News bits: Birth control under attack; power shifts on gun safety

Lawsuit attacks federal right to birth control

Radical right judge Trump rejects it

Vox writes:

Matthew Kacsmaryk, a Trump appointee to a federal court in Texas, spent much of his career trying to interfere with other people’s sexuality.

Last week, Kacsmaryk issued an opinion in Deanda v. Becerra that attacks Title X, a federal program that offers grants to health providers that fund voluntary and confidential family planning services to patients. Federal law requires the Title X program to include “services for adolescents,”

The plaintiff in Deanda is a father who says he is “raising each of his daughters in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage.” He claims that the program must cease all grants to health providers who do not require patients under age 18 to “obtain parental consent” before receiving Title X-funded medical care.

This is not a new argument, and numerous courts have rejected similar challenges to publicly funded family planning programs, in part because the Deanda plaintiff’s legal argument “would undermine the minor’s right to privacy” which the Supreme Court has long held to include a right to contraception.

But Kacsmaryk isn’t like most other judges. In his brief time on the bench — Trump appointed Kacsmaryk in 2019 — he has shown an extraordinary willingness to interpret the law creatively to benefit right-wing causes.

And so, last Thursday, the inevitable occurred. Kacsmaryk handed down a decision claiming that “the Title X program violates the constitutional right of parents to direct the upbringing of their children.”  

Kacsmaryk’s decision is riddled with legal errors, some of them obvious enough to be spotted by a first-year law student. And it contradicts a 42-year-long consensus among federal courts that parents do not have a constitutional right to target government programs providing contraceptive care. So there’s a reasonable chance that Kacsmaryk will be reversed on appeal, even in a federal judiciary dominated by Republican appointees.

Nevertheless, Kacsmaryk’s opinion reveals that there are powerful elements within the judiciary who are eager to limit access to contraception. And even if Kacsmaryk’s opinion is eventually rejected by a higher court, he could potentially send the Title X program into turmoil for months. 

Kacsmaryk’s opinion is incompetently drafted and makes several obvious legal errors

Kacsmaryk’s opinion makes a number of legal errors, some of them egregious.

The Constitution, for example, does not permit litigants to file federal lawsuits challenging a government program unless they’ve been injured in some way by that program — a requirement known as “standing.” But Alexander Deanda, the father in this case seeking to stop Title X-funded programs from offering contraception to minors, does not claim that he has ever sought Title X-funded care. He does not allege that his daughters have ever sought Title X-funded care. And he does not even allege that they intend to seek Title X-funded care in the future.

This will probably wind being appealed to the Republican Supreme Court. Given its hostility to the right to privacy, its elevation of religious rights above all others, its radical Christian nationalist ideology and its willingness to blithely overturn precedent, it seems reasonably possible that this decision will be upheld on appeal. But, a final decision is a year or two off. 

This is more evidence of the creeping radical, fundamentalist Christian theocracy that is poisoning too much of America, including federal courts.

Gun safety and politics

A NYT opinion piece written by gun safety advocate Dave Cullen discusses a surprising political shift regarding the politics of gun safety law. The shift is that gun safety laws are starting to be passed in states and the federal government. 

Apparently, years of activism and organization among gun safety groups has gained enough traction that federal and state Republican politicians have come to fear the gun safety lobby more than the NRA and the anti-gun safety law lobby and campaign contributions. Important catalysts in the growing gun safety movement include the 2011 shooting of Gabby Giffords in Arizona, the 2012 Sandy Hook school massacre of 6 and 7 year old children, and the 2018 shootings at Stoneman Douglas High School in Parkland, Florida.

In congress, Mitch McConnell broke through decades of the rock solid Republican Party opposition to gun safety laws after polls indicated there was overwhelming public support for gun safety. That support was backed by enough anger that Republican politicians were starting to lose bids for re-election in significant part due to this issue. The NYT writes:

After decades of getting trounced by the N.R.A., activists saw 67 gun safety laws passed at the state level in 2019, compared with nine pro-gun laws. This year, 45 new gun safety laws have been adopted in states, while 95 percent of gun-lobby-linked bills have been blocked, according to an Everytown report.

.... Mitch McConnell, the Senate minority leader, warned his conference it was. Before the vote for the Bipartisan Safer Communities Act this June, Mr. McConnell told his conference the game had changed. In a closed-door session, his team presented stunning internal polling of gun-owning households. He summarized it for reporters: “Support for the provisions of the framework is off the charts, overwhelming.”  

And with that, the architect of the gun safety blockade in Congress blew a hole in it. He needed to peel off 10 of his senators, and he got 15. The law strengthens background checks, especially for people under age 21 and provides funding to carry out red flag laws and for mental health, school safety and violence interrupter programs.

This shows the effort and organizing needed to get the corrupt, government and gun safety-hating radical right Republican Party to do what a solid majority of Americans has wanted for years. 

Apparently, about the only thing that moves Republican politicians to respond to usually disorganized majority public opinion in the face of an opposing, organized and well-funded minority is large scale public organization and activism. That needs to be driven by enough anger and votes to threaten politician election or re-election. Once the politicians sufficiently fear public anger for their careers, things can get done.

If that analysis is basically correct, then it points to a way to deal with intransigent Republican politicians. At present, disorganized majority public opinion faces two powerful, opposing, organized and well-funded minority ideologies. One is aggressive theocratic Christian nationalism. The other is authoritarian brass knuckles capitalism.