Ezra Klein: New Sayings

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April 19, 2007

New Sayings

Should the ubiquitous "What Digby said" be joined by "Just read Dahlia?"

April 19, 2007 | Permalink

Comments

"Just read Dahlia" is something I can absolutely get behiond. That was brilliant. As she usually is.

Posted by: weboy | Apr 19, 2007 12:20:07 PM

She's an extraordinarily good writer and thinker and has a knack for rendering clear some pretty difficult material.

I wish she didn't write for Slate, as I try to avoid patronizing the place that employs Kaus, Hitchens, Dickerson, and Saletan.

Speaking of which, I can't wait for Saletan's take on the case -- "the Court understands that this procedure is fundamentally icky" -- I assume great annoyance will ensue.

Posted by: Klein's Tiny Left Nut | Apr 19, 2007 1:54:37 PM

She's easily the best writer in Slate, and probably in my top five favorite reads all around. The fact that she appears to be the least widely published major name from Slate only confirms my suspicion that "being good at it" is not a big factor in choosing newspaper and magazine columnists.

Posted by: justin | Apr 19, 2007 1:57:50 PM

What's good about the piece linked to? It reads to me like a barely rational lashing out at the Court, in which exaggerated psychological speculation and other distortion replaces careful legal reasoning. The lauding of this piece seems a clear example of people uncritically accepting rhetoric and logic that confirms their views, even when it's really poor.

Lithwick replaces the rationale that Kennedy actually gives with one far easier to rail against. Rather than the fact that the intact extraction procedure resembles infanticide, in that the fetus is partially extracted before it's killed, for Lithwick Kennedy's rationale is that the procedure is "really disgusting." That's misrepresentation. The reasoning that some women will regret their decision to have an abortion more when they become aware of the entailments of the intact extraction procedure than with normal D&E is replaced by Lithwick with a fanciful reference to the "Inconstant Female," which she embellishes in several ways, none based very directly on anything Kennedy actually said. She makes much of the point of women changing their minds or regretting their decisions, though it isn't really the key part of the reasoning. And she outrageously misreads and misrepresents what Kennedy says about it in other ways:

But for Kennedy only those women who regret the decision to abort illuminate some deeper truth.

And Kennedy's solution for these flip-flopping women is elegant. Protect them from the truth.

In Kennedy's view, if pregnant women only knew how abhorrent the procedure was, they'd always opt to avoid it.

Kennedy doesn't say or imply any of this. The rest is just as bad:

For the first time today, Kennedy determines that a court's factual determination about whether some procedure may be necessary to protect the mother's health can just evaporate in the face of "medical uncertainty."

Not at all. He simply points out that there is no consensus about the medical necessity of this procedure, and that it therefore cannot be protected in the way that such a consensus would provide for. He points out that the fetus can be killed by needle before intact extraction, preserving the advantages claimed for the intact extraction procedure within the bounds set by the law.

As Ginsburg points out in her dissent, the court's rationale for upholding the ban on intact D&Es would support a ban on the (far more common) nonintact D&E as well.

Lithwick doesn't bother to give us Kennedy's response, that only the intact D&E as defined in the law resembles infanticide, that there is a clear difference between it and standard D&Es. She closes with:

I'm no psychologist but in light of today's Gonzales opinion one has to wonder: Is all of Kennedy's tender concern over those flip-flopping women really just some kind of weird misplaced justification for his flip-flopping self?

Pure fantasy on her part. Kennedy explains why this is no flip-flop, and she just ignores the bilk of the explanations in favor of her wildly distorted caricature.

Posted by: Sanpete | Apr 19, 2007 2:48:31 PM

Sanpete - I think your disagreements are over interpretation, but I think her interprations are also valid - Kennedy's dissent in Stenberg looks a lot like his majority opinion in Gonzales, and the big change between the two appears to be... Justice Alito. Kennedy's decision gets way into the weeds of differentiating medical procedures (the point of this decision isn't whether this it could invalidate non-intact D&E's down the road - it could - but the fact that non-intact D&E's are not the best procedure for every patient) to try and find arguments to justify the decision, but Lithwick's not wrong that if you step back the decision is "this procedure is icky and many women would, if they knew what it entailed, regret having it, therefore it's fine to ban it." It establishes new standards for medical necessity and ignoring the health of the mother when deciding on abortion, which are huge setbacks to a woman's ability to get an abortion, should she need one. Further, it says that "medical uncertainty", even unproven unctertainties can be valid justifications for legislatively banning a medical procedure. That's got all sorts of unintended consequences in theory, should it be upheld down the line... as does the establishment of a new, difficult standard for even bringing cases. Bottom line, I think Lithwick does as much as anyone to tie a troubling decision to a justice known to sit in the middle and hem and haw over which way to go (including abortion where this decision seems to contradict his participation in the majority on Casey). I would expect you to disagree. I don't think that's an indictment against Lithwick as a writer.

Posted by: weboy | Apr 19, 2007 3:56:44 PM

Does it signify anything if you can tell the identity of poster simply by reading the first sentence of a Post?

Posted by: W.B. Reeves | Apr 19, 2007 5:08:00 PM

Weboy, you don't show that the points I raised against Lithwick's piece are wrong. You mostly just repeat them. If you consult the opinion it's clear they simply fail to match what the it says.

That the opinion resembles Kennedy's dissent in Stenberg doesn't imply that he has departed from the precedent.

if you step back the decision is "this procedure is icky and many women would, if they knew what it entailed, regret having it, therefore it's fine to ban it."

False, and plainly false given what the decision and opinion actually say. As I already pointed out, and you ignore, the actual reasoning is explicitly not merely about anything like "ickiness" (a term only used by pro-choicers, to minimize what's involved), and Kennedy acknowledges that standard D&E is also very disturbing. The actual reasoning relies on the similarity to infanticide, and explicitly not on how disgusting the procedure is.

The part about women regretting the intact D&E more is merely an ancillary one, affirming that the law in question can reasonably be held to contribute to the dialogue about abortion and respect for life, and that this supports the stated intent of the law to protect innocent human life and protect the ethics and reputation of medical practice. This is part of an argument that the intent isn't to create an obstacle to pre-viability abortions. It isn't the central argument, and "therefore it's fine to ban it" is definitely not what follows from it in the decision. There's no reasonable way to make the decision say what you and Lithwick say it does. (On the points in these two paragraphs see in particular the Syllabus, section 3 (a), and the corresponding pages of the opinion. The decision and opinion are here (pdf).)

It establishes new standards for medical necessity and ignoring the health of the mother when deciding on abortion, which are huge setbacks to a woman's ability to get an abortion, should she need one.

False. I've already addressed this in terms of the arguments the opinion actually uses. It nowhere gives anything like a standard for ignoring the health of the mother. On the contrary, it explicitly finds that there is no consensus of risk to women from banning this procedure, and gives a very reasonable argument that there is no such risk within what the law actually allows, which includes intact extraction after killing the fetus.

Further, it says that "medical uncertainty", even unproven unctertainties can be valid justifications for legislatively banning a medical procedure.

"Unproven uncertainties"? That's a curious one. As I already said, it finds that there is a lack of medical consensus here. It doesn't say that can be the basis for anything, only that it can't be the basis for overriding this legislation.

The closest the opinion comes to what you say is suggesting that "marginal risks" may be balanced by legislators. However, "The Court assumes the Act's prohibition would be unconstitutional, under controlling precedents, if it "subject[ed] [women] to significant health risks." (Syllabus 3 (b).)

Posted by: Sanpete | Apr 19, 2007 5:56:39 PM

You're right, Sanpete that this gets repetitive, and I'd relent, but - the fact that the decision say that a lack of consensus on the health risks means that banning the procedure is okay is the part that's troubling - there are medical reasons for attempting extraction first and then ending the life (the alternatives, such as using chemicals to kill the child first or doing the work internally and then extracting are dangerous to the mother)... but the point is Doe v. Bolton explicitly said that post viability abortion bans had to include provisions for the health of the mother, as well as her life. This ruling accepts that notion that stautes can be constructed without that protection, something antiabortion activists have been gunning for all along. That's a new standard, despite the decision's attempts to frame it as somehow not (like it's assertion that it's not overruling Stenberg while, in fact, it is). Kennedy goes to great lengths to decribe the procedure, to call it disturbing, and to say that banning it affirms the governbment's concern for Human Dignity. He goes on to say that he is concerned for women who, not undertsanding the procedure, will later regret having it - a paternalistic attitude that's already got women furious (it's certainly what seems to have pissed off Ginsburg most, never mind Lithwick) and something likely to ripple out in all sorts of ways. I'd go with what I said the first time, but stretch it out, and still - icky, regret, okay to ban. Dress it up as you please. Again, my point is only that there's a number of ways to look at this - and I know you like to be the cooly detached observer on abortion, criticizing all and sundry (you quote the decision as if you approve, but I suspect to suggest that will only revive your protests that you don't); I have no qualms taking a side (and you know I like a side of one), nor does Lithwick. I don't think coming from a particular viewpoint damages her assessment the way you insist, or that yours is the only way to interpret the decision - a decision, I'd suggest, that's going to turn out to be problematic for the Court to sustain, and one that, I suspect, makes it harder, not easier, to draw the line to how they can eventually overturn Roe, something that's clearly in the wind. That's the crux of the issue here, it seems to me. The rest, as we can argue forever, is the details.

Posted by: weboy | Apr 20, 2007 12:00:42 AM

Weboy, as I've already pointed out, much of what Lithwick says is a gross misrepresentation of that Kennedy actually wrote. You haven't even addressed most of those points specifically, and for good reason--there's no way to defend them in the face of the text itself. Your milder presentation of the general drift also fails to connect with the text in some respects.

You continue to ignore the logic of the decision that finds no need for an explicit exception for the health of the mother because the justices just don't think there is any. They could be wrong, but the fact remains that the health exception is avoided, not overturned. What is changed is that the decision isn't left to individual doctors, unless an appeal to a court is granted. Troubling, yes, but not the same as overturning the health exception. There is no way, no possibility at all, that the same logic could be used to justify banning D&E, because there is a clear medical consensus that it's the safest method for most women, and the health exception comes into play. That matters.

He goes on to say that he is concerned for women who, not undertsanding the procedure, will later regret having it - a paternalistic attitude that's already got women furious (it's certainly what seems to have pissed off Ginsburg most, never mind Lithwick) and something likely to ripple out in all sorts of ways.

Where does he express this paternalistic concern as a rationale for banning the procedure? What I've read is factual, that some women do have regret, but that isn't the reason the law banning the procedure is upheld; it's only a support for the claim that the intent of the law isn't to set up barriers to abortion. Again, no matter how many times you say otherwise, your idea of "icky, regret, okay to ban" is not reflected in the decision. If you think it's in the opinion, give the references specifically, and pay close attention to the argument, not only to isolated ideas. The notion that there are a number of ways of looking at this is a dodge. Find it in the decision. This has nothing to do with taking a side. That doesn't entitle you or Lithwick to your own private facts about what the decision actually says.

Posted by: Sanpete | Apr 20, 2007 1:47:57 AM

You continue to ignore the logic of the decision that finds no need for an explicit exception for the health of the mother because the justices just don't think there is any.

That should end "the justices just don't think there is any siginificant risk to the health of the mother."

Posted by: Sanpete | Apr 20, 2007 2:37:09 AM

Shorter Sanpete: I can't believe you made me read a woman. I feel dirty.

Posted by: Amanda Marcotte | Apr 20, 2007 1:57:31 PM

Longer Amanda: I can't deal with the arguments, so I'll substitute my fantasy. I feel better now.

Posted by: Sanpete | Apr 20, 2007 3:12:43 PM

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