National Abortion Ban Proposal Divides Republicans, Excites Democrats


Lindsey Graham giving a thumbs up

“Stupid, just stupid,” said one GOP strategist. Earlier this week, the Reason Roundup covered South Carolina Republican Sen. Lindsey Graham’s expected national abortion ban bill. Graham indeed introduced such legislation on Tuesday. His bill would make it a felony punishable by up to five years in prison to perform an abortion at or after 15 weeks gestation. There would be exceptions for pregnancy by rape and incest, as well as when a pregnant woman’s health was at risk, but no exceptions for severe fetal birth defects or a mother’s health. States would be free to enact stricter laws if they wished, but not more liberal rules.

Graham’s bill is purely politics, at this point. There’s no chance that it will become law. Graham has said that he hopes the bill will work as a midterm election rallying point for Republicans.

But many Republicans are none too happy about that. A person NBC News identifies as “a top Republican strategist involved in Senate campaigns” called Graham’s move “stupid, just stupid.” Senate Minority Leader Mitch McConnell (R–Ky.) said, “I think most of the members of my conference prefer that this be dealt with at the state level.” Sen. Shelley Moore Capito (R-W.Va.) told Politico, “I’m not sure what [Graham is] thinking here. But I don’t think there will be a rallying around that concept.” Chris Mottola, a GOP strategist and ad maker, called it a “bad idea,” telling NBC News “it rips open a political sore. The political environment was moving back to economic issues. It further nationalizes an issue that works against Republicans generically.”

Democrats “could hardly believe their political good fortune” when Graham and other Senate Republicans proposed a national abortion ban, writes The Washington Post‘s Jennifer Rubin.

An abortion ban proposal that institutes criminal penalties, contains no exceptions for maternal health or fetal abnormalities, and backtracks on the GOP’s longtime assertion that abortion policy should be left up to the states is gold for Democrats itching to characterize their opponents as extremists on this issue (and to turn election-season attention toward abortion, rather than topics like inflation).

And voters seemed primed to hear this message. In a recent poll, nearly half (48 percent) of respondents said Democrats were better at handling “abortion policy,” while only 27 percent said Republicans were. People also indicated that the Supreme Court’s June ruling overturning Roe v. Wade (1973) would make them more likely to vote. More voters—in general, and particularly among independents—have started feeling more positively toward Democrats.

Graham’s move seems much more likely to motivate people already likely to vote Democrat and steer more independents that way than to motivate Republicans, who are happily instituting state-level bans (many of which go further than Graham’s proposal would).

Even if many Republicans do wish to leave abortion issues up to the states, Democrats have wasted no time honing in on the message that Graham’s bill shows Republicans’ true colors.

“Proposals like the one today send a clear message from MAGA Republicans to women across the country: your body, our choice,” said Senate Majority Leader Chuck Schumer (D–N.Y) on the Senate floor.

“It’s great that [Republicans are] showing the American people that they’re really focused on taking away a fundamental right,” Sen. Gary Peters (D–Mich.) said.

“The nationwide abortion ban proposal put forth today is the latest, clearest signal of extreme MAGA Republicans’ intent to criminalize women’s health freedom in all 50 states and arrest doctors for providing basic care,” said House Speaker Nancy Pelosi (D–Calif.) in a statement. “Make no mistake: if Republicans get the chance, they will work to pass laws even more draconian than this bill – just like the bans they have enacted in states like Texas, Mississippi and Oklahoma.”

The bill isn’t just potentially politically toxic but constitutionally suspect, too. It’s “based on an audacious claim of congressional authority to regulate abortion that obliterates the constitutional distinction between state and federal powers,” notes Reason‘s Jacob Sullum. But the Constitution “does not give Congress the authority to regulate abortion or any other medical practice,” points out Sullum. He also notes that if Congress can ban abortion because of the Commerce Clause, it can also say states cannot ban it.

It’s also out of step with European countries’ policies, even though Republicans keep claiming it puts us in line with them.

“Republicans tend to talk about bills that set a deadline for abortion around the end of the first trimester as being similar to laws that prevail in Western Europe, but by not offering a broader health exception, Graham’s bill would impose a significantly tighter restriction,” notes Josh Barro.

Meanwhile, Michelle Goldberg, a New York Times opinion columnist, points out that bans in Europe tend to contain exceptions for fetal abnormalities.

“Why did Graham leave such an exception, which the vast majority of Americans would almost certainly support, out of his proposed abortion ban?” she asks. “There are two possibilities, which are not mutually exclusive. Either he was pandering to the anti-abortion activists who, on Monday, sent a letter to Congress demanding federal action against states with liberal abortion laws, or he simply hasn’t thought very much about what pregnancy entails.”

In other abortion-related news:

• A judge has temporarily halted Ohio’s six-week abortion ban.

• West Virginia this week “passed a bill to prohibit nearly all abortions, making it the second state to pass a new ban since the Supreme Court reversed Roe v. Wade in June,” notes The Washington Post.

• An Indiana ban on almost all abortions—passed in August—takes effect today.


FREE MINDS

Today in Orwellian phrasing: “court-ordered care.” By which California means it will order people with mental illnesses into treatment. This could mean forcing them to take medication or to live in special housing. The process will take place through a new “CARE Court.”

“CARE Court will not solve the complex issues of homelessness in California, nor will it meet the needs of unhoused people with mental health disabilities – primarily because the investment of funds is in a new court system,” wrote the American Civil Liberties Union of California and dozens of disability rights, homeless advocacy, and mental health groups in an open letter to Gov. Gavin Newsom. “Concerningly to us, because of California’s nationwide leadership role, a harmful policy like CARE Court is likely to be replicated across the country.”


FREE MARKETS

Railroad strike averted? The looming shutdown of the U.S. freight rail industry yesterday, spurred by strike-eyeing railroad workers, seems to have been averted for now. “Freight rail companies and unions representing tens of thousands of workers reached a tentative agreement to avoid what would have been an economically damaging strike, after all-night talks brokered by Labor Secretary Martin J. Walsh,” The New York Times reports. “The agreement now heads to union members for a ratification vote, which is a standard procedure in labor talks. While the vote is tallied, workers have agreed not to strike.”


QUICK HITS

• Could more children—especially more boys—benefit from delayed schooling?

• “Russian forces have targeted a dam on the Inhulets River near Kryvyi Rih—President Volodymyr Zelenskyy’s home city—with eight cruise missiles, according to Ukrainian officials, leading to flooding in parts of the city and residents being evacuated,” reports CNBC.

• Economist Emily Oster unpacks pandemic test score declines.

• Virginia Postrel challenges you to imagine the future.

• New Jersey’s plastic bag ban now has reusable bags piling up.

• California is bringing (another) contrived antitrust suit against Amazon.

• “An Iowa judge ruled Tuesday that a girl who was 15 when she killed a man she said raped her multiple times must pay his family $150,000 in restitution,” reports CNN.

• Hiring formerly incarcerated people is good, actually, Reason‘s Billy Binion writes.

• How government officials bully social media companies into censorship.

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The Dormant Commerce Clause, Internet Platforms, and Content Discrimination Bans

[Jack Goldsmith and I will have an article out about the Dormant Commerce Clause, geolocation, and state regulations of Internet transactions in the Texas Law Review early next year, and I’m serializing it here. There is still plenty of time for editing, so we’d love to hear any recommendations you folks might have; in the meantime, you can read the entire PDF of the latest draft (though with some formatting glitches stemming from the editing process) here.]

So far, we focused on platforms discriminating, in violation of state law, against users based on their status. But antidiscrimination laws can also reach discrimination based on the content of users’ speech.

Imagine HitchedIn, a hypothetical web site that lets users put up pages for their weddings, complete with a place for guests to RSVP, a gift registry, video streaming for people who can’t be physically present at the event, and a space for friends to have conversations about the wedding before or after (or even during). But Hitched­In decides not to allow (a) pages for same-sex weddings, and (b) pages or comments containing pagan religious messages.

Assume California courts conclude that:

  1. The California Unruh Civil Rights Act—which bans discrimination based on sexual orientation “in all business establishments of every kind whatsoever”[1]—covers websites, both with respect to users who are posting on the websites and users who are reading them.
  2. Such discrimination based on the same-sex-wedding-related content or pagan content constitutes discrimination based on sexual orientation or religion—much like discrimination against same-sex weddings has been held to be sexual orientation discrimination when done by bakers, florists, and other wedding service providers.[2]
  3. This nondiscrimination rule doesn’t violate the First Amendment,[3] and isn’t preempted by § 230.[4]

Here too, the Dormant Commerce Clause shouldn’t preempt a reading of California law that would require platforms not to discriminate as to posts by users who are posting from California, when their posts are read by people in California (again, Option 1), so long as the platforms can use geolocation technology to determine who is in California. A hotel in Los Angeles can’t refuse to host same-sex weddings or pagan weddings, or so we can assume under the hypothesized interpretation of the Unruh Act. Likewise, a social media company—whether the California-based Facebook or Twitter, or the Tennessee-based Parler—operating a page that’s used by Californians to talk to Californians couldn’t refuse to let Californians use that page to convey similar religious views. And the same more difficult and uncertain analysis as above would apply to an Option 2, under which California law would protect Californians from such discrimination even when they’re corresponding with out-of-staters.

This tees things up well to the most controversial item: statutes banning platforms from discriminating based on post content or viewpoint. More on that in the next post.

[1]. Cal. Civ. Code § 51(b). The Act is very broad, covering, for instance, discrimination based on “medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status” as well as the more familiar categories. Id.

[2]. See Elane Photography, LLC v. Willock, 309 P.3d 53, 61–63 (N.M. 2013).

[3]. See Volokh, supra note 137.‌

[4]. See Candeub & Volokh, supra note 138.‌

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Biden Administration Guts Due Process Protections for Students Accused of Sexual Misconduct


topicscivilliberties

College students investigated for sexual harassment or assault will once again be stripped of due process, thanks to new regulations released by the U.S. Department of Education in June.

The new rules, which apply to investigations under Title IX, part of a federal law that prohibits sex discrimination in education, rescind rules crafted and implemented by former Education Secretary Betsy DeVos during the Trump administration. They mark the return of the “single investigator model,” which empowers a single college administrator to investigate, judge, and sanction alleged misconduct.

The Biden administration regulations also require schools to apply a “preponderance of the evidence” standard when investigating complaints. Under that standard, investigators must find an accused student guilty if they conclude it is more than 50 percent likely that the allegations are true. Under the DeVos regulations, by contrast, universities needed “clear and convincing evidence” to punish an accused student.

Under the new regulations, Title IX investigators can deny students access to the evidence against them. They are required only to give accused students a “description of the relevant evidence.” That description can be given “orally,” meaning accused students are not entitled to review testimony, transcripts, or other records used to determine their guilt. The new rules also allow schools to deny accused students a live hearing and the opportunity to question their accusers.

The Biden administration’s regulations mark a return to those implemented under President Barack Obama. Progressives have been largely supportive, despite concerns raised by free speech and civil liberties advocates. In 2018, when a group of Democratic senators sought to postpone the due process rules proposed by DeVos, the Foundation for Individual Rights and Expression noted that “since 2011, approximately 117 federal courts, as well as a number of state courts, have raised concerns about the lack of meaningful procedural protections in campus adjudications.”

These judges, like many other critics, viewed Obama’s Title IX rules, which Biden is now copying, as fundamentally unfair. “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning,” wrote Judge F. Dennis Saylor IV of the U.S. District Court for the District of Massachusetts in the 2016 case Doe v. Brandeis University. “If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.”

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Brickbat: If You Don’t Have Anything Nice to Say


Pakistan protesters

Pakistan Interior Minister Rana Sanaullah Khan has warned “hecklers” who bother government officials they could have their biometric identity cards and passports frozen, which would block them from accessing their bank accounts or traveling aboard, among other penalties. The government has recently charged former Prime Minister Imran Khan under anti-terror legislation, and Khan’s supporters reportedly jeered a government official when they saw him in a restaurant.

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The U.K.’s New ‘Free Market’ Prime Minister Is Fighting Inflation With Price Controls


Liz Truss

Shortly after taking over as the new U.K. prime minister, Liz Truss announced plans to fight inflation by capping household energy prices over the next two years. Blimey! Billed as the most free-market prime minister since Margaret Thatcher, Truss’ first major move is a counterproductive scheme that will prolong the United Kingdom’s energy woes and increase its budget deficit. What could go wrong?

“Extraordinary challenges call for extraordinary measures, ensuring that the United Kingdom is never in this situation again,” Truss declared. When you hear phrases like this, beware of bad policies on the way. Starting in October, the government will limit the energy prices charged to households for two years and businesses for six months. It will make up the difference to utility companies with subsidies paid for with borrowed funds. The cost of this boondoggle is forecasted to be over $120 billion.

Inflation in the U.K. has now reached 10.1 percent. The new policy would suggest that most of the inflation is due to hikes in energy prices. It’s not. Before Russia’s invasion of Ukraine, the U.K.’s Consumer Prices Index (CPI) was already 6 percent, and the war pushed this up to its current levels. However, the CPI excluding energy cost is still almost 7 percent. Even if energy supply problems were fixed overnight, core inflation would remain more than four times its 2015-19 average.

This is because most of the underlying surge in the U.K.’s inflation is rooted in demand factors triggered by massive fiscal and monetary stimulus in 2020 and 2021—something that should sound familiar to Americans. The U.K. government subsidized the wages of furloughed workers and other income support programs, paid sick leave, made massive expansions of NHS funding, and even covered meals for customers at restaurants. At the same time, the Bank of England monetized much of this additional spending from 2019 levels, flooding the economy with cash and diminishing the value of the pound.

As a reminder, inflation is an increase in all prices (including wages) irrespective of the movement of some individual prices relative to others. It is systemwide. So, capping the price of one kind of good, in this case energy, will do nothing to reduce inflation. It will, however, create all sorts of distortions and bad incentives that will manifest painfully throughout the economy.

A good rule of policy should be “do no harm by refusing to transfer income by distorting prices.” Indeed, as Alex Tabarrok reminds us in a great video for Marginal Revolution University, “a price is a signal wrapped up in an incentive.” Each market price can reflect a vast amount of information about a given product, aggregated from decisions both large and small made by countless suppliers, their own suppliers, and consumers. By signaling how scarce a product is and incentivizing buyers and sellers to respond, prices propel people to direct their efforts and resources in ways that do the most good.

The scarcity of energy is now signaled in its higher price, which in turn gives an incentive to consumers to use less or find substitutes. But by capping energy prices, the government will cause those prices to lie about just how scarce energy really is. Consumers will not conserve or reduce their demand as much as they should.

On energy’s supply side, price controls dampen producers’ incentive to provide more energy—a terrible outcome when supplies are unusually tight. The result will almost surely be energy shortages.

The government hopes to avoid blackouts and shortages by subsidizing energy suppliers with borrowed money. While subsidies might help on this front in the short term, the accompanying fiscal irresponsibility throws gasoline on the United Kingdom’s already raging inflation fire.

Now, there’s no doubt that failing to keep energy prices under control would eventually lead to a severe recession in the U.K. But fueling continued energy demand with price controls and inflation with deficit spending is the opposite of a solution. A better way to go is by encouraging increases in energy supply by removing many of the existing welter of barriers to energy production and distribution that the government already has in place. To her credit, the prime minister is planning to do that too. This takes time, however.

Ultimately, the best idea would have been to avoid this mess in the first place. It’s too late to avoid hamstringing energy markets while simultaneously creating so much inflation. But it’s not too late to avoid doubling down on the folly that put the Brits in this unhappy position.

COPYRIGHT 2022 CREATORS.COM.

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Justice Kagan Enters the Debate on the National Injunction

Justice Kagan was interviewed today at Northwestern Law School, and she addressed the national injunction. Here’s the account by Josh Gerstein of Politico, which leaves no doubt about where she stands:

During her remarks on Wednesday in a conversation with Northwestern Law Dean Hari Osofsky, Kagan took a notably hostile and forceful stand against a practice that hasn’t generated much public debate but has roiled the legal community in recent years: individual U.S. District Court judges blocking federal government policies nationwide.

Executive branch officials from the Biden, Trump and Obama administrations have all complained about their major policy initiatives often being hamstrung by a single judge.

“This has no political tilt to it,” Kagan said, taking aim not only at the sweeping injunctions but at the transparent “forum shopping” by litigants filing cases in courts they think will be friendliest to them.

“You look at something like that and you think, that can’t be right,” Kagan said. “In the Trump years, people used to go to the Northern District of California, and in the Biden years, they go to Texas. It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.”

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S. Ct. (5-4) Won’t Temporarily Stop N.Y. Ruling that Orthodox Jewish Yeshiva U. Recognize “LGBTQ Student Group”

From Yeshiva Univ. v. YU Pride Alliance, decided today by the Supreme Court:

Applicants Yeshiva University and its president seek emergency relief from a non-final order of the New York trial court requiring the University to treat an LGBTQ student group similarly to other student groups in its student club recognition process. The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief.

First, applicants may ask the New York courts to expedite consideration of the merits of their appeal. Applicants do not assert, nor does the Appellate Division docket reveal, that they have ever requested such relief. Second, applicants may file with the Appellate Division a corrected motion for permission to appeal that court’s denial of a stay to the New York Court of Appeals, as the Appellate Division clerk’s office directed applicants to do on August 25. Applicants may also ask the Appellate Division to expedite consideration of that motion.

If applicants seek and receive neither expedited review nor interim relief from the New York courts, they may return to this Court.

Justice Alito, joined by Justices Thomas, Gorsuch, and Barrett, dissented:

Does the First Amendment permit a State to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect? The answer to that question is surely “no.” The First Amendment guarantees the right to the free exercise of religion, and if that provision means anything, it prohibits a State from enforcing its own preferred interpretation of Holy Scripture. Yet that is exactly what New York has done in this case, and it is disappointing that a majority of this Court refuses to provide relief.

Yeshiva University hosts our nation’s largest Jewish undergraduate institution. That “program is structured to help students embrace the Jewish faith and engage with the secular world from a foundation of Torah values.” Thus, Yeshiva expects its undergraduate students “to live in accordance with halachic norms and Torah ideals.”

A student group, the YU Pride Alliance (the Alliance), “vehemently disagreed” with Yeshiva’s interpretation of Torah with respect to sexual relations between members of the same sex, so it applied for recognition as an official student group in order to “‘make a statement'” and promote “‘cultural changes'” in the institution. To facilitate those goals, the Alliance planned to host events that framed Jewish practices and religious events through an LGBTQ lens.

“After much deliberation” and in consultation with senior rabbis, Yeshiva concluded that recognizing the Alliance would have “implications that are not consistent with Torah.” Doing so, Yeshiva believed, would “‘cloud [the] nuanced message'” of Torah, which “‘accept[s] each individual with love,'” but also “‘affirm[s] its timeless prescriptions.'” The University therefore denied the Alliance’s request for formal recognition but made it clear that students could “‘socialize in gatherings [as] they see fit.'”

Dissatisfied with this response, the Alliance sued Yeshiva in state court, claiming that its refusal to recognize the group violated a provision of the New York City Human Rights Law (NYCHRL) that forbids discrimination on the basis of sexual orientation and gender. The trial court agreed.

Perfunctorily dismissing the University’s First Amendment arguments, the court ordered Yeshiva to recognize the group and to “immediately” grant it “the full and equal accommodations, advantages, facilities, and privileges afforded to all other student groups.” The court denied Yeshiva’s request for a stay pending appeal, and when the University applied to the Appellate Division and the Court of Appeals for interim relief, those courts refused without providing a single word of explanation.

As a last resort, Yeshiva turned to this Court, but the majority—for no good reason—sends the University back to the state courts. The upshot is that Yeshiva is almost certain to be compelled for at least some period of time (and perhaps for a lengthy spell) to instruct its students in accordance with what it regards as an incorrect interpretation of Torah and Jewish law.

An applicant may obtain a stay pending appeal if it makes a strong showing (1) that it would likely prevail if review is granted, (2) that it will suffer irreparable harm during the time it takes for the completion of the appellate process, and (3) that neither the interests of other parties nor those of the public militate in favor of denial. Yeshiva easily satisfies all these requirements.

At least four of us are likely to vote to grant certiorari if Yeshiva’s First Amendment arguments are rejected on appeal, and Yeshiva would likely win if its case came before us. A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith. Restrictions on religious exercise that are not “neutral and of general applicability” must survive strict scrutiny, and the NYCHRL treats a vast category of secular groups more favorably than religious schools like Yeshiva. The NYCHRL exempts any “corporation incorporated under the benevolent orders law or described in the benevolent orders law.” It is therefore inapplicable to large groups like the American Legion and the Loyal Order of Moose, as well as smaller groups like the United Scottish Clans of New York and New Jersey.

But Yeshiva was denied an exemption, and there has been no showing that granting an exemption to Yeshiva would undermine the policy goals of the NYCHRL to a greater extent than the exemptions afforded to hundreds of diverse secular groups. Accordingly, strict scrutiny applies. Based on the papers submitted to us in connection with this application, it is not likely that the Alliance could satisfy its burden under that standard.

Unless a stay is granted, Yeshiva will be required to recognize the Alliance as an official student group and to grant it all the privileges extended to other such groups. As the Alliance has contended, this would force Yeshiva to make a “statement” in support of an interpretation of Torah with which the University disagrees. The loss of First Amendment rights for even a short period constitutes irreparable harm, and the appellate process in the state courts could easily drag on for many months. And as for the interests of Alliance members and the general public, while a stay would deprive the Alliance of the statement it wishes to obtain, Alliance members would not be prevented from socializing and conducting activities that do not require official recognition.

The majority does not address our well-established standard for granting a stay but instead suggests that we cannot grant a stay because the New York courts have not entered a final order. But the state courts’ denial of interim relief constitutes a final order under National Socialist Party of America v. Skokie (1977). It is ironic that the theory that supported a stay in that case is eschewed here. Moreover, it is far from clear that our authority to issue a stay of a state court order that violates the Constitution is limited to situations in which a final order has been entered below.

The majority instructs Yeshiva to pursue two avenues of relief in state court before filing another application here. First, the University is told to seek “expedit[ed] consideration of the merits of [its] appeal.” But even expedited review could take months, and during all that time, the University would be required to continue to make the statement about Torah that it finds objectionable. Thus, an expedited appeal in and of itself would not be sufficient to protect Yeshiva’s First Amendment rights.

Second—and more to the point—the majority seems to think that it is still possible for the University to persuade the Court of Appeals to grant a stay. Of course, the Court of Appeals has already denied Yeshiva’s application for interim relief, but the majority interprets a case comment written by a court clerk employed by the Appellate Division to mean that the Court of Appeals may give Yeshiva a second bite at the apple notwithstanding its previous denial. That interpretation is dubious, yet the majority seizes upon it as dispositive.

I doubt that Yeshiva’s return to state court will be fruitful, and I see no reason why we should not grant a stay at this time. It is our duty to stand up for the Constitution even when doing so is controversial….

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