Month: April 2023

Michelle Goldberg on the rebirth of the Comstock Act:

Anthony Comstock, the mutton-chopped anti-vice crusader for whom the Comstock Act is named, is back from the dead.

Comstock died in 1915, and the Comstock Act, the notorious anti-obscenity law used to indict the Planned Parenthood founder Margaret Sanger, ban books by D.H. Lawrence and arrest people by the thousands, turned 150 last month. Had this anniversary fallen five or 10 years ago, it barely would have been worth noting, except perhaps to marvel at how far we’d come from an era when a fanatical censor like Comstock wielded national political power. “The Comstock Act represented, in its day, the pinnacle of Victorian prudery, the high-water mark of a strict and rigid formal code,” wrote the law professors Joanna Grossman and Lawrence Friedman. Until very recently, it seemed a relic.

Yet suddenly, the prurient sanctimony that George Bernard Shaw called “Comstockery” is running rampant in America. As if inspired by Comstock’s horror of “literary poison” and “evil reading,” states are outdoing one another in draconian censorship. In March, Oklahoma’s Senate passed a bill that, among other things, bans from public libraries all content with a “predominant tendency to appeal to a prurient interest in sex.” Amy Werbel, the author of “Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock,” described how Comstock tried to suppress photographs of cross-dressing women. More than a century later, Tennessee has banned drag performances on public property, with more states likely to follow.

And now, thanks to a rogue judge in Texas, the Comstock Act itself could be partly reimposed on America. Though the act had been dormant for decades and Congress did away with its prohibitions on birth control in 1971, it was never fully repealed. And with Roe v. Wade gone, the Christian right has sought to make use of it. The Comstock Act was central to the case brought by a coalition of anti-abortion groups in Texas seeking to have Food and Drug Administration approval of mifepristone, part of the regimen used in medication abortion, invalidated. And it is central to the anti-abortion screed of an opinion by Matthew J. Kacsmaryk, the judge, appointed by Donald Trump, who on Friday ruled in their favor.

It’s true that, as Kacsmaryk noted, the Comstock Act bars mailing “every article, instrument, substance, drug, medicine or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion or for any indecent or immoral purpose.” The law imposes a five-year maximum prison sentence for first offenses and up to 10 years for subsequent ones. That’s why, almost as soon as the Supreme Court tossed out Roe, social conservatives started clamoring for the Comstock Act to be enforced against medication abortion. When 20 Republican attorneys general wrote to Walgreens and CVS warning them against distributing abortion pills, they invoked the Comstock Act.

Many legal scholars see this invocation of the Comstock Act as legally dubious. As David S. Cohen, Greer Donley and Rachel Rebouché explain in the draft of a forthcoming article, circuit court cases in the 1930s found that the Comstock Act applies only to materials meant to be used unlawfully. But for judges hellbent on banning abortion, as we’ve seen, precedent doesn’t mean much. “The Comstock Act plainly forecloses mail-order abortion in the present,” wrote Kacsmaryk. He added, “Defendants cannot immunize the illegality of their actions by pointing to a small window in the past where those actions might have been legal.”

On Friday a Washington State judge issued an opinion directly contradicting Kacsmaryk’s and ordering the F.D.A. to continue to make mifepristone available. The dispute now is likely headed to the Supreme Court. The emphasis on Comstock in Kacsmaryk’s decision, tweeted the legal scholar Mary Ziegler, could appeal to “self-proclaimed textualists” on the Supreme Court like Brett Kavanaugh and Neil Gorsuch, who emphasize the ordinary meaning of words in a statute, outside the context of legislative intent or history.

Such a reading of the Comstock Act could do far more than prohibit patients from getting mifepristone by mail. “Absent the narrowing construction applied by the federal circuit courts, the law’s plain terms could effectively ban all abortion nationwide because almost every pill, instrument or other item used in an abortion clinic or by a virtual abortion provider moves through the mail or an express carrier at some point,” wrote Cohen, Donley and Rebouché.

There is something head-spinning about how quickly Comstock’s spirit of punitive repression has settled on a country where, not long ago, social liberalism seemed largely triumphant, with the rapid acceptance of gay marriage, the growing visibility of trans people and over-the-counter access to emergency contraception. The notion that it’s the government’s job to protect people from vice appeared increasingly passé as states legalized marijuana and gambling. It’s true that even before the end of Roe, conservatives had a lot of success rolling back reproductive rights in red states. But just a year ago, the idea of a judge using the Comstock Act to halt medication abortion nationwide would have seemed hysterical.

Maybe we should have seen it coming. Comstock’s power, after all, derived from a reaction to the sexual radicalism that took root in the Gilded Age. (One of his great nemeses was Victoria Woodhull, the suffragist, spiritualist, free-love advocate and presidential candidate.) By the time the Comstock Act was passed, vulcanized rubber, invented in 1839, had allowed for the mass production of rubber condoms and diaphragms. Other forms of birth control were widely sold in pharmacies. Before Comstock had Madame Restell arrested, which apparently drove her to suicide, she was a celebrity abortionist with a mansion across from St. Patrick’s Cathedral. There’s a dialectic relationship between freedom and reaction.

Werbel described Comstock as representing “antiquated Christian nationalism.” She added, “He just doesn’t change over time. And the world around him does.” Ultimately, she argued, the cruelty of Comstock’s crusade helped spark the creation of the modern civil liberties movement, and she hoped that once again, Americans would rebel against religious authoritarianism. Indeed, the nationwide backlash against abortion bans suggests they already are rebelling. But a lot of people had to suffer before the first iteration of Comstockery subsided, and a lot of people are going to suffer from its rebirth.

As someone who came of age in the sexual revolution and 2nd wave feminism I can hardly believe what I’m seeing. It would seem like a bad joke if it weren’t so awful. But is this really where the culture is? I don’t think so but I sometimes wonder if I’m as out of touch as my grandparents were back in the day.

The law is what they say it is

Remember when conservatives accused the left of having no morals, of situational ethics?Remember when conservatives pretended to believe in “a transcendant moral order“? As Archie and Edith sang in the post-1960s, “Those were the days.”

Now nullification is back. Election denialism is in vogue. (Kari Lake still insists she is the rightful governor of Arizona.) Supreme Court Justice Neil Gorsuch over the last five years “felt obliged to disclose his receipt of a fishing rod, a watercolor painting, and cowboy boots” in his financial disclosures. Justice Samuel Alito disclosed the gift of a “bronze cast of hand,” tweets Mark Joseph Stern. Yet Justice Clarence Thomas “refused to disclose trips on a billionaire’s private jet for his own personal pleasure.” The Thomas expose from Pro Publica would be beyond belief except for not being.

Ruth Marcus is aghast at the ruling in Texas on Friday to strip FDA approval of a pharmaceutical abortion pill available and proven safe for over 20 years:

Congratulations are in order for Judge Matthew Kacsmaryk. The competition is fierce and will remain so, but for now he holds the title: worst federal judge in America.

Not simply for the poor quality of his judicial reasoning, although more, much more, on this in a bit. What really distinguishes Kacsmaryk is the loaded content of his rhetoric — not the language of a sober-minded, impartial jurist but of a zealot, committed more to promoting a cause than applying the law.

Kacsmaryk is the Texas-based judge handpicked by antiabortion advocates — he is the sole jurist who sits in the Amarillo division of the Northern District of Texas — to hear their challenge to the legality of abortion medication.

And so he did, ruling exactly as expected. In an opinion released Friday, Kacsmaryk invalidated the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone and, for good measure, found that abortion medications cannot be sent by mail or other delivery service under the terms of an 1873 anti-vice law.

We just cannot escape the shadow of Reconstruction, can we?

Kacsmaryk is yet another ideologue in robes, Marcus laments.

At his confirmation hearings, Kacsmaryk testified that federal judges are bound “to read the law as it is written and not read into it any policy preference that they might have had before they were judges.”

So, let’s look what he did Friday. Given the nationwide attention to the case, you might have thought that Kacsmaryk would have taken pains to appear as judicious as possible. But no: A dozen sentences into the opinion, his personal views about abortion become unmistakable. Mifepristone, Kacsmaryk writes, “is a synthetic steroid that blocks the hormone progesterone, halts nutrition, and ultimately starves the unborn human until death.”

Marcus details eyewash citations Kacsmaryk uses to support legal reasoning he is making up as he goes. The language of his ruling is more advocate than jurist.

“This is a judge who knows what conclusion he wants to reach and is going to do what he must to get there — facts, fairness and law be damned,” Marcus concludes. He’s not even pretending.

Nor is the former Republican Party. Anywhere.

Somewhere, John C. Calhoun is smiling

Haughtiness is a bad look for anyone. Worse still for the insecure who spend a lifetime propping up their self-esteem — for the entitled rich, with conspicuous consumption; for the less “endowed” (materially or intellectually), with boasting and false bravado; for a certain indicted ex-president, with both.

For example, Tennessee GOP state Rep. Andrew Farmer’s dressing-down of fellow Rep. Justin J. Pearson last week before the body’s vote to expel him. Farmer didn’t utter the word “boy” in his speech. His tone spoke it loudly enough for the entire world to hear.

Then the GOP majority in the Tennessee House voted to void the elections won by Black Democrats in two of the state’s districts.

In Texas on Saturday. GOP Gov. Greg Abbott declared he would with all haste work to pardon Daniel S. Perry, convicted on Friday by a Travis County jury for the murder of Garrett Foster at a Black Lives Matter demonstration in Austin in 2020:

“Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney,” Mr. Abbott wrote on Twitter.

Nullification. Now where have you heard that word before?

In Abbott’s mind, Perry (who is white) had a right to self-defense. Foster (a BLM supporter) had none. Damn the law. The findings of the jury do not matter. John C. Calhoun couldn’t have said it better.

The potential pardon of Mr. Perry threatens to undermine the Travis County District Attorney’s office, which prosecuted the case.

This week, Republican lawmakers introduced a bill in the State Senate that would curtail the power of elected prosecutors, particularly those in left-leaning counties who decline to pursue certain cases, like some related to abortion bans.

In Wisconsin last week, voters elected liberal Janet Protasiewicz to the state Supreme Court. She routed her conservative opponent by 11 percentage points. The New York Times called the victory “a staggering margin in an evenly divided battleground state that signaled just how much last summer’s Supreme Court decision overturning Roe v. Wade has transformed American politics.” Good or bad transformation depending on which side of the voting majority one’s champion falls.

And the Republican response? Let Adam Serwer tell it (The Atlantic):

Unsurprisingly, even before the ballots were counted, Wisconsin Republicans were raising the possibility of impeaching Protasiewicz should she make the mistake of believing that how the electorate votes should matter. The state constitution allows the legislature to impeach “all civil officers of this state for corrupt conduct in office, or for crimes and misdemeanors,” and for some state Republicans, disagreeing with them qualifies as corruption.

Wisconsin has had a Potemkin democracy for some time, Serwer suggests.

Just after the 2018 election, in which Republicans retained nearly two-thirds of the assembly despite getting only 46 percent of the vote, Speaker Robin Vos explained that it was only fair that Democratic voters’ ballots should count less.

“If you took Madison and Milwaukee out of the state election formula, we would have a clear majority—we would have all five constitutional officers and we would probably have many more seats in the Legislature,” Vos told the Milwaukee Journal Sentinel. “As much as they complain about gerrymandering and all things that I think are made up issues for their failed agenda, I think we won a fair and square election.”

In other words: The party that should have won the most votes should win, not the party that actually got more votes, because certain people’s votes—the kind of people who live in cities, you know who I mean—really shouldn’t count.

That’s the kind of logic that leads to a mob breaching the Capitol in a violent attempt to overthrow a presidential election. It’s also the kind of logic that leads lawmakers to believe they can do anything they want without ever having to face consequences for it.

Nullification is back, in spirit if not in fact. In Tennessee (seriously). And in Texas. And in Wisconsin.

Heather Cox Richardson reminds readers how attempts at nullification worked out a century and a half ago for a haughty aristocracy determined to preserve white supremacy. On this date in 1865, to be exact, in the village of Appomattox Court House, Virginia:

By spring 1865, the Confederates who had ridden off to war four years before boasting that their wealthy aristocrats would beat the North’s moneygrubbing shopkeepers in a single battle were broken and starving, while, backed by a booming industrial economy, the Union army could provide rations for twenty-five thousand men on a moment’s notice.

The Civil War was won not by the dashing sons of wealthy planters, but by men like Grant, who dragged himself out of his blankets and pulled a dirty soldier’s uniform over his pounding head on an April morning because he knew he had to get up and get to work.

No one here needs reminding that white supremacists lost the Civil War but won the peace because the North lacked the will to finish the job. We are still paying the price for that mistake (see above). Pray we do not make it again.

Update: Mistakenly identified Garrett Foster as Black. He was a BLM supporter. (h/t CC)

He has excellent judgment…

Former President Donald J. Trump recently told aides to hire Laura Loomer, a far-right and anti-Muslim activist with a history of expressing bigoted views, for a campaign role, according to four people familiar with the plans.

Mr. Trump met with Ms. Loomer recently and directed advisers to give her a role in support of his candidacy, two of the people familiar with the move said. On Tuesday, after Mr. Trump’s arraignment in Manhattan, Ms. Loomer attended the former president’s speech at Mar-a-Lago, his resort and residence in Palm Beach, Fla.

Some of Mr. Trump’s aides were said to have concerns that such a hire would cause a backlash, given her history of inflammatory statements and her embrace of the Republican Party’s fringes.

That proved to be correct: The New York Times’s report on the potential hire ignited a firestorm among some of Mr. Trump’s most vocal conservative supporters, and by late Friday, a high-ranking campaign official said Ms. Loomer was no longer going to be hired.

Reached by phone on Friday morning, Ms. Loomer said, “Out of respect for President Trump, I’m not going to comment on private conversations that I had with the president.”

“The president knows I have always been a Trump loyalist,” she added, “and that I’m committed to helping him win re-election in 2024. He likes me very much. And it’s a shame that he’s surrounded by some people that run to a publication that is notorious for attacking him in order to try to cut me at the knees instead of being loyal to President Trump and respecting their confidentiality agreements.”

Ms. Loomer twice ran unsuccessfully for Congress and is known for offensive attention-grabbing behavior.

She once described Islam as a “cancer” and tweeted under the hashtag “#proudislamophobe,” and she has celebrated the deaths of migrants crossing the Mediterranean.

In 2018, she was barred from Twitter for violating its hateful conduct policy. To protest the ban, Ms. Loomer, who is Jewish, affixed a yellow Star of David to her clothes — just as “Nazis made the Jews wear during the Holocaust,” she said — and handcuffed herself to the entrance to Twitter’s New York headquarters.

Twitter said she was violating its rules, while she said she was being barred for conservative activism. (She was reinstated after the billionaire Elon Musk bought the platform.)

Ms. Loomer sent The New York Times a screenshot of the tweet that prompted her ban for hateful conduct. In the tweet, she describes Representative Ilhan Omar, Democrat of Minnesota, as “pro Sharia” and “anti Jewish.”

“I know a lot of people don’t like me, but that’s their problem, not mine,” she said on Friday. “I have proven my loyalty to President Trump countless times over, and even if other people try to malign me and undermine President Trump’s wishes, I will continue to be a ride-or-die Trump supporter. Trump deserves loyalty and he deserves to have loyal people working for him who do not leak to the press.”

She was also barred from the ride-hail apps Lyft and Uber for making bigoted comments about Muslim drivers. Asked about these comments, in which she called on Twitter for “a non Islamic form of Uber or Lyft,” Ms. Loomer said she was responding to a Muslim driver “throwing me out of an Uber for being a Jew on Rosh Hashana.”

Trump decided not to hire her after Marjorie Taylor Greene stepped in and told him not to because Loomer had been mean to her.

This is Trumpworld.

These people …

House Oversight Chairman James Comer (R-Ky.) has teased to television audiences over the past month that four different people have appeared before committee investigators to provide information regarding his inquiry into whether President Biden and members of his family were involved in an influence-peddling scheme.

On Fox News in March, Comer said he had even met with some of the “four individuals” personally, and in an interview with Breitbart News this week, he characterized the four individuals as “whistleblowers.”

But Comer’s media tour has confounded his Democratic counterparts on the committee. After inquiring with Comer’s staff about the reported new witnesses, they were assured that Comer’s statements “in fact referred only to two individuals” and “no new witness information … had actually been provided,” according to a letter sent by the committee’s ranking Democrat, Rep. Jamie B. Raskin (Md.), to Comer on Thursday and obtained by The Washington Post.

House rules require that committee records are to be made available to every member of the committee — majority and minority. However, it is not unusual for committee staff members to handle whistleblowers cautiously and keep sensitive information on a tight hold.

The two individuals were Eric Schwerin, the president of Hunter Biden’s investment firm, and Kathy Chung, an executive assistant to Joe Biden during his vice-presidential years. Comer, however, maintained in subsequent interviews that the committee has met with four individuals and again referred to them as “whistleblowers.”

“As you are aware, Mr. Schwerin and Ms. Chung, the two individuals your staff specifically identified as the individuals they understood to have been referenced during your March 6 Fox News interview, are not whistleblowers,” Raskin wrote. “Your repeated statements about ‘four people’ suggest that either you have intentionally misrepresented the Committee’s investigative progress to your conservative audience or that key investigative steps have been deliberately withheld from Committee Democrats.”

They’re full of shit. Of course they are. But it doesn’t matter for their purposes if they ever prove anything. All that matters is that they have talking points take to Fox News hits. This is not a serious undertaking, it’s a whole different game.

Can you believe it? The January 6th “choir” made a bunch of money and a grifter has stolen it. Or, at least that’s what they say…

Jessica Valenti channels the feelings of millions of women when they heard the news that that throwback cretin in Texas banned the abortion pill last night:

Tonight, a judge ruled that a drug that’s safely ended pregnancies for over twenty years should no longer be available—not just in anti-abortion states, but everywhere. We knew the ruling was coming, just as we did when Roe was overturned. As was the case then, foreknowledge doesn’t make the moment any easier. 

There’s no real way to prepare for the feeling of despair that rises in your body as you’re reminded, once again, that you’re no longer a full citizen in your own country. 

I want to be useful, and smart. I could write about how this decision lays bare the lie of ‘states’ rights’, or how a singular activist judge being able to wave away decades of science and progress is a sign of our decaying democracy. I could write out the ways that the FDA could respond, or what the Biden administration should say and do. But others will do a better job of all that. Besides, that’s not at all what’s on my mind. 

What’s weighing on me—almost literally, my head and body feel heavy—is the look on my 12 year-old daughter’s face each and every time I have to tell her another piece of bad news about women. But it’s not just her face I keep seeing. It’s the looks on the faces of the men who are ruining us. 

Donald Trump. Brett Kavanaugh. Matthew Kacsmaryk. Smug and assured, ignorant and shameless. Somehow we’ve ended up with the dregs of humanity robbing us of our own.

What makes this all so much worse is that men like these actually do think they know better than we do. In spite of their absolute mediocrity and near-unbelievable idiocy, these men truly believe they are the ones best suited to make decisions about our bodies and futures. 

Kacsmaryk, with his self-satisfied smirk and Proud Boy haircut, is just the latest in a long line of men brimming with misogyny and underserved power. Men like him have existed forever and they continue to be everywhere. 

A few weeks ago, I watched a Tennessee Republican proudly declare that the state’s abortion ban will “protect the lives of babies,” and that “if we can protect the lives of mothers, we’re going to do that as much as possible.” This from a man so dense that in the very same speech, he said that babies grow in women’s “bellies.” That’s who is telling our daughters what they can and can’t do with their bodies and lives. The guy who talks about pregnancy like a fucking toddler. 

We all know men like this: ridiculous and cruel, convinced of their own superior intelligence against all evidence to the contrary. But instead of simply being the biggest asshole in class or the former boss we recall while grimacing, they’re the judges, politicians and lobbyists who get to decide our futures. It’s humiliating, really.

He stayed his ruling for a week to allow for appeal and a Washington judge issued a conflicting ruling so it’s probably going to the Supremes and who knows what happens then? And there are serious discussions of the FDA and various states ignoring the order as well. But it doesn’t change the fact that we are being reminded every day that millions of our fellow Americans think women are little more than birthing vessels when they’re young and “past their prime” once past childbearing years. Millions of other Americans are even more furious about this and they are voting on this issue. It’s not just about Trump anymore. It’s about the whole movement.

Wait. What???

When Republican megadonor Harlan Crow isn’t lavishing Justice Clarence Thomas with free trips on his private plane and yacht (in possible violation of Supreme Court ethics rules), he lives a quiet life in Dallas among his historical collections. These collections include Hitler artifacts—two of his paintings of European cityscapes, a signed copy of Mein Kampf, and assorted Nazi memorabilia—plus a garden full of statues of the 20th century’s worst despots.

Crow, the billionaire heir to a real estate fortune, has said that he’s filled his property with these mementoes because he hates communism and fascism. Nonetheless, his collections caused an uproar back in 2015 when Marco Rubio attended a fundraiser at Crow’s house on the eve of Yom Kippur. Rubio’s critics thought the timing was inappropriate given, you know, the Hitler stuff. 

“I still can’t get over the collection of Nazi memorabilia,” says one person who attended an event at Crow’s home a few years ago and asked to remain anonymous. “It would have been helpful to have someone explain the significance of all the items. Without that context, you sort of just gasp when you walk into the room.” One memorable aspect was the paintings: “something done by George W. Bush next to a Norman Rockwell next to one by Hitler.” They also said it was “startling” and “strange” to see the dictator sculptures in the backyard.

So it’s not just Thomas but lots of Republicans hanging out with the rich heir to a real estate fortune who collects Nazi memorabilia. Cool, cool…