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Thursday, August 19, 2021

Ideology, Abortion, and Schmidt's Confusion (or Not?) over "Choice"

On Sunday, The Wichita Eagle posted a column of mine online (it appeared in the physical paper on Tuesday) which attempted to describe--in less than 600 words--the nature of the ideological confusion which the Kansas Republican party has sown over the past 18 months. I don't think I did a particularly good job. Fortunately, Derek Schmidt, Kansas's attorney general and a candidate for the Republican nomination for governor in 2022, sat down for an interview with Tim Carpenter of the Kansas Reflector this week, and in the full podcast he expressed that confusion far better than I ever could.

At the beginning of the interview, Schmidt talks about his anti-abortion bona fides, and the role he played in crafting the "Value Them Both" amendment, a proposed anti-abortion amendment to the Kansas Constitution which will be on the ballot next August and which the Kansas Republican party is all but entirely determined to see passed. As he commented, "that amendment is a response to what I think is an erroneous decision of the Kansas state Supreme Court which somehow managed to find in the state constitution the right to access abortion services that I just don't think is there." He repeated that point a couple of times. The case he was referring to, and the decision which the amendment would invalidate, is Hodes & Nauser v. Schmidt, a case from 2019 in which a state law that outlawed a particular second-trimester abortion procedure was challenged. Schmidt defended the law, with the state Supreme Court ultimately ruling in a 6-1 vote that, as the language of Kansas's Constitution supports (on those judges' interpretation) a guaranteed right for a woman to choose to access abortion services, state laws which limit that right, such as the one mentioned above, must pass a "strict scrutiny" test to be legitimate. For whatever its worth, I wrote at length about that case and its relevance for thinking about the long-standing issues of judicial review and popular sovereignty here.

One could attempt to qualify Schmidt's interview statement by suggesting that what he labels "erroneous" about the decision is solely the 5-person majority's language which took Kansas's constitutional jurisprudence to such a high level. (Justice Biles wrote a concurring decision which demurred partly from his colleagues' reasoning, stating that the Kansas Constitution's guarantee of  "equal and inalienable natural rights" was best interpreted as applying to abortion in light of the Supreme Court's currently--though perhaps not for much longer--reigning Planned Parenthood v. Casey precedent, which stipulates that restrictions upon the right to access abortion services can be justified only so long as they do not violate the somewhat more moderate "undue burden" test.) That would be an interesting development: that Schmidt only wants this state supreme court decision overturned because he thinks it valorizes a woman's right to choose abortion in a particularly uncompromising way. But no such development will emerge, and the attempts to give context to Schmidt's statement will fail, not at least if (and this is kind of the whole point) you actually take his statements about his beliefs at face value, as the interview itself later shows.

Why? Because once the interview got into the dominant issue in Topeka over the past 18 months--namely, Democratic Governor Laura Kelly's attempts to use her emergency powers to put in place what she and her medical advisors determined were necessary public health measures, and the way Kansas Republican leaders have consistently opposed and limited her efforts--Schmidt explicitly affirmed the uncompromising formulation of "choice" employed in that same decision which he insists needs to be overturned. As the interview turned to the spread of vaccination mandates across the U.S. as a public health measure, Schmidt repeatedly emphasized his opposition, clearly stating that there should be "no vaccination mandates," that the choice to get or not get vaccinated is "a personal decision," an "individual decision for individual citizens, not for the government," and that "people ought to be entrusted with" the right to choose what is medically best for themselves. He emphasizes this, he said, for a "couple of reasons." One is practical; he thinks more people will get vaccinated if you keep the choice entirely voluntary and a matter of public education and encouragement: "you catch more flies with sugar than you do with vinegar." But the other, which he implies he believes is even more important, is kind of fascinating:

People do have a right...well actually the Kansas Supreme Court in a different context calls it a "right to bodily integrity"....I don't mean to conflate the two debates [but]...it is quite a thing for the government to order a needle to be stuck in someone's arm.

Carpenter, to his credit, pushed back (though not, I think, as thoroughly as he might have) on this point, observing that a woman's choice to make use of abortion services is an even more personal decision, involving an even more intimate question about one's "bodily integrity," with government restrictions that may force a woman to carry an unwanted pregnancy to term presumably being "quite a thing" as well. Schmidt responded:

There is, of course, a difference, which is...at least in the view of those of us on the pro-life side, there are two persons' interests who have to be accounted for in the abortion context. That is not so, or at least less so, in the vaccination context.

Well. Let's unpack that a little bit.

First, if Schmidt sincerely sees his belief that vaccinations should be treated as a matter of personal choice reflected in Hodes & Nauser v. Schmidt, then he really ought to read it again. Because the 5-person majority on the Court did, in fact, touch upon the problem of the government sometimes requiring that needles be stuck in arms, presumably in violation of the right to bodily integrity, and they concluded (though I would agree with Biles that they did so much too casually) that their interpretation of the Kansas Constitution's language posed no complications for the well-established precedent of mandatory vaccinations. They did this by citing other decisions which labeled such public health practices as defensible when individual health exceptions are allowed (see pp. 40-41). Whether that's genuinely unproblematic assertion or not, it's connected to language which Schmidt himself uses, so he ought to at least acknowledge it.

Second, there's Schmidt's reference to "two persons' interests" in the case of abortion, a rather bloodless way to talk about the central conviction which has long defined opposition to the availability of abortion services in the United States: that a woman who chooses abortion terminates an unborn life, one which had no choice in the matter. That's a conviction which has been challenged and construed in different ways over the decades in light of arguments over the definition of fetal life, changes in our understanding of (and expanding technological access to) human embryonic development in the womb, and much more--but it remains the core principle that, as Schmidt put it, "those of us on the pro-life side" make use of. What, then, are we to make of someone who holds to that deep belief in preserving life, who then looks at the question of vaccinations, hears the clear evidence showing the threat which remaining unvaccinated poses to the lives and livelihoods of millions of others, sees the death which refusing vaccination is bringing into the hospitals and emergency rooms of America every day, but nonetheless still insists that "the right to bodily integrity" makes not being required to put a needle in your arm the more defensible position, in part because, supposedly anyway, the "vaccination context" is "less" a matter of other persons' "interests" than abortion is?

Well, as I see it, we can make a few different things. One is the observation I made in my original column, an observation rooted in many well-attested political truisms. To expand on it slightly: lots of people believe lots of things, and they believe those things for lots of different reasons. A lot of the exact same beliefs held by some people are held in an equally passionate but entirely different way by other people, and some individuals affirm both those different beliefs at the same time. In short, people are complicated. The existence of such complications make it possible for some people--let's call them "political elites"--to arrange and communicate packages of beliefs--let's call those "ideologies"--to attract the votes and the financial support of people to their vehicles--let's call those "political parties"--for enacting those packages of beliefs. Since these are packages of beliefs, not necessarily bedrock principles, they can always be re-packaged and re-communicated to the American people as political actors feel appropriate, something which has been done by different parties at different times throughout American history. 

In my column, I used the example of "choice," something which most Americans, socialized as most of us are so as to value individual liberty and personal decision-making, respond to positively. Over the course of the pandemic, "choice" has been a valuable tool (or, if you prefer, "ideological package") that Kansas Republicans have used to justify challenging Governor Kelly's efforts to mandate public health measures. We all know this; everyone knows someone who has refused to wear a mask or refused to get vaccinated or complained about restrictions at their workplace or their school or their church because they have--or should have--the liberty to choose to say no: "my body, my choice." It has been very effective politics for them, in that it really has articulated and given partisan direction to a general libertarian, choice-centric sentiment here in Kansas. Which led me to to point out, very simply, that it's a weird and possibly electorally confusing thing for Kansas Republicans to have made use of explicitly "pro-choice" language throughout 2020 and 2021, given that in 2022 they're going to be united around passing a constitutional amendment via referendum which is anything but "pro-choice."

My column prompted two different types of responses, which constitute two other ways of interpreting the confusion here, if that's what it is. The first (which started hitting my inbox as soon as the Eagle posted my column on Sunday) is that I'm wrong, that the positions taken by the Kansas Republican party on vaccinations and abortion actually fit together perfectly, and that if anyone has been engaged in ideological repackaging for political gain, it's been those duplicitous, pro-abortion Democrats, who have abused the notion of personal freedom for evil ends. I really didn't take that stuff seriously, in part because it just confirms what I also wrote in my original column: that beliefs can always be re-interpreted so as to demonstrate consistency, and the resulting ideological packages really can, at least sometimes, logically hold together. That doesn't make such packages persuasive; as I pointed out above, Schmidt's claim that invoking the right of bodily integrity to resist vaccination mandates and invoking the right of bodily integrity to resist abortion restrictions are "of course" fundamentally different is confusing, on multiple moral and legal levels. But still: this is what we free-thinking human beings do. If one group of human beings decide that they believe in libertarianism when it comes to public health but don't believe in libertarianism when it comes to reproductive rights, their justifications may be stupid, but that doesn't mean they're always incoherent. When it comes to defending our prior beliefs, we can be very clever creatures, and the Kansas Republican party (and Schmidt himself) no doubt have many clever people on their payrolls developing their talking points.

The other type of response however, and the other way of considering Schmidt's statements, is one I do take seriously. It's the suggestion--which I received from some local activists and scholars I respect--is that "coherence" and "persuasiveness" and such are all, like the packages of beliefs themselves, entirely ideological, and thus irrelevant--in fact immoral--in the face of the actual material conditions which the Kansas Republican party's employ of whatever language they choose is attempting to mask. The "Value Them Both" amendment will remove state constitutional limitations which protect a right which many women--particularly those that are poor and without social support--greatly need, and with its removal state laws passed by anti-abortion legislators will cause those women great harms. So what does it matter what Schmidt or anyone else actually believes or not? Treating their language as worthy of engagement, by way of pointing out the packaging involved and the confusions it arguably results in, simply plays their game. My interlocutors didn't paraphrase Marx's famous line from Theses on Feuerbach, but they might as well have: our point should not be to interpret the reasoning by which policies are justified, but to change the policies themselves.

That kind of materialism is, admittedly, bracing. It gives one the frisson of cutting through something, of getting to the heart of the matter, of "getting real," of kicking a stone in some grand Johnsonian refutation. And it's powerful stuff; while Marxist and other forms of critical philosophy are not my areas of special expertise, I think I understand enough of those arguments to be able to appreciate the ways in which talk of "packaging ideas" and "ideological interpretation" can implicitly legitimate beliefs which treat real material consequences as mere matters of ideological debate. The threat of that reductive danger makes maintaining radical challenges to the dominant discourses of liberal democratic and capitalist modernity immensely important, or at least that ethically must be the case for anyone who holds out for a better, less alienated, more democratic, more socially just and equal world. And yet...look at the words I used to make my point in that prior sentence: "understanding," "appreciation, "legitimization," etc. These are all describing intellectual actions which are themselves properties of the discourse about ideas. Absent, I suppose, either 1) the revelation that we really are wholly determined beings, operating in mental environments characterized entirely by false consciousness, like the unliberated captives in The Matrix, or 2) the determination (perhaps following from 1), or perhaps following from a doctrinaire reading of V.I. Lenin) to employ no other methods besides those of revolutionary violence, the brute--even, dare I say, material--fact of pluralism in our late modern condition necessitates the recognition of different existing construals of the same ideas, and the talking about of those differences. And that invariably lead to attempts to construct accounts of those differences, risky as that account-making may be to some. My talk of ideological packaging is one such construction. Does engaging in it--even if while so doing I note the stupidity or unpersuasiveness of some arrangements--functionally risk granting legitimacy to arrangements of ideas which can used to move policies in materially harmful ways? Almost certainly. But despite all my anarcho-socialist, populist democrat, and left conservative sympathies, I'm also still enough of a bourgeois liberal enough to ask: what is the alternative? Because I don't see one, at least not one that is actually available to a critical mass of thinkers and voters and citizens in Kansas, anyway.

Cards on the table: maybe I've gone on at such length because the language of people like Schmidt isn't entirely foreign to me, as it is to many others on the left. Not his or the Kansas Republican party's current (though probably soon to change) employ of the language of "choice," though; while I've grown far less sympathetic to arguments against abortion rights over the years, my old disagreement with centering "choice" in our articulation of the rights which liberal modernity tells us we possess remains firm. The pandemic, and the deadly abuses with the valorization of choice has made obvious, should have made that clear, if nothing else ever has or ever can. But that aside, I'll admit it: Schmidt's pro-life claims don't appear to me as obviously crazy. Wrong? Very much so. His appeal to a right to "bodily integrity" was a way to explain (assuming one even needs an explanation beyond a Republican elite packaging some beliefs so as to beat up on a Democratic governor) why people should be able to choose whether to not to wear a mask or be vaccinated is deeply stupid, and his commitment to that explanation, in the midst of surging Delta-variant numbers, while nonetheless refusing to extend it to women seeking to protect their access to abortion services, is deeply confusing. But not, I think, complete evil incoherence. Stupid and confusing are persuasive enough charges to be brought forward in an intellectual debate, aren't they? Maybe not for everyone, I guess. But for me, they'll do.