Undecided women voters are the key, and pro-choice values are a significant advantage in 2008, according to New York Times columnist Bob Herbert. In addition to the veep selection McCain is considering, one has to wonder if he really wants HHS Secretary Michael Leavitt to go forward with his proposal that would redefine contraception as abortion. McCain does believe life begins at conception, and that certainly poses a threat to contraception, if in fact he supports Leavitt’s proposal, and quite frankly, even if he doesn’t.
Family Planning is more important to the lives of real Americans now than ever before, as more people consider climate change, issues of consumption, the economy, health care reform, education, the war, and just about any other major issue in this election. At the core of every issue, are thoughts of family, wanting to be responsible parents, laying a solid foundation for any life you responsibly choose to bring into the world.
Because of this, Americans are choosing evidence-based comprehensive sexuality education over abstinence-only, teaching education and prevention to adults as well as youth, and creating better support systems whether you choose to use contraception or not. Whether you choose to have a child, or not, by birth or adoption. Americans increasingly understand that a threat to any choice is a threat to all choices, and that private health care decisions are best made by individuals, families and their doctors; not legislatures, and not a Supreme Court that is poised to overturn Roe v. Wade.
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Bob Herbert is right, and both the Obama and McCain campaigns understand that. The only question that remains is if social conservatives will be energized by a candidate that barely pays them lip service?
Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.
In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.
Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”
It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.
This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v.Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.
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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)
Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.
And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”
In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”
“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.
So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.
Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”
As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”
This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally, who have pointed out that dignity plays a central role in reproductive rights jurisprudence.
In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”
And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.
The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)
Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.
And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?
Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people. He could have done so here.
Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.
Recently, some political pundits have begun to suggest that we are living in a post-truth world. It doesn’t matter, they say, that candidates spread blatant falsehoods, or contradict themselves within moments, because the American public no longer cares about what is true; they only care about what they believe to be true. This is a terrifying thought, one perhaps unrealistically heightened by the drama of the current campaign cycle. Regardless, the events of this weekend surrounding the Tribeca Film Festival and a documentary called Vaxxed: From Cover-Up to Catastrophe may provide a glimmer of hope that facts and science can still win.
The festival, co-founded by legendary actor Robert De Niro, came under fire when it revealed last week that it would be screening Vaxxed in April. The documentary, directed by discredited ex-medical researcher Andrew Wakefield, claims to be a whistle-blowing piece; it accuses the Centers for Disease Control and Prevention (CDC) of knowing about a link between autism and the measles, mumps, and rubella (MMR) vaccine, and engaging in a conspiracy to cover it up. Though De Niro initially stood behind the choice to show the film as a way to encourage “further conversation” around autism, just one day later, the festival’s organizers announced the film would no longer be on the schedule. Scientists, filmmakers, researchers, and members of the public breathed a sigh of relief.
I think we can look at De Niro’s ultimate decision as a victory for facts—because when it comes to vaccines and autism, the history is complicated, but the science is very, very clear.
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In 1998, a British researcher named Andrew Wakefield published a study in which he claimed to have followed 12 children who had developed normally until being exposed to the MMR vaccine. The study, which was published in the esteemed medical journal the Lancet, argued that the vaccine had led to intestinal problems, which had, in turn, led to autism. Though the study acknowledged that “we did not prove a connection between the measles, mumps, and rubella vaccine and the syndrome described,” this is how it was interpreted and reported by many.
In many ways, the study and the way it was reported gave birth to the anti-vaccine movement popular today. Celebrities like Holly Robinson Peete and Jenny McCarthy have claimed that vaccines caused autism in their children, and recommended that other parents reject medical advice and avoid vaccinating their own. And lawmakers around the country have sponsored legislation to let parents opt out of mandatory vaccinations of school-aged children for “personal reasons.”
Not surprisingly, as fear increased, vaccination rates dropped, both in Britain and the United States. Even less surprisingly, as vaccination rates dropped, incidences of diseases thought to be under control, like whooping cough and measles, increased.
Vaccination works not just because it protects an individual from a communicable disease, but because it provides the community with something called herd immunity. Public health experts believe that 90 percent of a given population must be vaccinated to protect the unvaccinated members—such as infants and people with compromised immune systems—from getting sick as well.
So parents who choose not to vaccinate their children are making a decision that affects other people as well. Yet in seven states and the District of Columbia, less than 90 percent of entering kindergarteners have been vaccinated for measles. There are many public health experts, myself included, who believe this is a direct result of Wakefield’s study and puts us all at risk.
Wakefield’s Study, Debunked
Almost immediately after Wakefield’s study was published, other researchers set out to recreate his results and examine the possible connection between vaccines and autism. None of them ever found it. Wakefield himself could not reproduce his results. In 2004, the Institute of Medicine reviewed all of the available research and concluded that no link existed between the MMR vaccine and autism. A 2014 review of all of the studies since Wakefield’s found that researchers have now looked at over 1.2 million children and have not found any link between autism and vaccines.
As others failed to find similar results, scientists began to question Wakefield’s credibility as well. In 2004, it emerged that Wakefield had been paid the equivalent of $674,000 by a law firm intending to sue the manufacturers of vaccines, and he had not revealed this obvious conflict of interest. Upon learning this, his co-authors asked for their names to be removed from the 1998 study. In 2010, the Lancet retracted the study and Britain stripped Wakefield of his medical license. Finally, in 2011, an investigation by the British Medical Journal (BMJ) concluded that Wakefield was guilty of “falsifying medical histories of children and essentially concocting a picture, which was the picture he was contracted to find by lawyers hoping to sue vaccine manufacturers and to create a vaccine scare.”
But Wakefield did not walk away quietly with his tail between his legs. Instead, he portrayed himself as the victim of a medical establishment that had a vested interest in keeping the “truth” a secret. In 2011, when the BMJ investigation was published, he told CNN’s Anderson Cooper that his work was “grossly distorted” and that he was the target of “a ruthless, pragmatic attempt to crush any attempt to investigate valid vaccine safety concerns.” Last month, he was one of the speakers on Conspira-Sea—a cruise for conspiracy theorists. And now, he has released Vaxxed.
According to the New York Times, Vaxxed claims to introduce a CDC insider who says the agency knew about the link between vaccines and autism and deliberately withheld information from the public. The Timesalso reports that in the promotional material included on the Tribeca Film Festival’s website last week, but has since been taken down, Wakefield’s bio said he authored the Lancet study that “would catapult Wakefield into becoming one of the most controversial figures in the history of medicine.” The bio did not mention that the article had been retracted, or that Wakefield’s medical license had been revoked.
The Film Festival Controversy
The inclusion of the movie on the Tribeca Film Festival’s roster prompted instant criticism from people across many fields who believed it was dangerous to give Wakefield any opportunity to spread his misinformation, let alone a platform as prestigious at this one. A group of scientists, physicians, and autism experts—many organized by the Immunization Action Coalition (IAC)—mobilized almost immediately. Alison Singer, president of the Autism Science Foundation and a member of the IAC listserv, told the Guardian:
Four or five years ago we weren’t as well organized and people didn’t realize the importance of responding quickly and strongly … Today, we know that we have to respond to every incident however large or small, because if you leave any of these discredited theories unchallenged, it allows people to think that there’s something still to be discussed.
Others in the scientific and medical communities weighed in. The science blog Respectful Insolence, which is written by an oncologist, argued that by putting Vaxxed on the schedule, “the organizers of the Tribeca Film Festival have screwed up big time and given antivaccine a big, fat piece of propaganda to scare parents into not vaccinating.”
Dr. William Schaffner, a preventive medicine specialist at Vanderbilt University, told the New York Times that the festival’s reputation lent credence to the film that it does not deserve:
All of us are out talking about it reassuring parents, children, anyone who wants to pay attention to this issue that vaccines are safe and effective, and they certainly don’t cause autism, and that Dr. Wakefield was a fraud and had his license removed over this very event.
Similarly, Dr. Mary Anne Jackson, a professor of pediatrics at the University of Missouri-Kansas City, said in an interview with the Times on Friday, “Unless the Tribeca Film Festival plans to definitively unmask Dr. Wakefield, it will be yet another disheartening chapter where a scientific fraud continues to occupy a spotlight.”
Journalists also sounded off. In a piece the LA Times published the day the film festival schedule was released, Michael Specter, a New Yorker writer who has written extensively about vaccines, said of Wakefield, “This is a criminal who is responsible for people dying. This isn’t someone who has a ‘point-of-view.’ It’s comparable to Leni Riefenstahl making a movie about the Third Reich, or Mike Tyson making a movie about violence toward women.”
Michael Hiltzik, a columnist at the LA Times, concluded, “Careless actions such as those of the Tribeca Film Festival don’t contribute to ‘dialogue and discussion,’ as the festival’s PR would have it; they just spread misinformation and pseudoscience and undermine public health.”
And the filmmaking community chimed in as well. In an open letter to the festival’s organizers published on Thursday in Filmmaker Magazine, documentarian Penny Lane wrote:
This film is not some sort of disinterested investigation into the “vaccines cause autism” hoax; this film is directed by the person who perpetuated the hoax.
And this hoax isn’t cute, or fun, or thought-provoking. Very possibly, some people will walk away from your festival having been convinced, in part because of your good name and the excellence and integrity of your documentary programming, not to vaccinate their children. And very possibly people will die as a result.
Still, the initial reaction from the festival’s organizers was to defend their decision. Robert De Niro himself spoke out to support the film on Friday. In a statement he explained that he had asked for the film to be included because he and his wife have an autistic child and felt this conversation was important. He wrote:
We believe it is critical that all of the issues surrounding the causes of autism be openly discussed and examined. In the 15 years since the Tribeca Film Festival was founded, I have never asked for a film to be screened or gotten involved in the programming. However this is very personal to me and my family and I want there to be a discussion, which is why we will be screening VAXXED.
Not surprisingly, this did nothing to assuage others’ outrage. As I have argued in the past, this is not an issue in which there are two sides who have equal credibility and equal right to discuss their opinions. This is settled science, in which research and facts are up against allegations proven to be false. And people said as much to Robert De Niro. More stories were written on Friday, and the comments section on the movie’s page on the festival’s now-defunct website exploded in a debate over vaccine efficacy.
The actor appears to have listened, if not directly to these voices, then to others who expressed similar opinions. In a second statement released Saturday, he wrote, “My intent in screening this film was to provide an opportunity for conversation around an issue that is deeply personal to me and my family. But after reviewing it over the past few days with the Tribeca Film Festival team and others from the scientific community, we do not believe it contributes to or furthers the discussion I had hoped for.”
This Is Not an Entirely Post-Truth World
Hopefully, the positive outcome of the controversy will help us reject the concept of a post-truth world. Granted, this was not a lawmaker being held to the fire for inaccuracies in their debate performance or admitting to inconsistencies in their messages, which they seem reluctant to do thus far on this issue; De Niro’s views on the issue, based on his statements, seem to be less motivated by deeply held beliefs or political strategy and grounded instead, however misguidedly, in “starting a conversation.”
It can also be argued that the free media dedicated to this short-lived controversy was exactly what Wakefield wanted—especially since the outcome gives him even more fodder for his conspiracy theory.
But I choose to look at it as a positive development. Believers in science organized quickly, stood up swiftly, spoke out loudly, and relied heavily on the facts. And those are clear: Vaccines don’t cause autism. Moreover, not vaccinating children leaves our communities open to outbreaks of diseases like measles that we know how to prevent. It took years to recover from Wakefield’s fraud, but it looks like rationality and science may be prevailing on this front—which gives me hope for other topics where the facts are firmly on our side.