Toward a Compromise on Abortion

The Washington Post writes today about how Roberts is moving the Court. Perhaps now is the time to take this issue outside the Court's purview.

Why Compromise?

Simply put, the controversy over this issue is tearing at the fabric of civil society in this nation. Unless common ground is sought, this is not going to change. This issue, to a large extent, dominates all of the others in the two major parties. Dealing with it intelligently and reaching a solution allows the nation to move on to other pressing problems. Finally, it will deprive those who subsist on this controversy of their fundraising base, which is good for the flock that they fleece with regularity.

Who Compromises Where?

The proper venue for this compromise is the United States Congress. The goal currently embraced by the Right to Life movement is unreachable and ill advised. Overturning Roe v. Wade and sending the matter to the states would further divide this nation into abortion states and police states and would prevent few abortions, as women form police states would travel to abortion states to obtain the procedure or return to self-induced and clandestine procedures. Overturning Roe, as a policy proposal, then fails on both effectiveness and equality grounds. The legal theory which holds that state legislatures should decide this issue also holds that federal supremacy in civil rights for racial and sexual minorities should be ended. To overturn Roe in this way would chip away at that supremacy, which flies in the face of the plain language of the Fourteenth Amendment of the United States Constitution. The right of sexual privacy and even the undue burden test rely on the finding by the Supreme Court in Roe that the unborn are property. To reverse this finding, they must be granted citizenship rights at some stage prior to birth. Only the United States Congress, which is sovereign, has the authority under the Constitution to do this, particularly the Fourteenth Amendment.

Compromise over What?

They key to compromise is to define the question over which the compromise will take place. For the Right to Life side the question is “When does life begin?” This question does not get us very far toward compromise. It is essentially a moral question which can inform the law, but cannot dictate it. Further, if the moral teaching in question relies on moral authority rather than reason alone, it must be relegated to a religious teaching which may not be controlling in American policy. For the Pro-Choice side, the question is “How do we protect women’s health?” This is also the wrong question (we are assuming that if a woman’s life in danger, the child’s life can be forfeited), because once you determine that the child has legal rights and is not property, a balance must be struck between the rights of the child and the rights of the mother. Therefore, the question is, and always has been about when the child is an object of law. One can ask, “When shall the child be granted citizenship?” but that does not really help defuse the issue. There is a better way to state the question to get the needed answer, specifically “At what point in the pregnancy should the parents be able to file a wrongful death suit if the child dies?” As we shall see, this question puts the entire issue into focus, because obviously if the obstetrician can be sued over the wrongful death of the child he should not be allowed to kill it. The converse is also true. If he is not required to save the child, it cannot be the object of law.

This question is inherently better, because it lays bare one of the motivations of the right wing in this issue, its desire to preserve the traditional family and the role of women within it as chattel for child bearing. Most don't actually say this, but some do, which confirms the pro-choice sides deepest suspicions. This is why the debate must shift from morality to legality.

Compromise over When?

The Right to Life movement believes that life begins at conception, echoing papal encyclical Humanae Vitae for what can only be described as political reasons. Of late, in the stem cell research funding controversy, the President’s bioethicist has echoed this stance, even though this does not agree with what standard embryology text books state. Those texts referenced by the Encyclopedia Britannica clearly show that gastrulation is far more important. Prior to gastrulation, the development of the blastocyst is governed entirely by the mother’s DNA in what is called generative development. Twinning can occur prior to gastrulation. Most importantly, non-viable hybrids between species divide until gastrulation, at which point they die. Returning to our central question, there could be no cause for action against an obstetrician for the death of a blastocyst, as it is more common for them to die than to survive. To allow such a cause would lead to either decimation in the profession or attempts to save blastocysts which can never be viable.

The next conceivable marker is the commencement of the fetal heartbeat. This point is attractive, because it mirrors the marker for the end of life, the cessation of cardiac function. The difficulty here is that a large number of embryos naturally miscarry after this point due to fatal mutations or chromosomal abnormalities. In essence, these embryos are better dead and offering the parents a legal remedy would again be counter-productive. It is interesting to note that at least half of the embryos that achieve gastrulation do not survive due to natural causes. Presumably, the same mortality rate could be applied to first trimester abortions, meaning that half of them would have died anyway.

A final marker, before birth, is the development of the lungs. Infants born before this point require prolonged extraordinary and heroic measures to develop. While these measures are often taken with great effect, they should not be considered a requirement. In other words, the failure to provide these measures should not be actionable. This is essentially a standard of viability, although viability as a concept is becoming quite meaningless as technology pushes back what is possible in neonatal care. However, what is possible need not be mandated. The development of lung function is the kind of bright line for in utero development as well. If a child dies prior to this line, it is surely a tragedy, but should not be actionable. If the child dies after this point, the obstetrician should be liable if there were any way to prevent its death.

Compromise over How?

This is the other key question. If we depart from the legalistic model, we can go farther. Now, if a child is aborted after its lungs have developed, this would be considered manslaughter or murder. Before this point, after the first trimester the safest method of abortion would likely be induction of birth with the withholding of respiratory therapy, unless someone wishes to come forward to adopt the child, since the so-called partial birth procedure is now outlawed and the other remaining method for second trimesters is medically riskier for the mother. The more important How is how to prevent abortion in the first place. This is where we depart from criminal sanctions and propose methods to incentivize childbirth. Three proposals come to mind. The first is a broad based refundable tax credit for each child and dependent spouse, with both state and federal credits of $500 per month and a minimum wage of $10 per hour to be paid over and above any credit (this is to prevent the use of the credit as the sole wage). The second is the funding of students with children by the government rather than their parents, so that no teens career is ruined because they choose to have a child. This funding would be provided to the father as well, provided marriage or domestic partnership is entered into. The third is the payment of tuition for all students up to grade fourteen or tech school, with a stipend to be paid to each student as an incentive to finish. After this point, academic students would find an employer who would pay the remainder of the bachelor’s degree plus any graduate education. All of these items take the incentive from abortion, especially the cash payment for children, which will also go a long way toward saving Social Security by encouraging childrearing. This payment is even high enough that a man whose wife has a child conceived outside the marriage, he likely won’t care (and if this amount is too low for this purpose, the rate should be increased). These provisions force the pro-life movement to conform to the Catholic social justice agenda as it wishes to buy into the Church’s reproductive agenda. Any party which adopts it will likely attract those pro-life Catholics who have, of late, joined with the Republicans (although many have returned to the Democratic Party over the mishandling of Operation Iraqi Liberation (OIL)).

The Partial Birth Abortion Decision

This just in from the Washington Post, the Federal Partial Birth Abortion Ban has survived Supreme Court scrutiny. Justice Kennedy wrote the majority opinon, which was likely his price for a yes vote. I am quite sure that Justice Kennedy's joiners wanted to go further and ban abortion all together. Some speculate that this may open the door to more actions.

Given today's opinion, I doubt it. Kennedy did not ban dialation and extraction and will not. The Act pretty much was designed to getting his vote and going no further. That is what it did and all it will do.

Of course, because it is an act of Congress, a Democratic President and Congress can repeal or modify it. Expect further compromise on this issue.

The right wing is likely crushed, as they wanted a total reversal of Roe. It will dawn on them shortly that this will not happen, at least with this Court - and you know that no Justice will ever be confirmed again by this Senate for any nominees by this President to replace one of the pro-Roe Justice, or any anti-Roe ones for that matter. In fact, this might light a fire under the Speaker to work toward impeachment.

To take a left turn here: a political compromise is still possible on this issue. Congress has the power to change the affective start of citizenship under the 14th Amendment - which would have been the preferred way to ban partial birth abortion, and any other late term procedure. Of course, the Respondents in this case did not give me leave to file an Amicus, or I would have said that (which is probably why they did not). Most importantly, it is possible to greatly reduce the number of abortions through the enactment of a living wage and through moral leadership in paying one or in mandating that one be paid irregardless of the law.

Of course, abortion and taxes are too potent for political fundraising to ever be a ground for compromise. More's the pity (which is why campaign finance reform is so essential).

Update: The Virginia Tech Shootings

UPDATE: We now know a distrubed student from Centerville, (orignially South Korea) is the gunman at Virginia Tech. He had access to services which he did not use and the authorities and even his friends could not make him. This is the real tragedy, that it could have been prevented if we as a society would care to intervene. There cannot be a civil right to be insane.

Here is what I said Monday:

At this hour, we still do not know who the shooter was or why he did it, although we can suspect. Unless this was part of a coordinated act of terror about to unfold over the next week, we can safely assume that this is the work of a lone madman, likely with a history of previously diagnosed mental illness.

Sadly, I was correct.

Once he got going, there was nothing stopping him from getting as a high a body count as he could and then taking his own life, since in Virginia, if he had been captured he would likely look forward to the death penalty after a long period of solitary incarceration in a our Super-Max prison. In other words, the existence of the death penalty was no deterrant and may have been a spur to ultimate violence. We will never know.

This was probably also correct, though we will never know.

What we do know is that our present systems of mental health and corrections are not working. In prior days, this individual would likely have been given the benefit of asylum until he could be medicated, and would have been returned to asylum for non-compliance with these medications. If the person were mentally ill but refused treatment, relatives or the state could have forced him into it, with legal protections to assure that he wasn't being railroaded, but with the presumption that something was wrong. Given todays events, that was not necessarily a bad state of affairs.

In recent years, both public and private health dollars for mental illness have been cut. Given the loss of life and the likely lawsuits, the cutting of these funds and the limitation of coverage may have been penny wise, but it was certainly pound foolish. I would hope that the student's families bring suit against whatever health plan limited the assailant's access to treatment, if this was a factor in today's events.

He had access to care, which some probably begged him to take. He didn't.

What is needed is a more compassionate health care and corrections system, run by private non-profit and preferably faith-based entities using the best that modern psychiatry has to offer. Readmission for non-compliance with medication or substance abuse recovery must be made mandatory and the ultimate penalty taken off the table for killing while insane. Rather, today's assailant should have been able to turn himself in and receive the mandatory minimum for manslaughter in a well run mental hospital. This may have either prevented the tragedy entirely or at least left it at the original two victims.

Breaking the Spell

Professor Daniel C. Dennett of Tuft's University has written a compelling treatise entitled Breaking the Spell, Religion as a Natural Phenomenon. I just finished reading it last week - it goes a bit slow about a third of the way through - which is why I am writing this entry now and not last fall.

Dennett asks, but does not definitively answer the question of whether religion is a harmful, useful or neutral parasite. He begins an examination of this question using the tools of natural history, specifically examining how religion evolved from the time that language could be used to express folk religion until the present day using the tools of natural science, specifically the theory of evolution. Instead of genetic means, he indicates that the best method of transmission of religion is through meme's or thoughts which are learned from generation to generation and have an existence and evolution on their own. As expected from a philosopher, he calls for further research and more questions, rather than giving answers.

While not a believer in religion or any god, he does treat the topic with respect and does put in a plug for love as his highest value (without personifying it as a deity) (253). I think Jesus of Nazareth and and Paul of Tarsus would agree with him on the preeminence of love and would likely favorably compare his personal practice of this value with many religionists who prevert the word of God for their own personal ambition and authoritarianism.

Before taking this book back up, I read Gary Wills tome What Paul Meant. It is interesting to compare and contrast their viewpoints and values. If I had a show, I would love to put them together on the same radio program. It would be a fascinating discussion.

The Iowa Center for Fiscal Equity: Women's Equality Means Accepting Stay at Home Dads

The Iowa Center for Fiscal Equity: Women's Equality Means Accepting Stay at Home Dads is a comment on a book review published in yesterday's Washington Post of Leslie Bennetts' Feminine Mistake, which urges women not to become full time Mom's if they wish a career. My response was, what about the men? We are usually in the same boat if we stay at home for a few years, present company included. What is needed is a living wage for all workers, depending on family size, as well as an acceptance of men staying at home without being thought of as some sort of gigolo in apron strings. Until men are entirely free to stay at home and parent, women will not be entirely free to stay at work or return to work, or even work at the same wage as men. Until you ladies are willing to not only support your husband, but to also pay your secretary enough so that she can support her husband, you will never be equal in the workplace.

The Servant Leadership Fad

The hottest thing in the world of non-profit associations, including the one which employes my wife, is Servant Leadership. It is based on the teachings of Robert Greenleaf and rings true for many people due to its similarity to Christ's teaching that those who lead must serve his or her brothers (although in the Church, its usually a him). It is about empowering clients as well as leadership style. One can get seminars in Servant-Leadership from the Greenleaf Institute. As a former civil servant and public administration scholar, this movement kind of looks like Total Quality Management (TQM) for the non-profit world.

It is not that I disagree with the concept, I really don't. However, I must play the prophet here. (In the early church, prophets were truth tellers about whether the Brotherhood was measuring up to its ideals - there is no such role in the modern church).

As I was driving in to my wife's office to drop off her car, however, I couldn't help but notice that at her organization, which is now studying Servant-Leadership, the allocation of parking spaces has not changed. The executives still park next to the elevator, the next tier of managers park in the same structure, but farther away, and those with less rank park in another building and must walk outside. Temps don't get parking. The salary structure hasn't particularly changed either.

What I am getting at is that people are talking about servant-leadership a lot. They aren't quite getting to its essence, however. This is the same reason total quality management is yesterday's news. Both movements sought to drive responsibility down to lower levels, however unless authority and pay are driven in the same direction, what you get is lip service rather than results. When base pay is flat and additional pay is awarded based on family size, I will begin to believe that the Church is upholding its ideals, especially the ones involving the dignity of the unborn and the evils of artificial birth control. Until I see a living wage for its employees, I will have my doubts about the Church's commitment to its Gospel of Life or to Servant Leadership.