Tuesday, September 16, 2008


Cass Sunstein has an Op-Ed in the ‘Boston Globe’ about Roe v. Wade (‘The fate of Roe v. Wade and choice’, http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2008/09/14/the_fate_of_roe_v_wade_and_choice/http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2008/09/14/the_fate_of_roe_v_wade_and_choice/
He’s no dope when it comes to legal thinking. And he’s an “informal adviser to the Obama campaign”.

He goes for the let’s-be-upfront gambit. It’s refreshing. And very much the approach required by a democratic politics. And verrrrry late. The election of 2008 has forced the Democrats to confront all their manipulative favoritism of the past 40 or more years; they had been hoping that voters would forget, or that voters who could remember would die off; anything to let them have the cake of a big new demographic while eating the cake of a unified and electorally robust Party.

But they have not been greeted as liberators and things have not gone as planned. Those whom they liberated by embracing have never really responded with a warmth commensurate to the risk the Democrats took – on behalf of Us all. And those who were considered collateral damage and acceptable losses remain too obviously alive and – more to the point – kicking. And then there’s Rove and his myrmidons, just over the horizon, scheming, plotting, and taking advantage of every opportunity. It’s a curiously familiar American problem, these days. Funny how the night moves (as scripture saith).

But ‘heah kum de judge’, as scripture also saith. Sunstein puts it on the table so clearly that one wonders if he’ll ever get past the checkpoints onto the Beltway dinner-party A-lists.

“As it was written in 1973, Roe v. Wade was far from a model of legal reasoning.” Oy, and yet it was permitted to exercise a huge influence on Our common weal. When one is about 'great things', and there is an 'emergency', then apparently the usual standards of mature process do not apply. And of course, since 'maturity' is not only 'masculine' but 'masculinist', then it shouldn't apply. Anybody should be able to see that, right?

“The court failed to root the abortion right in either the text of the Constitution or its own precedents.” You’d think for what they’re paid, they’d at least try to make it appear like they knew what they were doing. What were they thinking?

“Moreover, it ruled far too broadly.” You don’t say – lotta folks been thinking that for quite some time.

“In its first encounter with the abortion question, the court failed to focus on the particular abortion restrictions at issue … Instead the court took the highly unusual step of setting out a series of rules for legislatures to follow”. Sort of like nation-building, but for a particular group which, it was fondly hoped, would display its gratitude appropriately and reliably.

“It is no wonder that millions of Americans felt, and continue to feel, that the court refused to treat their moral convictions with respect.” Well, you don’t hear that too often around here. And you haven’t for quite some time. One can’t help thinking of Stalin’s speech to the Soviet people after the German invasion: the Bloody Enchilada had to make nice because things weren’t looking any too good. But he didn’t go as far as Sunstein goes here. All these decades of P.C. – only Sunstein could go to China.

“Nor is it surprising that Justice Ruth Bader Ginsburg – the most important women’s rights lawyer in the history of American law, but also a judicial ‘minimalist’ – has sharply criticized Roe for doing so much so fast.” Now any good Soviet citizen could tell you that when ‘they’ start letting you in on stuff that yesterday – had you speculated thusly yourself – could get you sent to Siberia or – probably worse – the basement of the Lubyanka … when the honorable ‘they’ start talking today about how ‘mistakes were made’, then you’d better listen up and enjoy it. But you sure as hell better not laugh.

The little love-note to Madame Justice Ginsburg – well, Sunstein’s got to keep up his network; you never can tell when you might need a friend in high places. Look what it’s done for feminists, and for Us.

But any Soviet citizen knew all this. And more: any Soviet citizen would know by this point in the speech that the other mukluk was going to drop any time now. But unlike them, We are not being asked to sacrifice all in a Great Patriotic War with the Hitlerite hordes (which, presumably, is what the Army is sort of doing in the East as We speak). No, We are simply being asked to be reasonable. To show Ourselves, I guess, better than the Supreme Court. How hard could that be?

Because “it is one thing to object to Roe as it was written in 1973. It is another to suggest that it should be overruled in 2008.” Hmmm. Sliding over the obvious implication that the thing was kind of flawed in a big way, he moves Us right along to respectful contemplation of the fact that after all these years … folks have gotten used to it, and it wouldn’t be polite to just blow the whistle right now and send everybody to the showers. Or back to the drawing boards. Or to the drawing boards for the first time, because if Joe Biden (see the previous Post) is any example, then the solons only reminisced about their childhood breakfast tables in the run-up to rah-rahing the whole thing. Sort of like … the Iraq war, if memory serves.

But Roe v. Wade, Sunstein notes, is now “an established domain of human liberty”. Well, my first instinct is to imagine that shootin’ Injuns was also ‘an established domain of human liberty’, at least for the white man. And most surely, the denizens of the late Confederacy were utterly sure that the imposition of slavery – upon others, anyway – was most certainly their very own ‘established domain of human liberty’.

But there’s more to it, I know. And if there’s a bit of time before the assorted tissue becomes sufficiently developed to consider – however inchoately – the womb its own first ‘established domain of human liberty’, well, I can certainly consider the matter a doable do.

Although I gather that the feminist lobby is actually going for something along the lines of carte blanche, and without any moral stigma whatsoever, thank ya vurry mutch. Somehow, I am reminded of the Python’s treatment of the matter in ‘Life of Brian’: Stan wants to have babies, it’s gently observed that he cannot, and it’s the woman in the group who asserts that “It’s nobody’s fault – not even the Romans’”. Not even ‘men’, I think, in all of their preening assertiveness, can legitimately be accused of arranging Creation – or ‘stuff’ – such that the female of the species is the sole possible site of gestation and birthing of the young.

When an entire gender – or at least those who claim the authority to speak for it – seeks legislative license to divest itself of the burden evolved by Nature and equipped by Nature for the purpose … well, that’s something that deserves some thought. And discussion. That much, at least, isn’t rocket science. Except to the Supreme Court, or at least the Court of 1973 (and what about the Griswold ‘stuff’ in ’65?). We are to consider Ourselves reassured that this is the Supreme Court that gave Us Bush v. Gore. And reminded pointedly not to laugh.

So Our approval – men included – is requested for the release of any moral stigma. That could get kind of messy. Which, I think, is why the original plan was to get the Supreme Court to ‘just say Yes’, and then grab the short-haired Dems and make them enforce it throughout the land forthwith. Shut folks up with the power of the courts and the press, wait until the old ones die off, and meanwhile teach the kids the ‘new way’ so that after a while nobody will even remember that there was a time before ‘choice’ anymore than anybody remembers that Lincoln was not President during World War 1. It hasn't quite succeeded as hoped, if some of the nation’s best universities are any indication. And the dying-off hasn’t gone fast enough. The dinosaurs, the buffalo, soylent green … doesn’t anybody have a solution?

Well, I agree with Cass Sunstein: it’s a Fact On The Ground now and it’s as much of a disservice to Ourselves to ram through a Court-authorized revocation as it was to ram through a Court-authorized approval. We've had about as much revolutionary or 'radical' democracy as the ship can take for the present; and 'dreams' really aren't enough of a template to describe what Our ailing country needs right now, any more than 'going shopping' provides a useful plan of action.

But We do indeed need to do some serious deliberating. Bringing in aliens at the rate of a million a year while abortions approach a million a year may seem like a neat and shrood two-fer that keeps the population numbers up while allowing ‘women’ the ‘freedom’ or ‘liberty’ to do whatever there is left to do in this short-order serfdom that the country has become (they cahn’t all get tenure at Hahvahd, dahlings). But it’s no way to keep up the quality of Our society and Our culture and Our Republic.

And a three-fer, if you figure that in bringing in all the aliens during the great dying-off (doubtless aided by the stress of seeing job and financial security dissipate) would also further the 'multicultural' aim of diluting 'masculinist, white' American society and replacing it with something else (codename: 'rich'). Now, having to spend any serious amount of time with a bunch of Southern deputies or Northeast urban construction workers is a pretty good description - in my book - of 'time you'll never get back'. But that doesn't mean that all of us can't keep on keeping on and doing our bit to keep Our society and culture going. Certainly, sucking in vast lungfuls of the Third-World - and definitely in Our present parlous state of decline - is not on its face a guarantee of large and deep improvement.

Of course, perusing feminist philosophy or thought, there’s a thick strain of it that doesn’t seem to think that Our society and Our culture and Our Republic is really worth keeping, at least in anything like its current form. And if you add the multiculti aversion to 'white' to the Second Wave's aversion to 'male' or 'masculine', well then perhaps the only guaranteed outcome that axis of alliance sought was to erase the infamy. And then, I imagine, the 'dream' was to start from scratch. As if History worked like Bisquick.

And maybe that’s another couple-three points that need to be discussed. Finally.

Because what's forming in my mind is the even darker awareness that the Dems, Congress in general, even the 'press', didn't really think any of this through back then. They took all the 'dreams', congratulated themselves on their shrewdness at putting together clever two-fers and three-fers to keep the 'dreamers' happy, and over Beltway brasserie bounty they clucked at the reliable gullibilty of a generation or two that had come to rely on the promises of the New Deal.

And here We are. And here they are. My, my, my. Mah, mah, mah.

If We can all get back on the same page, even if only in some just-basic way, then maybe We can save Our country.

Otherwise, We shall indeed “meanly lose it”. And soon.

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Blogger publion said...

David sends these thoughts on the matter of abortion:

Any focus on restrictive and punitive legislative solutions to the abortion issue in the absence of a national consensus is nugatory. Brazil, for example, bans abortion yet has a higher rate of abortions per capita than the United States because there are so many women there for whom three years of food and shelter in prison would constitute upward mobility. Complications from abortion are the second largest cause of admissions to state hospitals in that Catholic country.

Working through means of sex education, birth control, and aid to single mothers will more realistically reduce abortions by changing the social climate which surrounds that behavior. Reversal of Roe alone would just restore the situation whereby women with means (as before Roe) would be forced to travel to states which protect choice by local legislation. As you point out, reversal would be another top-down federal imposition with violent effects and little cultural buy-in at the grassroots - just as the original decision in Roe.

The Democratic Party has begun to experiment with non-punitive pro-life goals but meaningful support for single mothers (medical, nutritional, daycare, income support, job training etc.) is an expensive and politically fraught undertaking.

The unspoken assumption of many traditionalist pro-lifers is that even if such women no longer receive the obloquy and ostracism they 'deserve' in local society, the state shouldn't mitigate the effects of unplanned pregnancy as divine punishment for extramarital sex, or the 'greedy consumerism' of married "Dinks" (dual income no kids). Usually exempted from this punitive economy of salvation are 'innocent' victims of rape, incest and life threatening illness who 'merit' access to abortion.

The abortion-on-demand movement is not without its own unstated assumptions - among them that not even a viable fetus in the third trimester trumps a woman's 'right' to whatever is most convenient for her at the time.

With those caveats in place, we can move-on to take the arguments of both sides at face value.

No doubt "human life begins at the moment of conception". Any living human cell (a skin cell, for example) is "human life" in the sense of being human rather than bovine and living rather than dead. But no one would consider a skin cell a person, or deem it inviolable. Despite their developmental continuity, acorns and oaks do differ.

Many fertilized zygotes fail to implant in the wall of the uterus and are washed away naturally in the first two weeks of pregnancy without Mom ever knowing she was pregnant and before the issue is decided whether there will be one baby, twins or triplets. It's common knowledge that the embryo recapitulates evolution in the womb having successively: gills, fins, a tail, full body hair etc.. All have female secondary sexual characteristics until, in some cases, the genetic instructions for masculinity kick-in. These genetic instructions are indeed the necessary 'software code' for the production process leading to a human being but do not, of themselves, constitute the end product of that process by any means.

It is agreed that no human being should be treated as lacking human rights, and we have no business dividing humanity into those who are valuable enough to warrant protection and those who are not.

This still begs the not-univocally 'biological' question of 'what is a human being?' We are dealing with a continuum of development. Any specification of stages is necessarily arbitrary. The biological 'facts' are indeterminate until criteria for the definition 'human being' or 'differentiated person' are imposed on them for the purposes of discussion.

We are not talking here about shifting definitions of the word 'planet' or conflicting specifications of the number of primary colors in the rainbow. Definition of the word 'human being' has a moral dimension with legal and political consequences. That is not to say reasoned arguments cannot take place about various junctures in the continuum now defined as: zygote, blastocyst (barely visible to the naked eye; 180-200 undifferentiated cells at days 6 to 8), implanted zygote, embryo, the amount of significant differentiation necessary to turn an embryo into a fetus at around 11 weeks, probabilities of viability in the fetus which start to become measurable at around five months and one week etc. These are just some modern specifications that bear on theological concerns re: 'ensoulment' and 'quickening' that have no modern biological referents.

There are ways to differentiate a 'human being' from a potential human biologically without getting entangled in questions of reflexive consciousness or 'quality of life' which would exclude too many from legal protection (e.g. children before the age of reason, demented seniors, the catastrophically incapacitated etc.).

One feature of a 'natural' law (jus cogens) is a consensus among the community of disinterested inquirers as to its existence

In the measure that consensus has not yet been achieved, the state should do nothing but follow the policy debate with interest until, by the usual political means, either consensus becomes manifest or the level of non-compliance becomes intolerable.

In the pre-Roe status quo, the state was acting in the absence of a political consensus. Untold hundreds of thousands of women rich and poor were annually forced - if not into dangerous back alleys - at least into the exploitive underworld of illegality. 744,600 in 1973 alone. The number of 'law abiding' women who brought unwanted children into the world at tremendous cost to everyone in terms of crime and other forms of misery & anomie staggers the imagination.

I agree "those who hold a narrower and more exclusionary view have the burden of explaining how and why we would divide" the continuum of fetal development. I sketch my answer below as a contribution to the discussion but believe, for the present, that there is no workable legislative compromise on the horizon which should involve the police power beyond the current consensus that there is a (rebuttable) presumption against third trimester abortions.

I would also say that those who have a more expansive view of human life have the burden of explaining whom they would charge and execute for first degree murder and conspiracy to commit first degree murder of the zygote, embryo or fetus and on what grounds: the doctor and Mom alone? Dad also? assisting nurses? complicit counselors? receptionists? garbage men who knowingly dispose of the evidence? other 'supportive' accomplices in Mom's social network with guilty knowledge of the 'conspiracy' before and after the fact? agitprop divisions of women's rights organizations? newspaper editors who carry ads for women's clinics which solicit a capital crime?

If the penalty for this capital crime is to be anything less than death or life imprisonment without parole for all concerned, precisely why would it be so in each case? Is there to be, perhaps, a continuum of degrees of legal culpability? How should such a continuum be graded in a pluralistic society?

Pope Pius XII stated that onset of death is determined by medical experts and it "does not fall within the competence of the Church" ("The Prolongation of Life" in The Pope Speaks 4:4 1958). I would suggest that the (equally arbitrary and shifting) definition of the onset of life is also ultimately a medical matter.

If the irreversible cessation of electrical activity in the brain signals "legal death" and the end of juridical personhood - and it has for the last 40 years - the onset of such EEG activity might equally be posited as the threshold of legal protection for an inviolable human person defined biologically as an integrated organism with all systems on line in their developmental stages oriented and growing toward an individual bi-pedal primate mammalian species: homo sapiens .

The Catholic Church accepts the equation of personhood and EEG activity for the purposes of determining time of death. This equation has implications for its present position on the beginning of life at conception but only a few Catholic scholars have pointed out the inconsistency (i.e. no brain waves in a fertilized egg or embryo). This inconsistency points the way toward a more flexible approach to the abortion question which is more in accord with the biological continua of development.

At the gestational age of 11 weeks, an embryo begins to meet the criteria for the definition of 'fetus' (9 weeks after conception). At 1.2 inches in length its heart, lungs, hands, feet, brain, liver, gastrointestinal tract and other organs are present, but are only at the beginning of development and have minimal operation. It feels no pain. At this point, uncontrolled movements and twitches occur as muscles, the brain and pathways begin to develop. The first measurable signs of EEG movement occur in the 12th week. I would submit that any fetus is entitled to the protections accorded to inviolable persons based on electrical activity in the brain (which will be the final criteria for its life at the end stage).

I would restrict abortion to embryos up to the eleventh week of gestation. A potential mother would thus have six weeks after conception to realize she was pregnant and three weeks to decide what to do about it without incurring (with her doctor) a significant fine. Like the developmental process, sanctions should be incremental. Destruction of a viable fetus at any time after five months and one week would be a misdemeanor punishable in proportion to the fetus' probabilities of survival outside the womb. No murder charge until the baby is out of the womb and breathing - even though it does not yet even then have the full bundle of rights and responsibilities of an adult.

Both sides would have to abandon their absolutism. Pro-lifers would need to accept a qualified right to life, relax their opposition to sex education, birth control, stem cell research and the goings-on in fertility clinics as well as lend meaningful financial support to single mothers so that their choice 'for life' becomes a real option.

Pro-choice advocates would have to abandon freedom of choice as an absolute standard which trumps all other values and accept the constraints imposed by the existence of fetal rights as they begin to accrue incrementally at the eleventh week of gestation. At present, 80% of abortions have occurred by that point anyway. A survey of women who endured abortions at 16 weeks or later showed that most of the reasons given for their delays could have been obviated by sex education, counseling and better access to services. 33 national jurisdictions now ban second trimester abortions. These include Denmark, France and Norway.

Ideally, all the stakeholders in this discussion could join together around activities like sex education, birth control and support for single mothers and render the whole controversy moot by making abortion a rarity even in the first trimester when it is most common today. In the absence of this we have the status quo: deadlock and vicious games of political one-upmanship.

3:20 AM  

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