Category: reason

Another abortion case is now in the hands of the U.S. Supreme Court. At issue in this week’s oral arguments in June Medical Services v. Russo is the constitutionality of a Louisiana law that requires physicians who perform abortions to have admitting privileges at local hospitals. According to the state, the law serves a valid health and safety purpose and should be upheld as a legitimate exercise of government power. According to the legal challengers, the law is a bogus regulation whose only purpose is to harass lawful abortion providers and drive them out of business.

If all of that sounds familiar, it’s because the Supreme Court decided a nearly identical case just four years ago. In Whole Woman’s Health v. Hellerstedt (2016), the Court struck down a Texas law requiring physicians who perform abortions to have admitting privileges at local hospitals on the grounds that the law conferred no “medical benefits sufficient to justify the burdens upon [abortion] access” that it imposed.

In most cases in which the constitutionality of a purported health or safety law is at issue, the Supreme Court employs a legal standard known as the rational-basis test. Under this highly deferential approach, the Court effectively tips the scales in favor of the government. “The burden is on the one attacking the legislative arrangement,” the Court has said of the rational-basis test, “to negative every conceivable basis which might conceivably support it.” In other words, the legal challengers must defeat not only the government’s stated rationale for its regulation, but they must also defeat any conceivable rationale that the government (or even the presiding judge) might later invent. To say the least, the government usually prevails in rational-basis cases.

Abortion regulations—even though they also purportedly involve health and safety—are reviewed under a less forgiving legal standard. Here the Supreme Court employs something known as the undue burden test. It originated in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), in which the Court said that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”

One of the central questions that the Court grappled with this week in June Medical Services, in other words, was whether the Louisiana regulation, just like the Texas regulation before it, amounts to an undue burden and should be overruled.

These cases are also notable for the ideological contortions that they sometimes inspire. For example, as I wrote about the legal wrangling over Whole Woman’s Health, “the same left-wing legal pundits who normally say that the Court has no business striking down ostensible health and safety laws suddenly find themselves in the unusual position of favoring aggressive judicial action against Texas’ ‘burdensome and expensive restrictions’ and ‘sham health laws.’ By the same token, conservative legal activists have taken up the mantle of government regulation and are now accusing the other side of seeking ‘to use the Due Process Clause as a deregulatory tool.'”

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Even before Sen. Elizabeth Warren (D–Mass.) announced on Thursday that she is ending her campaign for president, her supporters began offering a simple one-word explanation for her failure to win a single primary race, much less the Democratic nomination: sexism. And if it wasn’t that, it could only be sexism’s even more evil twin: misogyny.

The feeling is nicely summed up by Jason Stanley, professor of philosophy at Yale and author of How Fascism Works: The Politics of Us and Them. “To repeat the obvious: there is no other explanation except for misogyny for what has happened to Senator Warren this year,” Stanley tweeted after Warren suffered across-the-board losses on Super Tuesday. He called this “profoundly depressing.”

This feeling was mirrored by feminist writer Jessica Valenti, who wrote in an essay that Warren had been “outright erased and ignored” by both media and voters. “Don’t tell me this isn’t about sexism,” Valenti wrote. “I’ve been around too long for that.” Sure, Warren may have been the most exhaustively covered female candidate since Hillary Clinton, and she may have one of the biggest war chests in the race, and she may have had among the most stage time at the debates, but still! She lost. The only explanation is that she’s been systematically ignored and erased.

The candidate herself addressed the issue of sexism at a press conference outside her home Thursday, when a reporter asked about the role gender (née “sex”) played in the campaign.

“Gender in this race?” Warren said. “You know, that’s the trap question for everyone. If you say, ‘Yeah, there was sexism in this race,’ everyone says, ‘Whiner!’ If you say there was no sexism, about a bazillion women think, ‘What planet do you live on?'” 

I live on the planet where the Democratic electorate chose a woman to be their candidate in 2016—and where that same woman won the popular vote. I suppose it’s possible that the last four years of President Donald Trump have turned Democrats more sexist than they were before, but did that just temporarily stop for the several months Warren was at the top of the polls before Democrats realized they actually don’t want a woman after all? I doubt it.

At the same time, I find it curious that while Warren’s campaign was apparently cut down by sexism and/or misogyny, when other female candidates in the race dropped out, sexism didn’t often come up. One would assume that all female candidates would be subject to the same systemic prejudice, and yet few people claim that Tulsi Gabbard (D–Hawaii) or Amy Klobuchar (D–Minn.) have failed—or, in Gabbard’s case, will fail—because American voters hate women. 

When it comes to Gabbard or Klobuchar or the men in the race, people evaluate their campaigns and generally determine it’s the candidate, not the voter, who is at fault. Gabbard isn’t losing because of sexism, she’s losing because she’s a fill-in-the-blank homophobe/cult follower/Bashar Assad apologist. Klobuchar wasn’t a victim of misogyny, she was an uninspiring candidate who abuses her staff and eats her salads with a comb if she can’t find a fork (a quality I personally find highly electable). 

So why is Warren’s loss called sexist when Klobuchar’s was not? When I asked this question on Twitter, a number of people answered something along the lines of “because she is really a man”––a great example of actual sexism. But I think the answer is something else: Warren’s followers are both primed to see sexism everywhere and so enamored with their candidate—so sure of her (and their own) righteousness—that they are unable to see any of the flaws that are so apparent to anyone outside their bubble.

Ironically, this tendency to blame all of Warren’s failings on sexism comes across as somewhat…sexist. Every time she loses, she is portrayed by some of her most ardent defenders as a victim, as though she has no control over her own campaign or her own choices. It’s not just infantilizing and patronizing, but it also removes agency and responsibility from the candidate herself. And yet, claims that “sexism did it” are repeated so often they’re taken as a fact, even when no evidence is offered to support them. 

Some people seem to think it’s just obvious: If a man with Warren’s qualifications, intellect, and talent ran for office, he would have won. That may be true, although the results of the last election make me fear that qualifications, intellect, and talent don’t matter all that much in American politics. So here’s an alternate explanation: Elizabeth Warren didn’t lose this race simply because of sexism but because she made a series of political miscalculations, starting with the disastrous unveiling of her DNA test, which managed to anger progressives and make conservatives point and laugh. Then there was her refusal to go on the most popular cable news network in America in order to make a political point, the condescending manner in which she spoke about voters she disagreed with, her bungled Medicare for All plan, and the fact that she positioned herself to split the progressive vote with Bernie Sanders—a candidate with grassroots momentum and a campaign that has been ongoing since 2015. Had she pitched herself as a capable, qualified, less ancient and more moderate Democrat instead of Bernie Lite, it’s possible it would be her running against him right now instead of Joe Biden. 

Unlike most Reason readers, I was a Warren fan before this campaign—such a Warren fan, in fact, that six months before Trump was elected, I made a bet that Clinton would lose and Warren would be the first female president. But then she pivoted from the reformer who went after banks and stood up for the consumer into the sort of social media justice warrior who thinks she speaks for marginalized people while actually speaking over them. Despite this ill-advised rebranding, she still had plenty of ideas that I liked, from universal preschool to boosting small business to ending for-profit prisons and getting rid of the Electoral College. But her good ideas were too easily overshadowed by her bad ones. 

Take, for instance, the LGBTQ town hall (which was a bad idea in the first place). Warren was asked by a 9-year-old trans boy named Jacob what she, as president, would do to keep kids like him safe. Instead of telling him the truth (“Jacob, bullying is sort of a local issue but I recommend a kickboxing class”), she said that she would let this 9-year-old kid vet the next secretary of education. This may have played well in that room, but she wasn’t running to be the president of the Gay-Straight Alliance; she was running to be president of the United States.

Now, I don’t think she actually would have marched Jacob into the Senate confirmation hearings any more than I think she would have passed Medicare of All with or without raising taxes. She was just pandering, and I don’t really fault her for that—pandering is part of campaigning and all politicians do it—but it doesn’t matter whether or not she would have actually let a third grader veto her cabinet picks. What matters is that she said it on live television, and had she won the nomination, it would have come back to bite her in the ass in the general election. There were a mountain of moments like this, and against Trump, she would not have stood a chance. 

Warren could have focused on the working class; instead, she focused on the wokest class. She advocated for social positions that may resonate with highly educated, largely white activists, but just don’t appeal to a broad base of Americans across race and class. She talked about nonbinary driver’s licenses and advocated for trans women to play women’s sports and used the term “traffic violence” when the rest of us simply say “car crash.” She’s out of touch—or at least, her advisers are—and there aren’t enough Oberlin grads for her to win Ohio, much less the swing states that will likely determine the outcome of the 2020 race. So here’s why I didn’t vote for Elizabeth Warren: Because she would have given us four more years of Trump. That isn’t sexism; it’s math.

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Mississippi Department of Health officials threatened to turn Donna Harris’ eight-week weight loss challenge into six months behind bars, but now the state stands accused of putting the First Amendment on a diet.

Harris, a personal trainer and fitness expert, has run a Facebook page since 2018 dedicated to encouraging healthy eating habits. Earlier this year, she launched a small side business, offering one-on-one diet coaching and weight loss tips to anyone willing to pay $99 to participate in an eight-week contest where participants could compete to shed the most pounds. Before it could even start, however, the state government shut it down.

On January 22, Harris received a cease-and-desist letter from the Mississippi Department of Health. Talking about healthy eating on Facebook and getting paid to do it, the department said, could trigger a $1,000 fine and up to six months in jail. In the eyes of the state, Harris was an unlicensed dietician—and apparently enough of a threat to public safety that she might need to be put behind bars.

“When I learned I would have to cancel my weight-loss class, I was devastated,” said Harris in a statement. “People were counting on me and they were so excited about learning how to lose weight in a healthy way, and they were so disappointed when I told them I was not going to be able to go through with the program.”

Harris wasn’t pretending to be a licensed dietician. In fact, her Facebook page and website both specify that she isn’t one. Anyone willing to pay her for advice on eating healthier was engaged in a voluntary transaction—one that has little to do with the state government’s interests.

In a lawsuit filed this week on Harris’ behalf, the Mississippi Justice Institute, a nonprofit law firm, argues that Mississippi’s overzealous enforcement of its dietician licensing law violated Harris’ First Amendment rights.

Aaron Rice, the group’s director, is particularly galled by what happened when Harris asked the state what information she could legally provide without a license. She was told to stick to “government-approved guidelines, like the food pyramid,” Rice says. “So you can engage in government-approved speech, but not non-government-approved speech?”

Getting a permission slip to speak freely about healthy diets is no easy task in Mississippi. It requires a bachelor’s degree and more than 1,200 hours of supervised practice. Starting in 2024, the license will require a graduate degree. Harris actually has one of those—a master’s degree in occupational therapy, to go along with her bachelor’s degree in nutrition and food science—but not the one the state will soon require.

Mississippi is not the only state to require that dieticians be licensed, and this is not the first time a state has gone to extreme lengths to enforce its mandatory permission slip regime. In 2017, Florida Department of Health officials ran a sting operation to catch Heather Kokesch Del Castillo giving out unlicensed diet advice online. She, too, was threatened with jail time. A judge rejected a subsequent challenge to the state’s dietician licensing laws brought on Del Castillo’s behalf by the Institute for Justice, a libertarian law firm.

“Laws that restrict who can give dietary advice clearly implicate the First Amendment,” says Paul Sherman, a senior attorney with the Institute for Justice. “If the government wants those laws on the books, it bears the burden of justifying them.”

States get away with regulating all sorts of economic activity via occupational licensing laws, in part because of the so-called “professional speech doctrine,” a legal practice in which courts have held that governments may limit or compel speech under the guise of regulating business activity. But the U.S. Supreme Court knocked down the professional speech doctrine in a 2018 ruling that overturned a California law requiring pregnancy centers to tell women where they could get an abortion.

Sherman says that the 2018 ruling—National Institute of Family and Life Advocates v. Becerra—was a “game-changer” that has caused lower courts to begin to grapple with how occupational licensing laws may run afoul of the First Amendment too. He predicts there will be more litigation in that space.

Rice notes that Mississippi has a reputation for being one of the most obese states in the nation, as well as one of America’s highest incarceration rates—two things that won’t be improved by treating unlicensed dieticians like serious criminals.

“Telling healthy adults what they should eat or buy at the grocery store is a freedom we all have as Americans,” he says, “whether we are paid for that speech or not.”

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Mandatory quarantines on the upswing in New York. As residents of more and more U.S. cities test positive for the coronavirus, any hope of keeping it contained seems to have passed America by. And while the disease itself may still be nothing to panic about, government reactions to the coronavirus—a.k.a. COVID-19—are starting to ring some pretty big alarm bells.

Already, thousands of Americans are being told to “self-quarantine”—and could find themselves facing hefty fines if they venture outside.

In New York’s Westchester County, where a lawyer this week tested positive for the virus, more than 1,000 people are being asked to voluntarily self-quarantine and “two or three dozen” have been ordered to complete a mandatory quarantine, according to New York Governor Andrew Cuomo.

In New York City, 2,773 people are under quarantine, officials with the Health Department announced yesterday. Most of these people—who have not tested positive for coronavirus but may have been exposed—are completing voluntary “home isolation.” One woman who tested positive for the coronavirus, along with her spouse, were put under a mandatory quarantine order.

Both mandatory quarantine orders and voluntary quarantine requests are likely to increase, according to officials. “We’re going to get more and more mandatory as needed,” said NYC Mayor Bill de Blasio at a press conference yesterday.

Enforcing these orders are health department employees who are also “sworn peace officers with the legal authority make arrests, use physical force and conduct searches,” notes the New York Post. “Breaking involuntary confinement can result in fines of between $200 and $2,000 per day in the city and up to $2,000 per incident elsewhere.”

The paper also points out that “voluntary” quarantine orders aren’t really all that voluntary:

City and state laws don’t provide any penalties for violating voluntary quarantine, which is the “preferred method” of isolating carriers or potential carriers of contagious diseases, according to an official Public Health Legal Manual published in 2011.

But if people refuse to comply, they can be subjected to involuntary quarantine by order of the health commissioner in New York City, or by local boards of health elsewhere in the state.

These health police in New York City can also sanction certain folks for refusing to get tested for the coronavirus.

New York City said this week that testing is mandatory for all teachers, health professionals, and emergency responders at risk of catching COVID-19. Those who won’t take the test will be put on mandatory quarantine at home or at “such other location determined by the Department,” according to an order from the Health Department.

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QUICK HITS

• In California, authorities are requiring that private health insurance companies cover coronavirus testing “free” of cost to those who qualify, whether tests are administered at a doctor’s office, an urgent care center, or an emergency facility.
• The Trump administration is expanding the number of temporary seasonal work visas available by 35,000.
• A man in Texas was sentenced to 30 days in jail and a $1,000 fine for licking a container of ice cream in a Walmart. He has also been ordered to pay the ice cream manufacturer, Blue Bell Creameries, $1,565 in restitution.
• Andrew Yang has started a nonprofit that will run a universal basic income experiment in New York State.
• “Today’s prohibition on polygamy has created a shadow society in which the vulnerable make easy prey,” said Utah lawmaker Deidre Henderson, the sponsor of a newly-approved bill to decriminalize polygamy. “Because of the very real fear of imprisonment, losing employment, not being treated fairly, and having their children taken into state custody, we now have an environment where crime often goes unreported, victims are silenced, and perpetrators are empowered.”
• Even Vox co-founder Ezra Klein, the poster boy for faith in big government, has some reservations about the 2020 presidential candidate options:

So the 2020 election is going to come down to:

– A 73-year-old conspiracy theorist who rambles incoherently and lies constantly
vs.
– A 77-year-old who rambles and sometimes loses his place
or
– A 78-year-old socialist who just had a heart attack

— Ezra Klein (@ezraklein) March 5, 2020

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“I am a home-schooler trying to play sports at high levels in order to get into college,” says Caleb Carter, a 17-year-old soccer player from Charleston, West Virginia. “I’m seeing all these players that I’ve competed with for years…[chasing] after their dreams, and I’m sitting here frustrated knowing that I can’t because the Tim Tebow Bill didn’t pass.”

In 1996, Florida passed the first law allowing home-schoolers to play on public school teams, and since then, over 31 states have followed suit. These laws are often named after Tim Tebow, the former NFL quarterback and Heisman Trophy winner, who was able to play football on his local school team thanks to the Florida law.

In West Virginia, advocates have been fighting since 2011 for home-schoolers to have access to school sports teams. And they’re on the verge of scoring a partial legislative victory.

“The Tim Tebow Act is something that has been on the table and in discussion in West Virginia for almost a decade,” says Jamie Buckland, the executive director of Appalachian Classical Academy, a tutorial program for home-schoolers, and a leading proponent of the bill. In 2017, the Tebow Act passed in the state legislature but was vetoed by Gov. Jim Justice.

“I have a son and he’s a really good pitcher,” says Buckland, “and he missed out on those 11th and 12th-grade years of being able to play any organized sports.”

In 2017, Gov. Justice passed a law that effectively allows home-schooled students to play school sports if they take four state-approved online courses per year.

Caleb Carter tried to meet the online course requirement during his freshman year but found the mandate too onerous. “He ended up having to go to the school three to four times per week because they wouldn’t allow him to take even quizzes without being proctored by someone at the school closest to us,” says Tiffany Carter, Caleb’s mother.

“I don’t know of any student who has pursued virtual school for more than one year,” says Buckland. “[The state] is asking parents to sacrifice a curriculum that they have designed for their child specifically.”

On March 2, 2020, the West Virginia state legislature passed a bill reducing the requirement for online classes from four to one. Gov. Jim Justice is expected to sign the bill.

Buckland says that this version of the Tebow Act is a step in the right direction, but that the fight isn’t over. “We are settling for it this year,” Buckland says, “with the intention of amending it next year.”

Produced by Qinling Li and Arthur Nazaryan; Cinematography by Arthur Nazaryan and Qinling Li; edited by Qinling Li; Graphics by Lex Villena.

Photos: 173247005 © Jbcalom – Dreamstime.com

Music: “Daisy” by Chad Crouch, Attribution-NonCommercial 3.0 International License; “Remnants of Effervescence” by Brylie Christopher Oxley, Attribution License; “machinery” by Kai Engel, Attribution-NonCommercial License.

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At a leftist event years ago, I heard a speaker disparage economist Adam Smith and his idea that a nation can best prosper by letting individuals make their own decisions. With the Bernie Sanders candidacy on the rise, anti-market attitudes have gained steam—even among people who express them on nifty electronic gadgets and do so, presumably, with a full belly. Attendees seemed to find the Smith approach crazy.

Granted, the “invisible hand” of the marketplace is, well, invisible. One doesn’t see the millions of individual decisions that place the exact widget you need for your repair project in your hardware store. I’m not sure why leftists don’t see the marvel of this process. If they want real insanity, they should look at the alternative: the clenched and visible fist of government.

You might have noticed California is enduring housing and homeless crises. The market solution to housing shortages is simple: Government should reduce regulations, slow-growth restrictions, rent controls and fees that limit supply and drive up prices. Let builders build. Homelessness is a more complicated problem because homeless people often have addiction and mental-health issues, but more housing would help.

I can’t say exactly how it will work, just as I can’t say exactly how a molly bolt gets from the foundry in India to Home Depot in Sacramento. But I can tell you what won’t work—namely the policies our government now is championing. Gov. Gavin Newsom spent most of his recent State of the State speech detailing a blueprint for dealing with the “disgraceful” homeless situation, which involves more public spending and programs.

But, as The Sacramento Bee reported following the talk, the governor’s ambitious plans “depend on a state department that is understaffed, lacking permanent leaders and struggling to adjust to change, according to documents and interviews.” You can take this to the bank: The new money will be consumed in a bureaucratic hiring frenzy, used to pay state-level salaries and pensions, and build a bigger “homeless industrial complex.”

That’s a facetious, but accurate, phrase used by critics of the state’s homeless policies. They’ve noticed there’s big money in the homeless business. I’m not referring to the serious and important work Rescue Missions and other charities do to alleviate the sting of homelessness, but rather to the armies of bureaucrats and subsidized businesses who have little incentive to reduce homelessness—and every reason to seek more public revenues.

An investigation from this newspaper group found that a third of the apartments being built through the $1.2 billion Prop. HHH bond measure, which voters approved in 2016 to fund supportive housing, “will each cost more than $546,000, the median sale price of a condominium in Los Angeles.” The report found it “uncertain if the program will reach its goal of 10,000 new permanent housing units.”

I’d think it’s fairly certain the bond will run out of cash before its targeted numbers are met and city leaders will be back asking voters for more money. It’s also certain such projects will at best help a fraction of LA’s homeless. Some projects in Southern California have seen per-unit costs approaching $700,000. This is nuts. So, too, is a widely discussed tweet Gov. Newsom recently made regarding the homeless situation.

Newsom’s initial tweet was fine, albeit mostly pabulum: “We need to start targeting social determinants of health. What’s more fundamental to a person’s well-being than a roof over their head?” Well, sure, no one suggests that sleeping in the cold near a freeway interchange is healthy. But then he tweeted this eye-opener: “Doctors should be able to write prescriptions for housing the same way they do for insulin or antibiotics.”

This shows a fundamental lack of seriousness on the part of our governor. I doubt he really would want doctors to prescribe such things. I can imagine what Blue Cross would say when it received a bill for a three-bedroom bungalow in Santa Monica. (I’d hope my doctor would say my health depended on beachfront living.) As others have noted, this amounts to the “magic wand” theory.

The federal Boise decision limits the ability of localities to remove homeless people from public places—unless officials have a place to house them. Apparently, our governor hasn’t followed the ensuing problems. Cities don’t have a place for all of them. When cities build these units, they end up costing more than a mini-mansion in Texas, so cities run out of money fast.

It gets zanier. Assemblywoman Lorena Gonzalez, the San Diego Democrat who authored the anti-contracting law (Assembly Bill 5) that is decimating the freelance industry, just announced her “Housing for All” package. I fear she’ll do to the housing market what she already has done to the labor market. At some point, even Californians might realize that free markets are the best way to address problems and that trusting officials is true madness.

This column first appeared in the Orange County Register.

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