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Commentary

Rev. William Barber and North Carolina Christian writer Jonathan Wilson-Hartgrove recently authored the following essay on the close connection between modern “religious freedom” proposals and the dark history of racial discrimination in the U.S.  We’re delighted to publish it here.

Extremists also remember Selma:
The ugly history behind “religious freedom” laws

By Rev. Dr. William J. Barber, II and Jonathan Wilson-Hartgrove

From Ava Duvernay’s award-winning film to President Obama’s speech at the Edmond Pettus Bridge, to the thousands we crossed the Bridge with and the millions that joined by TV, America has remembered Selma this year. We have honored grassroots leaders who organized for years, acknowledged the sacrifices of civil rights workers, and celebrated the great achievement of the Voting Rights Act. At the same time, we have recalled the hatred and fear of white supremacy in 1960’s Alabama. But we may not have looked closely enough at this ugly history. Even as we celebrate one of America’s great strides toward freedom, the ugliest ghosts of our past haunt us in today’s “religious freedom” laws.

Many able commentators have pointed out the problem with laws which purport to protect a First Amendment right to religious freedom by creating an opportunity to violate another’s 14th Amendment right to equal protection under the law. But little attention has been paid to the struggle out of which the 14th Amendment was born—a struggle which continued to play out in Selma 50 years ago and is very much alive in America’s state houses today. We cannot understand the new “religious freedom” law in Indiana and others like it apart from the highly sexualized backlash against America’s first two Reconstructions.

The 14th Amendment to the U.S. Constitution was part and parcel of America’s first Reconstruction, guaranteeing for the first time that people who had been legally codified as three-fifths persons would enjoy equal protection under the law in this country. The very notion of equal protection for black Americans was so offensive that it inspired an immediate backlash. Two features of resistance to America’s first Reconstruction are essential to note.

First, it was deeply religious. White preachers led the charge, calling themselves “Redeemers” and framing equal justice for black Americans as a moral danger. At the same time, the threat was explicitly sexualized. Black men were portrayed in respectable newspapers as “ravishing beasts,” eager to rape white women.

Here in our native North Carolina, white vigilantes were armed and encouraged to defend their women, leading to the “Wilmington Race Riot” of 1898. Violent demonstrations of white men’s sexual fear led to lynchings throughout the South and Midwest in the late 19th and early 20th centuries. Ida B. Wells, the courageous African-American journalist from Memphis, did the dangerous investigative work to show that the great majority of these lynchings were not about sex but political power.

When the Civil Rights Movement—a Second Reconstruction—was finally able to draw national attention to the vicious patterns of Jim Crow in the 1960’s, the challenge to white power was again conflated with sexual fear. As Danielle McGuire has chronicled in her book “The Dark End of the Street,” civil rights workers were consistently accused of wanting interracial sex and/or having homosexual tendencies.  Read More

News

In a unanimous decision released today, the 4th U.S. Circuit Court of Appeals has blocked enforcement of the state’s pre-abortion ultrasound law, finding that it violates the First Amendment rights of physicians who provide abortions.

Here’s how U.S. District Judge Catherine Eagles described the law in her lower court decision overturning it:

The patient must lie on an examination table where she either (i) exposes the lower portion of her abdomen, or (ii) is naked from the waist down, covered only by a drape. Depending on the stage of pregnancy, the provider (i) inserts an ultrasound probe into the patient’s vagina, or (ii) places an ultrasound probe on her abdomen.

The provider must display the images produced from the ultrasound “so that the pregnant woman may view them.” Providers must then give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

Several North Carolina doctors and other health care providers sued state officials in federal court in Greensboro in late September 2011, contending that the ultrasound requirements intruded upon the patient-physician relationship and amounted to compelled speech in violation of the First Amendment right to free speech.

The doctors argued that the ultrasound provision required them to convey the state’s message of discouraging abortion and encouraging childbirth, which they would not have delivered absent a patient’s consent.

In response, state officials argued that in requiring doctors to perform the ultrasound and convey accurate and truthful information about the fetus, they were well within the confines of permissible state regulation of the medical profession.

Judge Eagles temporarily blocked the ultrasound provision of the Act and then in January of this year permanently struck it down.

Applying principles underlying the First Amendment right to free speech, Eagles found that to the extent the Act required physicians to deliver information in support of the state’s philosophic and social position, it was impermissible content-based regulation.

Alternatively, the judge found that if the provision was intended to advance a substantial state interest in regulating health care, it did not pass muster, especially given that the patient did not have to listen and could take steps to avoid hearing the message.

The three judges on the Fourth Circuit agreed with Eagles.

Writing for the court, U.S. Circuit Judge J. Harvie Wilkinson III said:

Though the State would have us view this provision as simply a reasonable regulation of the medical profession, these requirements look nothing like traditional informed consent. . . .  As such, they impose an extraordinary burden on expressive rights. The three elements discussed so far — requiring the physician to speak to a patient who is not listening, rendering the physician the mouthpiece of the state’s message, and omitting a therapeutic privilege to protect the health of the patient — markedly depart from standard medical practice.

Other aspects of the Requirement are equally unusual. As described above, informed consent frequently consists of a fully-clothed conversation between the patient and physician, often in the physician’s office. . . This provision, however, finds the patient half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina. Informed consent has not generally been thought to require a patient to view images from his or her own body, much less in a setting in which personal judgment may be altered or impaired. Yet this provision requires that she do so or “avert[] her eyes.”  Rather than engaging in a conversation calculated to inform, the physician must continue talking regardless of whether the patient is listening.The information is provided irrespective of the needs or wants of the patient, in direct contravention of medical ethics and the principle of patient autonomy. And it is intended to convey not the risks and benefits of the medical procedure to the patient’s own health, but rather the full weight of the state’s moral condemnation. Though the state is plainly free to express such a preference for childbirth to women, it is not the function of informed consent to require a physician to deliver the state’s preference in a setting this fraught with stress and anxiety.

Read more on the case here.

Read the full decision here.

Commentary

There are two excellent reads over on the main Policy Watch site today that you should check out if you haven’t already.

#1 is this excellent and sobering analysis of North Carolina’s new fracking rules and the shortcomings therein by Sarah Kellogg of of the environmental advocacy group Appalachian Voices. As Kellogg writes before outlining the detailing the failures:

The North Carolina Mining and Energy Commission (MEC) issued its final vote on proposed changes to the rules regulating the process of hydraulic fracturing for natural gas (i.e. fracking) last Friday. As you’ve probably heard by now, the panel voted unanimously to approve the rule set.

What you may not know is that between July 14 and Sept. 30, the MEC received 217,000 public comments on more than 100 draft rules regarding safety standards for fracking in the state. More than 2,000 North Carolinians attended the commission’s four public hearings, and the vast majority of speakers opposed fracking and asked for stronger rules. The MEC’s response, written in a hearing officer’s report released two weeks ago, showed a considerable lack of consideration for public comments, a fact that disappointed concerned citizens and advocates across the state. Almost all of the recommendations fell short of what the public overwhelmingly asked for, and the few recommendations that strengthen the rules do so quite minimally.

Must read #2 is this news story by NC Policy Watch Reporter Sarah Ovaska about some equally troubling developments at a public charter school in western North Carolina:

Read More

Uncategorized

School-vouchersAs an excellent essay in this morning’s edition of Raleigh’s News & Observer by veteran education policy expert Greg Malhoit makes clear, North Carolina is on the verge of commencing a long, slow-motion disaster with its wrongheaded plunge into the world of school vouchers.

As Malhoit explains in some detail, two of the Wake County schools likely to receive significant public funds if the program goes ahead — Victory Christian Center and  the Al Iman School — make no pretense of offering a secular education. These are explicitly religious schools with specific missions of teaching and indoctrinating students into very specific religious belief systems. Moreover, as he notes: Read More

Uncategorized

Good news last night in Boone. This is from the ACLU of North Carolina:

Watauga Board Votes to Keep “The House of the Spirits” in Honors High School Curriculum
ACLU of North Carolina Joined Parents, Students and Community Members Earlier in the Day to Rally in Support of the Freedom to Read  

BOONE, N.C. – The Watauga County Board of Education tonight voted 3-2 to keep Isabel Allende’s “The House of the Spirits” in the county’s public school curriculum for sophomore honors English students after a challenge to the board had been brought. Two board-sanctioned committees had previously voted unanimously to keep the book in the curriculum.  

Chris Brook, Legal Director for the ACLU-NC Legal Foundation, released the following statement: Read More