Corrected: The mainstream v. the extreme.

July 9, 2022

Revised newsletter to remove from Biden’s comments a statement released by Morton’s Steakhouse! Apologies for the error!

[All, I am sending a short Saturday newsletter mainly to open the Comments section to all readers in light of the momentous events that are buffeting us each day. And, as I am on day ten of quarantine, I need the engagement of the newsletter to help keep my wits about me!]

          On July 8th, President Biden finally gave the speech he should have delivered on June 24, 2022 (the day Dobbs was issued). It was a good speech on the merits, but it reads better than its delivery. The President’s remarks preceded the issuance of an executive order designed to safeguard access to reproductive healthcare. The text of the speech is here, a video is here, and the Executive order is here.

          Below are excerpts of Biden’s speech:

Extreme Republican governors, extreme Republican state legislatures, and Republican extremists in the Congress overall [are] now determined to go as far as they can.

What we’re witnessing is a giant step backwards in much of our country. [I]n a number of these states, the laws are so extreme they have raised the threat of criminal penalties for doctors and healthcare providers.  They’re so extreme that many don’t allow for exceptions, even for rape or incest.

The choice we face as a nation is between the mainstream and the extreme, between moving forward and moving backward, between allowing politicians to enter the most personal parts of our lives and protecting the right to privacy embedded in our Constitution. 

          Biden has finally cast the struggle in the right language: A choice between the “mainstream and the extreme” views held by the Democratic and Republican parties. He needs to keep it up and allow others in his administration to assist in carrying the message forward. (VP Kamala Harris and HHS Secretary Becerra stood silently behind Biden as he delivered his remarks. Why?)

          It has taken two weeks, but the administration has finally hit upon the right messaging. It now needs to spread that message far and wide.

These two things are not alike.

          A troubling aspect of the Dobbs decision is that many people view it as an abstraction rather than a significant change in the status of women under the Constitution. A small example of that occurred in a protest at Morton’s Steakhouse in Washington, D.C. Justice Kavanaugh was eating dinner at Morton’s yesterday. Word quickly spread, protesters gathered outside the restaurant, and someone called Morton’s to express their displeasure at Kavanaugh’s presence in the restaurant. Kavanaugh later left the restaurant through the back entrance to avoid the protesters.

          Morton’s (read: a male manager at Morton’s who didn’t have the sense to consult a woman) issued an offensive statement that read, in part:

Politics . . . should not trample the freedom of the right to congregate and eat dinner. Disturbing the dinner of all of our customers was an act of selfishness and void of decency.

          Wow! Strong words! Let’s take a look at Morton’s statement and consider the competing injuries of being subjected to free speech and being stalked by bounty hunters seeking a reward for reporting a woman who just had a miscarriage. Spoiler alert: Those two things are not alike.

          First, Morton’s asserts there is a “right to eat dinner.” Well, let’s apply the Dobbs analytical framework to that right. The “right to eat dinner” does not appear in the text of the Constitution, nor is there an implied “right to eat dinner” that is a “deeply rooted tradition in our nation’s history.” As explained in Merriam-Webster’s usage note on “dinner”

‘T]he use of dinner to refer to the main meal of the day, eaten as the last meal of the day, is a relatively recent phenomenon.”

          So, sorry, Morton’s, there is no express or implied constitutional “right to eat dinner” under Dobbs.

          Second, Morton’s (like Kavanaugh) might be shocked to learn that the Constitution expressly protects “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Justice Kavanaugh might not like hearing the grievances of the people injured by his decision in Dobbs, but he has no constitutional right to prevent the protesters from expressing those opinions peacefully.

          Finally, Kavanaugh knew when he joined the majority in Dobbs that women suffering miscarriages would be reported by bounty hunters to law enforcement in the hope of earning a $10,000 reward. Between 10% to 15% of pregnancies spontaneously miscarry. In Texas, women who suffer miscarriages and seek medical treatment presumptively expose their doctors to criminal prosecution and a $100,000 fine. Thus, the 10% - 15% of women who suffer miscarriages in Texas will likely be denied medical treatment because their doctors fear they will be charged with a felony. Compare that injury to being forced to eat a $75 steak while drinking a $200 bottle of wine as protesters gather peacefully on the street.

          Kavanaugh lied his way onto the Court and has engaged in the bad-faith reversal of settled precedents in multiple cases. He should not be surprised that Americans are unhappy with his use of the Court as a raw political weapon. Let’s hope that the peaceful protests cause him to reflect on the fact that his actions have made the lives of American women immensely worse. Perhaps a bit of humility about the real-world consequences of his decisions will temper his thinking in future matters.

          As for Morton’s, telling women that protesting their demotion to second-class citizenship is “selfish and void of decency” demonstrates that it is out of touch with what just happened in America. Someone who is not angry at women should take over the PR function at Morton’s.

Concluding Thoughts.

          I want to express my deep sympathy to the people of Japan over the assassination of former Prime Minister Shinzo Abe. He was a great leader who left the world a better place than he found it.

          I will be in touch.