Thinking Critically about Abortion

While I have solicited discussion on a principled analysis of the abortion issue from abortion advocates such as Feminist Blogs and others, it is no surprise that we have not had such a debate among policy opponents. We are divided deeply on this issue, but not on principle for the principle of the wrongness of abortion is very clear. We are divided between those with deeply held convictions and those with deeply felt wants and needs.

There will be no resolution of the drives between opposing forces by focusing only on the ethics of abortion. However, we can move forward by simultaneously providing remedies for the underlying anxieties while also maintaining the integrity of the debate, i.e. to frankly address the needs of those facing the burden and challenges of bearing an unplanned pregnancy.

While there are methods of prevention that can still be explored, what is remarkable to me is that our society does not ameliorate those costs associated with pregnancy and child birth which might be lessened. For example, should not rape and incest victims be financially compensated by society for bearing to term? Why does it cost more to a woman to deliver a child than to destroy it? Why don't we provide free daycare for working mothers?

There is a trace of cynicism that marks our refusal to address these inequities while recognizing the wrongness of the carnage that the inequities induce. Yes, women should be responsible for the acts that lead up to the pregnancy, but so should the men. Here again our society is systematically unjust by neglect if not by design.

There is a way ahead in the abortion debate. We ought not fear to commit ourselves to its solution. After all of the demagoguery on the issue, there remains two simple questions that the entire abortion debate revolves around:

1. In our democratic society, do all persons have equal intrinsic rights (we are especially concerned here with the right to life--the most fundamental of all rights)?

2. When is a person a person?

After years of hearing the various arguments, I have two simple answers:

1. Yes

2. Erring on the side of caution, when that person is alive.


So here is the challenge: Have I missed anything and are my simple answers wrong? If so, how?

All are invited to take this challenge up. If you have a good point that you would like to argue, I would appreciate your thoughts. Perhaps we can settle something here or at least expose the weaknesses in the prevailing arguments.

Note
This post moved up in response to reader's request in light of the Alito nomination. Preface added from related post.

Birds of a Feather

The Bush administration is known for its closeness and high degree of loyalty among the staff. Harriet Miers exemplifies these traits and has been praised as a faithful confidante of the President. In and of itself this should disqualify the nomination of Harriet Miers to the Supreme Court. Unfortunately, politics trumps principle and this rationale is insufficient to lay the nomination to rest.

The most salient political aspect of the nomination is the question as to whether Harriet Miers is pro-life in the sense that she will vote to overturn Roe. Unfortunately, this administration has consciously chosen a nominee who has little public record and also one that they have superior hidden knowledge. Our democracy works by advice and consent in reviewing nominees to the co-equal judicial branch so we are placed in a bind. How can we give our advice and consent through our elected representatives? While the burden of proof remains with the executive, we must make what inferences can reasonably be made with what information we have.

Democracies do not work well when critical information is privately held. We suffered such a failure when the 2002 National Intelligence Estimate was not released until after the Iraq war. Nonetheless, this has been the approach of the president in soliciting influential supporters with private assurances while publicly vouching by proxy for the the general character of Ms. Miers without offerring verifiable guarantees. So Nathan Hecht, a longtime friend of Harriet Miers, makes her case this way

Harriet goes to a church that is pro-life. She has for 25 years. She gives them a lot of money. Her personal views lie in that direction.

However, when pressed on the specific question of whether her personal opposition to abortion would give her sufficient cause to overturn Roe, Hecht says

I think she'll say they won't.

This case for Miers amounts to "nolo contendere by association" and forces us to make inferences that we ought not to be forced to make. The most odious inference that is being pushed upon us is that one's religious affiliation serves as a guarantor of political acceptability. We institutionally reject this anti-democratic notion in Article VI of the Constitution.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

A constitutionally corrupt process is being used to promote a Justice that will have the very duty of insuring constitutional fidelity by an executive that swore an oath to the same. This is about as mucky as it gets. So into the muck we go.

Empirically, Harriet Miers is most likely to have a judicial philosophy on abortion consistent with those which she associates herself. When Ms. Miers does pry herself away from work, she "spends Washington girls' nights out with the likes of Secretary of State Condoleezza Rice and former Agriculture Secretary Ann M. Veneman". Secretary Rice describes herself as a "pro-choice evangelical" while Ann Veneman is also pro-choice. Like Laura Bush and Barbara Bush, the women that surround Miers are uniformly pro-choice in their judicial philosophy. It follows that there is an increased expectation that Ms. Miers is also effectively pro-choice, a judicial philosphy shared by Alberto Gonzales, the man whose name the president initially floated for the position.

While attempting to maintain a public appearance of pro-life fidelity when political victory is at stake, Ms. Miers and the administration have consistently balked in taking meaningful action to redress the plague of abortions in this country. This all begs the question, "If Ms. Miers has neither the inclination nor experience to plumb the depths of the Constitution, by what criteria will she decide these issues?" Even experienced jurists such as O'Connor have authored many dubious opinions of late. We should expect Ms. Miers to similarily approach the issues that rock our society today and well into the future should the nomination proceed.


UPDATE:
Please also consider the positive case against the analysis here: Harriet Miers Called 'Fifth Vote Against Roe'

The idea that Miers is personally opposed to abortion but not necessarily legally opposed is also supported by Miers Called an Opponent of Abortion which makes clear that Miers' opposition is religious and not judicially reasoned, i.e. that she shares the same judicial philosophy as a man who also shares that philosophy with Alberto Gonzales who is known to be judicially pro-choice and to have a very jaundiced view of legally enacted parental notification requirements. In short, Miers is unlikely to vote to overturn Roe even when this information is considered.

The Case Against Harriet Miers

Harriet Miers is undoubtedly an excellent confidante of the President and a fabulous staff secretary. There can also be little doubt that she is hard working, intelligent, faithful, and forthright. But the case against Harriet Miers as Supreme Court Justice can be summed up in 105 words--the number of words of her official biography.

Harriet Miers is many things, but she is not a Constitutional scholar, well-seasoned in elective office, or someone who has made many public speeches or presentations on the workings of government. She is an unknown and unproven functionary whose chief virtue is the one virtue that we must reject--a strong tie to a particular chief executive.

Our Constitutional system relies on a separation of powers to ensure mutual accountability through competition for public fidelity. Cronyism, the formation of hidden and undemocratic power relationships, has been the bane of divided government from its inception. When the public cannot see clearly the workings of government the people lose a sure hand in controlling their collective destiny. Our Democracy becomes less of a democracy. We cannot demand excellence so we are forced to settle for the subpar. Corruption begins to flourish in the unseen reaches of the government. We have already seen the tragedy that cronyism has wrought on the faithful execution of public office in the wake of Hurricane Katrina. Cronyism serves only the cronies. This lesson ought not to be lost on us.

Over the past years we have seen an erosion of this system within the branches--Congressmen structuring their districts to ensure reelection after reelection, political families that seem to be self-perpetuating in public office and the simultaneous restriction of the public voice in the form of the McCain-Feingold law. Democratic accountability is on the wane at the hands of those who have taken an oath to preserve and protect it. We would be remiss if we sat by idle while the blessings of liberty were in the process of being withheld from future generations.

For these reasons, we must reject the nomination of Harriet Miers to the highest court in the land.

Suicide Bombing: A Better Analysis

Robert Pape, an associate professor of political science at the University of Chicago, asserts that suicide bombing is primarily "part of an organized campaign to compel a modern democracy to withdraw military forces from territory that the terrorists consider home". He is half right, that is unless one considers the whole of the Middle East and North Africa to be the territory of a new caliphate, portions of Sri Lanka to be the rightful homeland of a Marxist separatist group (LTTE), and that native Iraqi forces are more foreign to Iraq than the foreign terrorists fighting against them. He is wholly correct that suicide bombing is a weapon of choice against modern democracies. What he leaves out is that those employing the technique have no inherent respect for life themselves nor are their aspirations of dominion necessarily popularly supported by those whose land they would possess. This defect in Pape's analysis leads to a conclusion that is wrongheaded at best, i.e. that we should "begin a systematic withdrawal of ground troops from the region." In fact, the present administration policy of spreading democracy appears to be best suited to the problem of terror attacks by a precise analysis of Pape's own data.

Pape errs by confusing correlation with causality in attempting to answer the question, "Why do terrorists attack using suicide bombs?" We are in agreement on the first part of the answer, "Because the method is effective against democracies." Suicide bombers unnerve democracies by simultaneously challenging the safety of its citizenry and its values--its inherent respect for life. We disagree on the inference that this method is an expression of a just cause to regain a lost homeland occupied by a foreign invader. It is more exact to say that the terrorists seek undemocratic control of territory carved out from weak or nascent democratic states and that these states are most likely to request assistance from other democracies.

Whether in Iraq, Israel, Chechnya, or Sri Lanka, the situation is the same. The extent of the territory claimed by the terrorists generally conforms to its recruiting area. Thus democratic Iraq draws terrorists from Sunni areas of Iraq, Jordan, Saudi Arabia, and Syria, while Chechen, Sri Lankan, and Palestinian separatists are homegrown. The terrorists in Iraq envision that country as part of a wider Islamofascist state along the Medditeraean crescent.

The appeal of the terrorist movement is an inverse function of the perceived legitimacy of the government it seeks to replace. The Tamils apparently see themselves as disenfranchised by the economic reforms of the 1970's. Meanwhile, the foreign fighters in Iraq are disenfranchised in their own countries and seek to control territory in what is to them a foreign land while the native Sunnis seek to reclaim the disproportionate share of power they possessed under the Hussein regime. The Chechen separatists are likewise a minority faction in the Russian Federation without the autonomy of other former Soviet republics. The extremeness of the terrorists' methods are more precisely a measure of the lack of popular support in the governing democracy for their claims, not an indication of the legitimacy of their cause. For this reason the terrorists attack the people themselves.

On the other hand, there are many counterexamples to Pape's thesis. Indians did not resort to suicidal terroristic tactics under British occupation. Christian separatists in East Timor and Eritrea (or other areas of Africa) are not known for suicidal terroristic attacks. Likewise, occupations by democracies of formerly fascist countries after WWII did not result in campaigns of suicide bombing. Even the famous Buddhist suicides in Vietnam were in protest of a lack of enfranchisement, not a demonstration against a foreign occupier. One common distinction between conventional struggles and suicide bombing campaigns is the presence of a cult of nihilism in the terror movement. (Hitler's cult died with him).

Pape offers no evidence to lead us to believe his complicated conclusion over this simpler assessment nor does he offer proof of a causal dependency between terrorist methods and the presence of foreign military forces in the territory claimed by the terrorists. Finally, please note that this simpler analysis is better supported by Pape's publicly released data than Pape's own conclusion. Of course, if doubt remains, we should always go directly to the source and read what the terrorists provide as a rationale to their supporters.

Of Chess and Politics: Nominations

It is theorized that in chess, it is possible for the player with the first move (white) to always win or at least draw (Dimand and Dimand). While no computer has yet proved this conjecture, this is the tendency in Grandmaster play. The player with the initiative (tempo) can often use this initiative to gain positional or material advantage eventually leading to a situation where no matter what the opponent does, his next move will lead invariably to his doom (zugzwang). The very fact that he must move becomes his greatest liability. Thus it is often with politics.

In the latest Senate agreement, the majority party triumphs through forcing the opponent into a position where he must filibuster or confirm the fact that a nominee’s background, temperament, or politics is not “extraordinary” (out of the mainstream of what is acceptable). In a move of political jujitsu, three strong, pro-life nominees will be confirmed as mainstream by the minority party in the Senate, to wit, Judges Pryor, Rogers, and Owens. It is now more difficult to make a prima fascia case to the public that religious conservative jurists are “extreme” or “extraordinary”.

These justices then become a standard by which later nominees might be judged to warrant the “extraordinary” measure of the judicial filibuster. Every new confirmed nominee from henceforth only raises the bar on what is an extraordinary circumstance as opposed to what is merely politically adverse. The strength of the majority party game is in its ability to pick the order of nominees for presentation for confirmation. The majority now can use its tempo to greater advantage in a game that is quickly becoming more and more determinant.

On the other hand, the minority party is forced to react to the nominations by the limited commitment of whether or not to filibuster. Should they filibuster, others will have the opportunity to judge for themselves if an extraordinary case truly exists. This was and is always the political reality of the situation: the voters are deciding who is extreme and/or ineffectual. Should the filibuster be attempted (a cloture vote rejected), a good case will need to be made that the situation is truly extraordinary. If not, the “nuclear option” can be implemented under the same aforementioned agreement.

Unlike exercise for the muscles, this prerogative to filibuster weakens the case for a future filibuster with repeated use—it no longer appears to be conducted as an “extraordinary” measure and so the nuclear option gains strength. The minority party must bear the risk of losing their weapon and is forced to err on the safe side, i.e. to allow the majority party to repeatedly raise the bar on their future use of this political tool. Effectively, the minority party is in a situation now where their disadvantage in tempo has gained a position whereby zugzwang may be achieved.

The dark queen of the abortion lobby can no longer hold sway over her king. For the viability of the Democratic Party, the queen herself must now face the test. There are no more minor pieces left to sacrifice.

Occam's Razor: Terri Schiavo

The most baffling thing to me about the Terri Schiavo situation is how difficult people make it to be in the face of such simplicity.

1. The government is executing a citizen that has not been accused of a capital offense.

2. This is not permitted by the US Constitution


Alright, I have corresponded with many people about this. The responses tend to fall along the lines:

i. She is not a person
ii. She is not being executed
iii. Florida law says she can be executed
iv. You are a right wing theocrat
v. It all depends on the meaning of the word 'is'.


Frankly, no response above is both true and sufficient to refute the simple two point argument. If you are able to do this, I would be greatly obliged.

UPDATE: The closest consideration of this fundamental issue that I have read to date comes from Alec Rawls at Error Theory and a discussion of the Supreme Court's role in breaching individual sovereignty by Matthew Franck.

UPDATE: This summary by William Anderson is also well worth reading. My sole disagreement is over the rectitude of withholding fluids from those in an "irreversible deep coma". Anderson is a neurologist, so I understand that there may be some meaning to the phrase that escapes me. However, I would draw the line only at "brain death" as the irreversibility and true nature of a "deep" coma is not knowable at this time.

Deductions from Minimal Information: Terri Schiavo

I have deduced the following in respect to the Terri Schiavo affair:


1. It is unlikely that the husband is responsible for the initial injury.
(Why would he call Terri's father to assist while she was still alive?)

2. The Schindlers and Schiavo are mutually antagonistic.
(More or less a simple observation)

3. Terri is now being used as a pawn by both the pro-life and the euthanasia movements.

4. It is impossible to know what are Terri's wishes here. It is irresponsible to assume that she would wish to starve to death.

5. The Florida Courts are hopelessly dysfunctional. In particular, Judge Greer is acting outside the law.

6. Under present conditions, it is unlikely that Gov. Bush will provoke a Constitutional crisis.

7. It is possible that Terri's condition may improve in the future. In the next ten years, we may have the means to radically improve her condition.


Conclusion:

The best strategy for a happy resolution is to have a 3rd party benefactor intervene and offer a mutually satisfactory solution. The husband deserves some compensation to this effect. He should relinquish custody to the parents.



Everyone is invited to challenge these deductions and conclusion. Please be prepared to support your contentions.