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Index
Index .......................................................................................................................................................................................................... 1
Strategy Page ............................................................................................................................................................................................. 2
Congress CP
Case Frontlines
Congress CP 1NC [1/2] ...........................................................3
Congress CP 1NC [2/2] ...........................................................4
Discrimination Frontline [1/2] ............................................... 29
Discrimination Frontline [2/2] ............................................... 30
Congress DA [1/2] ...................................................................5
Congress DA [2/2] ...................................................................6
Discrimination – XT#2A: Alt Cause (Marriage Incentives) .. 31
Congress Legit .........................................................................7
Congressional Action Solves ...................................................8
Individual Agency Frontline .................................................. 32
Individual Agency – XT#3: Prefer Util ................................. 33
Individual Agency – XT#5: Util K2 Morals .......................... 34
Equal Protection Frontline [1/2] ............................................ 35
Equal Protection Frontline [2/2] ............................................ 36
Privacy CP
Privacy Counterplan 1NC [1/2] ...............................................9
Privacy Counterplan 1NC [2/2] ............................................. 10
Privacy Counterplan – A2: Perm ........................................... 11
Privacy Good – Agency ......................................................... 12
Privacy Good – XT: Agency.................................................. 13
Privacy Good – XT: Agency.................................................. 14
Privacy Good – Coercion ....................................................... 15
Privacy Good – Heteronormativity ........................................ 16
Privacy Good – A2: Privacy Bad (not abortion specific) ....... 17
Privacy Good – A2: Devalues Human Life ........................... 18
Privacy Good – A2: Domestic Abuse .................................... 19
Privacy Good – A2: Fetus not a person undermines privacy . 20
Privacy Good – A2: No State Funding .................................. 21
Privacy Good – A2: Privacy High Now ................................. 22
Privacy Good – A2: Undermines Feminism .......................... 23
Equal Protection – XT#1: No Spillover ................................. 37
Equal Protection – XT#3B: Alt Cause (Detention Centers) .. 38
Equal Protection – XT#3C: Alt Cause (Torture) ................... 39
Equal Protection – A2: Minority Business Impact ................ 40
Equal Protection – A2: LGBTQ Impact ................................ 41
Solvency Frontline [1/2] ........................................................ 42
Solvency Frontline [2/2] ........................................................ 43
Solvency – XT#1: Lack of funding irrelavent ....................... 44
Solvency – XT#2: Alt Causes................................................ 45
Edelman Frontline [1/3]......................................................... 46
Edelman Frontline [2/3]......................................................... 47
Edelman Frontline [3/3]......................................................... 48
Edelman – XT#1: No Shift .................................................... 49
Edelman – XT#2: No Political Reform ................................. 50
Equal Protection Bad – Gender Discrimination ..................... 24
Equal Protection Bad – XT: Gender Discrimination ............. 25
Equal Protection Bad – Liberty .............................................. 26
Abortion Bad
Abortion Bad – Moral Obligation DA [1/2] .......................... 51
Abortion Bad – Moral Obligation DA [2/2] .......................... 52
States CP
States CP 1NC ....................................................................... 27
States Solve ............................................................................ 28
Abortion Bad – Gender Discrimination ................................. 53
Abortion Bad – Murder ......................................................... 54
Abortion Bad – Patriarchy ..................................................... 55
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Strategy Page
Congress CP
- The Congress CP has Congress repeal the Hyde Amendment and provide federal Medicaid funding for abortion. It
basically does all of the same things a Supreme Court ruling would, except it just goes through Congress.
- You can go for the CP alone and claim that it solves better than the aff. The evidence that people won’t find court
rulings legit is pretty good.
- Doesn’t solve: Equal Protection Advantage
- Net Benefits: Congress DA, Court DAs, Equal Protection Bad, ‘Positive Rights Bad’ (NOTE: ‘Positive Rights Bad’
is only net beneficial if you don’t claim any spillover with the counterplan)
Privacy CP
- The Privacy CP has the Supreme Court overrule Harris v. McRae by a different standard. Rather than deeming it a
violation of the Equal Protection Clause of the Fourteenth Amendment, it rules on the right to privacy guaranteed by
the Due Process Clause of the Fourteenth Amendment.
- Doesn’t solve: Equal Protection Advantage
- Net Benefits: Equal Protection Bad, ‘Positive Rights Bad’
States CP
- The States CP has the state courts rule on a test case that restrictions on abortion funding violate the Equal Protection
Clause of the Fourteenth Amendment. The issue is publicized by the states in order to solve any ‘federal signal’ type
arguments.
- Doesn’t solve: Equal Protection Advantage
- Net Benefits: Court DAs, ‘Positive Rights Bad’
Case Frontlines
- Pretty self-explanatory: these are just frontlines against each of their advantages and potential add-ons
- Wouldn’t recommend going for any of these case arguments, except for the Equal Protection answers as a
supplement to the counterplans
Abortion Bad
- These are more of the religious right “ABORTION IS MURDER OMG” type arguments
- Wouldn’t recommend going for these, but they’re there if you want to read them
Sample 1NC
- T: Remove a Barrier
- Privacy CP
- Congress CP
- Court DA
- Congress DA
- Equal Protection Bad
- Case Frontlines
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Congress CP 1NC [1/2]
TEXT: The United States Congress should repeal the Hyde Amendment and guarantee federal
funding for abortions through Medicaid.
Congress has the constitutional authority to respond to violations of equal protection
Robin West, Frederick J. Haas Professor of Law and Philosophy and Associate Dean at Georgetown Law, 1998,
“A Moral Responsibility,” http://bostonreview.net/BR23.5/West.html
Section 5 of the Fourteenth Amendment explicitly delegates to Congress the authority to pass necessary legislation
should states violate Section % of that Amendment by denying individuals equal protection of the law or by failing to
protect them against deprivations of their liberty, life, and property without due process of law. If a state's actions, or a
state's laws, or a state's failure to take action, or a state's failure to pass laws violate citizens' rights to equal protection
or liberty, then Congress is empowered to respond. It has both the explicit power to do so, under Section 5 of the
Fourteenth Amendment, and the implicit responsibility to do so. Ideally, then, it is Congress, not this Court, that
should respond to unconstitutional legal regimes such as those put in place in Texas and Georgia with respect to
abortion. This Court should accord Congress considerable deference, "when and if Congress acts so as to ameliorate
or address unconstitutional conditions brought on by these state laws or any other. The power to take action so as to
remedy constitutional violations brought on by state law must obviously include, as well, the authority to interpret the
meaning of the constitutional mandate that has been violated. One cannot possibly enforce what one cannot interpret.
Prefer Congressional action, judicial resolution of issues like abortion are flawed.
Kenneth Ward, Department of Political Science, Texas State University, 2004, Review of “That Eminent
Tribunal: Judicial Supremacy and the Constitution” by Christopher Wolfe, Emeritus Professor of Political
Science, Marquette University, http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/wolfe1204.htm
While we can trace the debate about judicial supremacy back to the early years of the republic, it is only in the last
few decades that the Court could claim such authority with so little resistance. The argument for supremacy seems to
take on greater urgency in times of deep social divisions, and its ascendancy might well be attributable to the hope that
the Court would resolve the combustible social issues that endanger the stability of an increasingly divided country
(Kramer 2004, 184-89, 234-36). Indeed, the joint opinion that decided PLANNED PARENTHOOD OF
PENNSYLVANIA v. CASEY practically asserts judicial supremacy in the cause of upholding abortion rights,
claiming the Court’s authority depends on people’s willingness to accept its resolution of such highly controversial
issues. (CASEY, 2814-16). It is not surprising, then, that CASEY dominates Wolfe’s volume. The book succeeds,
however, by reformulating the question of judicial authority. CASEY emphasizes the need for finality in
constitutional decision-making, and thus encourages theorists to ask whether judges make better decisions than
legislators and whether their decisions will foster political stability. Wolfe and his contributors look beyond the
immediate controversies likely to find their way to the Court’s docket and consider the costs incurred when political
institutions impose a final decision notwithstanding our heated disagreements about fundamental issues. CASEY is
the subject of the first three essays. Gerard Bradley attacks the opinion, suggesting that the Court has both made itself
the arbiter of constitutional principle and simultaneously undermined the epistemological foundations that would
allow us to consider its determinations of principle as anything but an assertion of raw power. Robert Nagel situates
CASEY in a broader cultural context. He contends that the claim of supremacy is a response to social divisions that
have [*942] been exacerbated by the Court’s centralization of important policy decisions and that the decision might
in fact sow more dissensus. Michael Zuckert’s essay responds to Bradley’s charge that CASEY rests on a
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contradiction and to Nagel’s implication that it lacks a foundation in principle. He concludes, however, that the
principle the Court asserts is too open-ended to address adequately the political, constitutional and moral issues
implicated by the abortion controversy. Hadley Arkes considers CASEY as a linchpin in a line of cases in which
judges have detached themselves from the premises of jurisprudence, by removing a class of persons from law’s
protection. In so doing, these decisions allow positive law to define what a human being is. But such a conception of
law is at odds with the ideal of government by consent, because the ethical weight of consent depends on a conception
of a human being whose reality is prior to law. These decisions, according to this view, undermine the foundation of
their authority. The CASEY decision resonates even as the contributors move beyond the substance of its argument.
Steven D. Smith associates the rise of judicial supremacy with a ‘culture of rationalism’ inculcated through the legal
academy. This culture emphasizes the need for government to ground its actions in good reasons, but disparages
tradition, faith and intuition as bases for such reasons. Smith believes that such a circumscribed conception of the
sources of knowledge that might inform reasoned decisions breeds arrogance, arrogance that would explain why
seemingly modest judges have acted imperiously in CASEY, as well as other cases. Michael McConnell, in turn,
questions why we would accept the Court’s pretension to expansive authority to determine what the Constitution
means. He attributes such tolerance to our indoctrination in a celebratory history of the Supreme Court. McConnell
presents an alternate story—he recalls the time when judicial holdings were more readily challenged and identifies a
legacy of mistakes that suggest the importance of such challenges. Jack Wade Nowlin also assesses judicial authority
based on the likelihood that judges will decide cases correctly, but, in contrast to McConnell, he considers the
structural conditions that influence how judges exercise their authority. He uses CASEY to illustrate how aspects of
the judicial process, such as the primacy of legal interpretation and practical political constraints on judicial power,
impede moral reasoning by judges. Nowlin contends that moral reasoning in legal decisions tends to be understated,
incompletely theorized and distorted by the argumentative force of legal materials, and therefore rejects arguments
of constitutional theorists who claim that an expansive judicial power is justified by judges’ having special insight on
moral issues.
Christopher Wolfe and Keith Whittington also emphasize constitutional structure. Assessing judicial
decisions in light of a broader understanding of the role of courts within republican government, they consider the
question of which institution should resolve controversies without regard to how particular controversies should be
resolved. On [*943] the one hand, Wolfe contends that recent examples of conservative activism resemble their
liberal analogs in that the Court interprets ambiguous constitutional provisions in a manner that substitutes the
Justices’ will for that expressed by elected institutions. Whittington, on the other hand, distinguishes different kinds
of activism. He contends that CASEY is different from the Rehnquist Court’s activism in the area of federalism,
because it stops political debate and legislative action as opposed to redirecting them into a different channel. The
conclusions of Wolfe and Whittington follow from differences in their appeals to republican government. Wolfe asks
whether judges have interpreted the Constitution in a manner that is consistent with the American form of republican
government. Whittington brackets all questions of how to interpret the Constitution, in order to suggest that decisions
like CASEY are in tension with democratic politics in a way that is not true of the Court’s federalism decisions.
Both, however, point to a deeper problem that should be at the heart of our debates about judicial supremacy—
namely, how should a system of constitutional government manage citizens’ disagreements about the fundamental
values that govern them. While Wolfe respects what he believes to be the Constitution’s answer to this question,
Whittington leaves it as an open question. He suggests that we better respect the diverse views citizens hold by
allowing elected institutions to decide the controversies that arise from such disagreements. Rather than ask how we
should resolve particular controversies, he focuses on disagreement itself as a central problem of republican
government. We see a similar shift of emphasis in Smith and McConnell. Smith suggests that government should
respect citizens whose perspectives are not likely to influence the Court, when he criticizes judicial decisions that
disparage modes of living that do not satisfy the culturally ascendant conception of reason. And McConnell argues
that legislatures are more likely than courts to correct mistaken decisions.
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Congress DA [1/2]
Congress should act: Court decisions regarding the Equal Protection Clause undermines Congress,
the Constitution, and political agency.
Robin West, Frederick J. Haas Professor of Law and Philosophy and Associate Dean at Georgetown Law, 1998,
“A Moral Responsibility,” http://bostonreview.net/BR23.5/West.html
Where Fiss goes wrong, I believe, is in coupling this reading of the Fourteenth Amendment with the utterly
conventional and orthodox view expressed at the end of his article, to the effect that it is and should be the role of the
judiciary to police this constitutional antisubjugation principle against the errant political branches of government. On
Fiss's view, shared by virtually all liberal constitutional scholars, the majority, through its representatives, acts in
response to political pressures, and the Court, through the justices, acts so as to ensure that the political will of the
people results in laws that are in accordance with the communitarianism, egalitarianism, and general conception of
justice at the heart of our constitutional scheme of government. The legislative role is to enact the people's will, while
the Court's job is to ensure that we "preserve our society as a community of equals," as envisioned and even mandated
by the Constitution. There are serious problems with this division of constitutional labor, even from the perspective
of one who wholeheartedly shares Fiss's egalitarian commitments. The first is obvious, and strategic: there is next to
no chance that the Court will adopt a view of the Fourteenth Amendment that bears even a family resemblance to the
one Fiss advocates. The second is legal, or textual: by its own terms, the Fourteenth Amendment's Section Five
envisions congressional rather than judicial enforcement of its promises. A third and deeper problem, however, and
the one least often noted, is at once moral and political. It is a problem that has been evident since the beginning of our
practice of judicial review, but that tends to be buried with each new wave of righteous, justice-based litigation
brought under the majestic clauses of the Fourteenth Amendment--and even more deeply buried when the proposed
litigation promises some measure of success. Fiss's argument--that the Supreme Court should invalidate scores of state
and federal laws impeding immigrants' access to social goods, on the grounds, basically, of these laws'
inegalitarianism--indirectly highlights what the moral costs of its success might be. By delegating to the Court the
work of ensuring compliance with constitutional norms, Fiss effectively divests the people and their representatives of
constitutional obligations and responsibilities: we can be constitutionally reckless, he seems to be saying, if the court
is vigilant. To be sure, this divestiture would hardly matter if the Constitution were nothing but a string of procedural,
structural, nuts-and-bolts legalistic regulations. And it would matter even less if the Constitution were merely a tool of
the propertied classes, as is sometimes claimed. But these constrained conceptions do not accord with the
Constitution as Fiss and his fellow liberal constitutionalists read it. For them, the Constitution is the expression and
embodiment of our egalitarian and communitarian better selves: It defines and imposes our defining conception of
social justice--at once liberal and egalitarian, respectful of individuals and mindful of our communitarian natures--and
it embodies, expresses, and enforces our political morality. Yet Fiss, in his focus on the Court's constitutional
responsibility, overlooks the people's responsibility for moral governance. His implicit message seems to be that our
politics need not be constrained by moral ideals, aspirations, or conceptions of justice, so long as our higher law and
the Court that interprets it are. There is something deeply wrong--and, I submit, deeply illiberal--about this
conception of politics. Our politics, and not just our law, should be informed by a moral responsibility not to create
pariahs, or allow a permanent underclass to develop, or to permit lower castes to live among us. It may be, as Fiss
insists, the role of the apolitical Court, acting "above the [political] fray," to ensure that the "majority" does not unduly
subjugate an already downtrodden group of people. But if the legal imperative for this moral constraint stems from the
Constitution, and especially from the Fourteenth Amendment (which directs Congress, not the courts, to enact laws
ensuring compliance with its grand promises) then it is imperative that the majority and their representatives, acting
"in the fray," come to an appreciation of the moral and constitutional constraints upon it. If the Constitution says what
Fiss thinks it says (and I believe it does) then the audience for his interpretive argument must be the people, not the
courts. Liberal constitutionalists perversely insist on a division of labor that imagines the Court as societal super-ego,
voice of reason, or moral conscience, whose peculiar job is to constrain an out-of-control majoritarian political
process motivated by irrational and often hateful passions. We should worry that this very image might undercut
rather than bolster the slim chance that our political lives and choices might one day be informed by the very
egalitarian and communitarian commitments which Owen Fiss, to his great credit, so clearly holds.
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Congress DA [2/2]
These policies undermining Congress strip them of their legitimacy, causing extinction.
Robin West, Frederick J. Haas Professor of Law and Philosophy and Associate Dean at Georgetown Law, 2006,
“The Constitution's Political Deficit,” http://www.hlpronline.com/2006/11/west_01.html
I have argued elsewhere that this is very bad for the content of our constitutional law,5 but what I want to urge here is
that the "legal question doctrine" thus understood also occasions a serious "political deficit." Real moral inquiry into
the nature of good governance happens in courts of law, rather than in political fora. Politics, as Aristotle envisioned,
should consist of ethical reasoning among equal human beings about how to govern themselves. Understood as such,
politics, practiced well, is the highest, most ennobling, most serious form of practical human reasoning that exists. But
over the course of the last century, in an almost uninterrupted trajectory, we have delegated this serious, moral,
ennobling work of political activity among and between political equals to the courts. And what has been the
consequence? We have a library full of a hundred years of judicial reasoning, argument, and deliberation - some
ennobling, some of it awfully pompous, and some just embarrassing - on the meaning of liberty, equality, democracy,
and so forth. Meanwhile, Congress, a political branch, withers not so much from corruption, as from disuse. The
Court reasons, ideally and occasionally, in an Aristotelian spirit: with its eye on liberty and equality, among equals, at
least on the Court. The Congress, by contrast, merely acts - motivated by whimsy or by passion, for good reasons, bad
reasons, or no reasons. This allocation of labor -- the Court engages in ennobling moral reasoning about good
government and therefore in the philosophical and moral arts of politics, while the Congress does nothing but act, on
the basis of its own or constituent "preferences" - occasions what I am calling the "political deficit." The "legal
question doctrine" transforms political questions about the nature of good governance into legal questions. The work
remaining for the political branch? Horse trading at best. True politics has been given over to courts. II. The "Legal
Deficit" Although this might initially seem paradoxical, the combination of what Levinson calls the "democratic
deficit" and what I am calling the "political deficit" inherent in U.S. constitutional law and practice lends aid, from
time to time in our history, to profoundly lawless, asocial and destructive impulses. By so denigrating the law-maker,
we denigrate her product, which is ordinary law. Thus, the "legal deficit." Of course, our constitutional text and
practice have, on a handful of important occasions, given "constitutional" comfort to a highly principled natural law.
In such cases, text and practice have been a friend and ally to moral and righteous civil disobedience against unjust
majoritarian inclinations, as expressed in morally noxious and politically destructive legislative action.6 Less
remarked upon, however, is that our constitutional practice has also given constitutional comfort to the anti-legalist
instincts of a very different and what might be called "hyper-individualist" strand of anti-legalism: a frontierconquering, gun-wielding, tax-protesting, border-protecting, conception of liberty, which seeks, with constitutional
help, to free the individual of all obligations to the social compact, neighbors, states, and even families, much less to
the very "beloved community" of which Dr. King so eloquently spoke.7 Likewise, these days our anti-legalistic and
anti-legislative constitutional practices give aid to the President, who seeks constitutional blessing for his instinct to be
freed from ties not only under the domestic law that seeks to constrain his reach, but under international laws, treaties,
conventions, and covenants that might do so as well.8 The constitutional and, hence, anti-legalist obligations and
entitlements of such a commander-in-chief might well "trump" in his own mind and in his office the petty duties of
fidelity to ordinary law. We ought to view both phenomena as dangerous. Hyper-individualism can morph into a
narcissistic and costly recklessness, just as a militarist executive unleashed from legal bonds, as well as other sorts
of bonds that strengthen and recognize our shared humanity, might imperil the planet. A constitutional practice that
preaches relentless suspicion of ordinary, voted-upon law, that persistently sees in politics the worst in us, and sees in
a document that protects us against our ordinary politics the best of us, winds up casting a pall of potential
illegitimacy over the legislative product. Constitutionalism preaches distrust of both majoritarian politics and of its
product, ordinary law. This effect of Constitutionalism is what I'm referring to as the "legal deficit."
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Congress Legit
Congressional action is much more likely to be accepted as legitimate.
Sanford Levinson, Centennial Chair and Professor of Government at the University of Texas at Austin, 2005,
“Should Liberals Stop Defending Roe?” http://www.legalaffairs.org/webexclusive/debateclub_ayotte1105.msp
I'm not at all sure I agree with you, Jack, that knowledge of someone's position on Roe is generally predictive of their
stance on the rights of gays and lesbians, etc. I do think that abortion is special, in much the same way that capital
punishment is distinguished from ordinary punishment because, as it is often said, "death is special." Speaking
personally, I have a great deal of trouble genuinely respecting those who oppose same-sex marriage or other
acknowledgment of full equality for gays, lesbians, bisexuals, and transsexuals. I don't have the same trouble
understanding those, like our friend Mike Paulsen, who oppose abortion. I am confident that I am not alone in this
feeling. There are some issues where I'm more than willing to say, in effect, "Shut up. You're a bigot and that's all
there is to it. You shouldn't expect to be able to articulate your views, and even potentially win, in the ordinary
political marketplace, because they have been taken off the political table by the Constitution." But I find it difficult to
say this to people I regard as on "the other side" of the abortion issue. To constitutionalize the issue is, in a profound
sense, to treat them with disrespect, to say that the issue has indeed been pretermitted by lawyers interpreting a
notoriously open-ended document. I don't think it contradicts what I have just said when I say that I couldn't agree
with you more about the wisdom of Democrats aggressively promoting a federal Freedom of Choice Act. But doesn't
this underscore the point that it, as you yourself italicize, the democratic political process that should decide the
issue rather than the court? And, even more to the point, a democratic political resolution would be far more likely
to be accepted by the general population as legitimate in a way that decisions by the Supreme Court are not.
(And why should they be? Both of us are devotees of what has come to be called "popular constitutionalism," which
rejects judicial supremacy in favor of a far more open public dialogue about constitutional meaning.)
Legislative lawmaking is much more politically acceptable than Court-forced decisions.
Thomas B. Stoddard, lawyer, New York University Law Review, November 1997, “BLEEDING HEART:
REFLECTIONS ON USING THE LAW TO MAKE SOCIAL CHANGE,” LEXIS
The fact that the Act emanated from Congress rather than the Supreme Court may also have enhanced its
legitimacy and promoted its public acceptance. To many white Southerners, Brown seemed thrust on them
suddenly from above. They were not prepared for it, and they had little opportunity to participate in its formulation or
implementation. The Act, however, came about only after much debate [*985] at all levels of government, in all
segments of the society, and in every region of the country. And it came about only after a formal vote of the one body
that can lay claim to be representative of the nation as a whole - the Congress. White Southerners had a chance to
enter into both the debate and the vote; they could make their claims and express their views. In the end, those views
were examined and rejected by the country overall. By virtue of timing, context, and method of enactment, then, the
Civil Rights Act of 1964 carried a presumption of democratic legitimacy (one might say "validity") that was absent
from Brown, at least in the imaginations of some white Southerners. This sense of legitimacy fostered public
acceptance, even in the South, and made possible the Act's "culture-shifting" potential. Commentators for 200 years,
from John Locke n26 to Robert Bork n27 - especially those, in recent years, identified with conservative politics have asserted the superiority of legislative change. (Locke portrayed the legislature as the "supreme power of the
commonwealth ... sacred and unalterable in the hands where the community have once placed it." n28 ) I find, after
twenty years of work as a lawyer purporting to promote the public interest, that I have come to share the partiality for
legislative lawmaking - but for reasons different from those of most other observers. I prefer legislative lawmaking
because I view it as the avenue of change most likely to advance "culture-shifting" as well as "rule-shifting" - the
method of lawmaking most likely to lead to absorption into the society of new ideas and relationships.
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Congressional Action Solves
Congressional action would have a stronger political effect than Court action.
Ira C. Lupu, Louis Harkey Mayo Research Professor of Law, George Washington University, Virginia Law
Review, February 1993, “STATUTES REVOLVING IN CONSTITUTIONAL LAW ORBITS,” LEXIS
Moreover, model two has important implications for any theory of stare decisis in constitutional law. n317 If one
believes that only judicial decisions can represent resolutions of principle, and that statutes should be treated as
judgments of policy or expedience only, then decisional law is the only candidate for stare decisis treatment. If, [*79]
however, one recognizes that Congress may enact laws according to some version of constitutional principle, n318
one's thinking about the importance of continuity and respect for prior judgments in statutory law changes
considerably. Enactment of the Freedom of Choice Act, for example, would cement the right to choose to terminate a
pregnancy against future legislative repeal at least as solidly as Roe has protected the right against future judicial
overruling. In addition, statutes in orbit may function in ways that dilute the stare decisis value of judicial decisions.
Enactment of the Religious Freedom Restoration Act would constitute a judicially unavoidable "petition for
rehearing" of the Supreme Court's controversial decision in Smith. n319 Moreover, in model two, statutes in orbit
may quite legitimately become a platform for reasoning about contexts analogous to those reflected in the legislation.
The Freedom of Choice Act, if enacted, might thus be seen as a national declaration that reproductive autonomy
generally -- not just the right to choose to terminate a pregnancy -- is a matter of special constitutional significance. Of
course, Congress might be inhibited by this possibility, just as the Supreme Court is constrained by the possibility that
lower courts and subsequent Supreme Courts may expand the scope of earlier decisions. If Congress nevertheless
legislated in this fashion, would not the Freedom of Choice Act be better evidence of a principled commitment to a
constitutional right of reproductive autonomy than, say, the opinions [*80] in Griswold v. Connecticut n320 or the
outcome of the Bork confirmation hearings? n321 Finally, model two speaks to the dichotomy between law and
politics that haunts constitutionalism and tends to subvert model one. Politics always precedes law and frequently
follows it. This is true of constitutional law decisions by the Supreme Court, which are preceded and followed by
spirited public debate and increasingly fractious battles over the confirmation of Justices. This same relation of
politics and law exists with respect to statutes in orbit, which will also be preceded and followed by conventional
political strategies and weapons. Both judicial decisions and statutes in orbit, however, are operative, functioning
sources and instruments of law itself. To be understood in the political culture, both must be seen against their
political backdrop. To be applied, construed, legitimated or invalidated as legal authority, however, both must be
abstracted from their political context and employed as discrete elements of the legal universe. Statutes in orbit and
judicial decisions may differ in the procedures used in their creation and in the political accountability of their authors,
but these distinctions do not undercut the conclusion that both are concrete manifestations of the social phenomenon
we know as law.
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Privacy Counterplan 1NC [1/2]
TEXT: The United States Supreme Court should overrule Harris v. McRae (448 U.S. 297 (1980) by
holding that restrictions on the provision of Medicaid funding for abortion violate the right to
privacy guaranteed by the Due Process Clause of the Fourteenth Amendment.
Ruling on privacy solves better and avoids a backlash against feminism that equal protection spurs.
Kristina M. Mentone, Fordham Law Review, May 2002, “WHEN EQUAL PROTECTION FAILS: HOW THE
EQUAL PROTECTION JUSTIFICATION FOR ABORTION UNDERCUTS THE STRUGGLE FOR
EQUALITY IN THE WORKPLACE,” LEXIS
Privacy and autonomy arguments approach the right to abortion from a gender-neutral perspective, at least insofar as social
roles are concerned. n304 These arguments do not rely on the social roles of men or women, nor do they advocate for
abortion primarily on the basis that women are in any way controlled by men. Rather, privacy and autonomy arguments are
premised on the notion that continuing a pregnancy is a major life decision that women are capable of making. Accordingly,
government should not force or coerce a woman's ultimate decision. The idea that an individual should maintain control over
her body and make decisions for herself regarding procreation is compelling. The burden and implications of pregnancy are
great, and no law should require a person to serve as a human incubator. A woman's decision whether or not to bear a child
should therefore be both private and autonomous. While the privacy argument recognizes a woman's autonomy and
affords sufficient protection to a woman's right to abortion, the equal protection argument does not. The latter fails to
recognize the importance and seriousness of deciding to carry a pregnancy to term, [*2690] regardless of the woman's
situation in life. A major line of reasoning underlying the equal protection argument is that, absent abortion rights, women
would be forced to become mothers and motherhood is thought to place women at a distinct disadvantage in society by
hindering both their educational and professional pursuits. n305 Mothers are considered to bear most of the weight of
childrearing, which disables them from competing equally with men (even those that are fathers) in the workplace. n306
Thus, equal protection proponents argue that abortion is necessary to allow women to postpone childbearing so that they can
pursue the goals that motherhood hinders. n307 Additionally, the equal protection argument is based on anti-caste principles,
which indicate that the law must remedy the traditional subordination of women. As MacKinnon pointed out, the equal
protection argument for abortion is meant to cure the sexual and societal domination of women by men. n308 According to
this argument, a history of sexual control by men has caused women to live as second-class citizens in fear of men. n309
MacKinnon attacks men as a group for controlling women, raping or coercing them into having sex, and then disappearing
when it comes to raising a child. n310 Doubtless, sexual violence is a problem in society, and women are the primary targets
of such violence, but the notion that all men are responsible for this problem is as stereotypical as the notion that a woman's
place is in the home. Attacking men as a class in such a manner is not only unfair to men, but is also dangerous for
feminism and women's equality. Such arguments can alienate men who would otherwise support women's equality. Rather
than fostering additional support for the equality of women and the right to an abortion, such extreme accusations against
men create a situation where men are pitted against women. Feminism need not be regarded as purely a woman's issue:
equality of the sexes benefits both men and women. n311 Furthermore, although any woman who has walked a city street
probably understands MacKinnon's argument that sexual violence has caused a fear in women that is not experienced by
men, n312 that fear of potential sexual violence does not in any way suggest that all or even a majority of women's sexual
relations are unwanted or unequal. To suggest that women cannot or do not assert control over a significant [*2691] portion
of their sexual relations reinforces stereotypical views of women as being meek and submissive. Moreover, the equal
protection argument only narrowly protects abortion rights and endangers the future of those rights should women achieve
social equality. MacKinnon asserts that the primary reasons why that critique of the equal protection argument is not
currently appropriate is because too much of sex is the result of rape or coercion. n313 Thus, MacKinnon's justification for
abortion rights is largely based on a theory that most heterosexual sex is coercive and, therefore, abortion is necessary to
provide women with control over their reproductive functions. But, if one rejects MacKinnon's theory of sex, the justification
for abortion is lost because women have control over their reproductive functions by their ability to choose whether or
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not to have sex. Hence, MacKinnon's argument does not provide sufficient support for abortion rights outside the
context of coercive sex. n314 Sunstein admits that the equal protection argument is more easily applied to cases
where pregnancy resulted from rape or incest. n315 Most pregnancies, however, are not a result of rape or incest, and
most women who seek an abortion are not pregnant due to rape or incest. n316 Sunstein even acknowledges that, "no
one is likely to be in a good position to answer the question whether abortion should be available in a world of genderbased equality." n317 Further, MacKinnon argues that abortion rights are also justified because, after childbirth,
women are primarily responsible for childrearing and suffer the disadvantages and discrimination that society imposes
on mothers. n318 This argument, however, similarly endangers abortion rights as women gain social equality. As men
begin to contribute more equally to childrearing, and as discrimination against mothers dissipates, support for abortion
rights becomes weaker. [*2692] Moreover, the equal protection argument endangers the right to abortion even at the
present time. If the primary reason that a woman is entitled to an abortion is that she likely was coerced into having
sex and did not have control over her pregnancy in the first place, or that she likely will be the primary caretaker, then
perhaps states could limit abortion rights to such situations. Under such a system, a woman who voluntarily has sex,
or perhaps intentionally gets pregnant, but then changes her mind, could be denied the right to an abortion. Similarly,
a woman who becomes pregnant by a man who is willing to be the primary caretaker might be denied the right to have
an abortion so that the father could raise the baby. According to the equal protection theory, then, abortion is merely a
means to repair women's situation in society based on discrimination. Therefore, abortion may be seen as a right
limited to a time when women still experience discrimination. By contrast, the privacy argument is bound neither by a
time limit nor by the individual circumstances of a particular woman. The privacy argument acknowledges that no
woman, regardless of how powerless or powerful she may be, can be forced to have a baby. It protects women who
intentionally get pregnant and then change their minds. It protects women who consensually have sex but accidentally
get pregnant. It protects women who are pregnant due to rape or coercion. It protects women who are pregnant by men
who are willing to support the baby. It protects all women, all the time.
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1. You can’t do both – equal protection and privacy are two completely different legal standards.
2. Still links to the net benefit, don’t buy their “shields” or “double solvency” arguments. Ruling
exclusively on privacy is critical. Even minor instances of equal protection rulings reentrench
gender-discriminatory policies, that’s Mentone 2.
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Privacy Good – Agency
A. Only privacy can ensure agency, prefer this – it’s comparative.
Anita L. Allen, Professor of Law, Georgetown University Law Center, Stanford Law Review, November 1991,
“Tribe's Judicious Feminism,” LEXIS
Despite the checkered history of the concept of privacy in the Western world and the failure of privacy arguments to
be completely persuasive in practice, abandoning privacy arguments in favor of an exclusive reliance on equal
protection arguments is not the answer. To be sure, equal protection analysis avoids the "substantive due process"
quagmire of the privacy-as-fundamental-liberty argument. Yet it does so only at significant cost. Viewed solely as a
matter of equal protection, women's reproductive aspirations must be framed in public legal discourse on the model of
men's lives. Viewed as a matter of privacy, abortion rights clearly entail equality, and yet women are better able
to assert that the autonomy they seek reflects their own experiences, rather than being the strict analogue of the
autonomy men enjoy. It may be possible to make a case for abortion rights that does not expressly refer to privacy.
n82 However, I conjecture that most American women would be unable to articulate fully their concerns about antiabortion laws without appealing to notions of privacy. In talking about abortion, women commonly say that
government should mind its own business. By using the term "privacy" in connection with abortion, women are able
to draw [*193] on a wealth of shared meanings, including connotations of autonomy, independence, and respect
for others. Tribe wisely refuses to jettison privacy's rich semantic heritage when he embraces an equal protection
analysis to support a woman's right to choose. n82
B. This concept of agency outweighs all other impacts. Establishing a framework in which life is
worth living is a prerequisite to ethical decision-making.
Jeffrey Isaac, Professor of Political Science, Indiana University, Bloomington, March 1996, American Political
Science Review, v90 n1 p61(13)
Action, then, represents a kind of civic initiative whereby humans resist degradation and assert their dignity. When we
act we define ourselves for ourselves, and in so doing we inscribe the world as our world.(18) This sheds a different
light on why Arendt laments the "politically pernicious doctrine" that life is the highest good. It is not because she
devalues life but precisely because she values living freely - both terms are important here - that she places so much
emphasis on the capacity to begin anew, the basis of courageous civic initiative. A careful reading of the chapter on
labor in The Human Condition reveals that the "philosophy of life" Arendt deplores is not really a strong conviction
about the dignity of the human personality or the sanctity of human life; it is the ethos of consumption that she
associates with modern mass society, the idea that the essence of life is the appropriation of material objects, and that
human productivity is the preeminent criterion of human well-being. It is this idea she resists. Yet, she is careful not to
dismiss categorically the emphasis on basic material thriving that is the product of the Enlightenment. She describes it
as politically rather than humanly pernicious. Why? Perhaps because she does not wish to deny completely the value
of such an ethos but only to caution against its hegemony. The emphasis on basic human needs that has informed so
much of modern moral philosophy has helped to advance the idea of an elemental, universal humanity, an idea Arendt
does not reject but cannot embrace. For the irony is that the modern age, which proclaims the value of life above all
else, is also the age of genocidal mass murder. This was surely not an irony lost on Arendt. I would suggest, then, that
when she places action over life, she is not endorsing a mystique of heroic sacrifice or the existential confrontation
with death but, rather, a conception of civic initiative that alone can affirm basic human rights and dignities. She
wants to resist the enormous brutality and suffering characteristic of the twentieth century. She does so, however, not
by appealing to a doctrine of natural rights before which men are passive recipients but by emphasizing the activity of
human beings, who can only achieve their dignity by doing something about it. In a world filled with cruelty,
mendacity, and callous indifference, such activity will surely often involve danger, and the person who acts will be a
person of courage, willing to endure sacrifice and perhaps risk death in the name of a higher value. But the risk is
endured in the name of a higher value - human dignity - and not out of an existential attraction to limit-situations.
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Privacy Good – XT: Agency
Privacy is critical to ensuring individual agency.
Anita L. Allen, Professor of Law, Georgetown University Law Center, Stanford Law Review, November 1991,
“Tribe's Judicious Feminism,” LEXIS
At issue primarily is the interest of all women in making choices about reproduction that are not mandated by
government. Autonomous choices, free of the controlling interference of public officials, are "private" choices. To
believe in the right to privacy, we need not believe that nature divides social life literally into public and private
realms. n40 We can coherently describe the condition of being relatively free of the most direct, consequential, and
commonly offensive governmental interference as our "privacy." In this sense of the term, "privacy" connotes
autonomy, liberty, freedom, and the peace of mind which stems from the independent exercise of one's own judgment.
n41 Restrictive state regulation of abortion threatens a second "privacy" interest: the confidentiality of the physicianpatient relationship. This form of privacy calls for a strong presumption in favor of confidential record keeping and
anonymous public reporting. A third "privacy" interest touched by restrictive abortion laws is the interest in physical
seclusion. n42 This interest is at once an interest in restricting access to one's body and restricting access to one's
home or other physical retreat. For example, many forms of physical contact actionable as battery or trespass in tort
law interfere with the interest in seclusion. Crowded accommodations -- or intimacy and responsibility within
spacious ones -- also interfere with seclusion. Typical American homes are a secure retreat from strangers, but
whether a person's home is also a shelter from unwanted contact with intimates depends upon variables such as family
size and responsibilities. For most people in our society, women especially, the responsibilities of parenting small
children cut deeply into opportunities for privacy. The ability to control reproduction is therefore an important
precondition of privacy at home. Abortion cases from Roe through Thornburgh v. American College of Obstetricians
and Gynecologists n43 repeatedly emphasized the importance of autonomous decisionmaking. Thornburgh
emphasized both autonomous decisionmaking and confidentiality. n44 No court has noted the distinct privacy
implications of childbearing on the traditional understanding of the home as a peaceful retreat, however Justice
Blackmun's opinion in Roe broached without approval the notion that the Constitution might protect [*187] bodily
integrity. He expressly rejected the argument of certain amici that criminal abortion statutes should be constitutionally
invalidated on grounds of interference with women's bodily integrity. Then, in one of the most confusing passages in
Roe, he suggested that as pregnancy progresses a woman "cannot be isolated." n45 Because a woman and her fetus
function as a biological unit, Justice Blackmun inferred that government has grounds under the constitution for
limiting her autonomy.
Privacy is critical to individual agency.
Jeffrey M. Shaman, Vincent de Paul Professor of Law, Rutgers Law Journal, Summer 2006, “EIGHTEENTH
ANNUAL ISSUE ON STATE CONSTITUTIONAL LAW: ARTICLE: THE RIGHT OF PRIVACY IN STATE
CONSTITUTIONAL LAW,” LEXIS
The right of privacy is a broad concept, used in diverse contexts to refer to a variety of claims or entitlements. n1 One
of the more significant branches of the right of privacy concerns the right of an individual to make personal decisions
about his or her life free from government control; that is, the right of individual autonomy. The right of individual
autonomy or privacy potentially may encompass matters such as the right to marry, the right to have a family, the
right of reproductive freedom, the right of bodily integrity, the right to ingest substances, the right to refuse medical
treatment, the right to physician-assisted suicide, the right to cohabitation, and the right of intimate association. n2
The concept of privacy or autonomy often is used interchangeably with the concept of liberty, both referring to a
fundamental right of self [*973] determination. n3 The right of privacy is based on the principle that "a person
belongs to himself and not others nor to society as a whole." n4 It embodies a sense of "personhood"--an "autonomy
of self" n5--that should remain free from intrusion or coercion by society or the government. It comprehends that there
are certain personal decisions concerning one's life that an individual should be able to make for oneself free from
interference by the state. n6 Flowing from respect for personal dignity, the right of privacy allows an individual to
define his or her own life.
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Privacy is key to autonomy.
Nora Christie Sandstad, Law and Inequality: A Journal of Theory and Practice, Winter 2008, “Pregnant Women
and the Fourteenth Amendment: A Feminist Examination of the Trend to Eliminate Women's Rights During
Pregnancy,” LEXIS
Personal autonomy goes to the heart of what many Justices feel is at the root of the privacy right. It is perhaps the
most abstract or philosophical strand of privacy doctrine, as it is less about the right to do a particular thing as about
the right to be let alone. n187 [*197] This notion undermines the McKnight court's rejection of the privacy defense
- the court only examined the potential for McKnight's behavior of smoking crack to be covered by the privacy right,
rather than reviewing the actions of the hospital and police in investigating her actions. n188 The common law
reinforces the importance of the privacy aspect of autonomous control in a declaration quite relevant to pregnancy:
"The common law is quite clear that when the bodily integrity of one individual is pitted against the needs of another,
there is no duty to sacrifice oneself, even if the harm were minimal and the benefit to the other great." n189
Ultimately, our legal system has decided that there shall be no duty to assist, as reinforced by Good Samaritan laws.
n190 Even assuming the existence of fetal rights, there is no legal basis for requiring a pregnant woman to extend
herself to protect the fetus. This juncture of bodily autonomy and privacy rights for a pregnant woman is summed up
by Catherine MacKinnon, who declared that society must expose "the outrages of ... forced motherhood." n191
Finally, threats to women's privacy rights are genuine: even those who support the purpose of the UVVA note that it
fosters challenges to privacy, especially the privacy guaranteed to the pregnant woman. n192
Nora Christie Sandstad, Law and Inequality: A Journal of Theory and Practice, Winter 2008, “Pregnant Women
and the Fourteenth Amendment: A Feminist Examination of the Trend to Eliminate Women's Rights During
Pregnancy,” LEXIS
Feminists have taken various stances on the right to privacy. Liberal feminists tend to find the right to privacy,
especially in terms of bodily integrity and reproductive autonomy, as being essential to equality goals. n193 Others,
especially those focused on [*198] the private-public sphere division, see privacy as a luxury of the "haves" in
society - more of a right earned by power and money than a right accessible to all. n194 Catherine MacKinnon noted
that the assumption of privacy's inviolability, "framed as an individual right, presupposes that the private is not
already an arm of the state." n195 This assertion is supported by the fact that many women, and pregnant women
especially, live at the mercy of the welfare system - and thus the state - for food, shelter, and health care. Those
resources come at a cost to women, and some of that cost is privacy. n196 At first glance, relational feminists like
Martha Fineman might be viewed as favoring the state's protection of the fetus, as their feminism strives for healthy
interactions between all members in a society but especially between mother and child. n197 This is not the case.
Fineman, in her book The Neutered Mother, The Sexual Family, and Other Twentieth Century Tragedies, clearly
rages against the state's intervention into the mother-child relationship, even to protect the child. She states, "rather
than seeking to punish Mother, we should be devising ways to enable her to provide effective mothering." n198
Regardless of the critiques of the practical access to privacy or the suspected negative aspects of privacy, feminists do
agree that a woman should have autonomous control over her body. Whether or not feminists frame this autonomous
control as a right to privacy, the right to maintain control of one's person throughout pregnancy is best situated
(constitutionally) within the right to [*199] privacy. Feminist scholars might balk at the framing of this argument, as
it relies substantially on the established system of jurisprudence to argue against the prosecution of pregnant women.
Legal scholar Lisa Eckenwiler dismisses defense attorneys' arguments against retribution and against prosecution for
the sake of women and children's health; those arguments state that prosecution will lead to "slippery slope" regulation
of all maternity behaviors. n199 Instead, Eckenwiler proposes that the focus be placed on the individual woman - not
as a failed mother, but as a woman facing great challenges with few resources to assist her. n200 Though important on
a case-by-case level, this method does little to prevent the overall transformation of our legal system into a place that
values potential life over existing life.
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Privacy Good – Coercion
A. Privacy good: coercion.
Beth Kiyoko Jamieson, Director, Pace Center for Civic Engagement at Princeton University, 2005, Real Choices:
Feminism, Freedom, and the Limits of Law, p31
Another example of a feminist legal scholar talking around the subject of liberty is law professor Patricia Williams.
Her phenomenal book The Alchemy of Race and Rights is packed with stories of the intersection of life and law, of
the failings and railings on the law, and of the perplexity with which any contemplative person must respond to social
customs. William's book is remarkable for the breadth and depth with which it surveys legalism. Her storytelling
(interspersed with her own piercing? naive? questions) illustrates the complicated ways in which the law creates,
enforces, and reacts to categories. In her chapter "The Pain of Word Bondage," she responds to the assertions of some
critical legal theorists that rights are useless for (if not dangerous to) African Americans. Williams calls for a
redefinition of rights. The task... is not to discard rights but to see through them or past them so that they reflect a
larger definition of privacy and property: so that privacy is turned from exclusion based on self-regard into regard for
another's fragile, mysterious autonomy; and so that property regains its ancient connotation of being a reflection of the
universal self. The task is to expand private property rights into a conception of civil rights, into the right to expect
civility from others. Williams is describing here an equality based on mutual respect and regard, filtered through the
vital and politically useful concept of rights. The rights Williams describes are not disembodied chits used to hold off
state power, but are instead indicators of political obligation and moral due. And privacy rights are recast as both
limits on state power and as choices embodying moral principles of human dignity. As such, Williams's discussion of
rights fits well with my Privacy Principle - that individuals have the right to control their bodies, and that the state
should not force individuals have the right to control their bodies, and that the state should not force individuals to act
against their (declared) wills in ways that compromise standards of human dignity - explained in Chapter 5.
B. Increasing government intervention to better society results in genocidal actions.
Harry Browne, American writer, politician, and investment analyst, two-time Libertarian Party presidential
candidate, 2006, “Why Government Doesn’t Work,” http://sandiego.indymedia.org/media/2006/10/119977.pdf
The reformers of the Cambodian revolution claimed to be building a better world. They forced people into reeducation
programs to make them better citizens. Then they used force to regulate every aspect of commercial life. Then they
forced office workers and intellectuals to give up their jobs and harvest rice, to round out their education. When
people resisted having their lives turned upside down, the reformers had to use more and more force. By the time they
were done, they had killed a third of the country’s population, destroyed the lives of almost everyone still alive, and
devastated a nation. It all began with using force for the best of intentions — to create a better world. The Soviet
leaders used coercion to provide economic security and to build a “New Man” — a human being who would put his
fellow man ahead of himself. At least 10 million people died to help build the New Man and the Workers’ Paradise.37
But human nature never changed — and the workers’ lives were always Hell, not Paradise. In the 1930s many
Germans gladly traded civil liberties for the economic revival and national pride Adolf Hitler promised them. But like
every other grand dream to improve society by force, it ended in a nightmare of devastation and death. Professor R. J.
Rummel has calculated that 119 million people have been killed by their own governments in this century.38 Were
these people criminals? No, they were people who simply didn’t fit into the New Order — people who preferred their
own dreams to those of the reformers. Every time you allow government to use force to make society better, you
move another step closer to the nightmares of Cambodia, the Soviet Union, and Nazi Germany. We’ve already moved
so far that our own government can perform with impunity the outrages described in the preceding chapters. These
examples aren’t cases of government gone wrong; they are examples of government — period. They are what
governments do — just as chasing cats is what dogs do. They are the natural consequence of letting government use
force to bring about a drug-free nation, to tax someone else to better your life, to guarantee your economic security, to
assure that no one can mistreat you or hurt your feelings, and to cover up the damage of all the failed government
programs that came before.
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Privacy Good – Heteronormativity
A. Privacy good: heteronormativity.
Nicole R. Hart, Assistant Executive Editor, Buffalo Law Review, Fall 2004, “The Progress and Pitfalls of
Lawrence v. Texas,” LEXIS
This begs the question of whether some of the problems inherent in an equality analysis (i.e., the necessity of judging
gays against heteronormative standards) are really remedied by a due process approach. If the Court is going to apply
a heteronormative standard regardless of whether it is adjudicating a claim under the Equal Protection Clause or the
Due Process Clause, then why should litigators not simply develop litigation strategies under equality principles and
due process principle or equality principles alone? The answer lies in the potential for a substantive privacy
argument. Lawrence leaves open the possibility of future legal arguments based on a meaningful privacy right for
gays. Equality arguments, on the other hand, suggest the utilization of a heteronormative standard by their very
nature - especially in the context of state anti-sodomy laws. The same problem is not inherent in a due process
analysis. Rather, the problem arises because of the way in which the Lawrence Court articulated the right. Yet, by
characterizing the petitioners' claim as one of due process, the Court has opened the door to future litigators to begin
articulating constitutional arguments that encompass a more meaningful definition of gay intimacy. No longer will
gay rights litigators be forced to "litigate around" Bowers. n212 More importantly, the victories that flow from
innovative new due process arguments can be true victories for the gay community. An equality argument that is
predicated on heteronormative values or false dichotomies will not serve to challenge deeply engrained and
problematic views regarding gender and sexuality. Even if such an argument succeeds in court, the result is a
narrow win that could eventually work against the gay community. The crux of this contention is that the path down
which gay rights litigators turn now will determine where they [*1453] end up in the future. In this sense, the
importance of avoiding heteronormativity is not merely theoretical or symbolic. The way we talk about gay rights and
gay intimacy matters. Legal rhetoric shapes public opinion. And public opinion shapes the lives of gays. If the end
goal is same-sex marriage, for instance, then legal arguments advanced against anti-sodomy statues must be framed
with that goal in mind. However, as will be discussed below, it is crucial that these arguments remain intelligible to
the public at large. In order to prevent a detrimental cultural backlash, Post-Lawrence litigation strategies must
strike a delicate balance between forward-looking substantive privacy arguments and more subtle concepts of gay
legal rights.
B. Considering heterosexism is key to solving overall oppression.
V. Spike Peterson, Professor, Department of Political Science at the University of Arizona, June 1999,
“International Feminist Journal of Politics,” p55
Between heterosexist groups, the dominant empirical register of hierarchy/oppression is that of ‘group’ rather than sex
difference, in the sense of race/ethnicity, religious, or class difference as a ‘group’ identification. Feminist critique
here assumes a different relevance. It still speaks to the empirical register of oppression but in a circumscribed sense:
only insofar as women constitute a proportion of those who are subordinated – and those who are privileged. But it
continues to speak, I believe indispensably (but not exhaustively), to the symbolic register of conflicts between
(heterosexist) identity groups. That is, even though the empirical ‘mark’ of oppression and group conflict is not that of
sex difference, the naturalization – read, depoliticization – of that oppression is inextricable from heterosexist
ideology and it denigration of the feminine.24 Specifically feminist critique is imperative for deconstructing this – all
too effective – naturalization of intergroup conflict, a point which is especially salient to students of IR. Through
conventional – and even many critical – lenses, heterosexism is not the most visible or apparently salient aspect of
political identities and their potential conflicts. I have argued, however, that its foundational binary is relentlessly
productive of hierarchical difference and, especially, the naturalization of hierarchies through denigration of the
feminine/Other. Hence, in the context of systemic violence (within and between groups), heterosexism may be the
historically constructed ‘difference’ we most need to see – and to deconstruct.
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Privacy Good – A2: Privacy Bad (not abortion specific)
Their turns don’t assume the definition of privacy in the context of abortions.
Anita Allen, Henry R. Silverman Professor of Law and Professor of Philosophy, University of Pennsylvania,
1999, “Privacy and Equal Protection as Bases for Abortion Law,” p118
Controveresial or not, using "privacy" to denote a domain outside of legitimate social concern is now an entrenched
practice in the United States. It may be significant that women in the United States now believe that their privacy, as
well as their liberty and equality, is compromised by harsh abortion restrictions. If they did not always feel that way,
feminists and liberals have taught two entire generaitons of women to describe the wrong they feel when denied
reproductive options as invasions of their privacy. Whatever "privacy" may have once meant, it now also means
freedom from abortion restrictions. This linguistic development undercuts some of the power of critics wedded
exclusively to the "conventional" or paradigmatic understanding of privacy. Large segments of the male and female
public now view excluding others from "personal" decision making as enjoying privacy.
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Privacy Good – A2: Devalues Human Life
That’s false.
Anita Allen, Henry R. Silverman Professor of Law and Professor of Philosophy, University of Pennsylvania,
1999, “Privacy and Equal Protection as Bases for Abortion Law,” p131
Cass Sunstein claims a second advantage for equality and equal protection arguments over privacy or liberty
arguments: Moreover these [equality]... arguments have a large advantage in that unlike privacy or liberty arguments,
they do not devalue the legitimate interest in protecting the fetus, and indeed make it unnecessary to take any position
on the moral and political status of unborn life. Even if the fetus has all of the status of human life, the bodies of
women cannot be conscripted in order to protect it. 33 In claiming this advantage, too, Sunstein is mistaken. As I will
argue, privacy arguments do not, in principle, devalue the legitimate interests in protecting the fetus any more than
equality arguments; nor do they, in principle, make it any more or less necessary to take a position on the moral and
political status of unborn life. Privacy is blamed for the vehemence of the conflicts even though there is little reason to
think pro-life activism would have been less committed or hostile had equality rather than their privacy been held out
as a justification for permissive abortion laws. The pro-choice position seems shrill and unreasonable to those who do
not share it because it places a range of concerns, including women's privacy, equal protection, personal satisfaction,
bodily integrity, and economy well-being above the protection at the beginnings of innocent human life.
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Privacy Good – A2: Domestic Abuse
That’s not relevant – there’s no connection between privacy and domestic violence.
Kristina M. Mentone, Fordham Law Review, May 2002, “WHEN EQUAL PROTECTION FAILS: HOW THE
EQUAL PROTECTION JUSTIFICATION FOR ABORTION UNDERCUTS THE STRUGGLE FOR
EQUALITY IN THE WORKPLACE,” LEXIS
Catharine MacKinnon asserts that the privacy argument is a poor basis for the right to an abortion because it permits
domestic violence to evade the law. n275 There is, however, no connection between the privacy involved in the
decision to have an abortion and the government's role in the prevention of domestic violence. When two people
voluntarily and consensually choose to have sexual intercourse, their decision is a private one. But when one person
does not consent, privacy drops out of the equation entirely. Rape and sex are not the same thing, even if they involve
the same act. Rape is the ultimate symbol of power over women, but sex is not. Although government may not
prohibit a woman's procreative decisions involved with sex, this does not mean that government is excused from
protecting women from rape and other forms of sexual or domestic violence. Moreover, as Dworkin explains,
MacKinnon conflates different types of privacy. n276 MacKinnon's arguments suggest that she views privacy in
the spatial sense. n277 Under this view, privacy is seen as excluding the law from the home, in particular, from the
marital bedroom. n278 But, privacy in relation to abortion means something different: "it means sovereignty over
personal decisions." n279 This privacy, which accords sovereignty in the decision to have an abortion, does not mean
that there is also a territorial privacy, where the law would be indifferent to whether a spouse is abused. n280 Thus,
MacKinnon's argument, that recognizing a right to privacy discourages the legal protection of women from domestic
violence, relies on her mistaken belief that privacy refers to spatial privacy. n281
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Privacy Good – A2: Fetus not a person undermines privacy
Not true and turn – equal protection is even more vulnerable to that claim.
Kristina M. Mentone, Fordham Law Review, May 2002, “WHEN EQUAL PROTECTION FAILS: HOW THE
EQUAL PROTECTION JUSTIFICATION FOR ABORTION UNDERCUTS THE STRUGGLE FOR
EQUALITY IN THE WORKPLACE,” LEXIS
Furthermore, there is little foundation for Cass Sunstein's proposition that privacy cannot withstand the argument that
the fetus is a person, n292 while equal protection can. n293 As Justice Stevens stated [*2688] in Casey, no Supreme
Court opinion has ever based an argument against a constitutional right to an abortion on the ground that a fetus is a
person with rights of its own. n294 Likewise, Dworkin has said that no responsible lawyer would challenge Roe or
Casey on the grounds that a fetus is a constitutional person. n295 If a fetus were a person, then it would seem that
states not only might be permitted to prohibit abortions, but that the federal government would be required to prohibit
abortion, because it would be equivalent to murder. n296 Those who oppose a constitutional right to an abortion
typically prefer that the states be left to permit or prohibit abortions. n297 Because it is unlikely that the Court would
ever declare that a fetus is a constitutional person, it is also unlikely that the privacy argument would ever fail to
justify a constitutional right to abortion because it cannot come to terms with the argument that a fetus is a person.
Even if a fetus were considered a person, however, the privacy argument still supports the right to an abortion.
As Sunstein points out, people cannot be forced to use their bodies to save others. n298 According to Sunstein's logic,
therefore, government could not force women to use their bodies but not force men. n299 The notion that people
should not be forced to use their bodies to save the life of another, however, applies as equally to the privacy
argument as it does to the equal protection argument. Although the current law does not require people to use
their bodies to save the life of another, Sunstein reasons that the law should perhaps require this when there is little
imposition or risk, as long as the burden is placed equally on both men and women. n300 Privacy and autonomy
arguments, however, do not suggest that, as long as burdens are placed equally on men and women, the law can
compel people to use their bodies to save another. n301 Moreover, pregnancy is not a [*2689] minor imposition on a
woman's body; nor is the risk inherent in pregnancy small enough that the woman should be forced to bear it. To
imply that pregnancy might be the type of imposition that is minor enough that the law could reasonably or
constitutionally require it to save the life of another is to be blind to the true burden of pregnancy. n302 Nevertheless,
the equal protection argument does not avoid criticism on the ground that a fetus is a person. If a fetus were
considered a constitutional person, then a fetus would seemingly be denied its own equal protection rights, because it
obviously is not capable of protecting its rights in a democratic system. n303 Therefore, the equal protection
argument may, in fact, be more vulnerable to attack on that issue than the privacy argument.
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Privacy Good – A2: No State Funding
That’s false, Roe v. Wade ensures state fundin.
Kristina M. Mentone, Fordham Law Review, May 2002, “WHEN EQUAL PROTECTION FAILS: HOW THE
EQUAL PROTECTION JUSTIFICATION FOR ABORTION UNDERCUTS THE STRUGGLE FOR
EQUALITY IN THE WORKPLACE,” LEXIS
The argument that privacy fails to place an obligation on states to assist in financing abortions is also unfounded. n282
Although some legal scholars argue that the holding in Roe led straight to the majority's decision in Harris v. McRae,
n283 some of the dissenters in Harris (Justices Blackmun, Brennan, and Stevens) were proponents of the right to
abortion based on the Due Process Clause, and some of the most avid critics of Roe (Chief Justice Rehnquist and
Justice White) joined in the majority opinion of Harris. n284 Furthermore, as Justice Brennan's dissenting opinion in
Harris aptly notes, the failure of the state to provide funds for medically necessary abortions is, in effect, coercing a
woman to continue an unwanted pregnancy. n285 Legislation that coerces women into choosing childbirth over
abortion fails the strict scrutiny standard that was required by Roe, n286 and would likely fail the undue burden
standard established in Casey. n287 Justice Brennan wrote that a state "must refrain from wielding its enormous
power and influence in a manner that might burden the pregnant woman's freedom to choose whether to have an
abortion." n288 In fact, Justice Brennan stated that "the Hyde Amendment is nothing less than an attempt by Congress
to circumvent the dictates of the Constitution and achieve indirectly what Roe v. Wade said it could not do directly."
n289 Thus, it appears that Harris was simply a bad decision, and not an inevitable consequence of the right to
privacy. Like Justice Brennan, Dworkin contends that the privacy argument in no way implies that states can, in
effect, force a woman to elect childbirth over abortion by passing laws that deny funding for abortions. n290
According to Dworkin, legislation that makes it difficult or prohibitively expensive to procure an abortion deprives
women of their liberty and right to privacy under Roe. n291
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Privacy Good – A2: Privacy High Now
Privacy rights in the context of abortion are on the brink – action now is key.
Anita L. Allen, Professor of Law, Georgetown University Law Center, Stanford Law Review, November 1991,
“Tribe's Judicious Feminism,” LEXIS
Quite apart from the abortion issue, the idea of a fundamental right to privacy is losing ground. Its demise was
foretold when, in Bowers v. Hardwick, the fundamental privacy right failed to protect sexual intimacy between
[*181] consenting adults. n4 The Supreme Court in Bowers upheld a Georgia criminal statute under which a man was
charged after police discovered him engaging in homosexual sodomy in his own home. Arguably, Bowers implied no
adverse destiny for the right to privacy doctrine; the decision merely pronounced that the Court would limit
fundamental privacy protection to heterosexual intercourse, reproduction, and family life. However, the majority
opinion of Chief Justice Rehnquist in Cruzan v. Director, Missouri Department of Health was more clearly a dirge. n5
In the name of Nancy Cruzan's "privacy," Justice Rehnquist asked only whether her Fourteenth Amendment liberty
interest was violated by the Missouri Supreme Court's ruling that "clear and convincing evidence" of her own wishes
must be presented in proceedings brought to terminate life sustaining treatment. Why is the concept of a fundamental
constitutional right to privacy -- one requiring strict judicial scrutiny -- losing ground in the Supreme Court? Why is
the privacy argument for abortion rights not holding sway with vocal segments of the general public? What is the case
for federal constitutional protection of abortion choice? Abortion: The Clash of Absolutes is perhaps best viewed as a
respected scholar's response to just these questions. Early in his book, Professor Tribe traces the evolution of women's
constitutional right to abortion from Roe v. Wade n6 to Webster v. Reproductive Health Services. n7 Tribe explains
how, after pronouncing in Roe that women have a "fundamental" right to decide whether to have an abortion, the
Court initially "issued a series of opinions both reaffirming the rules of Roe and . . . applying them to specific cases."
n8 Yet, Tribe notes, a dramatic change in the composition of the Court in the 1980s winnowed the 7-2 Roe majority to
a narrow 5-4 margin. The Court's 1989 Webster decision produced only "four solid votes to reaffirm Roe," after which
"the tenuous nature of the constitutional right to choose to terminate a pregnancy was evident to anyone who could
count." n9 Since the publication of Tribe's book, the Supreme Court has handed down new decisions upholding
abortion restrictions. The right to choose abortion has become more tenuous still. With the retirement of Justice
Thurgood Marshall, abortion privacy is threatened with imminent extinction.
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Privacy Good – A2: Undermines Feminism
They assume different forms of privacy, not privacy in abortion doctrine.
Anita Allen, Henry R. Silverman Professor of Law and Professor of Philosophy, University of Pennsylvania,
1999, “Privacy and Equal Protection as Bases for Abortion Law,” p118
Procreative privacy rights are tools women can use, and are already using, to create opportunities for meaningful
privacy in private life. This is why feminists are mistaken to dismiss "privacy" rights as mere conservative male
ideology. For some feminists, "privacy" and "private sphere" connote problematic conditions of female seclusion and
subordination in the home and in domestic caretaking roles. American women have had ample experience with
privacy and the private sphere in this unhappy sense. Women have had too much of the wrong kinds of privacy:
they have had home-centered, caretaker's lives, when they have often needed and wanted forms of privacy inside and
outside the home that foster personal development, making them more prepared for participation in social life.30
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Equal Protection Bad – Gender Discrimination
A. Equal protection bad, and no spillover – doesn’t adequately address gender discrimination.
Elizabeth M. Schneider, Rose L. Hoffer Professor of Law, Brooklyn Law School, The University of Chicago
Legal Forum, 2002, “The Synergy of Equality and Privacy in Women's Rights,” LEXIS
Constitutional frameworks of equality have been inadequate to grapple with many core issues of gender
discrimination. n20 The Supreme Court has perceived how the application of traditional stereotypes can harm
untraditional women, such as recognizing that Virginia's all-women alternative was "distinctly inferior" to its state-run
elite military institute for men, n21 but the application of an intermediate standard of scrutiny has often reinforced
gender stereotypes. n22 Equal protection has failed to include pregnancy, n23 and the requirement of discriminatory
purpose from Personnel Administrator of Massachusetts v Feeney has immunized and perpetuated gender
discrimination. n24 As a constitutional matter, equal protection has not reached many of the areas that are most central
to women's lives: pregnancy, reproductive rights, [*144] and violence. n25 While the notion of replacing privacy
and its limitations with a broader framework of equality might not be problematic under an ideal vision of equality,
it is far more problematic under the Rehnquist Court's actual interpretations of equality. n26 Similarly, conventional
notions of privacy, as reflected in Roe, have been weak, and focused more on doctors' privacy than women's. In
domestic violence, privacy rationales have supported violence. n27 Thus, in application, judicial interpretations of
both equality and privacy have been flawed.
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Equal Protection Bad – XT: Gender Discrimination
Equal protection is an excuse to legitimate gender-based discrimination.
Catherine Grevers Schmidt, partner at Patterson Belknap Webb & Tyler, New York University Law Review,
June 1993, “WHERE PRIVACY FAILS: EQUAL PROTECTION AND THE ABORTION RIGHTS OF
MINORS,” LEXIS
Feminist legal scholars have criticized traditional equal protection doctrine for its failure to subject gender-based laws
to the same level of scrutiny applied to laws that discriminate against racial or ethnic minorities. n94 More
specifically, some critics have said that the similarly situated [*611] requirement incapacitates the equal protection
clause for purposes of advancing women's equality. n95 They argue that the legal and social discrimination suffered
by women itself has left them dissimilarly situated from men with regard to any number of traits typically addressed
by discriminatory laws. n96 Rather than excusing the differential treatment, as traditional equal protection doctrine
would suggest, this disparity is simply another symptom of the discrimination that women face. Under the traditional
model, socially constructed differences cloak discriminatory laws with the appearance of legitimacy. n97 Thus,
traditional equal [*612] protection doctrine contains the perverse requirement that women achieve equality socially
before the courts will guarantee it to them legally, n98 when the law should instead be a vehicle to achieve social
equality. n99 [*613] In addition, feminist scholars criticize traditional equal protection doctrine because it
automatically exempts from heightened scrutiny classifications based on biological differences. n100 Biology is one
trait that unambiguously distinguishes the sexes, and, under the traditional model, laws that merely take account of
"real" differences are not considered discriminatory. n101 However, history demonstrates that biological difference in particular, women's capacity to reproduce - has long been used to justify laws that oppressed women while
preserving male monopolies. A little over a century ago, the Supreme Court upheld state laws denying bar admission
to women lawyers because "the paramount destiny and mission of woman are to fulfill the noble and benign offices of
wife and mother." n102 Today, denying equal job opportunities to women simply because their reproductive capacity
differs from that of men seems an indefensible injustice. n103 Yet under the traditional model, biological difference
continues to deny women equal treatment in a variety of contexts. n104 Requiring that men and women be similarly
situated before courts can apply equal protection scrutiny to discriminatory laws thus guarantees that biological
differences will continue to retard women's equality.
Equal protection bad – results in gender-based discrimination.
Susan E. Looper-Friedman, Professor at Capital University Law School, New England Law Review, Winter
1995, “"Keep your laws off my body": Abortion Regulation and the Takings Clause,” LEXIS
Beyond this passing reference to equality in Justice Stevens's concurrence, the Court has not considered the Equal
Protection Clause in the context of abortion rights. Generally, the problem with the equal protection argument is
revealed by the Court's current view of the meaning of equal protection. The Court tends to believe that equal
protection requires that like be treated alike but allows unalikes to be treated unalike. n60 Under this view, as long as
women are seen as unlike men, they do not have to be treated the same as men. The ability to have children is seen as
a way that women are unlike men, so the Court has thus far seen this as a legitimate way to discriminate against
women. n61 The Court, in its equal protection jurisprudence, seems to be using male biology as the standard. Thus, as
far as women actually are like men, they are entitled to be treated equally. For example, the Court in Reed v. Reed n62
struck down a statute that allowed only men to administer decedents' estates. In that case, women were sufficiently
similar to men in their ability to administer estates, so that the statute was seen to [*266] violate equal protection. To
put it another way, as long as gender acts like race, discriminatory regulations will be struck down. But when statutes
rely on physiological differences, such as the ability to be pregnant, the race analogy breaks down. n63 At that point,
the Court no longer sees women as being enough like men to justify invoking the Equal Protection Clause.
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Equal Protection Bad – Liberty
A. Focusing on equality results in the death of liberty.
Tibor R. Machan, Professor Emeritus Department of Philosophy @ Auburn University, Research Fellow at
Hoover Institution Stanford University, 1995, “Private Rights, Public Illusions”
If the proper political goal is the equal progress of all individuals, then obviously the proper function of laws is to
achieve this goal. Clearly, bringing about full equality among citizens will require the widespread enforcement of
economic and related changes required to eradicate the natural and inevitable difference among individuals. The
totalitarian and dictatorial consequences are easy to infer . Voluntary cooperation and generosity are certainly
encouraged by those who oppose governmental welfarism. Within the welfarist system, however, these benevolent
qualities are not regarded as enough. Individuals are not trusted to live peacefully and to be responsible for reaching
their full potential. The entire concern with equality of welfare, even in the framework of “upgrading the poor” and
“upholding society’s moral fiber,” is inconsistent with the ideal that each person must make his or her own way in life.
This trend towards economic and spiritual equalization is so strong that when institutions do not meet the established
norm, the government forces progress by utilizing its retaliatory powers for redistributive and paternalistic
purposes. This can be seen in the use of, for example, forced busing to meet integration standards. The government
can also indirectly force institutions to meet various standards by making financial assistance conditional on certain
requirements. Such requirements treat members of society as tools for other people’s programs. This personal
responsibility for others’ goals and well-being, which underlies political support for many desirable programs, also
fuels-by making them conceptually and legally acceptable in the sphere of social engineering-the techniques of
behavior modification and, at the extreme end, involuntary psychosurgery. All governmental action that does
not serve to repel or retaliate against coercion is antithetical to any respect for human dignity. While it is true
that some people should give to others to assist them in reaching their goals, forcing individuals to do so plainly robs
them of their dignity. There is nothing morally worthwhile in forced giving. Generally, for a society to respect
human dignity, the special moral relations between people should be left undisturbed. Government should confine
itself to making sure that this voluntarism is not abridged, no matter how tempting it might be to use its coercive
powers to attain some worthy goal.
B. Violations of liberty must be prioritized.
Sylvester Petro, professor of law at Wake Forest, Spring 1974, Toledo Law Review, p480
However, one may still insist on echoing Ernest Hemingway – “I believe in only one thing: liberty.” And it is always
well to bear in mind David Hume’s observation: “It is seldom that liberty of any kind is lost all at once.” Thus, it is
unacceptable to say that the invasion of one aspect of freedom is of no import because there have been
invasions of so many other aspects. That road leads to chaos, tyranny, despotism, and the end of all human
aspiration. Ask Solzhenstyn, Ask Milovan Djilas. In sum, if one believes in freedom as a supreme value and proper
ordering principle for any society aiming to maximize spiritual and material welfare, then every invasion of freedom
must be emphatically identified and resisted with undying spirit.
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States CP 1NC
TEXT: The courts of the fifty United States, the District of Columbia, and relevant United States
territories should rule in an appropriate test case that restrictions on the provision of Medicaid
funding for abortion violate the Equal Protection Clause of the Fourteenth Amendment. The courts
will publically announce their decisions to their test cases. The Governors of the 50 United States
will publically declare these decisions as a strong stance against gender discrimination.
AND – States solve. State Courts are the best in regards to abortion; they are able to apply their
localized constitutions in their rationalization.
Rachel Weissmann, Annual Survey of American Law, 1999, “CONSTITUTIONAL LAW WHAT "CHOICE"
DO THEY HAVE?: PROTECTING PREGNANT MINORS' REPRODUCTIVE RIGHTS USING STATE
CONSTITUTIONS,” LEXIS
Similarly, state courts may disagree with the Supreme Court's refusal to apply strict scrutiny to sex classifications.
Therefore, even if a court agrees with that portion of the Geduldig opinion that recognized that pregnant women are
not a distinct class, it can decide to apply a higher standard of review for treating pregnant women differently from
men and women who are not pregnant. For instance, states with an ERA may be more inclined to apply strict scrutiny
in such cases because of their explicit prohibition against discriminating based on sex. In fact, courts in Illinois, n221
Washington, n222 and Connecticut n223 have ruled that classifications based on sex require strict scrutiny. Other
states have simply applied a more stringent rational basis test under their respective constitutions. n224 [*165] In
contrast, Hawaii has refused to apply strict scrutiny under its ERA to a rape law that classified on the basis of sex.
n225 It reasoned that "[a] classification based on a physical characteristic unique to one sex is not an impermissive
under-or over-inclusive classification because the differentiation is based on the unique presence of a physical
characteristic in one sex and not based on the averaging of a trait or characteristic which exists in both sexes." n226
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States Solve
State Courts key to abortion discrimination and questions; they are key to applying situations to
their own constitutions.
Rachel Weissmann, Annual Survey of American Law, 1999, “CONSTITUTIONAL LAW WHAT "CHOICE"
DO THEY HAVE?: PROTECTING PREGNANT MINORS' REPRODUCTIVE RIGHTS USING STATE
CONSTITUTIONS,” LEXIS
On the other hand, one can argue that treating young men and women differently in these circumstances should be
permitted [*164] because they are not similarly situated since only women can become pregnant. In fact, in Geduldig
v. Aiello n217 the Supreme Court embraced this argument when it ruled that pregnancy discrimination was not sex
discrimination because "pregnant women" did not make up a distinct class. n218 Like Congress, n219 however, state
courts have the power to reject the Geduldig reasoning and declare pregnancy discrimination to be sex discrimination
under their own conceptions of equal protection in their respective state constitutions. n220
State legislatures should ensure the actions of the plan
Danielle Morris, Fordham International Law Journal, 1993, “PLANNED PARENTHOOD V. CASEY: FROM
U.S. "RIGHTS TALK" TO WESTERN EUROPEAN "RESPONSIBILITY TALK",” LEXIS
The Court in Casey allowed society to force its concern for more thoughtful decision-making upon the woman in the
first trimester. n238 Justice O'Connor asserted in Casey that the woman has the right only to make the ultimate
decision, but does not have a right to be insulated from all others in so doing. n239 This assertion signals an
acceptance of something like the Western European concept of wedding community values with the woman's choice.
The Court in Casey approved the imposition of a more reflective choice upon the woman by upholding the twentyfour hour waiting period. n240 Moreover, the Court allowed the presentation of community-oriented arguments to the
woman before she makes her decision. n241 Thus, the Court in Casey effectively redirected U.S. abortion
jurisprudence in the Western European direction. n242 Mandating that women be more thoughtful in their decisionmaking n243 and take reproductive responsibilities and free [*795] dom seriously, n244 as the Court in Casey
demands, also should entail making the community accountable for such regulations. n245 Redirecting society toward
shared responsibilities means that society must also share in the collective responsibility such as providing meaningful
material assistance to aid a woman in her choice to bear to term or abort the fetus. n246 Faithful adherence to the
Western European example would mean accompanying the regulations aimed at encouraging more thoughtful
decisions with funding for the woman's ultimate decision to terminate her pregnancy or to keep the child. Providing
meaningful material assistance to the woman should include paying for the woman's expenses that accompany
terminating a pregnancy or bearing the child. Such assistance should include travel costs and days spent away from
her job, counseling regarding her decision, and helping the woman bear and support a child, should she forgo
terminating her pregnancy. n247 Material assistance, however, should not be limited to the above-mentioned
suggestions. Furthermore, state legislatures should implement programs designed to prevent [*796] unwanted
pregnancies such as sex education programs and providing condoms at schools. n248 The Court in Casey did not
explicitly address whether the state regulations carry communal responsibilities to the woman. n249 The government
should support the woman's abortion decision by equally promoting both the woman's and the state's interests. n250
Moreover, state legislatures should ensure that clinics and hospitals provide the safest procedures available, counsel
the woman in her choice, and help her pay for it.
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Discrimination Frontline [1/2]
1. The Courts can’t resolve issues of gender discrimination and sexuality.
Robin West, Frederick J. Haas Professor of Law and Philosophy and Associate Dean at Georgetown Law, 1998,
“A Moral Responsibility,” http://bostonreview.net/BR23.5/West.html
The same is true, I believe, of the Chief Justice’s argument that the criminalization of abortion puts women (and
presumably men, as well) to an unconstitutional choice between celibacy and heterosexual intercourse coupled with a
fear of pregnancy. A constitutional right to sexual privacy, or sexual autonomy, if it exists, would upend social
understandings of the relationship among family, sexuality, and reproduction. Our current legal regimes reflect a
belief, perhaps now held by only a numerical minority, that sexual activity is proper and moral only within traditional
marriage, and even then only when both parties are open to the possibility of conception being the result. This legal
regime could obviously be displaced through legislative processes, and perhaps that displacement might eventually be
reflected in our national, evolving Constitution: it may be, for example, that we have a constitutional right to a
wide array of family structures, sexual choices, and marital arrangements and nonarrangedments. It may be,
as a constitutional matter, that "family" should be reconceived so as to focus on mutual care, intimacy, and the
nurturance of children, rather than being defined by a hierarchic relation between man and wife and an authoritative
and authoritarian relation between parents and their genetically connected children- But, if so, as is true of motherhood, this reconception of sexuality and its relation to the Constitution cannot happen by fiat from courts, and it
certainly cannot happen solely because we declare it to be necessary en route to the discovery of a right to an abortion.
To truly establish a right to sexual intimacy, entire bodies of law, again ranging through family law, employment law,
and criminal law, will have to be rethought. By declaring a right to an abortion as a shortcut toward providing, in
effect, a right to sexual pleasure unfettered by reproductive consequences, again we perversely validate, by
constitutionalizing, our current sexual, marital, and familial regimes so long as those regimes include the choice to
have an abortion. This would do little but unduly truncate the development of constitutional thought as it might more
positively affirm a desirable and generous understanding of the diversity and range of our intimate sexual and familial
lives.
2. Alt causes to gender discrimination:
A. Marriage incentives.
Deborah A. Harris and Domenico “Mimmo” Parisi, Department of Sociology, Anthropology, and Social Work
within the Social Science Research Center at Mississippi State University, November 29, 2005, “Gender Role
Ideologies and Marriage Promotion: State Policy Choices and Suggestions for Improvement, Review of Policy
Research,” Volume 22 Issue 6, Pages 841 – 858
Several reasons have been proposed for the lack of attention given to family formation goals and marriage promotion,
in particular. First, there was the controversial nature of the topic. Several critics spoke out against marriage
promotion saying that such policies were biased toward the traditional breadwinner- homemaker household, a family
arrangement that represents only 10% of United States families today (Gring-Pemble, 2003). They argue that such
arrangements often leave women with less power in relationships as the caregiver role is devalued relative to the
wage-earner role. Martha F. Davis (2002) suggests that, Welfare is a women’s issue because women are made poor by
a society that assumes that women’s work—both in the marketplace and in the home—is less valuable than men’s
work. Because marriage [as a social policy] does not address this fundamental cause of women’s poverty, one can
only assume that the marriage movement is primarily motivated by another agenda: legislating patriarchy. (p. 153)
This “legislating patriarchy” is cited by critics who are concerned that the federal and state governments are
advocating one family form over another and may be placing women and children in jeopardy by encouraging welfare
clients to become even more dependent on a husband than they had ever been on welfare.
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Discrimination Frontline [2/2]
B. Government, business, religion, and cultural practices.
Essortment, Online Health, Science, Education Database 2002, “What is patriarchy?”
http://www.essortment.com/all/whatispatriarc_rhsf.htm
Look to most world leaders to see how powerful patriarchy is. Women are certainly as capable as men to be President
of the United States, yet they are not and probably won't be any time soon. Men have been in that role for so long that
our country probably does not believe it is possible. Consider who is typically at the head of a company or leaders in
local governments. While certainly more women are fulfilling these roles, it is a constant struggle for the ones who are
able to achieve that success with men having much more power just by their biological nature. Men have not had to
fight for their place in society like women have. It has been an expectation that they will become leaders because that
is what patriarchy is about. Much of patriarchy also has its roots in Christianity. Religions which believe the Bible or
other religious text often follow it faithfully by its every word which puts the men in charge. The Bible which most
Christians live by states boldly that women should be submissive to men. With that in mind and those beliefs instilled
in cultures, women don't stand a chance at gaining strength in their gender and its potential in our world. Patriarchy is
also found in family traditions like women taking the name of their husbands and children always carrying the father's
last name. More women are choosing to keep their maiden names or hyphenate with their married name so they can
retain their own identity. With reference of Mr. and Mrs. so-and-so, the man assumes the dominant role again and
women lose.
3. No discrimination – statistics prove.
Mark Graber, Professor of Law and Government at the University of Maryland, 1996, “Rethinking Abortion:
Equal Choice, the Constitution, and Reproductive Politics”
Newly instituted pro-choice policies helped many poor women finance their abortions. By removing the criminal tariff
and permitting the procedure to be done on an outpatient basis, legalization significantly reduced the cost of a simple
abortion. Willard Gates of the CDC estimates that Roe lowered the price of an abortion from $500 to $150. Prices
dropped by 90 percent in some region of the country when obtaining an abortion in a specialized clinic became a legal
option. Legalization permitted philanthropic organizations to subsidize abortion fees for those who could not
otherwise afford to terminate a pregnancy. Many abortion clinics offer discounts and some waive payment entirely for
indigent patients. These price reductions instantly increased legal abortion rates. In states and localities where only
affluent families had enjoyed access to safe abortions, poor women and women of color immediately began procuring
legal abortions as frequently is did more privileged women. Before New' York repealed its restrictions on abortion, 94
percent of all legal abortions! in that state were granted to white women. The year New York abandoned its pro-life
measures, women of color obtained 56 percent of all legal abortions.3* Less fortunate women at present have much
higher legal abortion rates than their more affluent counterparts. Rosalind Petechesky of Hunter College estimates that
"Medicaid eligible women, a disproportionate number of whom arc women of color, have an abortion rate that is three
times higher than that of the white, married, middle- or working-class majority.” The national abortion rate for women
of color is significantly greater than the abortion rate for white women. Doctors at the CDC note that black women
"use legal abortion at approximately twice the rate of their white counterparts " Black and white women in 1981 had
549 and 329 abortions, respectively, for every thousand births.'"1 Legalization has not completely eliminated
economic and racial disparities in maternal mortality and morbidity rates.” Nevertheless, far fewer women of all races
and classes presently suffer botched abortions. Dr. Tietze estimates that as of 1984, legalized abortion had saved 1,500
maternal lives and prevented "several tens of thousands... of life threatening but not final complications.” In
California, legislation that permitted abortion on demand increased the abortion rate twenty-five-fold while decreasing
hospital admissions for septic abortion to a seventh of pre-legalization rates. Septic abortion after Roe went the way of
malaria in the United States. "The experienced gynecologist,” several practicing physicians recognize, "need only
make rounds on tin- gynecology ward of any municipal hospital ti> recognize the difference that legal abortion has
made.”
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Discrimination – XT#2A: Alt Cause (Marriage Incentives)
The USFG markets marriage incentives, reinforcing patriarchal standards.
Deborah A. Harris and Domenico “Mimmo” Parisi, Department of Sociology, Anthropology, and Social Work
within the Social Science Research Center at Mississippi State University, November 29, 2005, “Gender Role
Ideologies and Marriage Promotion: State Policy Choices and Suggestions for Improvement, Review of Policy
Research,” Volume 22 Issue 6, Pages 841 – 858
Advocating One Family Form over Another—Marriage promotion as it has been “marketed” by the federal
government extols the virtues of two-parent families while presenting the dangers faced by children growing up in
single-parent families. As Davis (2002) and her fellow critics argue, by legislating patriarchy the government is
advocating one family form at the expense of others. In fact, there was so much uproar by women’s rights
organizations and similar groups over marriage promotion policies that appeared to disregard the high rates of
domestic violence among low-income women that in recent reauthorization of the family formation provisions in
PRWORA the need for “safe and healthy families” has replaced earlier language (Ooms, Bouchet, & Parke, 2004;
Healthy Marriage Initiative; Seefeldt & Smock, 2004).
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Individual Agency Frontline
1. Violations of individual agency are inevitable.
Hurst Hannum, Professor of International Law, The Fletcher School, Tufts University, 1996, “Autonomy,
sovereignty, and self-determination,” p117-118
Demands for increased political power, autonomy, or self-determination are the primary concern of the present work,
but most groups are threatened primarily by gross violations of rights to personal security rather than more subtle
violations of rights to political or economic representation. Mass and individual killings; torture; arbitrary and
indefinite arrests; induced starvation; illegal expropriation of land; and discrimination in employment, housing, and
public services are the most common causes of the assertion of group rights by the powerless.426 In addition, they
constitute the most common responses by central governments to perceived threats to national unity and territorial
integrity. Such violations are often linked to imposition of states of siege or emergency,427 and the violation of
human rights by members of the security forces almost universally renders the resolution of conflicting assertions of
rights impossible through normal legal or political processes.
2. No impact – their agency impact is in the context of political restriction, not social restriction.
3. Prefer util. Decisions should always be made with consideration to the greatest numbers.
Leonard Ratner, emeritus professor of constitutional law at the University of Southern California, Hofstra Law
Review, 1984, “The Utilitarian Imperative: Autonomy, Reciprocity, and Evolution,” Lexis
As long as humans have lived together, they have been groping for the source and ultimate goal of behavior standards,
i.e., of moral [*725] values. Early derivation of those standards from transcendental, supernatural, or mystical (i.e.,
nonexperiential) sources and goals generally accompanied early reliance on such sources and goals for explanations of
natural phenomena. n1 The usefulness of transcendental explanations and guidelines has diminished with expanded
information about the physical and social environment. n2 The utilitarian perception of "the greatest happiness of the
greatest number" n3 as the goal of moral conduct was engendered by the empiricist identification of experience as the
source of knowledge n4 and reinforced by the pragmatist-consequentialist preference for empirically ascertained
effects on human welfare as the measure of ethical behavior. n5 The utilitarian perception has been implemented by
the majoritarian institutions n6 that have emerged from antecedent forms of social organization. The Social Compact
conceptualizes government as the agent of the governed, with the function of restraining individuals and allocating
resources for the general welfare n7 -- a concept reflected in the Preamble to the Constitution of the United States.
4. Donnelly assumes the deaths of hundreds, thousands, or maybe even millions, but not total
extinction. He even concedes that lives should be prioritized in “extraordinary circumstances.”
5. We control morals – utilitarian decision-making is critical to ethics.
Dale Jamieson, Director of Environmental Studies at New York University, May 2007. Cambridge Journals,
“When Utilitarians Should Be Virtue Theorists”
For present purposes I assume that our problem is a moral problem. I investigate utilitarian approaches to our problem because utilitarianism, with
its unapologetic focus on what we bring about, is relatively well positioned to have something interesting to say about our problem. Moreover,
since utilitarianism is committed to the idea that morality requires us to bring about the best possible world, and global
environmental change confronts us with extreme, deleterious consequences, there is no escaping the fact that, for
utilitarians, global environmental change presents us with a moral problem of great scope, urgency and complexity.
However, I would hope that some of those who are not card-carrying utilitarians would also have interest in this
project. Consequences matter, according to any plausible moral theory. Utilitarianism takes the concern for
consequences to the limit, and it is generally of interest to see where pure versions of various doctrines wind up
leading us. Moreover, I believe that the great traditions in moral philosophy should be viewed as more like research
programs than as finished theories that underwrite or imply particular catechisms. For this reason it is interesting to
see how successfully a moral tradition can cope with problems that were not envisioned by its progenitors.
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Individual Agency – XT#3: Prefer Util
Maximized individual based survival is critical to enhanced fulfillment.
Leonard Ratner, emeritus professor of constitutional law at the University of Southern California, Hofstra Law
Review, 1984, “The Utilitarian Imperative: Autonomy, Reciprocity, and Evolution,” Lexis
But the inexorable process of earthly survival through natural selection continues to winnow the allocations and
constraints of each group. n40 And communities that discern the significance of that process can more effectively
accommodate or "prioritize," and thereby enhance, fulfillment of individual needs and wants. n41 Although belief in
an afterlife may aid survival by reducing anxiety and augmenting confidence, n42 present-life survival is more likely
to be achieved by those who do not subordinate it to a later existence. Consequently, most surviving individuals
perceive and assiduously pursue earthly-survival goals. The collective goal of long-run community survival is an
volutionary corollary of the drive for individual survival. n43 Evolutionary progression toward majoritarian
decisionmaking follows from the utilitarian function of social organization to enhance human need/want fulfillment.
n44 Because the need/want preferences of community members are best known to them, resource allocations and
behavior constraints that significantly reflect their input best implement those preference. The need/want fulfillment of
such members expands with their approval of community decisionmaking institutions. Such approval lowers the costs
of dissenter disruption while increasing psychological security and productive efficiency. The utilitarian enhancedfulfillment goal is most effectively implemented by communities that optimize (not maximize)
individual [*732] participation in policy formulation. Optimal participation involves the selection of capable officials
who make independent community fulfillment decisions but remain subject to effective community supervision. Selfconstrained majoritarianism thus appears to be the evolving political counterpart of utilitarianism, a continuity
suggested by the progression of western nations from autocracy toward representative democracy, the enhanced
need/want fulfillment that has accompanied the progression, and the inability of totalitarian governments to match that
fulfillment.
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Individual Agency – XT#5: Util K2 Morals
Consequentialism allows for the best moral decisions.
Dale Jamieson, Director of Environmental Studies at New York University, May 2007. Cambridge Journals,
“When Utilitarians Should Be Virtue Theorists”
But utilitarianism has an important strength that is often ignored by its critics: it requires us to do what is best. This is
why any objection that reduces to the claim that utilitarianism requires us to do what is not best, or even good, cannot
be successful. Any act or policy that produces less than optimal consequences fails to satisfy the principle of utility.
Any theory that commands us to perform such acts cannot be utilitarian.16 As I understand utilitarianism, it is the
theory that we are morally required to act in such a way as to produce the best outcomes. It is not wedded to any
particular account of what makes outcomes good, of what makes something an outcome, or even what makes
something an action.17 Moreover, having good theoretical answers to these questions does not mean that we will
always know what is right when it comes to practical decision-making. And even when we think we know what is
right we may change our minds in the light of reflection, analysis or experience. If utilitarianism is true, embracing the
theory may be the first step towards doing what is right, but it is certainly not the last.18 9. Utilitarianism is a highly
context-sensitive moral theory. Since my concern here is with how a utilitarian should respond to an actual moral
problem, I need to make some simplifying assumptions in order to produce responses that are more definitive than ‘it
depends’. So in what follows, I will assume that the utilitarian in question holds fairly generic and reasonably
traditional views about the matters mentioned in the previous paragraph (e.g. that well-being is at least one of the
things that are good, that my causing something to occur or obtain is part of what makes something an outcome of my
action, etc.). I will also assume that taken together these views imply that, all things considered, global environmental
change is bad (or at least not best). Furthermore, I will assume that the utilitarian in question is a person whose
psychology is more or less like mine, and that we have roughly the same beliefs about how the world is put together. I
do not mean anything fancy by this – only that, for example, our decision-making is not decisively affected by our
belief that this world is just a training ground for the next, that most of the world's leaders are agents of an alien
conspiracy, or that I am as likely to be a brain in a vat as a guy with a job. Given this background, in the face of global
environmental change, a utilitarian agent faces the following question: how should I live so as to produce the best
outcomes?
Util values life and maximizes happiness.
Harlan M. Smith, University of Minnesota, 1997, “Book Review: Jonathan Schell’s Fate of the Earth and The
Abolition,” www.tc.umn.edu/~smith097/articles/L%2011.The%20Fate%20of%20the%20Earth%20.pdf
Utilitarianism begins by generalizing the hedonistic pleasure principle in terms of happiness. Then what is moral or
good is that which brings an agent happiness. This thesis is further generalized to say that happiness should be secured
for as many agents in the community as possible. Every action, therefore, should be motivated in terms of trying to
maximize as much happiness for as many agents as possible within the given community. The use of happiness in this
thesis is in relation to the overall consequences of all the agents in the given community. The basic argument is that
individual good is maximizing individual happiness. Morality though, involves the common good of all the agents in
the community. The common good, therefore, is maximizing every ones happiness. I think the most promising
variation of utilitarianism is rule utilitarianism where emphasis is placed on the consequences of every agent in the
community adopting a particular action as a rule. Implicit within rule utilitarianism is a strong consistency thesis
which places necessary constraints on the basic utilitarian argument.
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Equal Protection Frontline [1/2]
1. No precedent spillover – judges will remain true to their political ideology.
Donald R. Songer, University of South Carolina, December 1999, The American Political Science Review, Vol.
93, No. 4, p983-984
The primary focus of Majority Rule is an empirical test of whether the votes of Supreme Court justices are
determined by the Court's own precedent or reflect their ideological preferences. "Does precedent actually cause
justices to reach decisions that they otherwise would not have made" (p. 7)? The authors conceptualize this question
as involving a dichotomous choice. They assume that a vote is determined solely by either precedent or judicial
ideology. They do not attempt to test whether, and do not even allow the possibility that, the votes and policies
adopted by the justices can be jointly influenced by both. Analysis centers on the behavior of justices in
cases labelled the "progeny" of earlier cases that set precedent. The assumption is that, if the Legal Model is
accurate, votes in these progeny cases should be controlled by the parent case. Only the progeny votes of justices
who dissented in the precedent case are examined, as one can make no firm conclusions about the motivations of
the justices who were part of the majority in the precedent. In the case of those who dissented in the precedent, it
may objectively be determined that the precedent was contrary to their ideological prefer- ences. Thus, their votes
in the progeny can be classified "objectively" as supporting either precedent or their prefer- ences. Spaeth and Segal
examine all the votes of the dissenters in all the orally argued progeny of the universe of a list of the "landmark"
decisions of the Court and a sample of the nonunanimous "ordinary" decisions of the Court. In all, 2,425 votes cast
by 77 justices in the 1,206 progeny of 341 precedential cases are examined. The conclusions of the authors are
unambiguous and can be easily summarized: "The justices are rarely influenced by stare decisis" (p. 288). In only
11.9% of the votes did Spaeth and Segal find any evidence that the justices were influenced by precedent. Moreover,
the domination of precedent by the ideological preferences of the justices was found in every era of the Court's
history and characterized voting in the progeny of both the landmark and the ordinary cases.
2. No threshold to the impact – felons haven’t had voting rights for decades.
3. Alt causes to human rights credibility:
A. Healthcare in detention centers.
HRW, Human Rights Watch, March 2009, “Detained and Dismissed: Women’s Struggles to Obtain Health Care
in United States Immigration Detention,” http://www.hrw.org/sites/default/files/reports/wrd0309web_0.pdf
VI. Legal Standards International Legal Standard sFailures in the detention medical care system’s response to
women’s health concerns implicate fundamental human rights, including international legal protections for the right to
health, the right to non-discrimination, and the rights of detained persons. A number of these protections are enshrined
in the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention on the
Elimination of All Forms of Racial Discrimination, treaties which the US has ratified. The right to health itself is
articulated in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which the US has
signed but not yet ratified.
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Equal Protection Frontline [2/2]
B. War in Afhanistan.
AFP 6-24-09, “US chooses expediency over rights in Central Asia,”
http://www.google.com/hostednews/afp/article/ALeqM5genxjkW4O6mxGaAlb192luClB8dA
ASTANA (AFP) — The United States has put stabilizing Afghanistan before human rights in Central Asia by forging
transit deals with authoritarian regimes accused of rights abuses, analysts said Wednesday. A series of deals between
Washington and the governments of Central Asia in recent months has secured supply lines to the war-wracked state
but signals an unwillingness to confront authoritarianism in the region, analysts said. Washington on Tuesday
cemented its vital Central Asian military supply network by signing a deal to keep open a US airbase in Kyrgyzstan
which had been ordered closed by Bishkek in February. "For now, stabilizing Afghanistan is the number one foreign
policy priority," said Alexander Cooley, a political scientist at Columbia University in New York. "Maintaining reliable transit arrangements,
even with these authoritarian regimes, is a critical part of executing the new Afghanistan strategy," he added. "But there is no doubt that these deals
will further limit US capacity to criticize Eurasian regimes on democracy and human rights-related issues." Kyrgzstan had long complained that it
was not receiving a fair rent for the Manas airbase, which has been used to ferry troops into Afghanistan and also hosts planes used for the mid-air
refuelling of combat aircraft. Under the newly announced deal Washington more than tripled the annual rent on the base from 17.4
million dollars to 60 million dollars, and will provide almost 120 million additional dollars in aid to Bishkek. But
Kyrgyzstan, which is preparing for presidential elections in July, has recently seen a string of arrests of opposition
politicians and brutal attacks on independent journalists that many blame on the government. Washington's
willingness to look the other way on human rights is already a major cause for concern in Kyrgyzstan, said Alisher
Khamidov, a leading expert on Islamic extremism in Central Asia. Many working on issues of human rights and religious freedom feel abandoned
said Khamidov, who is currently conducting research in the volatile Fergana Valley region shared by Kyrgyzstan, Tajikistan and Uzbekistan. "You
can see it everywhere. There is the general sense among people that US criticism of the human rights records of these Central Asian regimes has
been muzzled because of the presence of the base," he said. "There's a lot of disappointment among the NGO community and human rights
community (in Kyrgyzstan) because the US is not doing much on human rights." And Kyrgyzstan is far from the worst human rights
violator of Washington's regional partners. Washington also has a new deal with Tajikistan, the most impoverished of
the ex-Soviet states, for the transit of non-military cargo. Just last week a former interior minister who broke with
Tajik President Emomali Rakhmon died under suspicious circumstances in the capital Dushanbe. Neighbours and
relatives of Makhmadnazar Salikhov told AFP that a group of men in ski masks burst into his home and attacked him.
The government maintains he committed suicide rather than face arrest on corruption charges. The Obama
administration also inked a transit deal with Uzbekistan, an isolated state accused by human rights groups of
maintaining a vast network of secret prisons and routinely employing torture against its enemies. There are already
signs that the United States is backing away from promoting democracy inside Uzbekistan in exchange for transit
deals, said Paul Quinn-Judge, a Bishkek-based analyst with the International Crisis Group. By backing Uzbek
President Islam Karimov, Washington risks being associated with an aging and unpopular dictator, a potential
problem if ethnic-Uzbek fighters return to the region from their bases in Afghanistan and Pakistan. "Any indication
that the US is willing to backpedal from an explicit, open, and well-supported policy of calling for improved
governance and democratic change in this part of the world would be a very dangerous signal," he said.
C. Torture.
Washington Post 6-25-09, “U.S. Policies Criticized by U.N. Rights Watchdog,”
http://www.washingtonpost.com/wp-dyn/content/article/2009/06/24/AR2009062403557.html
UNITED NATIONS, June 24 -- The
United Nations' top human rights advocate, Navanethem Pillay, on Wednesday appealed
to the Obama administration to release Guantanamo Bay inmates or try them in a court of law, and said officials who
authorized the use of "torture" must be held accountable. In her most detailed statement on U.S. detention policy, the
South African lawyer criticized President Obama's plan to hold some terrorism suspects in detention indefinitely
without a trial. She also called for a probe of officials involved in the Bush administration's harsh interrogation program.
4. Doesn’t affect felon voting rights – their evidence talks about future abortion decisions.
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Equal Protection – XT#1: No Spillover
Academic consensus agrees that precedent doesn’t spillover.
Kevin McGuire, associate professor of Political Science at UNC, and Michael MacKuen, professor of Political
Science at UNC, 2005, “Precedent and Preferences on the U.S. Supreme Court,”
http://www.unc.edu/~kmcguire/papers/precedent.pdf
As an explanatory variable, the law has not fared well in studies of decision making on the U.S. Supreme Court.
Testing the legal model in various ways, scholars have found that such considerations as literalism and original intent
do little to distinguish the behavior of the justices (see, e.g., Gates and Phelps 1996; Phelps and Gates, 1991). Among
these legal factors, the one that has received the closest attention has been precedent. Indeed, in recent years,
adherence to the norm of stare decisis has been the subject of a good deal of empirical scrutiny. For the most part, this
work has concluded that prior decisions do not have a substantial influence on the justices (Brenner and Spaeth 1995;
Spaeth and Segal 1999; Segal and Howard 2000). To be sure, there are those who find evidence that the members of
the Court are attentive to the dictates of stare decisis (Brenner and Stier 1996; Songer and Lindquist 1996), but these
analyses have been open to serious criticism (Spaeth and Segal 1999, 26). Such disparate findings arise, at least in
part, from disagreement over how best to operationalize adherence to precedent. What constitutes support for doctrine
and which decisions to include in analyses are not immediately obvious. A further frustration stems from the sheer
volume of prior cases. With a wealth of precedent from which to draw, the justices can routinely couch virtually any
decision in the language of stare decisis (Spaeth and Segal 1999). In fact, doctrine dominates most opinions written by
members of the Court (Gate and Phelps 1996).
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Equal Protection – XT#3B: Alt Cause (Detention Centers)
Poor treatment of detained immigrants violates international human rights laws.
Sunita Patel, Soros Justice Fellow, and Tom Jawetz, Staff Attorney, American Civil Liberties Union National
Prison Project, 2008, “CONDITIONS OF CONFINEMENT IN IMMIGRATION DETENTION FACILITIES,”
http://www.aclu.org/pdfs/prison/unsr_briefing_materials.pdf
International human rights law requires humane treatment of all persons in custody, regardless of alienage9 or
the reason for their detention. The prohibition against torture, including cruel and inhuman degrading treatment, is a
fundamental human rights principle codified in the Universal Declaration of Human Rights (“UDHR”).10 The United
States government has ratified the International Covenant on Civil and Political Rights (“ICCPR”), Convention on the
Elimination of All Forms of Racial Discrimination (“CERD”)11 and the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”),12 which contain provisions applicable to the treatment of
immigration detainees. Article 10 of the ICCPR acknowledges that “all persons deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity of the human person.”13 Moreover, the American
Declaration not only sets forth human rights obligations but it creates a State obligation to protect such rights. The
United Nations has provided further guidelines for implementing the general prohibitions discussed above in the U.N.
Standard Minimum Rules for the Treatment of Prisoners (“Standard Minimum Rules”)14 and the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment15 (“Body of Principles”). The
Standard Minimum Rules and Body of Principles reflect agreed-upon norms of treatment for detainees, regardless of
their legal status or alienage. The principles within include non-discrimination while in custody, protection against illtreatment or intimidation as a consequence of complaining, no more restriction than required for safe custody, prompt
medical care and attention, access to hygiene and sanitary conditions, and health care which meets national and
community standards. The accounts provided here are in violation of the United Nations CAT, CERD, ICCPR and
contradict many Rules found within the Standard Minimum Rules.
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Equal Protection – XT#3C: Alt Cause (Torture)
Torture hurts U.S. international human rights credibility.
Washington Post 6-25-09, “U.S. Policies Criticized by U.N. Rights Watchdog,”
http://www.washingtonpost.com/wp-dyn/content/article/2009/06/24/AR2009062403557.html
Pillay's remarks represented the clearest challenge by the United Nations' high commissioner to Obama's decisions to
limit investigation into past abuses and to continue to hold some detainees without trial. In May, Obama said some
detainees deemed too dangerous to release might have to be held indefinitely. "There should be no half-measures, or
new creative ways to treat people as criminals when they have not been found guilty of any crime," Pillay said.
"Guantanamo showed that torture and unlawful forms of detention can all too easily creep back in to practice during
times of stress, and there is still a long way to go before the moral high ground lost since 9/11 can be fully reclaimed."
Pillay did not address the Obama administration's decision to use reformed military commissions to try terrorism
suspects. Human rights groups have criticized the commissions, expressing particular concern that suspects could be
convicted and put to death on the basis of evidence obtained under harsh interrogations.
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Equal Protection – A2: Minority Business Impact
1. No threshold to the impact – lack of equal protection rulings has been hurting minority
businesses for decades.
2. Funding and support for minority businesses high now: stimulus.
Donna Gambrell, Director, U.S. Department of the Treasury's Community Development Financial Institutions
Fund, National Capital Access Forum, 5-12-09, Financing Minority Businesses in Challenging Economic Times,
http://www.cdfifund.gov/speeches/Gambrell-2009-03-Financing-Minority-Businesses.asp
With the change in Administration, the CDFI Fund has experienced significant growth through the funding made
available in the Recovery Act, and the President's fiscal year (FY) 2010 budget that is requesting more than double
our annual FY 2009 appropriations. Today, the CDFI Fund is more committed than ever, and has more resources
than ever, to expand our efforts to all small business lenders, especially those among minority populations. For
example, the state of North Carolina has seen a dramatic rise in its Hispanic population. According to U.S. Census
Bureau figures for 2000, North Carolina has a Hispanic population of 378,963, a nearly 400 percent increase from
1990. Hispanics currently account for 7 percent of that state's population.
3. Their internal link is 20 years old – doesn’t assume current recession and housing market.
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Equal Protection – A2: LGBTQ Impact
Alt causes to LGBTQ:
A. Marriage incentives.
Michele Hirsch, Dorian Solot, and Marshall Miller, The Alternatives to Marriage Project, June 2007, “Let Them
Eat Wedding Rings: The Role of Marriage Promotion in Welfare Reform,” Second Edition,
http://www.unmarried.org/rings2.pdf
The population of unmarried adults is growing steadily. According to the 2005 American Community Survey
conducted by the U.S. Census Bureau, 50.3% of households are headed by unmarried people, 46.9% of people over
age 15 are unmarried, and 31.7% of children live in unmarried households.[46] Discrimination against unmarried
people and their families is common. Marital status discrimination, like other forms of discrimination, is often based
on stereotypes and assumptions. Those who favor welfare policies promoting marriage often presume that the main
reason unmarried people are not married is that they don’t fully appreciate the value of marriage. The widespread
acceptance of these kinds of simplistic generalizations calls for a more complex understanding of unmarried lives. In
fact, there are a wide variety of reasons why some people are not married. Here are some of the extraordinarily diverse factors
that underlie the decisions of unmarried people.[47] • They have been unable to find a marriage partner. • They have been widowed or abandoned
by their spouse or partner. • They are in relationships that are abusive or dysfunctional, or feel that their partner would make a poor choice for a
lifetime commitment. Some may be waiting to see if a partner can “clean himself or herself up” from drug or alcohol addiction, criminal
involvement, or other negative activities. (Evidence shows that among couples who start relationships around the same time, those where one
partner is violent or has a substance abuse problem are less likely to marry.[48]) Some new parents or parents-tobe may realize that an acceptable
boyfriend or girlfriend is not necessarily a dependable partner for life.[49] • They are unwilling to marry a partner with few financial assets if they
are poor themselves, since the partner’s income or potential future income is unlikely to improve their own economic situation.[50] • They are in a
“trial period” to decide if this person would make a good spouse. • They feel they cannot afford their vision of a wedding or married life (which
may include a big party, fancy dress, house, car, steady job, and children.). They prefer to wait and save money in order to have the wedding or
marriage of their dreams.[51] As people’s income increases, so does the likelihood that they will get married.[52] • They aren’t legally allowed to
marry because they are in a same-sex relationship and live in a state that doesn’t recognize same-sex marriage.[53] • They would lose significant
financial benefits (perhaps a pension from a previous spouse) if they were to marry. This predicament is especially common among senior citizens
and disabled people. • They do not want the government to “regulate” their relationship. • They feel marriage is too strongly based in religion for
their comfort. • They have chosen a religious life path that involves a vow of celibacy. • They are disturbed by the divorce rate, or have experienced
a divorce themselves, and wish to avoid such a risk. • In solidarity with those who are not legally allowed to marry, they refuse to take advantage of
a privilege available only to some. • They are happy in a long-term, unmarried relationship and say, “If it ain’t broke, don’t fix it.” • They are
uncomfortable with the oppression of women associated with the institution of marriage. • They simply feel no desire to marry and feel deeply
satisfied living alone, with family members or close friends, or with an unmarried partner. It is likely that readers will find some of the reasons on
this list more acceptable to them than others. Regardless of personal feelings about these reasons, each represents the lives of hundreds of
thousands, if not millions, of Americans. People in every one of these categories are affected when benefits are linked
to marital status. Attempts to create policies that target or exempt certain “types” of unmarried people and families
would only result in further discrimination.
B. Government discrimination.
Windy City Times 6-24-09, “View: Obama's upcoming hush-hush damage control meeting with LGBTQ
leaders,” http://www.windycitymediagroup.com/gay/lesbian/news/ARTICLE.php?AID=21544
On June 8 the Supreme Court agreed with the Obama administration in refusing to review the Pentagon policy that
prohibits LGBTQ servicemembers to serve openly in the military. To add salt to an already open wound for our
LGBTQ servicemembers, Obama's administration stated in the court papers that the ruling on DADT was correct
because of the military's legitimate concern of LGBTQ servicemembers endangering “unit cohesion “ in spite of the
2002 study “ A Modest Proposal: Privacy as a Flawed Rationale for the Exclusion of Gays and Lesbians from the U.S.
Military,” that proved otherwise. On June 12 the LGBTQ community got another blow: Obama defend ( DOMA ) , a
law that prevent couples in the states that recognize same-sex marriage from securing Social Security spousal benefits,
filing joint taxes and other federal rights of marriage. His reasons: DOMA is not a valid exercise of Congress's power,
and it is not consistent with Equal Protection or Due Process principles, and it would infringe on the rights of
taxpayers in states that fundamentally oppose same-sex marriage.
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1. Lack of access to abortion funding is irrelavent – people will find other ways to get abortions.
Mark Graber, Professor of Law and Government at the University of Maryland, 1996, “Rethinking Abortion:
Equal Choice, the Constitution, and Reproductive Politics”
As compared to the impact of simple legalization, the impact of federal and state laws restricting welfare payments for
abortions has been relatively insignificant. Despite much legal and public hand-wringing,il7 the government funding
cutoffs Sustained in Maker v. Roe*16 and Harris v. McRae have had very little effect on abortion rates. Federally
financed abortions fell from 300,0011 to fewer than 3,0110 per year following passage of the Hyde Amendment.
Nevertheless, researchers at both the CDC and the Alan Guttmachcr Institute (AG!) believe that 94 percent of the
women financially eligible for Medicaid still obtain abortions. Approximately 200,000 of these women live in states
that fund all abortions; the rest rely on various private sources for financing. Public health specialists estimate that
only 15,000 women annually bear unwanted children as a result of the Hyde Amendment and only 3,000 turn to
illegal abortions. Local funding restrictions have had similarly insignificant effects on abortion rates. One study
estimates that states that do not pay for the abortions of indigent patients only reduce abortion rates by one per thousand women.221 "Women who do not desire to bear a child," surveys find, "will terminate the pregnancy, regardless
of how small the amount of public funds available."222 Official bans on abortion funding do impose severe burdens
on poor women, many of whom, when faced with unwanted pregnancies, must sacrifice necessities to finance their
abortions.2" Still, approximately sixteen times as many poor women have had legal abortions as a consequence of
legalization (282,000) than have done without that procedure as a consequence of decisions denying federal Medicaid
funds (18.000)."4 The CDC estimates that even if a "total funding cutoff" occurs throughout the United States, “only
one in every five women” on Medicaid would “carry a pregnancy to delivery which might otherwise have been
aborted.” Hence, claims that the Hyde Amendment and similar measures make abortions available only to the affluent
are wild exaggerations, not responsible arguments. As one commentary correctly notes, although “funding an abortion
can involve a considerable amount of hardship for poor families, it still is a far cry from the ‘back alley’ days when
the cost in dollars and often in personal risk in exploitation were much higher.
2. Alt causes to lack of abortion access.
Mark Graber, Professor of Law and Government at the University of Maryland, 1996, “Rethinking Abortion:
Equal Choice, the Constitution, and Reproductive Politics”
The present system of abortion regulation may be more egalitarian than its predecessor, but the hopes many reformers
had that all Americans would enjoy equal access to abortion on demand have not been realized. Abortion laws on the
books that offer women the right to terminate their pregnancies do not guarantee that women who want abortions will
find a competent and willing provider. "Access to abortion," commentators recognize, "depends not only on a
women's decision to terminate her pregnancy, but on her ability to locate a cooperative practitioner.” Everyone
familiar with current abortion law in action admits that "as with access to medical services generally, those who are
young, poor, and members of minority groups do not have equal access to legally induced abortions.” Researchers at
the AGI estimate that more than 100,000 women a year forgo legal abortions because they cannot travel to the nearest
sanctioned abortionist. Abortions remain scarce because, although hospital* are free to provide abortion services,
many continue their restrictive pre-Roe practices. Gerald Rosenberg of the University of Chicago points out that "in
response to the Court, hospitals did not change their policies to permit abortions”. Abortion rates in different hospitals
vary as significantly today as they did before Roe. A recent survey found that less than one-fifth of all short-term
hospitals and less than one-quarter of all private hospitals in the United States provide patients with abortions. A
majority of American hospitals in 1986 had not yet performed their first abortion. Many hospitals that do offer
abortion services terminate very pregnancies and will not perform that procedure in the second trimester. Only eightythree hospitals in the United States performed more than four hundred abortions in 1988.” Legalization barely
influenced the abortion practices of most obstetricians. Laws may permit doctors to terminate pregnancies, but most
do not offer that service to the general public. Abortions in traditional medical settings are still frequently distributed
on the basis of economic class. Many practitioners provide abortions only to their private patients, unless a stranger's
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pregnancy is life threatening. "Private practice,” the leading study of communal medical services reports, "continues
to serve as the major barrier to a more equitable provision of abortion service.""' The proliferation of freestanding
abortion clinics has partially compensated for the refusal of doctors in private practice to provide equal abortion
services. As of 1992, abortion and other specialized clinics performed approximately 89 percent of all first trimester
abortions in the United States. Many women, however, cannot easily visit an abortion clinic. Clinics require
economics of scale to pay for costs (and make a profit). For that reason, clinics ,a typically located only in
metropolitan areas where (hey can perform the number of abortions necessary to stay open. "Abortion providers,"
commentators point out, are "limited for the most part to (hose counties where the need for abortion is large enough to
support a specialized clinic.” Few clinics or abortion services of any kind exist in less heavily populated regions of
this country. In 1992, 84 percent of all counties in the United States lacked a single abortion provider. Rural counties
arc particularly in need of this service. Only 7 percent of all rural counties have an abortion provider and only 1
percent have a provider that performs more than four hundred abortions annually.'" Women who live in jurisdictions
without abortion providers must go on expensive journeys in order to terminate an unwanted pregnancy. One study
found that "a decade after Roe, more than 10 percent of the women seeking abortions in twenty two states still had to
travel out of state.” Access problems are worsening. Surveys reveal a steady decrease in the number of abortion
providers and major abortion providers in the United States."' The siege conditions under which many clinics operate
apparently deter all but the most committed pro-choice physicians from per forming many abortions. Active abortion
clinics routinely experience vandalism and threats of physical violence. Several doctors have been murdered.'"
Abortion clinics race other, less dramatic difficulties when hiring doctors. The work is not prestigious, the procedure
is tedious, and the wages relatively low" Planned Parenthood of New York City has trouble finding physicians willing
to perform abortions four days a week fin SI 50.000 a year because gynecologists in private practice make twice that
figure.” This shortage of abortion providers significantly influences the distribution of legal abortions. "The local
availability of abortion services." numerous contemporary studies conclude, "is the single most powerful determinant
of variations in abortion rates in the United States.” For this reason, women who cannot afford to travel long distances
are often unable to exercise their constitutional right to abortion on demand. Researchers in Georgia found that for
every one hundred miles of distance from an abortion provider, white abortion rates were reduced by 62 per 1,000
women and black abortion rates were reduced by 78 per 1,000 women. Nationally, women are twice as likely to have
a legal abortion if they live in a country that has a major abortion provider.
3. Turn – keeping abortion out of politics is the only way to ensure that it remains legal.
Mark Graber, Professor of Law and Government at the University of Maryland, 1996, “Rethinking Abortion:
Equal Choice, the Constitution, and Reproductive Politics”
Persons committed to equal choice will best use the support of fickle elites by striving to keep abortion off the
political agenda. This strategy requires that pro-choice advocates eschew efforts to achieve overwhelming political
triumphs and concentrate on a more modest goal: not losing legislative and electoral struggles. Proponents of legal
abortion should fight to make the two major parties indistinguishable on abortion and place a higher priority on
defeating pro-life candidates than on supporting pro-choice candidates. Affluent pro-choice citizens should support
political efforts to depoliticize abortion/8 because neither progressive nor fiscally conservative elites want
reproductive issues to supplant economic distribution as the main battleground of American politics-Defensive
maneuvers aimed at not losing to pro-life forces will maintain a favorable political climate for legal abortion. As long
as abortion is legal—and legal abortion will still be the status quo in every state should Roe be overruled—a strategy
that prevents legislatures from making any reproductive policy ensures that abortion remains legal. Moreover, when
elected officials refuse to make abortion policy and do not consider abortion when selecting federal justices, courts are
staffed by elite lawyers, most of whom believe that women should be allowed to terminate unwanted pregnancies.
Such jurists are unlikely to overrule Roe even if they might not have supported abortion rights when the issue first
came before the Supreme Court. These strategies—"defeat pro-life" and "depoliticize abortion"—will not make
abortion equally accessible iu practice to all women. Equal choice's emphasis on keeping abortion legal, however,
promises to improve access to safe abortion services almost as much as would the more difficult and riskier alternative
of forging a pro-choice majority.
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Solvency – XT#1: Lack of funding irrelavent
Women can get abortion funding from charities and states.
Mark Graber, Professor of Law and Government at the University of Maryland, 1996, “Rethinking Abortion:
Equal Choice, the Constitution, and Reproductive Politics”
The academic tendency to deduce facts about legal and social practices from legal texts has particularly serious
consequences when pro-choice commentators criticize how wealth influences access to safe abortion services.
Proponents of legal abortion insist that as long as the Supreme Court sustains legislation banning government funds
for abortion.21 only "pregnant adult women with the means to pay for it retain their freedom." "The abortion right has
already been lost" for "poor women," Catharine MacKinnon asserts, "by deprivation of governmental funding for
abortion."24 Current restrictions on government funding, however, have in fact had relatively little impact on access
to safe abortions. Contrary to Justice Marshall's dissent in Harm, "denial of Medicaid-funding abortion is [not]
equivalent to denial of legal abortion altogether" for approximately 94 percent of all women eligible for Medicaid.15
Sympathetic abortionists and private charities frequently assist those women who cannot otherwise afford to terminate
an unwanted pregnancy. Legalization drastically reduced the cost of safe abortions, making that reproductive choice
affordable for most women. For these reasons and others, poor women and women of color have been the primary
beneficiaries of state policies and judicial decisions that decriminalized but did not fund abortion.
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Solvency – XT#2: Alt Causes
Lack of funding is irrelavent – not enough abortionists.
Mark Graber, Professor of Law and Government at the University of Maryland, 1996, “Rethinking Abortion:
Equal Choice, the Constitution, and Reproductive Politics”
Legalization destroyed the gray market and, in doing so, sharply decreased race and class disparities in access lo safe
abortions. Nevertheless, many women remain unable to terminate an unwanted pregnancy. Abortion is not equally
available to all women, because abortion providers remain scarce; economic considerations and pro-life mayhem deter
physicians from offering abortions in most American communities. Contemporary access problems, however, cannot
be Named on anti-abortion state laws or on judicial decisions sustaining those laws. When abortion is legal, hostile
state regulations that fall short of legal bans have little impact on access to abortion services. Laws imposing funding
bans, waiting periods, informed consent, parental notification, and other barriers, to reproductive services are not yet
preventing women from obtaining abortions. Pro-choice advocates may proclaim that "Roe v Wade is dead," but the
Supreme Court's decisions in Webster v. Reproductive Health Services and Planned Parenthood v Casey have not
affected the reproductive choices presently open to most poor women and women of color.
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Edelman Frontline [1/3]
1. Edelman’s failure to distinguish between different queer cultures prevents a constructive shift
away from reproductive futurism.
Andrea Fontenot, Professor, English Department, University of California, Santa Barbara, 2006, “No Future:
Queer Theory and the Death Drive (review),” Project MUSE, MFS Modern Fiction Studies 52.1, p252-256
Edelman's acceptance of the cultural logics linking death and homosexuality may seem hard to swallow: not only does
he ask us to commit political suicide, he systematically refuses the fantasy of an afterlife, of an alternative future.
However bleak this may seem, Edelman's work envisions for queer theory something much more powerful than
politics. In identifying the broad nexus of forces that participate in reproductive futurism, Edelman enables queer
theory to be a voice of resistance to the dominant political order in a more comprehensive way than any issue or
identity based politics could contain. Indeed, the challenge he puts forth is for queer theory to more effectively
channel the dissonant and disruptive effect of sexuality rather than distance ourselves from it. From my perspective it
is not the negativity of his theory that constitutes its weakness. Rather, it is his failure to imagine the sinthomosexual
in more diverse terms and his unwillingness to recognize possibilities for allegiance with [End Page 255]others who
suffer under reproductive futurism's grip on our political culture. It is not just that his examples happen to all be white
middle-class childless men—something we may excuse as product of the cultural register he chooses to investigate—
but that his entire imagining of the scope of the sinthomosexual is limited; his exclusive use of "he" to denote queers
and sinthomosexuals alike is only one manifestation. Though he illuminates the intricate displacements and
disavowals required to figure the homosexual's difference in terms of their narcissistic love of sameness (see 56–60),
he nonetheless ignores the differences that exist among those positioned under the sign "homosexual." This becomes a
weakness for his analysis in the section where he deconstructs Jean Baudrillard's nauseating jeremiad, "The Final
Solution," a treatise against "artificial insemination" and the "global extermination" of meaning it portends (64–65).
Edelman dedicates six wonderfully reasoned pages to exposing Baudrillard's outrage at the imminent vanishing of
sexual difference (and thus, for Baudrillard, difference at all) as a homophobic response to the way that the
possibilities of sex without reproduction and reproduction without sex reveal the always already meaninglessness of
sex, even in the heterosexual pairing (60–66). What Edelman misses here, though, is an opportunity to show another
face of the figure of the sinthomosexual. In Baudrillard's paranoid reaction to new technologies of reproduction, it is
not the gay male who is evoked but rather the lesbian mother, that most notorious beneficiary of this desexualized
reproduction. Were Edelman to entertain this difference, he would find that she is figured in much the same terms as
her male counterpart: imperiling both the child she would bear and the future that the Child is meant to guarantee,
despite the efforts of some lesbian mothers to trade on the capital of reproductive futurism to purchase civil rights. By
simply dismissing queer parents as "comrades in reproductive futurism" (19), capable only of contributing to the
homophobic scapegoating of the sinthomosexual, he ignores their possibility as allies on the frontier between the
Child and children, between the future and tomorrow. Regardless of these omissions, however, Edelman has certainly
articulated a new direction for queer theory, making No Future required reading both within the field and beyond.
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Edelman Frontline [2/3]
2. Edelman’s rejection of the present ignores advances in “queer” rights and eliminates the
potential for political reform.
John Brenkman, Distinguished Professor of English and Comparative Literature at the CUNY Graduate Center
and Baruch College, 2002, “Queer Post-Politics,” Project MUSE, Narrative 10.2, p174-180
Edelman compounds his reductive concept of the political realm by in turn postulating an ironclad intermeshing of
social reproduction and sexual reproduction. Here too he takes a fundamental feature of modern society, or any
society, and absolutizes it. Sexual reproduction is a necessary dimension of social reproduction, almost by definition,
in the sense that a society's survival depends upon, among many other things, the fact that its members reproduce.
Kinship practices, customs, religious authorities, and civil and criminal law variously regulate sexual reproduction.
However, that is not to say that the imperatives of social reproduction dictate or determine or fully functionalize the
institutions and practices of sexual reproduction. The failure to recognize the relative autonomy of those institutions
and practices underestimates how seriously feminism and the gay and lesbian movement have already challenged the
norms and institutions of compulsory heterosexuality in our society. They have done so through creative
transformations in civil society and everyday life and through cultural initiatives and political and legal reforms. The
anti-abortion and anti-gay activism of the Christian Right arose, in response, to alter and reverse the fundamental
achievements of these movements.
3. Queer theory is self-serving and self-reinforcing, creating the problems they try to eliminate.
James Penney, Assistant Professor in the Cultural Studies Program at Trent University, 2002, “(Queer) Theory
and the Universal Alternative,” Project MUSE, Diacritics 32.2 p3-19
It is precisely with respect to these last notions that Žižek's polemic against Laclau and his radical democratic
followers is absolutely correct: the "radical" in "radical democracy" refers only to the disturbing decisiveness and
passivity with which the classical Marxist denunciation of the cultural and material devastation performed by
unlimited capital is rather cynically abandoned in that discourse. Indeed, a bitter historical irony attaches itself to this
observation when one recalls that, for early Marxism, the concept of "radical democracy" referred not to the
maximization of the progressive potentialities of liberal democracy, but rather to the "dictatorship of the proletariat,"
in other words to the admittedly paradoxical notion that "true" democracy is possible only by means of the suspension
of "democracy" as it has been construed by the constitutional apparatus of parliamentary liberalism. While the
dictatorship of the proletariat, for historical reasons, is undoubtedly no longer desirable nor possible in the mode Marx
himself imagined, one fundamental point remains: it is necessary to leave open the "utopian" possibility of a political
act in the present that would, in general terms, transform in toto the conditions of intelligibility of the notion of
"democracy" itself and, more specifically, inaugurate a new political symbolic in which the problematic of "sexuality"
would find itself essentially and decisively tied to the basic economic conditions of the subject's position within the
social world's means of material production and resource distribution. Queer theory must proceed to its "selfdestructive" auto-critique, to the traversal of its most intimate liberal fantasies (that of so-called "sexual freedom"
undoubtedly being the most fundamental) because it fully participates in the cultural and socioeconomic logics that
impede the emancipation of the great majority of the world's citizen and noncitizen subjects, queer and not-so-queer
alike. Žižek is certainly worth quoting here:
. . . The much-praised postmodern "proliferation of new political
subjectivities" [of which "queer theory" has of course been an integral part], the demise of every "essentialist"
fixation, the assertion of full contingency, occur against the background of a certain silent renunciation and
acceptance: the renunciation of the idea of a global change in the fundamental relations in our society . . . and,
consequently, the acceptance of the liberal democratic capitalist framework which remains the same, the unquestioned
background, in all the dynamic proliferation of the multitude of new subjectivities. [Contingency 321]
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Edelman Frontline [3/3]
4. Accepting Edelman’s queer pessimism justifies coercive practices.
Michael Snediker, English Department, Mount Holyoke College, 2006, “Queer Optimism,” Project MUSE,
Postmodern Culture 16.3
My line of inquiry might seem petty, but my question, in fact, illuminates how little Edelman's argument can hold
onto the particularity on which it is partly premised. "The queer," Edelman insists, "insists that politics is always a
politics of the signifier" (6). Edelman likewise insists that "queer theory must always insist on its connection to the
vicissitudes of the sign" (7). The ubiquity of "always" and "every" in Edelman's argument is nearly stunning, and it
seems to me indicative of No Future's coerciveness, as a different passage from No Future's introduction quite handily
demonstrates:
Rather than rejecting, with liberal discourse, this ascription of negativity to the queer, we might, as I
argue, do better to consider accepting and even embracing it. Not in the hope of forging thereby some more perfect
social order--such a hope, after all, would only reproduce the constraining mandate of futurism, just as any such order
would equally occasion the negativity of the queer--but rather to refuse the insistence of hope itself as affirmation,
which is always affirmation of an order whose refusal will register as unthinkable, irresponsible, inhumane. And the
trump card of affirmation? Always the question: If not this, what? Always the demand to translate the insistence, the
pulsive force, of negativity into some determinate stance or "position" whose determination would negate it: always
the imperative to immure it in some stable and positive form. (4) Always this, always this, always that. This
absoluteness in Edelman's characterization of affirmation, meant to rally and provoke, recalls Sedgwick's incredulous
reading of Fredric Jameson's ukase, "Always historicize." "What could have less to do," Sedgwick rightly asks, "with
historicizing than the commanding, atemporal adverb 'always'" ("Paranoid Reading" 125)? What, for that matter,
could have less to do with particularizations? The axiomatic thrust of Edelman's "always" would seem to make the
world so irrevocably one thing that response to the world would amount to one thing. But still: why would rejecting a
primary attachment to futurity (regardless of what this futurity always does or doesn't do) necessarily require
embodying negativity?20 #
Edelman's queer pessimism positions itself as "our" only option without having
exhausted what other options might glimmeringly look like. This glimmer doesn't conjure the sort of horizon Edelman
would be so quick to dismantle. Rather, it suggests that not all optimisms are a priori equivalent to each other. And as
importantly, that not all queer theories need look like Edelman's. "As a particular story . . . of why storytelling fails,"
Edelman writes, "queer theory, as I construe it, marks the 'other' side of politics . . . the 'side' outside all political sides,
committed as they are, on every side, to futurism's unquestioned good" (7). This account of queer theory, even as
construed by one theorist, hardly seems like a "particular" story, not at least particular enough. Queer theory, on this
account, doesn't seem like an escape from the political's claustrophobically refracted unavailing sides, but a
claustrophobia unto itself.21
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Edelman – XT#1: No Shift
Edelman’s ignorance of reform makes a shift away from “queer” politics impossible.
John Brenkman, Distinguished Professor of English and Comparative Literature at the CUNY Graduate Center
and Baruch College, 2002, “Queer Post-Politics,” Project MUSE, Narrative 10.2, p174-180
It is the next moves in Edelman's argument that concern me. Having postulated in his political theory argument the
intermeshed unity of social reproduction, sexual reproduction, and politics, he is led to suggest that the phobic
position of queers is the quintessential requirement of the social-symbolic order as such. Having postulated that the
very projection of a narrative of social change from the present toward a future is inescapably complicit in this whole
mechanism of social-sexual-political reproduction, he is led to cast all social and political reforms as in essence
perpetuations of the anti-queer imperatives of the social-symbolic order. The true queer politics is therefore
beyond politics. Edelman formulates this post-politics in the following passage (at the same time equivocating by
affirming the importance of the actual extension of tolerance, rights, and interests achieved by the gay and lesbian
movement—an equivocation I will not dwell on, since politically it is a welcome ambiguity, though it highlights the
faultlines of his theoretical position): "[T]he true oppositional politics implicit in the practice of queer sexualities lies
not in the liberal discourse, the patient negotiation, of tolerances and rights, important as these undoubtedly are to all
of us still denied them, but rather in the capacity of queer sexualities to figure the radical dissolution of the contract, in
every sense social and symbolic, on which the future as guarantee against the real, and so against the insistence of the
death drive, depends" (23).
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Edelman – XT#2: No Political Reform
Turn – Edelman’s focus on the future prevents true political engagement.
John Brenkman, Distinguished Professor of English and Comparative Literature at the CUNY Graduate Center
and Baruch College, 2002, “Queer Post-Politics,” Project MUSE, Narrative 10.2, p174-180
For Edelman the image of the child-as-future is more than a powerful trope in the political discourse of the moment. It
in effect defines the political realm: "For politics, however radical the means by which some of its practitioners seek
to effect a more desirable social order, is conservative insofar as it necessarily works to affirm a social order, defining
various strategies aimed at actualizing social reality and transmitting it into the future it aims to bequeath to its inner
child" (19). The burden of this argument is that a genuinely critical discourse cannot arise via the marking or
symbolizing of the gap between the present and the future. Such symbolizing has indeed been the defining feature of
modern critical social discourse, whether among the Enlightenment's philosophes, French revolutionaries, Marxists,
social democrats, or contemporary socialists and democrats. Jürgen Habermas, in The Philosophical Discourse of
Modernity, defines modern time-consciousness itself as a taking of responsibility for the future. Edelman sees in such
a time-consciousness an inescapable trap. For him any such political discourse or activity steps into "the logic by
which political engagement serves always as the medium for reproducing our social reality" (26). Certainly the
political realm—whether viewed from the perspective of the state, the political community and citizenship, or political
movements—is a medium of social reproduction, in the sense that it serves the relative continuity of innumerable
economic and non-economic institutions. But it is not simply a mechanism of social reproduction; it is also the site
and instrument of social change. Nor is it simply the field of existing power relations; it is also the terrain of
contestation and compromise.
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Abortion Bad – Moral Obligation DA [1/2]
1. You have a moral obligation to reject the promotion of abortion – despite the affirmative’s
intentions, the offering of abortion destroys the value to life by justifying human objectification and
exploitation. One justified violent act spills over to other areas of life until no violent act is too
heinous to reject.
Charles Lugosi, Visiting Associate Professor of Law, Ave Maria School of Law, 2004, “Respecting Human Life
in 21st Century America: A Moral Perspective to Extend Civil Rights to the Unborn Creation to Natural Death”
The legal distinction between person and human being must be abolished if there is to be true equality among
all members of the human family. Justice requires that there be respect for the life of all human beings, from
the very beginning to the very end of life. The alternative is to classify unborn human beings as non-persons who
are mere objects over which to exercise dominion and control, to treat as a property to be harvested and grown for
commercial, humanitarian or scientific purposes, to be disposed of at will, and as a means to an end. Scientists have an
obligation to act morally and adhere to proper ethical standards even if domestic law and technology permit otherwise.
Cozzoli writes: The embryo cannot be reduced to an "object' or "instrument' of experimentation. No matter how great
the utility or how noble the intention of an experiment, it must not reduce a being having the "value of an end in
himself' to a "value of utility.' This is true in every phase of the prenatal life, even in the simplest and most
miniscule, as in the first two weeks, in which period today embryonic experimentation rages, at the price of an
enormous [*462] spending of human lives. This is an exploitation and a crime which the active and passive
complicity of positive law cannot dissimulate. n190 Thomas Jefferson, author of the American Declaration of
Independence, used the moral authority of natural law to assert for all time that all members of the human family are
created equal and possess the fundamental right to life. He stated: When in the Course of human events, it becomes
necessary for one people to dissolve the political bands which have connected them with another, and to assume
among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle
them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the
separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to
secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the
governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to
alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its
powers in such form, as to them shall seem most likely to effect their Safety and Happiness. n191 If all men are
created equal, then it must follow that the living human organism, at the time of conception, is politically and
legally endowed with the inalienable rights of life, liberty and the pursuit of happiness. n192 On this basis, the
right of the unborn to life (no abortion, no harvesting of embryonic stem cells, no cloning), liberty (the right to be left
alone, freedom from harm) and the pursuit of happiness (the right to autonomy, self-determination, development of
full potential) is assured. Human beings are endowed at creation with an inalienable right to life. This natural
right cannot be conferred, as it is the common heritage of human beings that all are created equal. It can be
expressed as a matter of constitutional law. n193 The emergence of a new class of Depersonalized Humans is
evidence that there is diminishing respect for the sanctity of human life. Civil libertarians who believe in equality are
morally compelled to speak for those who cannot speak for themselves to ensure all human beings are treated as ends
and never [*463] as a means to an end. Once the human family is divided into persons and non-persons, every
human being is at risk to become a member of the class of Depersonalized Humans. n194 The power to destroy
other human beings leads to greater abuses as people become desensitized to immoral conduct. The killing and
exploitation of the unborn are at the most basic level, acts of violence. Everyone, including scientists, businessmen,
politicians, judges, clergy, voters, doctors or patients, who benefits from, or does any harm to Depersonalized
Humans, is morally culpable. "Anyone who commands, directs, advises, encourages, prescribes, approves, or
actively defends doing something immoral is a cooperator in it if it is done and, even if it is not in the event
done, has already willed it to be done and thus already participates in its immorality."
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2. The right to abortion justifies all atrocities with the prioritization of economic status over the
recognition of love of one another.
Dr. Elizabeth Fox-Genovese, Professor of the Humanities at Emory University, 2007, Orthodoxy Today
Magazine, “How Abortion Has Failed Women,” http://www.orthodoxytoday.org/articles/FoxGenAbortFailed.php
Abortion begets and anchors the culture of death that threatens us all, but especially women, whose essence
includes the ability to bear new life. Contrary to apocalyptic visions, the culture of death has less to do with the
threat of nuclear cataclysm than with the market's invasion of our lives and relations with others. By substituting
economic calculus for love, we jeopardize our personhood, the essence of which lies in our recognition of others
as persons made, like us, in God's image. Abortion makes a mockery of personhood by licensing one person to
dispose of another. For in denying the personhood of the baby a woman is carrying, we deny our own. In this respect,
Jesus' command to love your neighbor as yourself, echoed in His frequent injunctions to honor, protect, and emulate
children if we are to have any hope of salvation, above all instructs us that we cannot wantonly kill another without
simultaneously killing ourselves. From the days of the Old Testament to our own, the world has consistently defied
God's commandments and provoked His wrath, but few societies have done so as blatantly as our own. Engulfed in an
unprecedented material prosperity, we have fallen prey to the illusion that material goods offer the appropriate
standard of our worth. Driven by this conviction, we increasingly measure others by that standard and, when
they appear to fall short, mark them for sacrifice. In licensing the slaughter of babies, abortion legitimates the
slaughter of all the others who are a drain on our wealth: the elderly, the terminally ill, and, sooner or later, the
poor. A more complete repudiation of the Gospel would be hard to imagine.
3. Each abortion must be rejected-failure to compromise a human life justifies all killings.
J. Budziszewski, Associate Professor of Government and Philosophy at the University of Texas at Austin, 1999,
“The Future of the End of Democracy,” http://www.leaderu.com/ftissues/ft9903/articles/budziszewski.html
The charge of absolutism involves a different kind of disagreement. Both the symposiasts and their critics think
abortion and euthanasia are wrong; both are willing to oppose them; and both support halfway measures like
prohibiting partial-birth or third-trimester abortions. So what’s the problem? The problem is that how wrong it is to
take innocent human life is not just an academic question; it determines strategy. If abortion and euthanasia are
bad only in the way that budget deficits are bad, then we should strike a “win some, lose some” pose and be willing to
make lots of tradeoffs between saving human lives and our many other goals. But if they are bad in the way that
stuffing Jews into gas chambers was bad, then it is morally unthinkable to make our peace with them; human
lives cannot be traded off. Halfway measures may be the only available pathway to complete prohibition, but even so
we should be willing to sacrifice almost anything to achieve them. As to those offensive analogies, it all comes down
to whether we take our premises seriously: if an abortion is really a murder then thirty-seven million abortions
are really a Holocaust. They aren’t something that could happen here; they are happening here. Who has the
better argument? In one point the symposiasts are right: The fact that our local oligarchy privatizes the program does
not make it any less a program, and the burden is on their critics to show why ending it is no more important than
Social Security reform. But in another point their critics are right. The privatization of the program does make a vague
talk about “resistance” a little glib, and the burden is on the symposiasts to explain more clearly what they have in
mind in there here and now.
52
Abortion Neg
DDW 2009
Jeff/Madalyn/Mike
Abortion Bad – Gender Discrimination
Abortion reinforces gender barriers.
Mary Catherine Wilcox, Ave Maria Law Review, Fall 2008, “WHY THE EQUAL PROTECTION CLAUSE
CANNOT "FIX" ABORTION LAW,” LEXIS
Without constitutional or precedential support for using the Equal Protection Clause as a safe haven for the right to
abortion, the argument to analyze abortion restrictions under heightened scrutiny of the Equal Protection Clause is
essentially an unreasonable policy [*328] argument. n158 The main thrust of the "equality" argument for abortion is
that abortion is necessary for women to "enjoy equal citizenship stature." n159 Yet in the thirty-five years since Roe
legalized abortion, it has become abundantly clear that legal abortion denigrates - not elevates - women's status in
society by physically and psychologically harming women who have abortions and by providing an excuse for society
not to deal with the real reasons women feel they cannot keep their child. n160 The abortion advocates' focus on
pregnancy as a burden only women bear - rather than a miracle only women can experience - perverts the spirit of
feminism and denies the reality of unborn life in the womb. It also excludes males from the equation, who must be
held accountable for the child they helped to create. Furthermore, their argument is impossible to justify for the simple
reason that many women do not consider abortion their right, and in fact, believe it is degrading to women. n161 More
and more women who have had abortions are speaking out about the physical, emotional, and psychological trauma
they have experienced as a result of their abortion procedures. n162
Abortion hurts the feminist cause.
Mary Catherine Wilcox, Ave Maria Law Review, Fall 2008, “WHY THE EQUAL PROTECTION CLAUSE
CANNOT "FIX" ABORTION LAW,” LEXIS
As these women recognized, abortion is inherently anti-feminist because it violates the central tenets of feminism:
nonviolence, nondiscrimination, and justice for all. n170 Early feminists fought against male oppression, yet proabortion feminists today are oppressing the unborn in the worst way. Abortion advocates' justifications for a woman's
decision to place her interests above the life of her unborn child, such as her own superiority of size, intellect, need, or
value as a person, are the same justifications men gave for denying women equal rights. n171 There was a time when
women were treated as men's property, and their value was determined by whether men wanted them. n172 Thus, it is
repulsive to feminist ideals to say that an unborn child is the property of his or her mother and to allow a child's life to
depend on whether or not the mother wants her child. n173 Abortion advocates fail to take into account that abortion
denies unborn females the equal protection of the law. n174 In an increasing trend of sex-selective abortion, female
unborn children are aborted [*331] purely on the basis of their gender. n175 This reveals the inconsistency of proabortion feminism: condemning sex-selective abortion as an acknowledgement that there is a living female baby
inside the mother's womb, while accepting that sex-selective abortion tolerates a preference for male children over
female children. n176 Abortion is also a threat to women's equality because it facilitates pregnancy discrimination.
n177 Pro-life feminist Daphne Clair de Jong equated abortion with the continued subjugation of women when she
wrote, "To say that in order to be equal with men it must be possible for a pregnant woman to become un-pregnant at
will is to say that being a woman precludes her from being a fully functioning person." n178 No other oppressed
group has ever needed surgery to become un-oppressed. n179 The very idea suggests that women's bodies are inferior
to men's, and must be fixed in order to enjoy the equal protection of the law. This is not a feminist argument. A truly
feminist position recognizes the natural, physical differences between men and women, and seeks equality for women
based on these differences, rather than by pretending they do not exist.
53
Abortion Neg
DDW 2009
Jeff/Madalyn/Mike
Abortion Bad – Murder
Abortion is murder.
Mary Catherine Wilcox, Ave Maria Law Review, Fall 2008, “WHY THE EQUAL PROTECTION CLAUSE
CANNOT "FIX" ABORTION LAW,” LEXIS
Elizabeth Cady Stanton considered abortion a form of "infanticide." n164 She adamantly opposed abortion, writing,
"When we consider that women are treated as property, it is degrading to women that we should treat our children as
property to be disposed of as we see fit." n165 Most significantly, an editorial from the newspaper that she edited
identified women's equality as a means of ending abortion: "There must be a remedy even for such a crying evil as
[abortion]. But where shall it be found, at least where [shall it] begin, if not in the complete enfranchisement and
elevation of women?" n166 Victoria Woodhull, the first female presidential candidate, was a strong advocate for the
right to life of the unborn. n167 She, too, believed abortion hurt women's equality: "Every woman knows that if she
were free she would never bear an unwished-for child, nor think of murdering one before its birth." n168 Finally,
Alice Paul, the author of the original Equal Rights Amendment ("ERA"), opposed the later development linking the
ERA and abortion. n169
Among its crimes, abortion is murder.
Paul Bassen, Philosophy and Public Affairs, 1982, Vol. 11, No. 4, p314-337, “Present Sakes and Future
Prospects: The Status of Early Abortion”
Many different charges have been brought against abortion: that it erodes respect for human life, diminishes the
standard of parental responsibility, abets sexual promiscuity. But the main and most famil¬ iar charge against it, the
one which chiely animates debate about this topic, is that of murder. It is disconcerting that the primary
antiabortion claim is framed so crudely, for murder is not a translucent or a simple concept. There are degrees
or varieties of it, and near relatives to it; moral facts which are relected and defined in the law. People who
participate in abortion are liable not to see the act as prolifers do, which is morally enough to vitiate the murder
charge. But despite all this something important is expressed by calling abortion murder, something to which
prochoice thinking often seems unresponsive: the idea that abortion has a victim, and that the fundamental injury
done to this victim is the same as is done to the victim of a very early mur¬ der. And it is true: if the fetus is a
victim, the injury is catastrophic, for it consists in total deprivation of the span of human time through which it
would have lived had it not been aborted.
Prochoice views don’t resolve the problem.
Paul Bassen, Philosophy and Public Affairs, 1982, Vol. 11, No. 4, p314-337, “Present Sakes and Future
Prospects: The Status of Early Abortion”
The murder charge also has a legal aspect. It implies that, in jus¬ tice, the law should protect the fetus from
abortion. Fixing on this aspect, prochoice advocates reply that such a law would do an in¬ justice to the pregnant
woman. But there is more to the problem of abortion than enters into the dispute about law. Whatever the
law should require, no conscientious person who sees the aborted fetus as the subject, or even possibly the
subject, of such a severe misfortune can undertake abortion without serious conlict of mind. This re¬ mains
true whether or not abortion wrongs the victim, or violates its rights. However cogent the prochoice position
may be on the level of law, it leaves unresolved a very nasty problem on the level of personal choice.
54
Abortion Neg
DDW 2009
Jeff/Madalyn/Mike
Abortion Bad – Patriarchy
Any government intervention in abortion reentrenches patriarchal principles.
Beti Poposka, Women in Welfare Education, November 2006, Women and abortion: liberal citizenship or
patriarchal regulation? http://findarticles.com/p/articles/mi_6959/is_8/ai_n28438641/?tag=content;col1
Some of the opposing views of the anti-abortion stance come from liberal feminists (Bacchi 1999). Liberal feminists
argue that women's reproductive and body rights belong to women and that they do not need to be regulated by
a 'patriarchal system' (Summers 1994). Liberal feminists go further to assert that a woman's right to abortion is a
private issue and does not need to be regulated by laws. Liberal feminists consider sexual relations between men and
women as a matter for the parties concerned and not for policy or Government intervention (Bacchi 1999). The public
/ private divide is a key issue regarding the regulation of Government provisions to resources for abortion. This is
because Governments can argue that if abortion is a private issue then public revenue does not need to be provided for
private provisions (Bacchi 1999).
55