Will divorce become legal in the Philippines?

  The NYT has the story:

‘Just Like Medicine’: A New Push for Divorce in a Nation Where It’s Illegal.  A campaign in the Philippines that frames divorce as a basic human right is gaining momentum, despite systemic and religious barriers.  By Sui-Lee Wee

"Thousands of people like Ms. Nepomuceno are trapped in long-dead marriages in the Philippines, the only country in the world, other than the Vatican, where divorce remains illegal. 

...

"Partly because of their growing numbers and plight, attitudes in the country, where nearly 80 percent of the population is Catholic, have changed. Surveys show that half of Filipinos now support divorce. Even the president has signaled openness to the idea, and the Philippines is the closest it has ever been to legalizing divorce.

"But the issue is far from settled. The powerful Catholic Church has deemed pro-divorce activism to be “irrational advocacy.” Conservative lawmakers remain steadfast in their opposition.

"This has prompted some in the legalization camp to frame divorce as a basic human right, like access to health care or education.

...

"In recent months, a Senate committee approved a bill on divorce for the first time in more than 30 years. The bill is now awaiting a second reading in the Senate, which lawmakers say could happen next year.

...

"Divorce has a complicated history in the Philippines. During the Spanish colonial era, divorce was banned, but legal separation was allowed under narrow conditions. Under American occupation, it was made legal, but only on the grounds of adultery and concubinage. The Japanese, who occupied the Philippines during World War II, expanded the divorce law, allowing more grounds for people to seek divorce.

"That changed after the enactment of the country’s Civil Code in 1950. But Muslim citizens, who make up 5 percent of the population, are allowed to divorce, because in 1977, Ferdinand E. Marcos, the president at the time, signed legislation allowing it.

...

"A decade ago, when the Philippine Congress passed legislation that gave people access to contraception, the clergy held protests and threatened to excommunicate lawmakers for supporting the bill. This time, said Edcel Lagman, a congressman who has pushed for both issues, church officials have been less vocal in its opposition."

The Comstock Act returns from the dead, post Roe

 While there's no agreement about whether life begins at conception, it appears that the Comstock Act has risen from the dead to play a role in contemporary legal duels about abortion.

CNN brings it all back:

The 150-year-old chastity law that may be the next big fight over abortion By Tierney Sneed

"A law passed 150 years ago that banned the mailing of contraceptives, lewd materials and drugs that induce abortions could provide a pathway for effectively banning abortion nationwide – even in states where the procedure is legal.

"When the Supreme Court last summer reversed Roe v. Wade and eliminated constitutional protections that guaranteed abortion rights nationwide, the conservative majority fashioned its ruling as returning the matter of abortion policy-making to elected officials, particularly in state legislatures.

"But the battle lines now being drawn around the Reconstruction-era federal law – the Comstock Act – are an example of how the picture after Roe v. Wade is far more complicated as abortion opponents are challenging the means of abortion, such as the drug mifepristone, in court.

"The most sweeping Comstock Act arguments from anti-abortion activists could at the very least end the availability of medication abortion, which make up the majority of abortions in the US today, and could have the effect of eliminating surgical abortions as well by restricting the shipment of medical instruments and supplies used in the procedure.

...

"The Comstock Act, first passed in 1873, is named after Anthony Comstock, who was a special agent of the US Postal Service and an anti-vice crusader.

...

"Prosecutions under the law were bought in the first few decades after its passage, but by the 1930s, courts began whittling down some of its provisions and enforcement of the law ceased. Congress meanwhile amended it in the 1970s to remove its ban on mailing birth control.

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"The Biden administration, in an internal advisory opinion released by the Justice Department’s Office of Legal Counsel, argues that the law does not apply to the mailing of abortion pills if they’re not being sent with the intent of unlawful use. The opinion pointed to how 20th century courts had interpreted it narrowly as excluding drugs mailed with legitimate intent."

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Earlier:

Monday, April 10, 2023

Comstockery and abortifacients, on the way to the Supreme Court

Comstockery and abortifacients, on the way to the Supreme Court

 The Comstock Act of 1873 made it a Federal crime to distribute information or medicines for contraception or abortion, and more generally on material judged to be for "any indecent or immoral purpose."  The 1965 ruling in Griswold vs. Connecticut found the bans on contraception to be unconstitutional, and the bans on pornography were strictly limited the year before in the case Jacobellis v. Ohio.  But the Act reared its head again when it was cited by a Federal judge in Texas, Matthew J. Kacsmaryk, in his ruling that the abortion inducing drug mifepristone was illegal to distribute anywhere in the U.S., including in states where abortion is legal.

Michelle Goldberg in the NYT writes about "The Hideous Resurrection of the Comstock Act"

"suddenly, the prurient sanctimony that George Bernard Shaw called “Comstockery” is running rampant in America. As if inspired by Comstock’s horror of “literary poison” and “evil reading,” states are outdoing one another in draconian censorship. In March, Oklahoma’s Senate passed a bill that, among other things, bans from public libraries all content with a “predominant tendency to appeal to a prurient interest in sex.” Amy Werbel, the author of “Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock,” described how Comstock tried to suppress photographs of cross-dressing women. More than a century later, Tennessee has banned drag performances on public property, with more states likely to follow.

"And now, thanks to a rogue judge in Texas, the Comstock Act itself could be partly reimposed on America. Though the act had been dormant for decades and Congress did away with its prohibitions on birth control in 1971, it was never fully repealed. And with Roe v. Wade gone, the Christian right has sought to make use of it. The Comstock Act was central to the case brought by a coalition of anti-abortion groups in Texas seeking to have Food and Drug Administration approval of mifepristone, part of the regimen used in medication abortion, invalidated. And it is central to the anti-abortion screed of an opinion by Matthew J. Kacsmaryk, the judge, appointed by Donald Trump, who on Friday ruled in their favor.

...

"On Friday a Washington State judge issued an opinion directly contradicting Kacsmaryk’s and ordering the F.D.A. to continue to make mifepristone available. The dispute now is likely headed to the Supreme Court."

Contraception as a repugnant transaction (the return of...)

Former Pennsylvania senator Rick Santorum's campaign for the Republican presidential nomination has done a lot to put contraception back in the public spotlight.  It isn't so long ago that contraception was a prototypical repugnant transaction: something that lots of people wanted to do, but others didn't want them to. The Connecticut law was struck down in the famous Supreme Court decision Griswold v. Connecticut (1965).Here's an article remembering how contraception became legal in Connecticut and Massachusetts: Catholics and Contraception: Boston, 1965

"Two states had very strong anti-contraception laws on the books in 1965. The Supreme Court was considering the constitutionality of Connecticut’s all-out ban on the use of contraception. In Massachusetts, a state legislative panel was holding an open hearing on a proposal submitted by State Representative Dukakis, a politically ambitious lawyer who had been in office for three years, to remove an 86-year-old bar to the distribution of birth control devices and information.

"It was not the first time in Massachusetts a repeal of the ban had been considered. In 1948, Cushing, then an archbishop, led a public charge against Referendum No. 4, a statewide ballot measure designed to relax the ban on contraception. From the pulpit and on the radio, the Catholic campaign argued that birth control was “still against God’s law.” Cushing defined contraception at the time as “anti-social and anti-patriotic, as well as absolutely immoral.” The campaign was a bitter one. In the end, 57 percent of voters rejected the referendum.

"Cushing had won, but victory came at a cost. “Deployment of the Church’s political muscle,” the historian Leslie Tentler argues, offended non-Catholics in and out of the commonwealth. Four years later, the toll hit home as Cushing confided to a friend, “I hate to think of going through another battle.”

"Even then, Dukakis recalls, “the memory of the ’48 battle was fresh in our minds.” That seems to have been also true for Cushing (now a cardinal). He clearly had a change of heart on the appropriateness of laws like the state’s birth control restrictions, which sought to impose moral behavior at odds with individual conscience. More generally, he had adopted a conciliatory tone. Two days before a fellow Massachusetts Catholic won the first primary of the 1960 presidential campaign, Cushing argued that a Christian must engage in “friendly discussion with those whose views of life and its meaning are different than his own.” The times had changed, and so had he.
...
"When a bill that would allow physicians to prescribe birth control to “any married person” was introduced in the next legislative session — a bill otherwise similar to the one House members had rejected 119–97 the year before — Cushing endorsed it publicly by praising its “safeguards” while reaffirming his position that Catholics did “not seek to impose by law their moral view on other members of society.” This time the bill passed, 136–80. The Senate followed suit, and Volpe signed the amendment to the state’s General Laws on “Crimes against Chastity, Morality, Decency, and Good Order
...
"The solution was not perfect (the Supreme Court ruled in 1972 that limiting contraception to married couples was unconstitutional)..."

Contraception: reversal of the direction of repugnance?

What is viewed as a repugnant transaction can change over time, and even reverse direction entirely. An example is that laws in the US have gone from prohibiting contraception to prohibiting pharmacists from declining to provide contraception.

Repugnance to contraception is far older than effective contraception, with roots sometimes attributed to the Bible*. In the United States, the Comstock Law of 1873 made it a Federal crime to sell or distribute contraceptives or information about them, and many states followed with bans of their own. These were not finally overturned until the Supreme Court, in Griswold v. Connecticut (1965), overturned Connecticut's ban on contraception, and found that the Connecticut law violated a fundamental right of privacy. (Here's a summary of the case.)

More recently, a number of states have passed laws requiring hospitals and health care providers to inform rape victims of the availability of "morning after" contraception, and sometimes requiring pharmacies to stock it and dispense it: 50 State Summary of Emergency Contraception Laws.

This in turn has raised the question of whether health care providers and pharmacists who find contraception repugnant can or should be compelled to provide information about it. One of the final acts of the Bush administration was to issue regulations allowing pharmacists and doctors to decline to provide contraception or information about it if they found it morally repugnant:

Bush's Last-Minute 'Conscience' Rules Cause Furor
"Health care workers, hospitals and even entire insurance companies could decline to perform, refer or pay for abortion or any other health care practice that violates a "religious belief or moral conviction" under new rules issued by the outgoing Bush administration.
"This rule protects the right of medical providers to care for their patients in accord with their conscience," said Health and Human Services Secretary Michael Leavitt.
But opponents of the rule, now set to take effect Jan. 19, say it could threaten patients' health. "This is a very wide, broadly written regulation that upsets what has been a carefully established balance between respecting the religious views of providers, while also making sure that we're guaranteeing patients access to health care," said Cecile Richards, president of the Planned Parenthood Federation of America. "
(See the rule here, called (confusingly) Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law)

Subsequently, these conscience clauses have come under attack:
Obama administration may rescind 'conscience rule'

"February 27, 2009
WASHINGTON — Taking another step into the abortion debate, the Obama administration Friday will move to rescind a controversial rule that allows health-care workers to deny abortion counseling or other family-planning services if doing so would violate their moral beliefs, according to administration officials.The rollback of the "conscience rule" comes just two months after the Bush administration announced it last year in one of its final policy initiatives.The new administration's action seems certain to stoke ideological battles between supporters and opponents of abortion rights over the responsibilities of doctors, nurses and other medical workers to their patients.Seven states, including California, Illinois and Connecticut, as well as two family planning groups, have filed suits challenging the Bush rule, arguing it sacrifices the health of patients to religious beliefs of medical providers."

(See the proposed rule here: Rescission of the Regulation Entitled ``Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law''; Proposal)

So it appears that we have come full circle in a certain sense, and now have laws that prohibit the withholding of information about contraception (and contraception itself), where once we had laws forbidding the dissemination of contraception and information about it.

(No wonder the study of repugnant transactions doesn't lend itself to simple theories about what is and is not repugnant...)

*The biblical story that is sometimes interpreted as indicating repugnance to contraception is the story of Onan in Genesis 38. However that story is complex, and it is far from clear to me that contraception is the issue.