Monday, November 29, 2021

"Light in August", Darkness in December? or, What William Faulkner Might Think of Mississippi’s Odd Dobbs Abortion Case

     The pregnant Lena Grove in William Cuthbert Faulkner’s Light in August (1932) thinks to herself in the novel’s first paragraph, while walking to Mississippi, “‘I have come from Alabama: a fur piece.’” We are all journeying to Mississippi these days, seeing that Mississippi abortion case Dobbs v. Jackson Women’s Health Organization is due for Supreme Court oral argument on December 1, and the world watches. 2021 is a “fur” (far) piece from Roe v. Wade in 1973, or even Planned Parenthood v. Casey in 1992; and one wonders what that Mississippian muse, Faulkner, would make of Dobbs, especially its perverse aspects. Can we learn anything from him?

     The present author submitted an amicus brief on Mississippi’s side in Dobbs, but believes that both “pro-life” and “pro-choice” sides deserve some respect, at least for good intentions and raising worthwhile questions. Faulkner, too, may have seen different sides of the abortion issue, as one may guess from his fiction. (It is rumored that he may have helped his wife Estelle, who’d been married to someone else, get an abortion; but that is not fully substantiated.)

I. Faulkner May Have Valued Live Birth Over Abortion, As Does Mississippi Law After 15 Weeks

     For one, he may have been no enthusiast for abortion. E.g., If I Forget Thee, Jerusalem (a.k.a. The Wild Palms) (1939), in its section “Wild Palms”, features the character Charlotte Rittenmeyer, a sculptress and adulteress who dies from a botched, illegal abortion administered to her by her weak, inept unmarried lover Harry Wilbourne, who once aspired to be a professional abortionist. (“There was no especial shape beneath the sheet now at all and it came onto the stretcher as if it had no weight either. The stretcher whispered into motion again, wheeling sibilantly, sucking through the door again when the officer now stood with his hat in his hand. Then it was gone.”)

     In contrast, the novel’s other section, “Old Man”, features a heroic escaped convict who helps a woman successfully give birth during a disastrous flood. By implication, then, Faulkner may be lionizing live birth of a child over having an abortion.

     On a similar note, Light in August reveals that protagonist Joe Christmas’ racist grandfather Eupheus Hines tried to have Joe aborted since Joe was born out-of-wedlock, but had trouble finding a doctor to do it. This may be an effort to create sympathy for Joe, which, again, may show some hesitance by Faulkner about abortion.

     All that considered, modern-day Mississippi, with its 2018 Gestational Age Act’s (“the Act”) ban on abortion (except for medical emergency or life-threatening fetal deformity) after 15 weeks, the subject of Dobbs, would presumably welcome Faulkner’s implied preference for birth over abortion.

II. However, Faulkner’s Writing Shows Sympathy for Those Having Difficulty Getting Abortions

     On the other hand, Faulkner seemed to have some sympathy for the plight of unwillingly pregnant women. For example, As I Lay Dying (1930) goes into painful detail about the struggles of pregnant Mississippian teenager Dewey Dell Bundren to get an abortion, all while being burdened by her Southern-Gothic dysfunctional family. First, she tries to get abortion pills from pharmacist Mosely, but he only gives her a religious lecture and refuses to help her abort. (A right of conscience for healthcare providers to avoid supporting abortion may be acceptable; but self-righteous lecturing may never be very humane.)

     Later, Dewey Dell is fooled/coerced by drugstore clerk Skeet MacGowan into sleeping with him—arguably a form of rape—to get abortion pills and other alleged “treatment”: pills which he knows are really just talcum powder. (“‘Where do I take it?’ she says. ‘Down in the cellar,’ I says.”) Finally, her work-shy, manipulative father Anse commandeers the ten dollars she’d saved for an abortion and uses it to buy a set of false teeth for himself, to woo Dewey Dell’s future stepmother.   

     Thus, without endorsing abortion, Faulkner at least shows some of the ugly burdens that can go with attempts to get an abortion. Patriarchy can be a problem, too, e.g., three males in a row making life difficult for Dewey Dell re abortion, even taking her money. And, there is the vileness of MacGowan cheating and manipulating/raping her. (The 2007 Romanian film 4 Months, 3 Weeks and 2 Days also features a sleazy abortionist who demands sex from a woman seeking an abortion.)

III. Mississippi’s Faulkneresquely Perverse Switch from Just Asking to Preserve the Act, to Demanding Roe/Casey Be Overturned

     Where this issue of cheating or manipulation is especially important to Dobbs, is Mississippi’s infamous turnaround from merely asking that the Act be upheld (in Mississippi’s petition for certiorari), to asking that Roe and Casey be overturned (in the state’s merits brief), resulting in an ultra-lenient “rational basis” framework for judging the legality of abortion law. If not “cheating or manipulation” per se, the switch from one goal to a much broader one certainly looks funny. (As the late, great Stephen Sondheim said, Send In the Clowns.)

     If Mississippi had been consistent and all along just asked for the Act to be upheld, that would have some integrity to it. But by doing an arguable “bait and switch” and moving the goalposts from banning abortion at 15 weeks (the Act) to maybe banning it at zero weeks (possible under “rational basis”), the Magnolia State may be abandoning much of its moral credibility in Dobbs. (Under rational basis, technically, both doctor and patient could be executed for “murder”, or jailed for life for “attempted murder”, for an abortion.)

     While Mississippi is a great state (like the other 49 states), its behavior in Dobbs thus risks falling into the “Southern Gothic” nightmare, à la Dewey Dell’s travails, about which Faulkner famously wrote throughout his life. (Texas’ abortion laws may be even worse, at the moment; but laws even worse than Texas’ might happen under “rational basis”.)

IV. Mississippi’s Fraught History Regarding Underprivileged Groups, Re Abortion

     Speaking of “Southern Gothic”, Mississippi’s record vis-à-vis minorities, poor people, and women has not always been enviable, whether before or after the Civil War—as Faulkner might agree with. Then again, Mississippi has shown some concern for minorities and women, at least in the womb, in its 2020 banning of race- and sex-selective abortions. Or, is this ban hypocritical “virtue-signaling”, in light of the way that already-born people, especially various subgroups, are treated in Mississippi?

     Indeed, District Judge Carlton W. Reeves said of the Act, in his order granting an injunction against it,

[T]he Mississippi Legislature’s professed interest in women’s health is pure gaslighting. . . . Its leaders . . . choose not to lift a finger . . . to address our alarming infant and maternal mortality rates. . . . [L]egislation like H.B. 1510 is closer to the old Mississippi—the Mississippi bent on controlling women and minorities.

If Reeves is correct, then the Act is problematic. And misogyny can be deadly: in Light in August, Eupheus Hines called his unmarried pregnant daughter a whore and denied her a doctor while she gave birth to Joe Christmas; she died in childbirth, likely as a result of having no doctor. In real life, plenty of Mississippians, women or otherwise, may needlessly die too.

     Interestingly, Mississippi plans a rally to “Empower Women and Promote Life” on December 1st at the Supreme Court. It may take some explanation as to how cutting women’s abortion rights to near-zero (if Roe/Casey are overturned) empowers women, except maybe the (unborn) ones whom the Act prevents from being aborted, or those who would’ve been coerced to have an abortion but don’t have one because they can’t legally do so. But what about all the other women? Thus, the slogan risks being Orwellian, somewhat like Mississippi’s flip-flop from just defending the Act to trying to destroy Roe/Casey.

V. Faulkner Might Recommend a Compassionate Look at Both Sides in the Abortion Dispute

     So, what is to be done? seeing all the turmoil and the conflicting good intentions on each side. Not all pro-lifers are Bible-thumping fascists, nor are all pro-choicers atheistic baby-killers. A look at a famous address of Faulkner’s may be inspiring here.

     His 1950 Nobel Prize acceptance speech discusses “the human heart in conflict with itself” and commends “the old universal truths . . . .  love and honor and pity and pride and compassion and sacrifice.” While this doesn’t have any specific insights about abortion or abortion rights, it does note that the truths are “universal”, so that both pro-life and pro-choice sides may have a right to honor, pity, love, compassion, and sacrifice from the other side. 

     E.g., if the pro-choice side may get fewer weeks of unrestricted abortion than it would like (say, 15 weeks instead of 24), and the pro-life side may have to pay higher taxes than it would like to subsidize more support for pregnant women and their children (reducing infant and maternal mortality, re Judge Reeves comments), that could be seen as a “compromise” that would show honor to both sides, and reciprocity. (The more restricted abortion is, the more financial-or-other support should be given to those who are losing some of their abortion rights: a reciprocal relationship respecting both the “supply side” and the “demand side” of abortion.)

     Indeed, broadly speaking, there’s the longtime precedent of a “European” model of abortion rights, which restricts second-trimester abortion but provides more social support to mothers than usually occurs in the U.S. If the Court decided on something like that rather than fully overturning Roe/Casey, Faulkner, and many thinking people, might understand, and even applaud. (The Court, in Mississippi v. Tennessee, recently rebuked Mississippi for not being equitable enough re groundwater rights; perhaps they may find Mississippis Dobbs merits-brief requests about abortion rights arent equitable either.)

     In conclusion: Lena Grove in Light in August eventually gives birth after walking “a fur piece” to Mississippi, but she is aided in her struggles by the compassion of many people along the way. If the Court writes an opinion in Dobbs which respects the humanity of people on all sides of the debate, and “love and honor and pity and pride and compassion and sacrifice” (Faulkner), we might have light in December, the month of the Dobbs oral argument, rather than darkness in December, the darkness resulting from an opinion which disrespects either sides humanity. We can only hope, and pray, the Court is up to the task.

Saturday, November 27, 2021

Happy Thanksgiving Weekend 2021

Even with COVID and racist vigilantes around, there is still much to be thankful for. 

God bless.

Monday, December 7, 2020

Pearl Harbor remembrance 2020

     RIP. Never forget. (As I say about many patriotic days of remembrance)

     God bless.

Thursday, November 26, 2020

Saturday, November 14, 2020

Veterans Day Week 2020

     Is Veterans Day enough, or should there be a whole week? In any case, never forget.

     God bless.

Tuesday, November 10, 2020

Is Stephen Breyer Severable? and Other Issues Posed by the Latest ACA Oral Argument

     This essay's title springs from the interesting troubles Justice Stephen Gerald Breyer had with his telephone in the oral arguments this morning in California v. Texas (and Texas v. California), 19-840 and 19-1019, a.k.a. "That Latest Obamacare Case". So, if a Justice doesn't participate in oral arguments (or part of them), does that make him "severable" from the arguments? --But first, some more serious stuff, also about severability, or other pertinent issues:

I. A Precedent of Precatory Purchase Mandates--Including Health-Insurance Purchase

     As per the transcript of the oral argument, the exchange of Breyer with Solicitor General Jeffrey Wall,

[JUSTICE BREYER:] But you have read through the U.S. Code, or someone in your office, and have learned that there is no word "shall" in a precatory phrase?
GENERAL WALL: Justice Breyer, I cannot vouch that I've read the entire United States Code.
JUSTICE BREYER: I -- I haven't either. I tell you, I haven't either.
, Transcript at 99-100: besides the unintentional comedy of two men protesting that they haven't read the whole Code, there is the issue of the commanding word "shall" in a precatory phrase. So, Respondents might argue, the presence of "shall" in the ACA insurance-purchase Mandate may seem to be a command, with violators being lawbreakers.
     However, one can go for persuasive authority (albeit not controlling authority) to many examples of city or state purchase mandates using words like "must" or "shall", but being merely precatory and without penalty. The present author collected a number of them in his 19-840 amicus brief--including a number of Georgia gun-purchase precatory mandates--, but for now shall cite only the 2008 New Jersey mandate to buy health insurance for minors, see N.J. Stat. Ann. § 26:15-2, “Coverage provided for residents 18 years of age and younger; terms defined.” (2008; available at, e.g., https://tinyurl.com/NJPrecatoryKidsMandate),
a. Beginning one year after the date of enactment of this act, all residents of this State 18 years of age and younger shall obtain and maintain health care coverage that provides hospital and medical benefits. [etc.]
Id. So there is the magic word "shall", in a precatory health-insurance purchase mandate, and with no penalty mentioned, see id. It is not a federal law, true, but it shows that there is at least one "true mandate" (if the word "shall" is key) for health-insurance purchase without any penalty.

II. H. Bartow Farr's Amicus Brief for Complete Severability Is...Completely for Severability

     General Wall also said, in the transcript at 114-115, of the finding(s) in 42 U.S.C. § 18091(2)(I) and environs, when speaking with Justice Kavanaugh,

It says the mandate, a requirement that you get into the market, is essential to guaranteed issue and community rating.
And if, as the joint dissenters said in NFIB, once that triad is down and as the Court-appointed amicus said there, it's very hard to limit it to the triad. It takes down the other pieces of the Act.
Id. However, H. Bartow Farr III's Brief for Court-Appointed Amicus Curiae Supporting Complete Severability (Severability) in 11-393 and 11-400 (Feb. 17, 2012), available at https://tinyurl.com/FarrSeverabilityBrief, says,
Because the effects of invalidating the guaranteed issue and community rating provisions could not easily be limited to just those provisions, the potential spillover effect makes it even less likely that Congress intend for them to be deemed inseverable....
     Taken as a whole, therefore, the evidence does not establish that the Court should take the extraordinary step of striking down the guaranteed issue and community rating provisions. [etc.]
Br. at 46-47. This sounds different from what Wall says, which sounds like Bartow Farr was supporting striking down the whole Act if the "triad" (Mandate/guaranteed issue/community rating) was gone, when Farr was going largely in the opposite direction, i.e., giving reasons not to strike down guaranteed issue and community rating.
     When Farr went to the trouble to write a whole brief for complete severability, it would not be good to give a false portrayal of what he said.

III. Comedy at the Court: Can Breyer Be Severed from the Argument? Etc.

     On a lighter note (but one with interesting lessons): again, Breyer had some phone problems (just as, notoriously, there may also have been "toilet-related issues" vis-à-vis a phone appearance of his back in May, so that there's now a pattern of phone fun with the Justice):

JUSTICE BREYER: Something happened. I'm sorry. My machine didn't work.
JUSTICE ALITO: Yeah, I thought Justice Breyer was still on his time.
....
CHIEF JUSTICE ROBERTS: Thank you, counsel.
Justice -- Justice Breyer, we apologize for the audio difficulties and we'll go back to you.
JUSTICE BREYER: Oh, that -- that's all right. It's not a problem. Go ahead. I'm good.
Transcript at 42, 45. So does this mean that Breyer is severable from the oral argument? (He came in for later rounds after his phone failure during Don Verrilli's argument, so Breyer was not totally absent from the whole argument; but he was partially absent, which is unusual.) Does the oral argument fail to be valid because one "essential" Member of the Court was not all there?
     The present author comes out for severability in this instance. Everyone loves Breyer, but his presence, while "proper", was not totally "necessary" to the oral inquisition, so the argument was still valid.
     This has lessons for the merits of the case, actually. That is, 1) While the zero-penalty Mandate (and its precursor, the Mandate with penalty), may drive some people to buy health insurance, money is a fungible thing, so that other causes (e.g., Obamacare subsidies tempting people to buy health insurance) may keep the system afloat enough so that it doesn't sink. 2) Number 1, above, mirrors the absence of Breyer from the argument. So the argument missed some "essential" content, but was not damaged enough to make Breyer's absence inseverable; and an ACA missing the Mandate, or insurance purchases driven by the Mandate, is not damaged enough to make the Mandate inseverable.
     All told, a good day for severability.

     Some more comedy brings us back to the issue of "precatory mandates":

JUSTICE BREYER: Well, as you say that, it reminds me in English, have I ever said or have you ever said to someone in your family, you "shall" do it but that is an entreaty, an entreaty or a supplication, rather than threatening a punishment? Have you ever heard that or used "shall" in respect to a supplication or an entreaty?
GENERAL WALL: No, Justice Breyer. In my family, when I tell my kids that they shall do things, they're -- that's a command backed by a penalty.
JUSTICE BREYER: Well, that's a much more organized family than mine.
Transcript pp. 100-101. The amusing contrast between "conservative" and "liberal" families aside ("authoritarian" vs. "permissive"), the Solicitor General's comment actually hurts his case, as he is saying that a command has to be backed by a penalty to be serious. Thus, the zeroed-out Mandate cannot really be taken seriously, just as Petitioners are arguing.

IV. Conclusion: Some Lessons of Legal Humor in a Difficult Time for Americans and Their Health

     The law is an infamously boring field at times. "Legalese" is even a curse word of sorts. But in all the juridical mess that lawyers and laypeople have to swim through, there are moments of unexpected lightness, serendipitous, which not only entertain but also enlighten. Even with all the serious damage that could result from the overturning of the ACA, in a time of approaching a quarter-million COVID dead in America alone, the humor provided by Justice Breyer and his various straightmen, supra, reminds us to keep being human even in "the valley of the shadow of death" (Psalm 23:4). This is a gift that the present author, and others, may remember for a long time.

Sunday, September 13, 2020