Tuesday, April 19, 2016

More on Trump and Abortion

A friend wrote to me off-line, with permission to reprint:

"Couldn’t the state express an interest in regulating what health care providers do, apart from whether the patient requests the intervention?  I am thinking of assisted suicide, where physician care is regulated by the state, but I guess the same could be said of abortion.  A state could say abortion or assisted suicide is a procedure that we don’t want our physicians or nurses to provide, with no criminal conduct attached to the request, only to those who perform the procedure.  I am no fan of abortion controls, but would imagine the argument could be made.  Would be interested in your views."


The Rosetta Stone for such things, I think, is Griswold v. Connecticut. I like Justice Harlan's approach to that case best - I liked Justice Harlan's approach to MOST cases best - but Justice Douglas handled the issue at hand in the majority opinion:

"In a long series of cases, this Court has held that, where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose."

This issue is actually before the Court in Woman's Health v. Hellerstedt, which is sub judice right now.  That's the Texas case testing whether the restrictions put on places where abortions are performed are constitutional.  I think the state's arguments follow the line in my friend's comment.  Those arguments can certainly be made.  Whether they will stand up remains to be seen.

As regards the original post, however, I think the pro-life movement has a lot riding on the moral claim that abortion is murder, and while some may applaud anything that saves what they view as unborn lives, others will bridle righteously at the idea that the state has a rational interest in making the taking of such lives safe.  In passing such a law, the state appears to legitimize abortion itself.  Indeed, with the details unstated, the Texas legislature's position is indistinguishable from Bill Clinton's, viz., that abortion should be safe, legal, and rare.  A candidate who advances that argument is not a "true" pro-lifer.

Assisted suicide is a good template, except that the victim is also a co-conspirator.  No one is allowed to participate in an assisted suicide, and the state can argue, rationally (if not necessarily persuasively) that the opportunity to raise "assisted suicide" as a defense (think reasonable doubt) in a homicide case makes legalized assisted suicide unworkable.   I don't see an analog to that argument in the abortion scenario: the mother is available to testify, and Roe v. Wade has already determined that the (timely) aborted fetus is not the object of criminal conduct.  The state needs a rational reason not to allow a doctor to perform any particular procedure, and, under Griswold, where that procedure serves a fundamental right of the patient requesting it, which, under Roe v. Wade, an abortion in the first trimester does as a matter of law, the reason must be more than rational; it must be compelling. 

My friend's comment may point to the Hippocratic Oath and who gets to enforce it.  Do abortionists violate their pledge to "do no harm"?  (Hippocrates thought so, but things change.)  Can the state make adherence to the oath, as interpreted by the legislature, a condition of licensure?  Can it make adherence to the oath as interpreted by anyone other than the doctor and his patient (the fetal carrier) a condition of licensure?

But once again, how can harm be done without the co-conspirators being liable for doing such harm?  We cannot create a fiction that the abortion harms the mother in ways she does not understand, because that would require admitting that the abortion does not harm the life represented by the fetus, and once again, the pro-life linchpin is removed. 

Friday, April 1, 2016

Trump and the Pro-Life Underbelly

Donald Trump says he is pro-life, which is to say, anti-abortion.  (Who is against life?)  So, when asked whether, if abortion were illegal, a woman who has an abortion should be punished, he answered, in effect, yes, because it's hard to make something illegal and not punish those responsible for it.  This was a major gaffe, in political context.  Professional pro-lifery has tied itself in logical knots to avoid that very question, but, not being a member of the club, Mr. Trump answered it naively, in every sense of the word, thereby revealing that the pro-life movement has no philosophically consistent legal path to proscription.

I say this without taking the contrary position that abortion should be legal.  That's for another day.  Nor am I saying that, if abortion were illegal, the woman who requests the procedure should be punished.  But I am saying that the philosophical underpinning of the pro-life movement - abortion is "murder" - is untenable.  Rather, abortion raises subtle issues of what "criminalization" of an act means, of who has standing to deter and/or punish and/or demand compensation for the act.  Those issues are rarely presented in so riveting a setting.

The standard pro-life "argument" against prosecuting a woman who procures an abortion is that she is a "victim," too.  But a victim of what?  Certainly not homicide, as she is not dead, nor is any attempt made to kill her.  Not battery, as she has given permission to the touching.  Indeed, what possible "victimhood" can be attached legally that does not impinge on her rights as a free citizen to do with her body as she chooses?  In the ordinary case, where a woman who did not want to become pregnant seeks an abortion to "fix it," there is no reasonable interpretation of "victim" that fits any of our legal modalities.

If the woman who has an abortion were a "victim," could she not sue for damages?  Could she not be the complainant in the criminal case against the doctor? "That's the bastard who performed the procedure I so desperately wanted and so willingly underwent and paid for!"  I understand the patriarchal, theological, condescending "poor girl didn't know that she was being victimized" argument, especially in the case of a minor who acts without her parents' permission - a whole 'nother can of worms - but if a woman of full age requests the procedure, calling her a "victim" is an insult to her autonomy as a human being.  It is nonsense, except insofar as everything we do can be chalked up to human frailty, so that every bad decision we make turns us into the legally defined "victims" of whoever might conceivably gain by the transaction.  Caveat emptrix.

Because the philosophical fiction that the woman is a victim won't work as a legal fiction, the only logically sound approach to criminalizing abortion is to argue that it is not a crime against the mother or the child but that it is a crime against the state, like polluting the drinking water.

The key distinction between such crimes against people and crimes against the state lies in the nature of the state's purpose in punishing these two types of crime.  In the case of a crime with an individual victim, the public punishment is meant to serve, among other things, as an adequate substitute for personal vengeance.  The perpetrator must be punished in a way that relieves the victim of the need to do more.  But how does that logic apply to the "crime" of abortion?  The people of whom the victim (the fetus) might be the natural object of affection are implicated in the crime.  Surely, they could not demand vengeance.  If there is no one to demand retribution for the child's death, the constraints on the legal response to the action are reduced.

Under the "abortion is murder" view, abortion and infanticide would be equivalent delicts.  Yet, absent special circumstances, I doubt there is a pro-lifer anywhere who thinks a mother who kills her living child is also a "victim."  How does the unborn nature of the child, allegedly irrelevant to the pro-life claim that life begins at conception, suddenly change the mother from killer to victim?   Griswold v. Connecticut involved a statute that did punish the user of contraception.  Thus, under the Griswold statute, the "mother" was a criminal, and under the laws against infanticide - i.e., the homicide laws - the mother is a criminal, but under pro-life dogma, the mother is a victim.  Only in America!

To sustain the pro-life result - abortion is illegal, but only the practitioners get punished - abortion has to be a separate and distinct affront to the good order of things, either as a form of moral pollution, or as an illegal assault on the continuation of the society through reproduction.  I am not saying that such an approach is permitted under our Constitution, only that logic allows only that approach without also making the mother (and her co-conspirators) criminals.

In China under the one-child policy, a disturbing trend arose in the survival rates for infants.  More boys than girls survived, because, if a Chinese family could have only one child, a male would more likely prove to be an asset.  Once could see, then, how the state would have an interest in the survival of baby girls qua future adult females in a stable society, such that, without considering the fetus a "victim," the performance of an abortion on a female fetus could be considered a crime against the public welfare, whereas "abortion" per se, might not be criminalized at all.  In that case, because the state's only interest is deterrence, and not vengeance, the choice of whom to punish is a matter of administrative convenience: one charges the person whose behavior can most easily be modified. 

A similar statist view could be taken of abortion generally.  Practical and moral arguments are available, so long as we don't look at the Constitution.  The practical argument against abortion is the same as the argument against contraception: the availability of contraception increases the likelihood of sex ands conception outside of marriage, matters in which the state might take an interest.  The moral argument is more subtle: a society that indulges the killing of unborn babies is coarsened by the indifference to life.  We might, therefore, outlaw abortion by punishing whomever punishing will most effectively deter from the act.  Either way, once the attention is turned on the reproductive aspects of the issue, and not the homicidal aspects of it, we can see our way clear to punishing only the doctor.

But once we turn our attention to the reproductive issues, we run headlong into Griswold and, of course, Roe v. Wade, a Solomonic solution that cuts the baby temporally in thirds.  Pro-life advocates have "officiially" decided not to fool with those cases by saying instead that abortion is murder because life begins at conception.  But then the mother et al. become complicit, so we have to make her a "victim," which becomes an excuse for leaving her out of the criminal statute even though it makes no damn sense and belies the "abortion is murder" claim on which the constitutionality of the proposed ban is based.  They are, so to speak, trying to be a little bit pregnant.  They should know better.

The Disintermediation of American Politics

I write a lot on Seeking Alpha, so I sometimes lapse into finspeak.  Disintermediation means removing the middleman, in this case, party apparatchiks who keep our democracy from becoming an ochlocracy.   Wordplay fans can often be heard to wonder aloud why we drive on the parkway and park on the driveway.  But that's small potatoes.  The question of the day is why the Republican party has become so democratic and the Democrat party has become so republican.

The US is a constitutional representative democracy.  The Founding Fathers understood the tyranny of the majority full well.  John Adams coined the phrase, De Tocqueville picked it up, and it has served us in good stead.  The main bulwark against the tyranny of the majority is the express limitation of government powers, but another important tool is representative government itself, a system whereby cooler, more expert heads are given the job of pressing the majority's interests rather than its druthers.

Polls show that, of the current three candidates for President, John Kasich is most likely to beat Hillary Clinton in the general election.  Yet, Gov. Kasich is trailing his Republican rivals in those same polls.  The governor's negatives are low; Republicans seem not to doubt his suitability for the job, although there is some question among the more rabid members of the party as to whether he is conservative enough.  Still, one would expect the party elders, surveying the field and the general election possibilities, to exert some effort to make the governor the party's nominee, for the good of the party and, because they believe that what's good for the party is good for the country, for the nation as a whole.  Trouble is, the party elders have no power to undo what voters, including voters in open primaries(!), do at the polls.  The party is not a representative democracy; it is an ochlocracy, in which what the mob says, goes.

Meanwhile, the Democrats saw this movie in 1972, when their idiots nominated George McGovern, who promptly lost a jillion states in the fall.  To restore order, the party elders came up with the idea of "super-delegates," party officials who vote their choice at the nominating convention.  As Sen. Franken put it on TV yesterday when asked how he would vote if Bernie Sanders received the majority of non-super delegates (I am paraphrasing), "The Democrats of Minnesota elected me to exercise my best judgment as to who would make the best President, and that person is Hillary Clinton."  He is, of course, exactly right about his role: he is the designated driver for the Bernie-drunk fantasists who think we actually could have a prosperous society without strong private banks and the opportunity to get very rich.  Like Trump, Sanders is a scapegoater, but one who has the gall to accuse Trump of scapegoating.  They are appealing to the same disaffection, but to different subsets of the disaffected, sorted by whom they resent.  And, in the great irony of the season, Trump's success at the polls and Sanders's success at fundraising together show that money doesn't buy votes, and, to the extent that it does, it can be had without giving even one billionaire a phone call.

Thus has the facebook disintermediated American politics.  A campaign conducted on social media by-passes the punditry of the mainstream media.  Like the HIV virus going after the immune system, Trump attacks the watchdogs of the press so that their alarums will not be heeded.  At the same time, Sanders by-passes the donor class, simultaneously raising enough money to make himself viable and to demonstrate that his signature claim about money in politics is false.

This loss of middlemen is a big deal.  It is easier to see as a big deal in Trump's case, because here is a stunningly unqualified, not to say dangerous political force slouching toward Cleveland to be born.  Someone has to step up and derail the train, but it's not clear that the party's machinery is up to the task.  The money thing, though, is also important.  If a candidate cannot get a large number of powerful interests to put their money behind him or her, then there is a risk that the person is either unqualified (Trump) or so hostile to virtually all powerful interests (Sanders) as to pose a danger to the stability of the country if elected.

Like it or not, interest groups able to raise large amounts of funding have a larger stake in who runs this country than does the average Joe.  That's not to say that none of these groups have too much power or that none are evil incarnate.  But there are many powerful interest groups, and they can't all be corrupt or obsolete or otherwise unworthy of political solicitude.  So any decent candidate should be able to garner the support of some billionaires or trade or labor association, and we can know the candidate by who those supporters are, including by the fact that those supporters believe that they need to remain anonymous.

These donors, like party elders and the mainstream media, warts and all, are also political middlemen, a gauntlet that a candidate must run in building the elusive "mandate" that every candidate wants to claim on election night.  But when a candidate "self-funds" or "crowd-funds," the imprimatur of interest groups becomes unnecessary, and the information that we can glean from their support of the candidate is lost.  How can a President represent a consensus of Americans if he cannot get the people with the largest stakes to stand and deliver?

We don't like how it's done, but the fact is that a certain amount of bossism is crucial to making our democracy "representative" in a philosophically serious way.  Politicians who do as you say are not your representatives in a republican form of government.  Rather, your representatives are politicians who do today what you will wish tomorrow had been done today.  They are there to be the cooler heads.  They exist so that you can throw a temper tantrum without burning the house down.  Social media have made those middlemen obsolete, and we have seen the results, most notably in the bozos that the Tea Party has sent to Congress - people who go to D.C. not to represent their constituents' interests, but to indulge their prejudices.  These morons do not even know what their job is; no wonder they can't do it.