"The Supreme Court on Friday agreed to hear its first major abortion case since 2007..."

"...one that has the potential to affect millions of women and to revise the constitutional principles governing abortion rights," writes Adam Liptak in the NYT.

The court’s decision will probably arrive in late June, as the presidential campaign enters its final stretch, thrusting the divisive issue of abortion to the forefront of public debate. Other major rulings — on affirmative action, public unions, contraception coverage and possibly immigration — are also expected to land around then.

But it is the new abortion case, however it is decided, that is likely to produce the term’s most consequential and legally significant decision....

The constitutional law doctrine, from 1992, forbids the state from imposing "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion." Given the personnel on the Court, it doesn't seem likely at all that the doctrine will change, only that it might be somewhat hard to apply the doctrine to the regulations the state came up with:

The case concerns two parts of a state law that imposes strict requirements on abortion providers.... One part of the law requires all clinics in the state to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital. Officials in Texas said that the contested provisions were needed to protect women’s health. Abortion providers responded that the regulations were expensive, unnecessary and intended to put many of them out of business....

Nancy Northup, president of the Center for Reproductive Rights, which brought the Texas challenge, said officials in Texas had used “deceptive laws and regulatory red tape” to block access to abortion.... “There would be no licensed abortion facilities west of San Antonio,” the challengers’ brief said. The only clinic south of San Antonio, in McAllen, it added, would have “extremely limited capacity.”

I predict that the Supreme Court see an undue burden here. Isn't the law really, mostly a way to deter women from having abortions? It will be interesting to be pushed into thinking about abortion more than usual in the coming election year. Whether the abortion case is the "most consequential" case — more than "affirmative action, public unions, contraception coverage and possibly immigration" — it fits in a set of issues that are politically hot and that drive a wedge in a place that makes it hard for Republicans to keep people like me who can be won over on economic and security issues. And so, I'd say that Democrats should be happy about the line-up of politically hot cases in the Supreme Court.

It's the way Justice Kennedy expressed his hate for the term "swing vote" that's so revealing.

"I hate that term... I get this visual image of spatial gyrations. The cases swing; I don’t."

The most revealing thing is not that he hates the term "swing vote." That's not surprising. He wants to be thought of as serious and consistent. The term impugns.

The most revealing thing is that in thinking about an abstraction, he gets a visual image and his thinking about an abstraction is, it seems, influenced by the way that abstraction-made-concrete looks in his mind.

This is useful for lawyers who are trying to figure out how to tip Kennedy one way or the other. Did "tip" just give you a visual image? If not, then you don't have the kind of mind that Kennedy seems to have.

Personally, I have this kind of mind, and I know very well how thought is influenced by language that generates images. The word "swing" makes Justice Kennedy picture a swing — picture himself as a swing, suspended, ungrounded, susceptible to pushes — and he hates (strong word!) how he looks in that image. Perhaps he sees himself as a child on a swing. Perhaps he sees himself as the bad guy in a western who's going to swing in a hangman's noose.

Stressing the vividness of the image as it appears in his mind, he indulges — even as he's speaking with notable concision — in a redundancy, adding the unnecessary adjective "visual" to "images."

So it seems that Justice Kennedy is one of these people for whom the metaphors within words feel alive. George Orwell wrote about dying metaphors in "Politics and the English Language":

A newly invented metaphor assists thought by evoking a visual image, while on the other hand a metaphor which is technically "dead" (e.g. iron resolution) has in effect reverted to being an ordinary word and can generally be used without loss of vividness. But in between these two classes there is a huge dump of worn-out metaphors which have lost all evocative power and are merely used because they save people the trouble of inventing phrases for themselves. Examples are: Ring the changes on, take up the cudgel for, toe the line, ride roughshod over, stand shoulder to shoulder with, play into the hands of, no axe to grind, grist to the mill, fishing in troubled waters, on the order of the day, Achilles' heel, swan song, hotbed...

What Orwell didn't say was that the effect of language varies from person to person. There is no objectivity to the perception whether a metaphor is fully alive, totally dead, or somewhere in the gray area between life and death.

The life of a metaphor is a subtle matter that belongs within the realm of the individual mind, including the mind of the man who (co)wrote: "At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."

Did he get a visual image of a heart, a beating heart of liberty? Did he see, within that heart, the universe? Did the image of the universe inside a heart blur into a mystery as he compared the universe inside a heart with the unborn baby inside a womb — two bodily organs containing — who's to say? — everything?

You may think the life of that baby is undeniably, concretely real, but do you understand how real liberty might look in the mind of a man who gets visual images?

ADDED: The Orwell quote contains the very phrase I marked as a redundancy: "A newly invented metaphor assists thought by evoking a visual image..."

Justice Kennedy — substituting his idea of a "fair" question — stumbles through the problem of a government official faced with abiding by a Supreme Court decision she believes is morally wrong.

Justice Anthony Kennedy was taking questions from Harvard Law students last week, when one student asked a somewhat garbled question about whether government officials can act on their own understanding of the meaning of life. Scroll to 50:44 to begin at the student's question:



Kennedy says that he'll "refaze" the question "in a fair way," which seemed both disrespectful to the student and, like not bothering to enunciate all the letters in "rephrase," a bit lazy. But the crowd of students chuckled its support for the most powerful person in the room as he diminished their peer.

The "fair" rephrasing was:

Uh what what what is the duty of the public official if he or she cannot, in good conscience and consistent with her own personal and religious beliefs, enforce a law that they think is morally corrupt? 

The student had talked about "rational norms" and "judgment of the truth of new insights" and the "truth" and never used any words that connoted religion, morality, or corruption.

So, basically, Kennedy plugged in a question that the student's question reminded him of and that he had a good shot at answering in a predictable, conventional way. This is a strategy that is very commonly used by law students answering exam questions, and that I always warn my students against: I'll notice and you can't get credit for that. You must face the difficulties of answering the question in the form it is asked.

But Justice Kennedy was not writing an exam; he was talking to a friendly crowd that had just warmly chuckled its approval of his rejection of the question that was asked.

Did anyone really understand the question? I've listened to it a few times, and it is pretty hard to absorb and figure out how to approach answering. Why did the student ask it that way? Was it unfair? I'd have loved to have heard a more spontaneous dialogue between Kennedy and the student that began, perhaps, with Kennedy's saying: "Here's why I think your question is unfair: You're using words like 'rational norms' as if the official is looking, scientifically, at the facts, but I think you're really talking about religious beliefs and moral compulsions imposed not by reason and facts but by God."

But Kennedy plugged in the conventional answer, phrased — fazed — in the most noncommittal way:

"Great respect, it seems to me, has to be given to people who resign rather than do something they think is morally wrong, in order to make a point. Uh, however, uh, the rule of law is that, as a public official in performing your legal duties, you are bound to to enforce enforce the law. Um and it's it's it's difficult sometimes to see whether or not what you're doing is transgressing your own personal philosophy. This requires considerable introspection. Um and it's it's it's a fair question that officials can and should should ask ask themselves. Um but um certainly, in an offhand comment, it would be difficult for me to say that people are free to ignore decisions of the Supreme Court. Lincoln went through this in the Dred Scott case. Um and uh these are difficult moral questions."

It's the theater of thoughtfulness studded with ums and repetitions and expressions like "considerable introspection" and assertions about how "difficult" it all is, until you've either forgotten the question —  not just the original question but the substituted "fair" question, even as he reminds us "it's it's it's a fair question" — or you decide he's just said what you feel he must have said — what you want him to have said — and you go off and write a little article about it:



You know, if you're going to be mealy-mouthed, people can use you however they want.

"No one is forcing anyone to accept 'one wife, many husbands!'" said the Chinese economics professor, proposing a solution...

... to the problem of too few women in China to meet the demand of Chinese men who want wives.

The professor, Xie Zuoshi, blogged his idea. He has a lot of readers — 2.6 million followers for one of his 3 blogs — and this idea went viral — though the post itself has "been removed."

By 2020, China will have an estimated 30 million bachelors — called guanggun, or “bare branches.”...

One answer is: Stop aborting girls. But Xie's solution takes the current situation as it is.

Many men, especially poor ones, he noted, are unable to find a wife and have children, and are subsequently condemned to living and dying alone without offspring to support them in old age, as children are required to do by law in China. But he says he believes there is a solution.

Old-age pensions from the government? No:

“The guanggun problem is actually a problem of income. High-income men can find a woman because they can pay a higher price. What about low-income men? One solution is to have several take a wife together. That’s not just my weird idea. In some remote, poor places, brothers already marry the same woman, and they have a full and happy life.”

Polyandry has been practiced before in China, particularly in impoverished areas, as a way to pool resources and avoid the breakup of property. And apparently, there are Chinese who think polyandry may already be legal....

Click for more »

"If you think fetal-tissue research is wrong and should be banned, would you refuse to use any therapies that may come out of it?"

"I thought not. I’ve posed this question to abortion opponents before, but so far, no one has said, Yes, Katha, I would rather let Alzheimer’s turn my brain into cottage cheese and ketchup than benefit from this diabolical practice. If I get Parkinson’s, HIV, breast cancer, diabetes, or the flu; if I go blind from macular degeneration; if I have a miscarriage, so be it. Treatments for those conditions are still being developed, but surprise! If you have been vaccinated for polio, mumps, measles, chicken pox, hepatitis, or rabies, it may be too late for you to stand your ethical ground: You have already benefited from fetal-tissue research. This is, after all, a practice that’s been legal since the 1930s. In 1954, John Enders, Thomas Weller, and Frederick Robbins won the Nobel Prize for work on the polio virus that paved the way for the Salk and Sabin vaccines. They used fetal tissue, the monsters. Should their heirs return the medals?"

Writes Katha Pollitt in The Nation in a piece titled "Fetal-Tissue Bans Are All About Making Abortion Providers Look Like Monsters/Life-saving research is collateral damage in the war on Planned Parenthood."

The history of the word "politicize" — from 1968 to 2015.

May 1968: "S.D.S. is out to politicize the campus."

September 1973:  "It was not simply a matter of increasing numbers, but of the highly politicized manner in which additional blacks found their way into Harvard — overcoming nearly a century of racial and sociological barriers to a sizable presence at Harvard. Militancy and political threats perpetrated by Negro students in 1968-70 paved the way for major alterations in Harvard's recruiting and admissions policies. This resulted in a fivefold increase in black enrollment, but the politization surrounding this development plagued virtually all aspects of black-white relationships, dividing blacks and whites in to mutually exclusive communities." From "The black experience at Harvard," by Martin Kilson.

August 1976: Back when Jimmy Carter, a peanut farmer, was getting the Democratic nomination: "Planters [Peanuts] has been the focus of recent efforts to politicize peanuts, such as the recent Democratic National Convention to 'borrow' its Mr. Peanut mascot. 'Mr. Peanut is an apolitical figure'..."

January 1979: Pope John Paul II in Mexico City: "You know that liberation theology is a true theology... But perhaps it is also a false theology, because if one starts to politicize theology, apply doctrines of political systems, ways of analysis which are not Christian, then this is no longer theology."

September 1980: "On the Lower East Side in the late 60's, his aim was to politicize the hippies, not to make the larger world an adjunct to the counterculture." From a review of a new book by Abbie Hoffman.

December 1986: "In 1966, Mao turned to radical Shanghai students to trigger the Cultural Revolution, a decade-long upheaval intended to politicize every facet of Chinese life."
 
November 1992: Hugh Hefner is quoted: "I think the real question is why, after a sexual revolution began in the 50's, did the women's movement seize upon an anti-sexual theme.... A significant part of the hurtful side of feminism is failing to understand how a hurtful childhood can shape you, and instead trying to politicize all behavior. There's really no benefit to viewing sex as the enemy. The sex act is some of the best of what we are, as family, and as a civilization. The notion that sex and violence are connected like law and order is untrue. They are polar opposites. One is hurting; one is hugging."

January 1994: "Do you ever wonder if it was a mistake to politicize the private lives of politicians? Bill Clinton was rumored to have a Gary Hart-ish sexual life, yet he's turned out to be quite supportive of women's rights." From a Q&A with 3 female reporters.

May 1996: When Democratic Representative Barney Frank of Massachusetts said that the Defense of Marriage bill was motivated by politics, he was accused of a "desperate attempt to politicize what is not a political issue."

September 1999: After shootings in a Fort Worth church, Texas Governor George W. Bush signed legislation permitting guns in churches, Vice President and presidential candidate Al Gore started asking ''How can we allow guns in churches?'," and a Bush spokesman said: "Americans are tired of politicians trying to politicize every tragedy.'' 

December 1999: "Our political leaders must be judged on how they treat everyone, including the least fortunate. We must ask ourselves: do we solve problems or simply push them away, politicize them and criminalize them?'' said Hillary Clinton, about homeless people, whom Mayor Rudolph W. Giuliani was having arrested for sleeping on the streets.

April 2000: "Holding congressional hearings now would only further politicize this tragedy [of Elian Gonzalez], further inflame the passions, and do nothing to resolve the future of the child.... We should not allow this situation to degenerate further into which political party can benefit the most. Americans have made it clear that they do not want to see this issue politicized," wrote Republican Senator Chuck Hagel.

October 2004: "There have been faith-based efforts in America for years and years. There hasn't always been an effort to politicize it," said presidential candidate John Kerry speaking to a group of black pastors.

February 2012: "I think there’s been a chord struck over this issue, this issue of political organizations who are trying to politicize women’s reproductive health," said Planned Parenthood President Cecile Richards.

October 2015: President Obama, after another mass shooting: "Somebody somewhere will comment and say, Obama politicized this issue. Well, this is something we should politicize. It is relevant to our common life together, to the body politic."