“Hard cases make bad law”–we learn that in law school, although it seems the people writing laws have no idea of the truth of that statement. It means, essentially, that writing laws with the edge cases in mind creates unworkable laws. But it also means something more cruel. It means that if we write criminal laws to punish the rare sociopath, we brutalize the petty thief, desperate addict or pathetic drunk who can’t control his temper. And all the range of individuals in the middle, committing crimes,get treated with laws written for the worst of the worst, not with laws written for most of what happens.
Edge cases inspiring legislation means that our laws are irrational. In the non-criminal arena, it usually means complicated hurdles and caveats for things which should be simple because every once in a while, something unusual happens. Hard cases make great rhetoric, however, and maybe they can move people to rethink their laws.
Here is an hard case which shows how adult women, facing difficult medical decisions, are brutalized by the doctors trying to aid them through painful medical crises because the laws are written, not from the position of what actually happens in the world, but from the fear of the worst possible thing that could potentially happen. ‘We Have No Choice’: One Woman’s Ordeal with Texas’ New Sonogram Law.
This essay is, of course, is a hard case that make My point, not Theirs. I am trotting it out as my own parade of horribles because it is horrible.
There is no rational response to these laws because they are written with no understanding of how women actually make decisions about contraception, sexual activity, abortion and pregnancy. They are written for a world in which young women have no opportunity to learn about sexual health (and, I guess, as these laws proliferate, young women will have no opportunity to learn about how to make contraceptive and reproductive decisions). I have nothing but rage and anger for people who believe women need to be saved from abortion. I have no respect for people who accept the notion that anyone approaches an abortion lightly. I cannot trust anyone who thinks that a person, with a pregnancy she cannot carry to term or faced with potential infant she cannot care for, is unaware of the range of choices available to her.
I have contempt for people who thinks contraception is a “debate”. I am disgusted by those who would have their religion dictate another person’s (particularly unrelated people and strangers) health care choices.
Yet these people are slowly taking over. Other than Nina Turner in Ohio, I haven’t hear a single legislator condemn this madness. As much as I admired Turner’s poise and logic in this interview, (“we’ve got to guide men to make the right decisions; that maybe this might not be the best decision for them to make. women should not need a permission slip from government to take care of their own health”) her legislative act was merely protest; it proposes nothing to protect womens’ rights, dignity or autonomy.