Dobbs, Roe, and the Freakout Over Federalism

25 Wednesday May 2022

Posted by Nuetzel in Abortion, Federalism, Uncategorized

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Abortion, Adoption, Akhil Amar, Artificial Womb, Bill of Rights, Birth Control, CDC, Classism, Court Leak, dependency, Disparate impact, Dobbs v. Jackson Women’s Health Organization, Due Process Clause, Emergency Contraception, Equal Protection Clause, Establishment Clause, Eugene Volokh, Eugenics, Federalism, Fetal Homicide Laws, Fetal Rights, Fetal Viability, First Amendment, Fourteenth Amendment, Great Society, Josh Blackman, Judicial Activism, Later-Term Abortion, Margaret Sanger, Morning After Pill, Personhood, Planned Parenthood v. Casey, Privacy Rights, Pro-Life, racism, Roe v. Wade, Ruth Bader Ginsburg, Samuel Alito, Supreme Court, War Drugs, World Health Organization

The leak of a Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization has created uproars on several fronts. The opinion, written by Justice Samuel Alito, represented a 5-4 majority at the time of its writing, but it is a draft opinion, and the substance and the positions of other justices might change before a final decision is handed down by the Court by the end of June. The draft would essentially uphold a Mississippi law restricting abortions after the first 15 weeks of pregnancy. This would overturn the Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) decisions. The former established that states could regulate abortion only beyond a certain stage of pregnancy (originally the first trimester), while the latter allowed states to regulate once a pregnancy reached the stage of fetal viability. While 24 weeks is often cited as the lower limit of viability, it is considered to be as early as 20 weeks by the World Health Organization, an estimate that could decline with future advances in prenatal and neonatal care (such as artificial wombs). In any case, viability would no longer be the standard if the draft opinion stands. Indeed, it would once again be up to states as to how they wish to regulate abortion.

Here is an update on where things stood on May 11th. Reportedly, the 5-4 majority still stood, and no other draft opinions existed in the case at that time. No news since.

Due Process and Privacy Rights

Was Roe v. Wade a good legal decision? Ruth Bader Ginsburg did not hold the opinion in high regard as a matter of the jurisprudence. Apparently, she felt that the Court should have simply struck down the restrictive Texas law in question without imposing a set of rules, which amounted to an aggressive infringement on the legislative function and the evolution of law, and case law, at the state level. Her words were:

“Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.”

She also felt the Court should not have leaned on the Due Process Clause of Fourteenth Amendment, which prohibits the denial of “life, liberty or property, without due process of law”. And she believed that relying on due process and the privacy rights of a woman and her physician made Roe vulnerable to challenge. She was probably right.

Yale Law School professor Akhil Amar, who is pro-choice, also believes the Roe decision was misguided and calls its reliance on due process “textual gibberish”. The objection to substantive due process is based on the absence of any principle establishing which “rights” not found explicitly in the Bill of Rights are valid, and which are not.

Equal Protection

In fact, Amar defends Justice Alito’s draft opinion and believes, as Ginsberg did, that the Equal Protection Clause of the Fourteenth Amendment is a better defense of abortion rights. The contention is that unless a woman possesses the right to terminate a pregnancy, she is not on an equal footing with similarly situated men in terms of self-determination and life opportunities. Of course, none of this weighs the interests of the unborn child.

Establishment Clause

Josh Blackman has an interesting series of comments about whether the Establishment Clause of the First Amendment may be a valid defense of abortion rights. That seemingly preposterous claim relies on abortion as a right, in some cases, protected by the free exercise of religion. As Blackman sums up in his sixth point:

“… abortion rights groups should be careful what they wish for. If the Court recognizes a Free Exercise right to perform or receive an abortion, then conservatives can cook up even more aggressive religious liberty strategies. I’ll bring the bagels for the next meeting of the Temple of Automatic Weapons.”

Eugene Volokh makes several interesting points on attempts to use the Establishment Clause “to obtain exemptions from generally applicable laws”. A separate, misguided take at the Establishment Clause is that a law must be unconstitutional if it was based on religious beliefs. Volokh handily disposes of that contention here.

Judicially-Prescribed Rights vs. Constitutional Rights

Blackman has written that the Alito draft is a tour de force, addressing many constitutional principles and concerns expressed by other justices. In another post, Blackman explains a very basic rationale for a decision to overturn Roe. It is related to the objections expressed by Ginsberg and Amar, and to the many “lamentations” expressed in the Court’s abortion opinions over the years since Roe. Namely, that rule and establishment of new rights by court decision was not a mechanism intended by the framers of the Constitution, but self-government and federalist principles were:

“It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.”

Personhood

Of course, none of these points are really germane to the crux of the pro-life argument to which I subscribe. However, both Roe and Casey acknowledge the state’s interest in protecting the fetus beyond some point in a pregnancy. The closer to term, the greater the interest. The implication is that a fetus gradually takes on degrees of “personhood” through the course of gestation, and that rights attach to that nascent individual at some point. Both Roe and Casey, by allowing states to regulate abortion beyond some point, offer recognition that the closer an abortion occurs to full term, the stronger the case that it may be prohibited.

The law in most European nations carries the same implication, and if anything leans more heavily in favor of fetal rights than Roe. Furthermore, there are 38 states with fetal homicide laws, which treat the fetus as a person in the case of a murder of a pregnant woman. In 29 of those states, the law applies at the earliest stages of pregnancy. This suggests that in most states, sentiments may weigh in favor of treating the fetus as a person imbued with constitutional rights.

In the end, this is not an exclusively religious argument, as the pro-abortion Left always suggests. For me, it’s purely an ethical one. At what point beyond conception are pro-abortion activists willing to concede that a human life is at stake? Apparently a heartbeat is not enough to convince them. Neither does the appearance of small fingers and toes. Nor the ability to feel pain. These are all things that happen before the child is “viable”. But even viability is not enough for some of the more radical abortion activists, who are proposing choice right up to the moment of birth. Incredibly, and despite the real limitations imposed on mid- or late-term abortions in many states (in line with Roe and Casey), some pro-choice advocates are now acting as if overturning these cases causes women to lose such an unfettered right!

Practical Matters

Anyone can obtain a variety of birth control alternatives without a prescription (and often for free). This includes emergency contraception, or the “morning after pill”. Granted, sometimes birth control measures fail, which places the prospective mother (and perhaps an involved or conscientious father) in a difficult position. Nevertheless, careful use of birth control would minimize the abortion problem and obviate much of the debate, but people are often too impulsive or careless about sex.

Late term abortions are a fairly small percentage of all abortions. The CDC reported that in 2018, 50,000 (~8%) abortions occurred after the first trimester (14+ weeks), and 6,200 (1%) took place at or beyond the point of theoretical viability (21+ weeks). This study found that of abortions at 20+ weeks, mothers tended to be younger (20 -24), discovered their pregnancies somewhat later, faced logistical and financial delays in arranging the abortion, or faced other challenging life circumstances. However, the researchers rebut a common rationale for late-term abortion when they say:

“… most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.”

Eugenics and Classism

Pregnancies among black women are terminated at a disproportionately high rate. That’s consistent with the original, eugenicistic and racist goals of Planned Parenthood founder Margaret Sanger. This is an outcome to top all disparate impacts. I have witnessed pro-abortion activists counter that these aborted lives would have been miserable, impoverished, and without opportunity — essentially not worth living — but these are value judgements of the most monstrous kind. I’ve also heard the pathetic argument that fiscal conservatives should be happy that abortions will reduce spending on aid programs. Of course, the plight of the would-be mother is also emphasized by pro-abortion advocates, but we should not be so eager to accept the tradeoff here: abortion gets the mother is off the hook, but a child’s life is at stake. No matter the odds of success, human beings are all endowed with potential and opportunity, and it’s not necessary to be economically secure to be happy or pursue dreams.

It’s easy to be pessimistic that public policy can ever mitigate the economic burden on impoverished women who bring unexpected or unwanted pregnancies to term, or to brighten the economic future of their children. After all, over the decades since the Great Society program was conceived, the welfare state has proven no better than a dependency treadmill. Family structure has been decimated by those programs and the destructive consequences of the failed (but ongoing) war on drugs. Likewise, public education is a disaster. However, there are also alternatives such as adoption, and there are many private individuals and organizations working to encourage prospective mothers and ease those burdens.

The Leak

The leak of the draft opinion in Dobbs is unfortunate as it compromises the ongoing integrity of the Court’s internal debates and proceedings. In addition to this institutional damage, the impropriety of staging protests outside the homes of justices and inside places of worship should be roundly condemned by people with respect for judicial integrity, privacy and free exercise. These protests are partly attempts to intimidate, and they have even been accompanied by threats of violence. The belligerent posture of these activists is unconscionable.

Long Live Federalism

Again, the Court’s final decision in Dobbs might not be the opinion in the leaked draft. However, if the Court does indeed overturn Roe, it would not outlaw abortion. Rather, it would allow voters in each state to have a voice in aligning the law with public sentiment. Some states will have more restrictive abortion laws than others, but even the Mississippi law at issue in Dobbs allows abortion up through week 15, almost two weeks longer than the original Roe limitation.

The country is still deeply divided on the issue of abortion. Fundamentally, a broader acceptance of the life-and-death reality of abortion would help bring more consensus on the issue. One theory I have is that many who oppose overturning Roe would simply rather not think about that reality. In their minds, Roe keeps abortion compartmentalized, safely walled off from conscience and sometimes even spiritual convictions. They rationalize Roe based on their inability to observe the person whose life is at stake, and they accept justifications that minimize the value of that life.

A single rule imposed by the Court has not and will not resolve these differences. Indeed, Roe and Casey were failed acts of judicial activism that should be reversed. While bad legislation is regrettable, it is always subject to review and challenge by the people. In a federalist system, a bad law is contained like a single experimental treatment in a large trial with multiple arms. However, in this case, unlike a trial with random selection of subjects, one treatment group may differ from others in important respects, and the objective is not to identify one single-best solution, but different solutions that work best for different groups. That is a closer approximation to real self-government than federal legislation and especially one-size-fits-all Court rule-making.

Open Borders or Racism: a False Dichotomy

27 Thursday Jun 2019

Posted by Nuetzel in Immigration, racism

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Amnesty, Barack Obama, DACA, Disparate impact, Dog Whistles, Donald Trump, Dreamers, Eugenics, ICE, James Taranto, Jim Crow Laws, Mark Steyn, Minimum Wage, Open Borders, Path to Citizenship, Protected Class, Public Aid, racism, Taxpayer Sovereignty

What are you, a racist? To avoid that charge, apparently you must support fully open borders with absolutely no restrictions on crossings. The basis of that bizarre claim is that most immigrants are not of the ethnic majority, or rather most illegal immigrants are not of the ethnic majority. Thus, if you favor border controls of any kind, you must hate ethnic minorities. You are a racist! This hasty generalization is commonly made by reactionary minions of the Left, and it is standard rhetoric of leftist propaganda.

As many have noted, the U.S. benefitted for many years from a relatively liberal immigration regime, but policy became increasingly restrictive over a period of six or seven decades starting in the 1870s, sometimes in ways that were racially motivated. A few reforms began to take place in the 1940s, though various quotas remained a fixture. More recently, the threat of terrorism prompted restrictions, and the large population of illegal immigrants in the country, including immigrant children, stimulated debate over deportation vs. a path to citizenship.

Disparate Impacts

A real outcome of border controls takes the form of a “disparate impact”, a phenomenon prominent in areas of the law such as employment, fair lending, and fair housing. For example, standards like degree requirements or minimum credit scores tend to disqualify minority or “protected class” applicants disproportionately. Those standards, however, are not targeted explicitly at any class of individuals. Likewise, minorities represent a disproportionate share of those disqualified under immigration quotas. And minorities represent a vastly disproportionate share of illegal entrants apprehended by ICE because, as a practical matter, most border controls are targeted at country of origin, but not at specific minorities. Almost all illegal U.S. immigrants are members of populations that are ethnic minorities within the U.S. The top 10 countries of birth for all U.S. immigrants also have predominantly Hispanic or Asian population. These countries accounted for roughly 57% of legal immigrants in 2017.

The courts have generally ruled that business standards having a disparate impact are defensible based on business necessity and the absence of effective alternatives having less disparate impact. So the issue here is whether border controls meet a compelling need having nothing to do with racial or ethnic preferences, and whether any adverse impact on protected classes can be minimized.

The simple fact is that most Americans opposing illegal immigration simply want those entrants to go through a liberalized legal process, which would of course reduce the disparate impact of tight border controls. So the worst that can be said about a preference for legal over illegal immigration is that it might have a disparate impact on prospective minority entrants, and that is uncertain under a liberalized regime of legal immigration. This preference is not racist, and it is not racist to demand that all entrants be vetted and identified, whether you believe it is economically sensible or that immigrants are more or less likely to engage in criminal or even terrorist activity.

Public Resources

Again, there are strong rationales for controlling immigration and enforcing the border that have nothing to do with racial preference. Borders are a critical aspect of national sovereignty, of course, including taxpayer sovereignty. There is no question that large numbers of immigrants strain scarce public resources in a variety of ways including public aid, education, law enforcement, housing, and other public services. In fact, the mere existence of aid programs provides incentives that encourage immigration, especially as activists push for broader accessibility of program benefits. The consequent strain on public resources escalates costs to taxpayers and compromises the quality of public programs for the qualified citizen-beneficiaries for whom they are intended. There is nothing racist about asserting that those strains should be minimized for the benefit of taxpayers and beneficiaries. Indeed, a recent poll found that a majority of Hispanics favor controls on immigration, including a border wall.

A further consequence is that citizens might perceive an unhealthy opportunism or exploitation by illegal immigrants availing themselves of what might seem like very generous public benefits. Rightly or wrongly, that perception tends to encourage forms of “otherism”. This is an example of how public policy can undermine social cohesion and the successful assimilation of immigrants.

The Labor Force

In general, immigration is a positive economic force. At a macro level, it supplements the growth of the labor force, traditionally a major driver of output gains. At the more fundamental micro level, it represents a movement of productive resources in response to incentives guiding them to higher-valued uses. The most productive workers tend to migrate away from low-wage economies toward high-wage economies. Again, however, low-productivity workers are attracted by the bundle of public benefits available, including our minimum wage laws. Those immigrants do not contribute to output gains at all if their productivity is less than the minimum wage. They will, however, attempt to compete for jobs at the minimum wage or even below that wage if their employers are willing to cheat.

Obviously, the legal minimum wage does not adjust to market conditions such as excess supplies of labor. The development of such a surplus would mean unemployment, including job losses among low-skilled legal residents. That is unfortunate not just for those losing jobs, but because these effects create more fertile ground for racism among both groups. This is another example of how public policy can create barriers to social cohesion.

So Who’s a Racist, Anyway?

Those casting aspersions of racism are often guilty of of losing historical perspective, and sometimes worse. A recent example is the refusal of democrats to deal with “the racist” Trump on the DACA bill he proposed in early 2018. That bill would have offered amnesty and a path to citizenship for 1.8 million Dreamers, individuals who arrived in the U.S. as undocumented child immigrants. How easy it is for progressives to forget that President Obama dithered away four years during which he could have proposed legislation to end the prosecution of Dreamers.

A more cogent example of selective memory among progressives is the history of the Democrat Party as one of racism, Jim Crow, and eugenics. The contention that the Republican Party has a history of racism is categorically false. We constantly hear that Republicans are guilty of using “dog whistles” to appeal to racist sentiment, but Mark Steyn provides a marvelous quote of James Taranto in which he gets at the truth of these divisive claims: “… if you can hear the whistle, you’re the dog.” There is great truth in that statement.

No one should forget that immigrants attempting to enter the country illegally are exposed to real dangers, and it should be discouraged. Natural conditions are harsh along the southern U.S. border, and many of those wishing to cross must contract for the services of guides who are often dangerous and untrustworthy. The risks for families and children should not be trivialized by those who would encourage massive flows of illegal entrants as a tool of policy change.

Border security is important to Americans because of the risks inherent in an uncontrolled border. These risks span national security, drug policy, taxpayer sovereignty, and other economic concerns. While racists might hate most immigrants, opposition to illegal immigration is often paired with support for liberalized legal immigration. That fact does not square with accusations of racism. Perhaps most importantly, encouraging an uncontrolled flow of immigrants in defiance of existing law creates harsh risks for the immigrants themselves, and especially the children who become innocent human collateral in the process. That the same shortsighted individuals who encourage such flows make a blanket charge of racism against those who demand a more rational and even liberalized process is grotesque and an affront to decency.

Human Potential Exceeds the Human Burden

30 Friday Nov 2018

Posted by Nuetzel in Abortion, Mobility, Redistribution

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Abortion, Border Control, central planning, dependency, Economic Burden, Economic Freedom, Eugenics, Human Footprint, Human Ingenuity, Immigration, Left Tail, Margaret Sanger, Open Borders, Planned Parenthood, Population Control, Private charity, Public Safety Net

Are human beings a burden, and in what way? Between two camps of opinion on this question are many shades of thought, and some inconsistencies. But whether the discussion is centered on the macro-societal level or the family level, the view of people and population growth as burdensome promotes centralized social control and authoritarian rule, with an attendant imposition of burdens on human freedom and productive effort.

Naysaying Greens

The environmental Left views people as a net burden on resources while failing to recognize their resource value, without which our world would yield little in the way of food and other comforts. It is mankind’s ability to process and transform raw materials that makes the planet so hospitable.

The world’s human population has increased by a factor of 18 times in the last 400 years, but food supplies have grown even faster. Each person has potential as a resource capable of a net positive contribution to societal and global well being. If we wrongly conclude that people are burdensome, however, it offers a rationale to statists for regulating the lives of individuals, preventing them from producing and consuming as they would otherwise choose.

Sirens of Dependency

There will always be individuals who cannot provide for themselves, sometimes due to temporary circumstances and sometimes as a permanent condition. If the latter, these individuals find themselves in the lower tail of the distribution of human productive capacity. The undeniable burden of this lower tail for humanity can be dealt with through various social support structures, including family, religious organizations, private social organizations, and the public safety net.

People of true compassion have always helped to fill this need privately and voluntarily, but “compassionate” motives can be a false and corrupting when the public sector becomes the tool of choice. Actual and potential beneficiaries of public largess can vote for their alms at the expense of others, along with those well-meaning partisans who confuse forced redistribution with compassion. And benefits and taxes often create disincentives that undermine a society’s productive dynamic. Under such circumstances, the lower tail and its burden of dependency grows larger than necessary, and society’s ability to carry that burden is diminished.

Burdensome Children

Children are unable to provide for themselves up to varying ages, so they do create an economic burden for their parents. That burden might loom large in the event of an unexpected pregnancy, but most parents find the burden well worth bearing, whether planned or unplanned, ex ante and ex post, and for reasons that often have little to do with material concerns. But many individuals and families in the lower tail simply cannot bear the economic burden on their own; others not in the lower tail might simply find the prospective burden of an unexpected pregnancy a bit too heavy or inconvenient for non-economic reasons.

Solutions are available, of course. They range from sexual abstinence and prophylactics to adoption services, as well as hard sacrifice by new parents. And then there is abortion. The pro-choice Left makes the argument that children are so burdensome as to justify the termination of pregnancies at almost any stage. The ease with which they make that argument and traffic in the imposition of that burden upon the innocent is horrific. Furthermore, regimes dominated by the Left have often instituted formal population control measures, and Western leftists such as the late Margaret Sanger, founder of Planned Parenthood, have advocated strenuously for eugenics.

Burdens at the Border

Are migrants a burden or a blessing? In general, the latter, because mobility allows individuals to exploit economic opportunities, with consequent gains to themselves and to those who demand their services. This is generally true from the perspective of nations; it is the basis of the traditional economic argument in favor of liberalized, legal immigration to which I subscribe. But some partisans on both sides of the immigration debate accept the idea that immigrants impose a burden. That may be correct under some circumstances.

Opponents of immigration reform certainly identify immigrants as a burden to productive citizens and taxpayers. Critics of border control, on the other hand, are motivated by compassion for political refugees or economically disadvantaged immigrants, whether employment opportunities exist for them or not. In fact, would-be immigrants are often attracted by generous public benefits in the receiving country, and so they are likely to add to a country’s lower-tail burden, as I’ve described it. But the no-borders crowd insists that society must shoulder any burden created by the combined effect of an open border with generous public benefits, and even immediate voting rights.

The Burdens of Overbearance

The Left imagines that people create many burdens, but the Left is happy to impose many burdens in pursuit of their “ideal” society: planned by experts, egalitarian, highly regulated, profit-free, and green. They wish to “save the planet” by imposing burdens, regulating and restricting economic growth and sparing no expense to minimize the human “footprint”. They wish to fund redistributive social programs by burdening productive resources with taxes, while crowding-out private efforts to provide charitable relief. They wish to prevent the perceived burden of children by offering, and even funding publicly, the “choice” to impose an ultimate burden on those too weak to register a protest. And they wish to burden taxpayers by availing all potential migrants, without question, of generous public benefits.

Burdens are a fact of life, but people with the freedom to exploit their own effort and ingenuity for gain have increasingly shouldered their own burdens and much more. Over the last few centuries, human ingenuity has expanded the effective quantity of all resources by many orders of magnitude. In so doing, the scale and scope of real poverty have been reduced dramatically. But those who would deign to manage our burdens for us, under the authority of the state, are more threatening to our well being than beneficent.

Monstrous Mathematics: Selling Abortion As Fiscal Austerity

27 Wednesday Jun 2018

Posted by Nuetzel in Abortion

≈ 2 Comments

Tags

Abortion, Artificial Womb, Conception, Eugenics, Fetal Viability, Fiscal Austerity, Gallup, Late-Term Abortion, Planned Parenthood v. Casey, Prohibition, Roe v. Wade

The pro-choice Left says, “Massive welfare benefits will be necessary to support the babies you’d force women to carry to term.” The remark is viewed as an argument clincher among pro-choicers, but it’s not a persuasive defense of abortion rights. In fact, it’s quite beside the point: human lives are at stake. The “welfare defense” suggests that there must be a valid tradeoff between public aid and lives that can otherwise be saved. Or indeed, between publicly-funded abortions and future public aid. By that logic, perhaps EMS service should be suspended in impoverished neighborhoods so that welfare payments might be reduced. These kinds of monstrous tradeoffs are not remotely on the table.

(The commentary that follows does not pertain to abortions that might be necessary to preserve a woman’s life or health, or in the case of pregnancies caused by rape.)

An operative assumption underlying the left’s suggestion is that additional human lives are problematic (or at least problematic for certain groups). There are two ways to think about this:

First, a single woman might have strong misgivings about the prospects of a child for economic reasons, or for fear of social ostracism; even couples can find a child economically burdensome. Fair enough. We won’t get into questions about personal responsibility. But leftists, under the spell of scientism, collectivism, and with more than a little hubris, insist there is no choice but for government to care for unaborted human beings and their families. They have devoted little thought to the reality that government programs intended to benefit the poor have in fact led to the disintegration of family units, a deteriorating housing stock, an explosion of the prison population, poorly functioning labor markets, and a cycle of mass dependency. But statists have not completely destroyed private institutions that can and do play a crucial role in helping impoverished new parents. That includes adoption agencies, churches, fraternal organizations, private charities, and free markets. These actors and institutions do not require any form of central planning by government.

Second, the Left holds that human beings are a burden on resources and a threat to “sustainability”. This is fundamentally incorrect. The world’s population has grown dramatically over the past several hundred years (from 0.9 billion in 1800 to 6.1 billion in 2000) while average income has increased much more dramatically (from less than $1.2 trillion in 1800 to $63.1 trillion in 2000). Humans are problem solvers, not problem makers, when they are free to create, produce, and take ownership in their surpluses. In fact, human ingenuity is the most critical renewable resource of all.

The abortion issue will not be settled on economic grounds. A plurality of adults in the U.S. believe that ending a pregnancy in its earliest stages is not murder, according to a recent Gallup poll. As I’ve argued in other contexts, bad or counter-productive laws are usually characterized by a lack of consensus in the general population over the question at issue. They are counterproductive because non-compliance leads to underground activity and unintended consequences. That’s true of prohibitions on alcohol, drugs and prostitution, and in the case of abortion, considerably greater danger may come to those seeking the services of an illegal abortionist. There is a fairly strong consensus, however, that late-term abortions should be illegal (see the link provided above). Unfortunately, the 20% that approve of late-term abortions is still rather significant.

The 80% share disapproving of late-term abortion corresponds roughly to the notion of fetal viability. At the time of the Roe v. Wade Supreme Court decision in 1973, viability was said to be reached between the 24th and 28th week of pregnancy. Technology shortened that time to less than 24 weeks, however, as the Court recognized in Planned Parenthood v. Casey in 1992. Some believe that the time to viability could be reduced much more with the development of artificial womb technology. That will upend the abortion debate, not only on account of challenges to the legal definition of viability, but because it will give expectant mothers an earlier alternative to terminating the life of the fetus. While artificial wombs might raise other ethical issues, I view the impact on the abortion debate as unambiguously positive.

Fetal viability does not offer much satisfaction to those whose views on abortion are heavily influenced by religion. Many Buddhists, Catholics, Eastern Orthodox Christians, Evangelical Protestants, and Orthodox Jews believe that life begins at the moment of conception; abortion is forbidden among Sikhs. (See this discussion for more detail.) Hindus often believe that personhood develops beginning at three months, while Islam teaches that life begins at about 120 days (though there is variation down to as little as seven weeks). On the other hand, Methodists, Presbyterians, Reform and Conservative Jews, Unitarians and Wiccans all support abortion rights, as do many (but not all) atheists and the strictly non-religious. It’s a safe bet that most of the world’s population affiliates with religions that either forbid abortion or believe in limits on the stage of pregnancy at which abortion is permissible. None of these distinctions is without exception, however. After all, there are many pro-choice Catholics, and abortions occur even in the Indian Sikh community.

Fetal viability at least provides something approximating an objective standard in the legal debate and prevents all but a small percentage of late-term abortions. Neither pro-choice nor pro-life activists will ever be satisfied with a given definition falling short of their respective ideals. Economic tradeoffs, however, have nothing to do with the pro-life position. Neither do cost-benefit calculations as the basis of public funding of abortions. Abortion advocates attempt to marshal its presumed economic benefits, but the effort smacks of the worst excesses of eugenics.

Authoritarian Designs

31 Sunday Jan 2016

Posted by Nuetzel in Progressivism, racism, Uncategorized

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Bernie Sanders, Child Quotas, CRISPR, Davis Bacon Act, Eugenics, Friedrich Hayek, John Stewart Mill, Jonah Goldberg, Kevin Drum, Minimum Wage, Mother Jones, Obamacare Effectiveness Research, Progressivism, racism, Scientism, Sterilization, Tyler Cowen

eugenics certificate

Why condemn today’s progressives for their movement’s early endorsement of eugenics? Kevin Drum at Mother Jones thinks this old association is now irrelevant. He furthermore believes that eugenics is not an important issue in the modern world. Drum’s remarks were prompted by Jonah Goldberg’s review of Illiberal Reformers, a book by Thomas Leonard on racism and eugenicism in the American economics profession in the late 19th century. Tyler Cowen begs to differ with Drum on both counts, but for reasons that might not have been obvious to Drum. Eugenics is not a bygone, and its association with progressivism is a reflection of the movement’s broader philosophy of individual subservience to the state and, I might add, the scientism that continues to run rampant among progressives.

Cowen cites John Stewart Mill, one of the great social thinkers of the 19th century, who was an advocate for individual liberty and a harsh critic of eugenics. Here is a great paragraph from Cowen:

“The claim is not that current Progressives are evil or racist, but rather they still don’t have nearly enough Mill in their thought, and not nearly enough emphasis on individual liberty. Their continuing choice of label seems to indicate they are not much bothered by that, or maybe not even fully aware of that. They probably admire Mill’s more practical reform progressivism quite strongly, or would if they gave it more thought, but they don’t seem to relate to the broader philosophy of individual liberty as it surfaced in the philosophy of Mill and others. That’s a big, big drawback and the longer history of Progressivism and eugenics is perhaps the simplest and most vivid way to illuminate the point. This is one reason why the commitment of the current Left to free speech just isn’t very strong.“

Eugenics is not confined to the distant past, as Cowen notes, citing more recent “progressive” sterilization programs in Sweden and Canada, as well as the potential use of DNA technologies like CRISPR in “designing” offspring. That’s eugenics. So is the child quota system practiced in China, sex-selective abortion, and the easy acceptance of aborting fetuses with congenital disorders. Arguably, Obamacare “effectiveness research” guidelines cut close to eugenicism by proscribing certain treatments to individuals based upon insufficient “average benefit”, which depends upon age, disability, and stage of illness. Obamacare authorizes that the guidelines may ultimately depend on gender, race and ethnicity. All of these examples illustrate the potential for eugenics to be practiced on a broader scale and in ways that could trample individual rights.

Jonah Goldberg also responded to Drum in “On Eugenics and White Privilege“. (You have to scroll way down at the link to find the section with that title.) Goldberg’s most interesting points relate to the racism inherent in the minimum wage and the Davis-Bacon Act, two sacred cows of progressivism with the same original intent as eugenics: to weed out “undesirables”, either from the population or from competing in labor markets. It speaks volumes that today’s progressives deny the ugly economic effects of these policies on low-skilled workers, yet their forebears were counting on those effects.

Scientism is a term invoked by Friedrich Hayek to describe the progressive fallacy that science and planning can be used by the state to optimize the course of human affairs. However, the state can never command all the information necessary to do so, particularly in light of the dynamism of information relating to scarcity and preferences; government has trouble enough carrying out plans that merely match the static preferences of certain authorities. Historically, such attempts at planning have created multiple layers of tragedy, as individual freedoms and material well-being were eroded. Someone should tell Bernie Sanders!

Eugenics fit nicely into the early progressive view, flattering its theorists with the notion that the human race could be made… well, more like them! Fortunately, eugenics earned its deservedly bad name, but it continues to exist in somewhat more subtle forms today, and it could take more horrific forms in the future.

Two earlier posts on Sacred Cow Chips dealt at least in part with eugenics: “Child Quotas: Family as a Grant of Privilege“, and “Would Heterosexuals Select For Gay Genes?“.

Child Quotas: Family as a Grant of Privilege

05 Thursday Nov 2015

Posted by Nuetzel in Liberty, Tyranny

≈ 1 Comment

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Amartya Sen, Bret Stephens, Chinese Family Policy, Eugenics, Fertility rates, Liberalism, Limits to Growth, Nicholas Eberstadt, One Child Policy, Paul Erlich, Progressive Left, The Club of Rome, The Population Bomb, Wall Street Journal

How could any self-described liberal believe for a second that China’s “One Child Policy” was anything but repressive? By utterly failing to live up to liberalism! The policy was “reformed” last week after more than 35 years by a Beijing government trying to face up to the huge demographic and economic crisis posed by an aging population. But as Nicholas Eberstadt reports, now it is a “Two Child Policy“, which is less tyrannical only by degrees. (The link takes you to a Google search to bypass the WSJ paywall — choose the top result there.) Here are some of the awful consequences of the one-child policy noted by Eberstadt:

“First came alarming reports that female infanticide, an ancient practice, had once again erupted throughout the countryside. China’s 1982 census, released some years later, showed an unnatural imbalance in the sex ratio for birth-year 1981 on the order of hundreds of thousands of missing baby girls.

Infanticide was then replaced by mass sex-selective abortion, made possible in the late 1980s by increased rural access to ultrasound machines. China’s sex ratio climbed to nearly 120 baby boys for every 100 baby girls, where it plateaued around 2000. Although a war against baby girls is evident in other countries—India and Taiwan among them—leading Chinese demographers have suggested that half or more of China’s imbalance may directly result from the one-child policy.“

Bret Stephens discusses the support historically offered by the Left for the one-child policy. (This piece is also at wsj.com and it’s apparently a free link, but use Google if it doesn’t work.) Stephens rightly calls the policy “the ultimate assault on the human rights of women and girls.” He traces the Left’s penchant for central authority over family autonomy back to Paul Erlich’s “The Population Bomb” and the Club of Rome‘s discredited “Limits to Growth“, but it also descends from an earlier Leftist fascination with eugenics. The ideas live on today. Stephens notes the Malthusian connection to another great Lefist shibboleth, our purported climate change crisis:

“For much of the 20th century it was faith in History, especially in its Marxist interpretation. Now it’s faith in the environment. Each is a comprehensive belief system, an instruction sheet on how to live, eat and reproduce, a story of how man fell and how he might be redeemed, a tale of impending crisis that’s also a moral crucible.“

Amartya Sen asks whether the one-child policy really influenced fertility rates at all, but I question the reliability of the figures she cites. The high ratio of male to female births contributes to my suspicions. According to Eberstadt, a number of Chinese demographers have been warning against continuing the one-child policy for at least a decade. Other reports give the strong impression that it has been a binding constraint.

Economic growth provides a voluntary and effective brake on birth rates. The continuing agitation for restraints on economic growth to reduce carbon emissions short circuits this mechanism. Not only is the climate change “crisis” ill-founded, these measures hinder the development and diffusion of technologies that would be more efficient in reducing carbon discharge, instead imposing immediate remediation that is often uneconomic. The unimaginative solution offered by the progressive Left is central control over our progeny and our production of goods. Repression is always their best answer. That ain’t liberalism!

Would Heterosexuals Select For Gay Genes?

26 Sunday Jul 2015

Posted by Nuetzel in Biotechnology, Progressivism

≈ 2 Comments

Tags

Abortion, Bruce Carroll, Dennis Sewell, Eugenics, Friedrich Hayek, Gay Gene, genetic screening, John Maynard Keynes, Jonathan Freedland, LGBT, Progressivism, The Gay Patriot, The Guardian, The Political Gene

Economic and social planning by the state can mean many things, but a planned society is always held in some form as a progressive goal. This is at the very heart of “statism”. As Hayek noted, the fascination with planning is rooted in a belief that conscious, central direction is necessary in order for society to advance. This stands in stark contrast to the abysmal failure and monstrous cruelty of social planning historically, and the unmatched success of markets and a free, spontaneous social order at improving human welfare.

The faith in central direction has always been conjoined with a belief in the ability of scientific methods to address social issues. This line of thinking is flawed in many respects, but 80 to 100 years ago, an extremely perverse manifestation of this statist philosophy was a fascination with eugenics, or the intentional selection and rejection of various traits in offspring at the state’s direction. Sterilization of the “unfit”, and selective breeding of the most fit, were weirdly popular notions among progressives in that era. In 2012, Jonathan Freedland in The Guardian called eugenics “the skeleton that rattles loudest in the left’s closet”.

“Most alarming, many of its leading advocates were found among the luminaries of the Fabian and socialist left, men and women revered to this day. Thus George Bernard Shaw could insist that ‘the only fundamental and possible socialism is the socialisation of the selective breeding of man’, even suggesting, in a phrase that chills the blood, that defectives be dealt with by means of a ‘lethal chamber’. …

According to Dennis Sewell, whose book The Political Gene charts the impact of Darwinian ideas on politics, the eugenics movement’s definition of ‘unfit’ was not limited to the physically or mentally impaired. It held, he writes, ‘that most of the behavioural traits that led to poverty were inherited. In short, that the poor were genetically inferior to the educated middle class.’ It was not poverty that had to be reduced or even eliminated: it was the poor.

Hence the enthusiasm of John Maynard Keynes, director of the Eugenics Society from 1937 to 1944, for contraception, essential because the working class was too ‘drunken and ignorant’ to keep its numbers down.“

This post on the historical allure of eugenics to progressives is also informative. Of course, the National Socialists in Germany took the idea and ran with it, which ultimately led to a rejection of eugenics in the West. Yet the idea lives on today through various mechanisms, such as sex-selective abortion and screening for certain genetic disorders. Of course there is a widespread insistence on abortion as a “woman’s right” on the progressive left, but certain questions are seldom asked. For example, does that include women who wish not to bear children with disorders such as Down’s Syndrome? There is less unanimity on that issue.

Bruce Carroll, aka, The Gay Patriot, asks a different question: “What Happens When Science Allows Us to Abort A Baby If It Has the ‘Gay Gene’?” The mapping of the human genome has advanced to the point that it might be possible to identify the precise genetics determining certain social and personality characteristics. There is some research suggesting that regions on two different chromosomes might allow geneticists to home-in on the identification of specific “gay genes”.

The first question this raises is whether a woman (or a couple) has the right to know everything predicted about a child from its pre-natal genetic testing. I assume that all test results are private. Should the information about sexual-preference genes be off-limits to a parent? Information about gender is not off-limits, and you can be certain that even in the U.S., an occasional woman or couple decides to terminate a pregnancy for reasons of gender, whatever the motive. If the sexual preference genes are off-limits, then the inescapable conclusion is that sexual preference is “protected” in the womb by society, but gender and a whole range of disabilities are not protected. Really? Carroll takes a dim view of the LGBT politics on this matter:

“I wonder if gay activists realize that their slobbering devotion to pro-abortion political organizations, and the multi-million dollar abortion industry itself, may ultimately lead to the destruction of LGBT babies before they are born within my lifetime. It truly is Sophie’s Choice for the progressive gay activists; thus far, they wave off the question with derision.“

The question can be put in less drastic terms, if genetic selection can really ever be less drastic. Technologies to create “designer babies” through genetic selection are already here. That implies both positive selection and deselection of various traits. Obviously, this is not a simple subject from a either a scientific or ethical standpoint, but to zero in on our hypothetical question, I assume for now, for the sake of argument, that parents are legally empowered “to give their children the best start possible“. That would be the “best start” in the parents’ opinion, not the state’s! One wonders how the LGBT community, and the Left in general, would react to a service allowing couples, or a mother, to select for heterosexual genes in their “designer offspring”, consequently selecting against gay genes. Should such options be “off the table” as a matter of public policy? But again, if so, then what about gender? What about disabilities?

Involving the state in these decisions will lead to either bizarre contradictions or restrictions on autonomy that both Left and Right might find unacceptable.

Racism And Minimum Wage Fairy Tales

02 Saturday May 2015

Posted by Nuetzel in Markets, Price Mechanism, Regulation

≈ 2 Comments

Tags

Carrie Sheffield, David Henderson, Davis Bacon Act, Eugenics, John F. Kennedy, Minimum Wage, Progressive Rhetoric, Racial Discrimination, racism, Thomas Leonard, Thomas Sowell, Walter Williams

The real history of the minimum wage is an unsavory tale unknown to most current observers. The myth that it had honorable origins is widespread, with special currency among the progressive Left. Their uncritical support for a higher wage floor reflects a failure to grasp its pernicious economic effects on low-skilled labor and an ignorance of its historical context as a mechanism enabling racial discrimination. In fact, minimum wage legislation was often motivated by racist economic concerns, as Carrie Sheffield explained a year ago in this commentary in Forbes. She quotes, among others, the great Thomas Sowell, an African-American economist, from this opinion piece:

“In an earlier era, when racial discrimination was both legally and socially accepted, minimum-wage laws were often used openly to price minorities out of the job market.“

Sowell cites historical examples of minimum wage legislation intended to harm the employment prospects of Japanese, Chinese and blacks, including the following:

“Some supporters of the first federal minimum-wage law in the United States — the Davis-Bacon Act of 1931 — used exactly the same rationale, citing the fact that Southern construction companies, using non-union black workers, were able to come north and underbid construction companies using unionized white labor.

These supporters of minimum-wage laws understood long ago something that today’s supporters of such laws seem not to have bothered to think through. People whose wages are raised by law do not necessarily benefit, because they are often less likely to be hired at the imposed minimum-wage rate.“

Walter Williams, another well-known African-American economist, provides more evidence of these origins of the wage floor in “Mandated Wages and Discrimination“:

“During the legislative debate over the Davis-Bacon Act, which sets minimum wages on federally financed or assisted construction projects, racist intents were obvious. Rep. John Cochran, D-Mo., supported the bill, saying he had ‘received numerous complaints in recent months about Southern contractors employing low-paid colored mechanics getting work and bringing the employees from the South.’ Rep. Miles Allgood, D-Ala., complained: ‘That contractor has cheap colored labor that he transports, and he puts them in cabins, and it is labor of that sort that is in competition with white labor throughout the country.’ Rep. William Upshaw, D-Ga., spoke of the ‘superabundance or large aggregation of Negro labor.’ American Federation of Labor President William Green said, ‘Colored labor is being sought to demoralize wage rates.’ The Davis-Bacon Act, still on the books today, virtually eliminated blacks from federally financed construction projects when it was passed.“

An article by Thomas C. Leonard in the Journal of Economic Perspectives, “Eugenics and Economics in the Progressive Era“, reinforces the point:

“The progressive economists believed that the job loss induced by minimum wages was a social benefit as it performed the eugenic service ridding the labour force of the unemployable.”

And if that isn’t enough for you, David Henderson has this to say:

“Unions don’t support minimum wage increases because their own members are working at the minimum wage. Virtually all union employees–I’ve never heard of an exception–work at wages above the minimum. Northern unions and unionized firms, for example, have traditionally supported higher minimum wages to hobble their low-wage competition in the South…

… In a 1957 Senate hearing, minimum-wage advocate Senator John F. Kennedy of Massachusetts, who just four years later would be President of the United States, stated,

‘Of course, having on the market a rather large source of cheap labor depresses wages outside of that group, too – the wages of the white worker who has to compete. And when an employer can substitute a colored worker at a lower wage – and there are, as you pointed out, these hundreds of thousands looking for decent work – it affects the whole wage structure of an area, doesn’t it?’“

One can claim that JFK was advocating for a higher wage floor to benefit all workers, but it’s hard to avoid the conclusion that “protecting” white workers was his priority. And it strains credulity to deny that JFK was aware of the other side of the coin: there would be negative repercussions for low-skilled black workers. What is painfully obvious about minimum wage legislation is that the real beneficiaries are generally not those competing for minimum wage jobs, but more entrenched labor interests.

It is an unfortunate reality that blacks make up a disproportionately large share of the unskilled labor force. According to another commentary by Walter Williams, unemployment among blacks was not a chronic problem in the first half of the 20th century, even among teens, and male labor force participation among blacks was higher than for whites. Over the past 50 years, however, black unemployment has averaged twice the rate for whites. Minimum wage legislation has encouraged this disparity.

Today’s advocates of a higher minimum wage are inadvertently rooting for a policy that compounds the disadvantages faced by the least skilled workers. The minimum wage contributes to a negative disparate impact on black labor market outcomes and prevents blacks from gaining valuable job experience. It is impossible to regulate wages without impinging on hiring decisions, and it is impossible to regulate both wages and hiring without impinging on the survival of employers. To help the unskilled, the best thing policymakers can do is allow them to trade their labor freely.