Tonight (Monday July 9, 2018) President Trump will be announcing his nominee to fill Justice Kennedy’s seat on the Supreme Court. This has a lot of people worried because of the potential court decisions that could be swayed by the court having a more ideological conservative majority. In particular of course there is broad concern over challenges to women’s reproductive freedoms and LGBTQ+ rights. But as I was thinking about what other possible issues might arise from such a stacked court, I began to think about freedom of speech and freedom of information. This lead me to review the 2011-2012 battle over two bills called SOPA and PIPA, which would have greatly curtailed the ability to share information freely on the internet had a grassroots groundswell not overwhelmingly opposed the bills.
SOPA/PIPA Gives Us Insight in a Variety of Ways
I know this sounds like a weird comparison to make but hear me out. Fundamentally, SOPA/PIPA and any challenge that could arise to Roe v. Wade are dealing with the same core issue. Well funded interests are trying to tell people what they can and can’t do. In the case of SOPA/PIPA the issue was the recording industry trying to tell people how we are allowed to use their copyrighted content. In the case of a likely Roe v. Wade challenge it would be America’s religious industry (and make no mistake, it is an industry) trying to tell people how they are allowed to use their own bodies.
This comparison is interesting because with SOPA the recording industry was demanding the government protect their ownership of content. So essentially, by the religious industry demanding the government enforce what they believe you should or shouldn’t do with your body, they are saying they own you. I think we can at least agree that’s far worse than file-sharing.
Also, with regard to our current circumstances, I think it’s good to look at a case of effective grassroots activism from back in 2012, if for nothing else then we had 6 years of generational shift. People who were only 12 when the SOPA/PIPA debate happened can vote now, many of them are in college now and they may not remember the details of how that fight went down. So it may well be new information for some of them, and for the rest of us it serves as a bit of a refresher.
Look at the Language
Whenever I’m grappling with complicated legal and political issues I have a game that I like to play where you take slogans from one kind activist issue and switch it out for an unrelated activist issue. For example if we were to compare 2nd amendment advocacy to anti-SOPA advocacy you might see a sign that says ‘fear the government that fears your gun’ and replace ‘gun’ with ‘access to information’;. I’m big on those kinds of comparisons because they’re enlightening.
So what can that same kind of strategy tell us about the similarities between the arguments against SOPA/PIPA and arguments in favor of protecting reproductive choice? Let’s try one:
“SOPA is just a reversion of COICA which was proposed last year and didn’t pass. And all of this goes back to the failure of the DMCA to disallow sharing as a technical means, and the DMCA goes back to the audio home recording act which horrified those [the recording] industries. Because the whole business of actually suggesting that someone is breaking the law and then gathering evidence and proving that, that turns out to be really inconvenient …What they want is to not have to do it. They don’t want legal distinctions between legal and illegal sharing, they just want the sharing to go away.” Clay Shirky 2012 (emphasis mine)
If we replace a few words here and there to change the subject of that quote we might end up with something like:
“[The 20 week ban] is just a reversion of [the heartbeat bill] which was proposed last year and didn’t pass. And all of this goes back to the failure of [the Hobby Lobby verdict] to disallow [abortion as a medical procedure via insurance availability], and [Hobby Lobby] goes back to [Roe v. Wade] which horrified those [the religious] industries. Because the whole business of actually suggesting that someone is breaking the law and then gathering evidence and proving that, that turns out to be really inconvenient …What they want is to not have to do it. They don’t want legal distinctions between legal and illegal [abortion], they just want the [abortion] to go away.”
What I think is good about considering the abortion debate from this angle is that it puts aside the more contentious issues of personal belief and brings it into the realm of who actually has the authority to tell someone that they can’t do something unless they get prior approval from an external authority.
Guilty Before Proven Innocent
One of the most objectionable parts of SOPA/PIPA was that it gave the government the power to presume summary guilt and declare a website infringing at the behest of a copyright owner. It would then have been the burden of the web host to prove their innocence. We can see parallels in the abortion debate here as well. Consider just the other week when a Walgreen Pharmacist in Arizona grilled a woman who had suffered a failed pregnancy about her reasons for wanting to fill a prescription for an abortifacient to aid the miscarriage. Here we have a situation where the pharmacist was arbitrarily taking it upon himself to determine if her reasons were legitimate according to his personal moral code (ultimately turning her away).
This of course brings us to the theological underpinnings for wanting to ban abortion in the first place. For all the talk from the anti-choice movement it really is more they case that they want their beliefs to be the arbiter of what is and isn’t lawful. Very few anti-choice proponents agree that abortion should be illegal in the cases of rape, incest, or wellbeing of the mother. In a world where abortion were illegal in all other instances who would be the authority who determines whether the wellbeing of the mother is at risk? Who would be determining that a someone is allowed to have one? By what process could someone seek a legal exemption from the ban in a timely and unimpeded manner?
The fundamental problem here is one of presumption of guilt. In the case of SOPA/PIPA website hosts would have been presumed guilty of infringement before having to prove their innocence. Under an abortion ban with exemptions for wellbeing someone would be presumed guilty unless they could prove their reasons for seeking one fit within the confines of a narrow set of exemptions. But guilty of what? Here is where we find the fundamental underpinnings of the anti-choice movement. For all the marketing language about ‘fostering a culture of life’ or ‘protecting the unborn’ it’s important to remember that Christian Theocrats believe that pregnancy and childbirth are punishments for original sin. They believe that someone having an abortion is a way to avoid their God’s punishment for fornicating. They have no other real justification. You, they would say, are their God’s property, and you are presumed to have infringed on that God’s rights by using it in a way that god doesn’t like so you must suffer the consequences unless you can prove otherwise.
How to Fight for Choice
Perhaps though, the most important thing we can learn from the SOPA/PIPA battle is how a groundswell of public demand can overcome proposed government action that it seems impossible to defeat. When activists engaged in the awareness campaign to stop SOPA they did so by giving everyone the freedom to do anything they could to convince people of the importance of the issue and facilitate letting their representatives know how they felt. People made youtube videos, tweeted articles, websites redirected to information pages instead of their normal services. 115,000 websites joined the Internet protest, there was a mass boycott of companies that supported the legislation like Go-Daddy. All of this was coordinated on the internet. On January 18th, 2012 the call volume to the congressional switchboard was so high that the switchboard had to shut down because the routing servers couldn’t keep up. That’s what defeated SOPA.
Now of course in the situation we now find ourselves it’s more nuanced. There is no way to exert that kind of political pressure on the Supreme Court one they’re considering a case. If the pro-choice movement wants to save Roe v. Wade they’ll need more than that. They’ll need to start organizing to contact their senators now to either convince them to delay the vote on Trump’s appointee until after the November elections, or convince them to vote against confirmation and stall the whole process. On top of that, the pro-choice movement will need to make a concerted effort to ensure that Republicans lose control of the Senate in November.
Those really are the only options, and it’s not something that legislators are going to do unless the people get very vocal throughout confirmation hearings. Republicans in at-risk seats need to feel pressure from their constituents of ‘unlikely voters’. At-risk Democratic Senators need to know their ‘unlikely voter’ constituents will turn out to support them if they oppose the nomination. New voters in every state need to let their representatives know what they they think.
It is incumbent on the people to let their representatives know that the well-moneyed, well-connected, theocrats who support the appointment of this nominee do not represent the will of the American people.
No One is Going to Do it For You
Ultimately, it’s up to you. If you support any of the rights that are under threat from the potential appointment of this judge it’s up to you to inform your friends and family, your internet community, and your representatives. It’s up to you to support those of us in the media who are arguing for the causes you believe in. It’s up to you to vote and help others vote for those who champion the causes that are important to you. If you don’t, you’ve already lost and you are the architect of that loss.