are.
I hope he’s right that these discrimination laws are not going to be acceptable to a majority and that banning contraception will, at the very least, remain a battleground rather than a fait accompli. Overall, I’ve been shocked at how fast gay rights have become mainstream and there’s certainly some good reason to hope that this flailing around over “religious liberty” (assuming the courts don’t go way out on a limb) will eventually lose its energy and die out.
But this is, unfortunately, just one tool in the social conservatives’ toolbox. For instance just today I read about this ingenious new approach:
HF 2098 was cosponsored by [Iowa] Republican (of course) Greg Hartsill and company, and it provides a formal legal mechanism for “establishing a civil cause of action for physical injury or emotional distress resulting from an abortion.”
The bill allows patients to do so for up to ten years.
Here’s the thing. There’s already a mechanism in the law for tort claims related to physical injury caused by medical malpractice. There’s a lot to be said about medical malpractice reform in the US and the suit-happy culture this country cultivates, but the short version is that if a patient incurs a physical injury as a result of an abortion, that patient already has a mechanism for bringing suit.
Let’s say, for example, that horrible complications during an abortion render a patient infertile — if this was the result of malpractice, the patient can claim a potentially very large settlement.
While medical malpractice is in urgent need of reform (especially in OB/GYN, where it’s particularly thorny), patients need to have the right to seek redress for serious injuries caused by negligence, carelessness, and mistakes made in the course of practicing medicine. Including mistakes made while performing abortions — fortunately, abortion has an extremely low complication rate. First trimester abortion (the most common) carries a complication rate of less than 0.05%.
But this bill isn’t really about malpractice. It’s about regrets. Specifically, a woman who regrets having an abortion and wants to sure the doctor who performed it. They call this “emotional distress.” The anti-abortion movement has already recruited a cadre of women who have made themselves into the poster children of abortion regret and I’m going to assume they will be able to find what they need to put doctors out of business wherever these laws are enacted. Fear of lawsuits may just be the silver bullet they’ve tried to use to kill doctors in the past.
This is just one of a number of different approaches being pushed by the social conservatives. This one could backfire too, of course. It’s possible that the “mushy middle” that Kilgore describes could acknowledge that a woman has free will and therefore has no case against a doctor who performs an abortion at her request. That would seem logical to me, but then I don’t understand the mush middle’s belief that because someone thinks a thing is “icky” it should be banned by the state so perhaps I’m not the best person to judge this. The point is that the social conservatives are not relying on any single strategy. It’s more like the death of a thousand cuts — they just keep at it incrementally and hope that the “mushy middle” just gets sick of the whole thing and lets them have their way. It’s a pretty good bet in my opinion.
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