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A Civics Examination (continued)

nThe first words of the first article of the Constitution state: “All legislative Powers herein granted shall be vested in a Congress of the United States. . . .” Congress, however, was not granted untrammeled authority to legislate. The Constitution’s drafters, hypersensitive to unchecked powers, gave the President a role in the passage of laws. A bill does not take effect merely because the legislature passes it. A bill passed by both Houses of Congress “shall, before it becomes a Law, be presented to the President of the United States; If he approves he shall sign it but if not he shall return it, with his Objections. . . .” If the President does not approve—if he vetoes it—the bill then becomes law only if each House of Congress passes it again by a two-thirds vote. Thus, the Constitution gives the President an authority in the legislative process to check the passage of legislation through the veto provision. It does not, however, give him the authority to pass or initiate laws. Besides this veto over bills passed by Congress, the Constitution imposes a single duty on the President when it comes to legislation: The President “shall take Care that the Laws be faithfully executed. . . .”

The Constitution seems clear. The President can force a reconsideration of a bill before it becomes law and if he does so, he requires Congress to pass it with two-thirds majorities. But the President can’t make laws. Only Congress can do that.

I thought that I understood this division of legislative power under our Constitution, but our current president has been exercising many legislative powers. For example, a recent news story said that the president was going to bypass Congress and sell billions of dollars of arms to Saudi Arabia and United Arab Emirates; the president has restricted purchase of products made by Huawei, a Chinese telecommunications company; the president has taken money allocated for the military and shifted it to be spent on a border wall even though Congress rejected money for the wall; and the president every day seems to impose or remove some tariff.

These actions seem to be exercising authority expressly given in the Constitution to Congress. Thus only Congress was granted the authority “To regulate Commerce with foreign Nations. . . ”, and approval of arms sales to Mideast countries and the prohibitions on the purchase of Chinese products are regulations of foreign commerce. The Constitution enjoins that “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” which require congressional passage. When the president shifts spending from the military to a border wall, he is drawing money from the Treasury even though Congress has not specifically authorized that appropriation. Only the legislative branch is given the authority to impose tariffs: “The Congress shall have Power To lay and collect, Taxes, Duties, Imposts and Excises. . . .” So, what’s going on here?

I am not suggesting the president is just ignoring the Constitution. Instead, he can cite constitutionally passed laws to claim legitimacy for his actions. For example, legislation grants Congress a review period during which the legislators can modify or prohibit a prospective arms sale. A provision of the Arms Export Control Act, however, allows the president to bypass Congress if he deems an “emergency exists which requires the proposed sale in the national security interest of the United States.” Similarly, a law grants the president tariff-setting power when he deems it necessary for “national security.” And the National Emergencies Act allows the president, after finding that a “national emergency” exists, to take money already allocated by Congress for another purpose and spend it to meet the national emergency. Thus, our president says that because of national security he can allocate funds from the treasury for a border wall even though Congress has not appropriated money for such a purpose.

People can argue that our president is not correctly using the powers he was given in these statutes, but I don’t want to get into such arguments here. Instead, I am pointing out that in the laws the president relies on for his actions, Congress has surrendered some of its legislative powers and given it to the president, who, under our Constitution, does not have these legislative powers. It might seem that these laws have recast our fundamental charter.

(concluded June 12)

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A Civics Examination (continued)

If you had been the third person with us in the car as I was driven to the Wisconsin-wide Elks Constitution test, you probably would have found it to be an uncomfortable ride. The man drove a Karmann Ghia made by Volkswagen. This car was produced for a dozen or so years as VW’s version of a sports car. The newspaper auto columns I read had taught me disdain for this vehicle. It did have a beautiful body, but the auto writers told me that it was built on a VW Beetle chassis with a VW Beetle engine and steering. In other words, it was really a VW Beetle with a nicer look but no more acceleration or better handling. It was the car for people who wanted to look like they owned a sports car but did not really want or could not afford to own an MG or Triumph. And my companion looked like he fell into that category—a more than middle-aged, much overweight man who tried to talk to me often as if we were the same age. Well, he at least did not wear driving gloves. (Carmen Ghia is a character in The Producers. The movie version was made when VW was still producing the Karmann Ghia, but it had been long discontinued when the musical play came out. I wonder how many theatergoers got the reference.)

I can tell you almost nothing about the exam. I don’t remember in what building it was held or how long it was. I have no memory of whether it was multiple choice, fill-in-the-blank, or essay. I don’t know what areas of the Constitution were tested. This was not that far after McCarthyism and school desegregation. Did it stay away from these controversial topics? At the end of the day when I got home, I mostly forgot about it.

But then two or three months later, I was told that I had placed third. This meant money. The winner got a $600 scholarship. My third place was worth $400, and prizes went down to a $100 scholarship for sixth place. By then I had been accepted for college and had received a scholarship from the school, which also included a required job of waiting on tables. I had also received scholarships from other organizations. They would send the money to the university which would administer the funds.

The national Elks organization provided the money for the top three prizes. The state Elks handled the next three winners. The national organization would send the funds to the university. The state, however, sent its checks directly to the student. However, the university, when informed about my $400 prize, told me that I could not accept it. Apparently, they had some formula that indicated that I had maxed out on the amount of scholarship money I could have. When I learned this, I realized that if I had finished in fourth place, I would have had a check sent directly to me without the university’s intervention, but by then I could not figure out a way to finagle a lower finish. (I never got the money, but I would have thought that I would have received some sort of plaque. If so, I don’t remember that honor, and I know that I would have rather had the money.)

(Yes, I know what many of you are thinking. He is just writing these stories to brag about his illustrious high school career. Your mind moves to Springsteen’s Glory Days; if he brags about those long-ago days, he must have nothing to brag about since. How sad, you may be thinking, but perk up. Life has been good since then. For example, at my small tennis club, I once won the Men’s B doubles.)

Graduating from high school, I was already confident, with good reason you can see, that I understood the Constitution, but even so I deepened my knowledge. I took Constitutional Law courses in law school, and I studied various constitutional provisions in my academic career. Not only have I read the Constitution may times, I have read the Federalist Papers and what are called the Anti-Federalist papers. I have read histories about the background to our Constitution, and its drafting and adoption. I have read commentaries on the Constitution. And I have studied many Supreme Court decisions interpreting the Constitution. Even so, I now find myself often confused about governmental powers. The basic structure of our federal government, I had learned, is that Congress makes the laws; the President enforces the laws; and the Judiciary interprets the laws. However, the Constitution is more complicated than that.

(continued June 10)

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A Civics Examination

A friend says what others have said: many, perhaps most, Americans don’t understand the basic structure of our government. They don’t understand federalism—what should fall under the purview of the national government and what should only be a concern for the states. And they don’t understand that our national governmental powers are separated into three branches, a structure that was adopted to give us a government of checks and balances.

The friend, along with others, feels as if this basic knowledge has declined because the teaching of Civics in high schools or earlier has declined. The ACTA (American Council of Trustees and Alumni), which states that it “is an independent, non-profit organization committed to academic freedom, excellence, and accountability of America’s colleges and universities,” reports that a 2016 survey found that only a quarter of Americans can name all three branches of government. An ACTA survey found that 80 percent of seniors at 55 top colleges would have earned a D or F on historical knowledge. This organization states that a reason for this lack of knowledge is that an emphasis on math and reading “has pushed out other subjects, such as civics. . . .”

I confess, however, that I am often confused about the present structure of our government even though I had a Civics course—in which I got an A (brag, brag)—and, of course, I can not only name the three branches of government but have enough historical knowledge to know who Daniel D. Tompkins was, although I confess I learned about that Vice President not from Civics but from Edmund Gwenn in Miracle on 34th Street. Indeed, I was even a bit of a high school constitutional nerd having won, but not received, money from a constitutional examination.

This particular test was sponsored by the Elks Club. Service clubs were not part of the heritage of my working-class family. I knew that my town had a number of them—Optimists, Eagles, Rotarians, Elks, as well as VFW and American Legion halls. My guess is that there was some sort of pecking order among these. I thought, but was not sure, that the Rotarians were at the top of the heap. At least, that is the impression I got from a schoolteacher when I was invited to a Rotarian lunch—I guess because I was student president of the high school. This event has stayed in my mind, not because it opened a world of networking that I later developed. I was painfully shy. I talked a bit with one or two friends and immediate family members, but I was as quiet as a blue point on the half-shell (homage to Red Smith) with all others, and that certainly included those adult Rotarians who sat next to me at the lunch. What I do remember, however, is the luncheon slide show.

A doctor in the town, who was presumably a Rotarian, had done volunteer work in Vietnam. This was at a time when the U.S. commitment in Vietnam was tiny, and few gave that country much thought or could even find it on a map. I don’t know how or why the speaker went there, but he showed picture after picture of deformed children and physically damaged adults. As one disturbing image succeeded the next, I began to feel queasy having never before seen a concentrated dose of such stuff. Sweat beads popped out on my forehead. I swallowed back what started coming out of my stomach. All I could think about was that I was about to disgrace myself. Finally, it ended in what I thought was the nick of time, and I rushed, without saying anything to my table companions, for fresh air. But I digress.

I had no idea where the Elks, or more formally the Benevolent Protective Order of the Elks, stood in the town’s service-organization pecking order, but on a late winter Saturday morning of my senior high school year I went to our Elks Club. I have no idea what I had done to qualify for the state constitution test, but I remember that I had prepared by drawing on my Civics course memories, reading the Constitution the night before, and perhaps by reading about it in our encyclopedia, which was not the mindnumbing, comprehensive Encyclopedia Britannica, but an old, breezier World Book.

I went into the dark, dingy, musty Elks clubhouse and met the person who was going to drive me the hour to Milwaukee for the statewide test. I felt a bit sorry for him, whose name I certainly don’t remember. He tried to chat me up, but as I said before, I hardly talked with anyone back then, much less a strange adult. He did try to tell me how great the Elks were, as if he were laying the groundwork for recruiting me to the B.P.O.E. later in life, and how lucky I was to live in a great town like Sheboygan. I said but a few words in reply. The “conversation” did come back to me many years later. I was on a kick of reading some American authors whose reputations had declined through the years, such as John Dos Passos. The Nobel-Prize-winning Sinclair Lewis was on this list. I had heard that he had written outdated, cliché-filled novels that were almost embarrassing. I, on the other hand, found very good books. George Babbitt was not dated if you had been raised in the 1950s in a small midwestern town; it was certainly not dated if you ridden in a car with an Elks booster from Sheboygan.

(continued June 7)

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Snippets

There was once a professional football team called the Beloit Fairies.

 

CVS gives me receipts longer than some of my golf shots.

 

At one time, you were not supposed to have sex until you were married. (We can be confident that this “moral” injunction was frequently broken, even in Puritan New England, at least as revealed by studies of marriage and birth certificates that indicate a lot of babies were born in early Massachusetts only five or six months after the marriage.) My friend was a young modern woman, and she and her boyfriend had not waited for marriage to have sex. Indeed, they were living together without an official marriage ceremony. However, even though her work allowed her to put a significant other on the health insurance plan, she told me that she would never do that unless they were married. Ah, modern romance.

 

I learned at the bar trivia contest that the official state motto of Indiana is “The Crossroads of America.” That motto made sense to me. I have entered Indiana from the north, south, east, and west. Every time I continued driving straight through, wondering when I would get to the next state. I, however, have met nice, interesting people from Indiana. I met them all in New York.

 

The Indiana state motto is better than some others. Michigan’s is “Si Quaris Peninsulam Amoenam Circumspice.” Come on. This is the USA. Speak American. I tend to believe that we should have no Latin, except perhaps for et cetera. (Remember Yul Brynner in “The King and I?) Maybe you understand that Michigan motto, but I have to trust those who tell me it translates to, “If you seek a pleasant peninsula, look about you.” I like lots of things about Michigan, but really? How many of you have ever woken up and said I would like to visit or live in a place that boasts it is a “pleasant peninsula.” How many of you have ever thought of Michigan as a peninsula? But then again, a part of Michigan is known as the Upper Peninsula. That implies a lower one, which means that there are two peninsulas. I am guessing that the motto excludes the upper one.

 

And I note without comment that the state motto of Alabama—“Audemus jura nostra defendere”–translates to “We Dare Defend Our Rights.”

 

The billboard from some sort of church warned “LUST DESTROYS.” And here I thought that lust led to the creation of new life.

 

I put on shorts for the first time as I head into a new summer, and I look down and think: “An old white man’s winter-white legs are never attractive.”

 

“Do they lie down in soft grass

to gaze up at a sky of roaming shape-shifting

clouds? Do children still have time for daydreaming?”

Harryette Mullen, “Urban Tumbleweed”

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Confessions of a Sometime Public Defender (continued)

After trying cases at what seemed like a non-stop pace for a couple years, I left the trial bureau and went into a test case unit of the Legal Aid Society. Doing legal research and drafting memoranda and briefs without having to pick a jury gave me time to reflect on my experiences, something I could not do when I was involved with trial after trial. I thought hard about what I had done well and what I what had not done well. I thought that I was being objective when I concluded that I had performed much better than I had given myself credit for. Yes, I was a good trial attorney, and my clients, even the ones who had been convicted, where lucky to have had me.

Six months into the test case unit, I went back to try a big drug case involving a defendant arrested by an elite, but corrupt, unit of the police. Conviction meant an automatic life sentence, but now I had the confidence that I knew what I was doing. The client, however, was scared and tried to get me replaced, but his mother—a sweet, sweet woman, who, in spite of everything, loved her son–said that she had a vision from God that I was Mikey’s savior. So, he began to cooperate with me. I did do a terrific job, and to his surprise he was acquitted of all the more serious charges. He did not get a life sentence.

From that time on, I felt I was able to look at my trial performances more dispassionately. Even when there was a conviction, I could see whether I had done a good job. I looked back on a trial not to flagellate myself, but to see if there was something to learn for the future. I learned that I had to try each case. By that I mean that I could not let other people tell me how to try it because I was the one who had to live with the result. I learned that sometimes risks had to be taken and the safe path not followed. The safe path, the one that others can’t criticize, often leads to a conviction because that is the usual result in a criminal case. Risks would leave me open to criticism, but I learned that the client came first, not me. If I thought that the risks increased the likelihood of an acquittal, even though an acquittal was still unlikely and even though I would be criticized if a conviction resulted, the risk was worth it. I learned to have confidence in my judgment, or at least I learned that I knew the case better than any observer and my judgment about my own case was better than anyone else’s. I eventually went back to regularly trying cases and trusted that I really knew how to do it. I would like to think—do think—that I served my clients well. I still felt bad after a loss, but now I found joy and satisfaction in winning.

Mikey’s big drug case, while giving me found confidence, also led me to an ethical breach. Defender ethics prohibited me from taking anything from the client or his friends or family. But after the case, Mikey’s mother kept insisting that she had to do something for me. She settled on a Saturday lunch that she would prepare. I said no again and again, but she persisted. She could not understand the reason for the refusal, and I could see that I was hurting her feelings. I decided to bend my ethics and relented. She then insisted that I bring the spouse. I am glad we went because I had an experience that has not been duplicated.

She lived in a cramped apartment somewhere in what was then the shadow of Shea Stadium, the home of the Mets. We quickly learned, however, that after coming from Cuba (well before Castro), she had lived in the Bronx and was a Yankees fan. Her accent was thick, and she kept talking about the love of the New York “Jankees.” I tried not to smile every time she said it. There were religious artifacts around her living/dining room, but then I noticed pictures of a handsome man in the kind of fancy dress that I associated with Cuban men. When I asked about the person in the picture, she lit up. That was her husband who had died, but still lived in her memory. I did not know how to react when I found out that he was a Cuban band leader who primarily led orchestras playing on cruise ships plying the waters to Havana. I did not ask her what she thought of “I Love Lucy,” but here was a woman who had been married to a real-life Ricky Ricardo. She was fascinating talking about that life.

She had us sit a small Formica table, and she brought the spouse and me food. After we ate it, she brought more food. After a few minutes, she brought even more, and after that was sampled, another dish, and another. I felt sick and was hoping each time she served us it was the last time, but I also felt that I would look ungrateful if I did not continue to eat. She had worked on this meal not just for hours, but for days. The spouse and I kept urging her to sit and eat with us, but she refused. She was only there to serve us.

If we talked about her son (who was serving a nine-year sentence), it was only for a moment. She tried to give me some money, but I was insistent on giving it back to her. I didn’t see her again after I waddled down the steps, but for years, until she died, I got a Christmas card from her through her son. I don’t think that she could read or write English.

(to be continued occasionally)

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Confessions of a Sometime Public Defender

Over the last eight years, I have volunteered at a couple of public defender offices. I started my legal career as a defender and going back to that work after decades made me remember how hard it is to be a public defender. It certainly was difficult for me at the beginning of my career when I tried many cases.

Because of plea bargaining and dismissals, many defenders and prosecutors try few cases. The overwhelming majority of cases end without a trial, and new attorneys might go a year and more without doing a trial. I, however, tried a lot of cases shortly after being sworn in as an attorney.

After getting a graduate law degree, I joined the Legal Aid Society, then New York City’s public defender. I was a favorite of the chief attorney of the organization because he, as I, was a graduate of the University of Chicago Law School. He advanced me quickly, and I was in a major trial position three months after I started, having already done a few misdemeanor trials.

Federal money had come into New York City for special drug courts, and I, with five others, was assigned as a public defender in these newly opened courts. Cases were transferred there from all around the city. Because of the backlogs in the other courts, many of the cases were old, no acceptable plea bargains had been negotiated for them, and a stack of cases was waiting to be tried. Our new courts were for the purpose of trying such cases. As a result, for about a year and a half, I started a new trial about every two weeks.

The pressure was intense. In some sense, I never was not thinking about my cases. I carried a notebook—at movies, parties, dinners, the subway, wherever—to jot down notes about the cases because I could not shut down my mind about them. I put the notebook by the bed because almost every night I would wake up several times thinking about my clients.

Mostly I lost the trials. I knew that this was normal. Defendants are convicted 75% of the time, and the conviction rate for the kinds of drug cases I was trying was even higher. A legendary attorney who mentored me said that it was a miracle if a defender won half the cases. Even though I knew these facts, I had not learned a necessity for a public defender: how to cope with losing. I consider myself sane and balanced, but this was the one time that I felt that I could be close to a nervous breakdown. Of course, it may not have been my fault that a person was convicted—the evidence against him was simply too strong—but even so, each time I questioned whether I was competent to do the work.

Especially hard was a loss when the defendant had been free on bail, then convicted, and immediately handcuffed and shoved into a cell behind the courtroom. I never wanted to see that person at that moment, but I felt that I had to. The bars that separated us always gave me a chill. They haunted me. This feeling always comes back to me when I see the final scene of the movie “The Maltese Falcon.” Although I have enjoyed this film many times, I often turn away at that closing shot, which gives me the creeps. Mary Astor is being led away by the police, and she is hoping that Humphrey Bogart will save her. In a great monolog, he makes it clear that he won’t. The cops take her to an old-fashioned elevator with a gate, and the gate is closed with her on one side and Bogart on the other. The gate’s shadow falls like bars across her face. The horror of what awaits her has now sunk in. She panics. The scene brings back the memory of the queasiness I had to fight when I went to see Abraham S., who had been out on bail, in the cells after he was convicted. His was the real-life face of Mary Astor’s character. Worse yet, it was not clear to me that he was guilty. Sleep was only something to be desired that night.

I did win a few trials, but these did not prove to me that I had the right disposition to be a public defender. I realized that after a not-guilty verdict I did not feel elation or gratification. I did not even feel a satisfaction about my trial attorney skills. I was only relieved that I had not lost. The win did not make me feel good; it only staved off the depression of a loss. After one acquittal, I talked with the friendly presiding judge, and I explained these feelings to him. He responded that with such emotions, I should not be a public defender. I knew that he was right, but I had no idea what to do to survive in the work.

(continued May 31)

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First Sentences

“The smoked fish counter has a long and glorious tradition in New York.” Ed Levine, New York Eats.

“I had a lot of jobs in Los Angeles Harbor because our family was poor and my father was dead.” John Fante, The Road to Los Angeles.

“American criminal justice today is premised on controlling African American men.” Paul Butler, Chokehold: [Policing Black Men].

“The prisoner will stand.” Horace McCoy, They Shoot Horses, Don’t They?

“As I waited in the drowsy neon-lit customs line at JFK, I tried to remember precisely when the war on drugs started.” Johann Hari, Chasing the Scream: The First and Last Days of the War on Drugs.

“I first met him in Piraeus.” Nikos Kazantakis, Zorba the Greek.

“Two centuries ago, Napoleon warned, ‘Let China sleep; when she awakes, she will shake the world.’” Graham Allison, Destined for War: Can America and China Escape Thucydides’s Trap?

“He speaks in your voice, American, and there’s a shine in his eye that’s halfway hopeful.” Don DeLillo, Underworld.

“Victoria and Tennie’s father, Reuben Buck Claflin, was a one-eyed snake oil salesman who posed as a doctor and a lawyer.” Myra MacPherson, The Scarlet Sisters: Sex, Suffrage, and Scandal in the Gilded Age.

“I had just begun to peel the potatoes for dinner when my oldest sister Bessie came in, her eyes far away and very tired.” Anzi Yezierska, Bread Givers.

“All of us in the public defender’s office feared the Martin Luther King speech.” James Forman, Jr., Locking Up Our Own: Crime and Punishment in Black America.

“Devils, Ahmad thinks.” John Updike, Terrorist.

“The first historical fact that I remember learning as child was the place that I called home was once an independent nation.” James E. Crisp, Sleuthing the Alamo: Davy Crockett’s Last Stand and Other Mysteries of the Texas Revolution.

“This was back when I was frittering away my Venezuelan inheritance.” Patrick Modiano, La Place de l’Étoile.

“My experience of Jesus begins with my father.” Richard W. Fox, Jesus in America: Personal Savior, Cultural Hero, National Obsession.

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The Rich Get Richer . . . The Poor Get Children (concluded)

If the abortion rate dropped from Kate Simon’s youth and the time when Delmar’s book was written, it is not because laws against abortion had more effect, or that sex drives changed, or that women came to follow church proscriptions more faithfully, but primarily because of the increase in the availability and knowledge of other forms of birth control that occurred in the twentieth century. Margaret Sanger’s movement was in its infancy when Simon’s mother had abortions and when Delmar wrote. The spread of birth control was hard work that took years to have any significant effect. Four decades after Simon, Delmar, and Sanger there was still limited discussion of birth control. In a senior class when I was in high school, ten percent of the girls got pregnant, or at least ten percent were known to have gotten pregnant. Of course, the odds are high that others got pregnant without it’s becoming public knowledge and had abortions.

Sanger had to overcome not only the reticence to talk about sex that prevented education about birth control, but common social norms kept contraception under wraps. Condoms were hidden away in the drug store, and the pharmacist had to be asked for them, an embarrassing and deterring encounter for many. But Sanger and her followers also had to fight laws that actually prohibited birth control.

Many states at one time prohibited not only abortion but all forms of birth control. By 1960, only a few still had such laws, including Connecticut ,which made illegal “any drug, medicinal article, or instrument for the purpose of preventing conception.” The law applied to the married and the unmarried. We should remember such laws when we hear complaints about how our present government has gotten too intrusive. What could be more big-brotherish than to regulate what married couples can do in their bedroom (or on their kitchen table or their washing machine)? I wonder how many people who complain about the intrusiveness of government even know that governments once prohibited the use of birth control.

The United States Supreme Court, in Griswold v. Connecticut (1965), found the Connecticut law to be unconstitutional as a violation of “marital privacy.” The decision was controversial because nothing in the Constitution explicitly protects privacy, and the seven justices who voted to invalidate the law relied on different constitutional provisions to invoke this privacy right. Even so, the right to access birth control was extended to non-married couples by the Supreme Court in 1972 in Eisenstadt v. Baird.

It was settled, then. All had legal access to birth control, and many, most, nearly all of us thought that was good. Pleasure and passion and love can increase because of birth control.  Stable, non-abusive families are more likely with birth control. Abortions decrease with birth control. But we now live in a new age that once again may make not just abortion but also birth-control availability more difficult.

Under Obama, the Affordable Care Act made birth control a regular benefit of health insurance without any co-pay. In 2014, however, the Supreme Court in the Hobby Lobby case ruled that a “closely held corporation” could be exempt from the Health care contraception mandate on religious grounds. The Trump administration expanded this exemption to both for-profit and non-profit entities and to all companies including publicly held ones, not just closely held ones. The exemptions currently extend beyond religious beliefs to sincerely held “moral convictions.”

That corporations could have religious beliefs came as a surprise to me. I did not know that if you make it to heaven, you might see Shell Oil, Amazon, and Morgan Stanley surrounding the Father. I certainly was not aware of Jesus preaching in any boardrooms. I wondered how the religious beliefs of a corporation are determined. Will the shareholders be polled? Would we count the votes by individuals or by the number of shares held? If by shares, as must be done for other corporate purposes, the rich person’s religious views will count for more than the less affluent shareholders because the rich person will own more shares. What if I have religious views or moral convictions for or against contraception but I am in the minority; aren’t my religious beliefs or moral convictions then violated?

And what are the non-religious moral convictions about birth control? I have enough difficulty understanding the religious beliefs about contraception. I don’t pretend that I can recall every word of the Bible, but I don’t remember any mention of IUDs, the pill, condoms, or even latex in the Holy Book. Did anything like our notions of contraception exist back in biblical times?

On top of this, a person who has spoken out against not only abortion but also against contraception has been appointed to the position in the Department of Health and Human Services’ Title X program which oversees family planning funding for poor Americans and through which about four million women get family planning services. Add to this the attacks on Planned Parenthood. It has long been the case that federal money cannot be used for abortions so a federal defunding of Planned Parenthood would little affect those procedures, but it would have a profound effect on the availability of contraception.

It is no surprise, then, that the Trump administration has recently issued rules that, under Title X, organizations that make abortion referrals will be barred from receiving federal family planning funds. The new rules are, in essence, a gag order on medical providers. So, for example, if Planned Parenthood wants to continue to receive federal family planning funds, its doctors will not be able to refer patients for abortions and, perhaps, not even counsel them about abortions. And if Planned Parenthood and other organizations continue to discuss abortion, federal family planning money will be lost and fewer poor women will have counseling and access to contraception. Instead, more money is expected to go to “faith-based” health organizations, many of whom not only oppose abortion but also contraception, at least for the unmarried.

We are on a dangerous path. Many states and the federal government have put such onerous restrictions on abortion that, although it is currently a constitutional right, it is not in fact available to many women. That is a step back to Delmar and Simon’s time of knitting needles and goop to be prayerfully drunk. And now this government is making it harder to obtain birth control with the result being that many women, generally poor women, will not have contraception. I suppose the good news is that we will be giving a new generation of novelists and memoirists like Delmar and Simon something to write about.

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The Rich Get Richer . . . The Poor Get Children (continued)

Kate Simon’s memoir Bronx Primitive: Portraits in a Childhood, like Bad Girl, also describes working-class, 1920s New York, although Simon is narrating from the viewpoint of a young girl. She and her family were then living in a Bronx neighborhood largely inhabited by immigrant Jews and Italians, and she was struggling to understand the world she was encountering, including the visits of Dr. James. He was seldom seen by the kids because he came when school was in session. No explanation was given for the appearance of this tall, fair “American” in a neighborhood of short, dark “foreigners.” However, Simon noticed, the mothers he visited, who were fine in the morning, were in bed when school let out.

Years later Simon’s medical relatives told her that Dr. James had had a prestigious and lucrative medical practice and came from the prosperous New England family that produced the writers and intellectuals William and Henry James. After his children were raised, Dr. James dedicated himself to poor immigrant women who had “no sex information, no birth-control clinics, nothing but knitting needles, hat pins, lengths of wire, the drinking of noxious mixtures while they sat in scalding baths to prevent the birth of yet another child. Some of these women died of infections, and often when these procedures did not work, the women went to term and then let the infant die of exposure or suffocation.”

To prevent such deaths, Dr. James went from one immigrant neighborhood to another performing abortions. Often charging nothing but never more than a dollar or two, James performed thousands of the procedures. All the adults knew what he did, and according to Simon, so did the police and the Board of Health who generally let him be. Periodically, however, when there was some change in officialdom, he was arrested. He wouldn’t post bail but contacted colleagues. Doctors then thronged the courthouse where “they pleaded, they argued, they shouted, they accused the police and the court of ignorance and inhumanity,” and each time Dr. James was released.

James was a skillful and careful practitioner and would not perform an abortion if it would be too dangerous. Simon had a much younger sister, and when Kate was an adult, her mother told Simon that the sister was unwanted. James, however, would not perform an abortion because Simon’s mother had already had too many and another would be hazardous. Shortly before she died, Simon’s mother told Kate that she had had thirteen abortions (as well as three children) and that other women in the neighborhood had had even more. Why do you think, the mother continued, that the Italian women urged to have large families by the Catholic Church had only two or three kids? “Certainly it wasn’t the abstinence of Italian husbands, no more controlled than Jewish husbands. It was the work of the blessed hands of that wonderful old goy.”

          Viña Delmar’s Bad Girl and Kate Simon’s Bronx Primitive, both set in lower-class communities of 1920s New York City, indicate that abortion was prevalent in this country a hundred years ago, and they were common earlier.  Thomas J. Schlereth, in his book, Victorian America: Transformations in Everyday Life, 1876-1915, cites data showing that abortions were inexpensive and common in the late nineteenth century, with ten dollars being the standard rate in Boston and New York. He reportsthat in 1898 the Michigan Board of Health estimated that one-third of pregnancies were artificially terminated.

Willful infant deaths may also have been frequent. We tend not to think about infanticide, but the concern in our colonial days over it was so great that special evidentiary and other rules were applied when a mother reported a stillbirth or that a baby died shortly after birth.

One of the reasons for the number of abortions was ignorance about sex. In Bad Girls, Dot’s husband has no idea why she is making monthly marks on their calendar.  In our colonial history, and even into the twenty-first century some men believed that a woman could only get pregnant if she had an orgasm and that a woman could only have an orgasm if the intercourse were consensual. Thus, a raped woman could not get pregnant.

Surely sexual ignorance led to abortions. But abortions and infanticides also occurred because of lack or knowledge of other forms of birth control so that the only meaningful “birth control” was abortion.

Perhaps illegal abortions decreased after the 1920s, but that is unknowable. I knew a couple women of my mother’s and my generation who had abortions before they were legal in this country. These were what most would see as ordinary women. Only because I was close to them did I find out about the illegal terminations of their pregnancies. I can assume that of the many older women I have known less well, some, maybe many, also had illegal abortions.

(concluded May 24)

Posted on by rjonakait

The Rich Get Richer . . . The Poor Get Children

          Bad Girl by Viña Delmar was a bestseller in 1928. My copy is from its fifteenth printing that year. (Sales were apparently not hurt when the novel was banned in Boston.) In the novel, Dot, a working-class New York City woman, does the unthinkable and has premarital sex. She gets pregnant and marries her lover. She fears childbirth, about which she knows little, and the book has a frank discussion of her attempts to terminate the pregnancy.

Even though it is against the law, she gets a supposed miscarriage-inducing concoction from a pharmacist. Although she takes it “religiously,” it fails to work. Dot then turns to a more upper-class friend, Maude, who urges Dot not to have the baby and tells her that only an operation, not any medicine, will work. Dot asks whether the operation hurts, and Maude says it does “the first time, because most girls are crazy enough to try it without ether.” With the anesthetic, however, “you don’t feel a damn thing.” The friend gives Dot an address and tells her not to pay more than fifty dollars, an enormous sum to Dot. Maude states that the hospitals are open to the woman giving birth, but not to the one who doesn’t want a baby. “High prices, fresh doctors. It’s a man’s world, Dot. To the woman who knows her place they will give their charity, but the woman who wants to keep her body from pain and her mind from worry is an object of contempt.” Dot, not having fifty dollars, goes for a preliminary visit to the doctor, who determines she is pregnant, molests her, charges her five dollars, settles for the only two dollars she has, and tells her to make an appointment soon because she is in the second month.

Dot and her husband Eddie are constrained from talking freely about what they are feeling. Eddie thinks that a pregnancy termination would be murder, but he also thinks a man “would have a hell of a nerve” to tell a woman to have a baby. “What right had a man to say what she should do?”

Dot talks with other friends. Edna says a woman has the baby whether she wants it or not. “Abortion” is never uttered. Instead, in a different way from the way we use the term now, that procedure is referred to as “birth control.” Thus, Dot “was not anxious to debate the pro and con of birth control” with Edna, and Edna to herself was trying to figure out, “Who was the birth-control advocate, Eddie or Dot?”

Edna urges Eddie to oppose the abortion, but he replies, “It’s her business.” Edna then indicates that “nine-tenths” of young married women are ignorant about childbirth and abortion. She states that there are only a half-dozen New York City doctors who do abortions without serious complications such as blood poisoning. For a birth, Edna maintains, a woman can find a good doctor, but “the other way you’ve got a guy who couldn’t make a living the way other doctors do. . . , and in case you have religion, you’ve sinned against it.”

Finally, Dot decides. “After all, it was her body that was to be the battle-field. She had been wrong. It was her place to do what she pleased, not to stand by and wait for Eddie to pass judgment.” The thought of the horrid abortionist was repulsive, and she feels happy and peaceful as she announces that she will have the baby.

(I have not seen many references to Viña Delmar, who not long after Bad Girl, became a screenwriter, but she makes a cameo appearance in the 1935 noir novel, They Shoot Horses, Don’t They? by Horace McCoy. The novel’s setting is a marathon dance held in a hall built out over the Pacific. As the marathon goes on, Hollywood personalities attend. One night the personality to fire the starter’s pistol for the brutal “derby,” where the couples race around an oval painted on the floor with the last couple being eliminated from the competition, is Miss Delmar. Rocky, the emcee, played by Gig Young in the movie “They Shoot Horses, Don’t They?”—it is hard to say which is better, or more depressing, the movie or the book—explains, “Miss Delmar, is a famous Hollywood author and novelist.” I am not sure why Viña, of all the possibilities was plunked down in this book, but it could have been an homage to Bad Girl. Both books, written less than a decade apart, explore, with sensitive understanding, the difficulties of lower-class life in the 1920s and 1930s. Abortion is at the core of Bad Girl and is an undercurrent in They Shoot Horses, Don’t They? Early on in McCoy’s book, Gloria, played by Jane Fonda in the movie, urges a fellow competitor who is pregnant to get an abortion. At the book’s end, Gloria worries that she is pregnant by Rocky, and she does not want a child. “Suppose I do have a kid?” she said. “You know what it’ll grow up to be, don’t you, just like us.” The narrator, her dance partner says to himself, “She’s right; she’s exactly right. It’ll grow up to be just like us–”)

(continued May 22)