Saturday, March 21, 2020

Week 31: Emergency Powers

I do not think it would be hyperbole to say that this election year has been extraordinary. It seems safe to say that the incumbent is a colorful character. His competitors have been a collection of characters who have all tried to outdo one another in terms of pseudo-socialist ideology. Layer on an impeachment and now a pandemic that is, in essence, shutting down our nation (we have yet to see if that will move from essence to fact), and it becomes apparent that we are living through some remarkable times.

Article I, Section VIII of the Constitution, includes what is commonly referred to as the “Necessary and Proper Clause,” which grants Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

On September 14, 1976, the 94th Congress of the United States enacted such a law. The National Emergencies Act (NEA) was intended to provide structure and consistency regarding national emergencies and the power of the government, namely the Executive. Prior to the NEA, many presidents had declared national emergencies and assumed certain powers to manage those emergencies. Of those declarations, many were challenged in the courts. Title I of the act provided for the orderly termination of all national emergencies then in effect or continuance under the provisions of the new act.

The NEA grants the President more than 130 emergency powers, most of which may be used without Congressional approval upon the declaration of an emergency. The powers are sweeping.

Another example of legislation that empowers the President in times of emergency, which you may be hearing about in the news, is the Stafford Act. Enacted by the 100th Congress of the United States, the act is designed to provide federal assistance during a natural disaster. It also provides sweeping authority to the Executive.

As our nation and the world deal with COVID-19, we are seeing the various actions that national and local governments are taking to combat the virus. While I will not opine on the measures themselves, I would like to offer for your kind consideration the philosophical underpinnings of such authority. In so considering, we may be more fully informed at the ballot box when determining which candidate will better use and respect the emergency powers vested in the presidency.

In the United States, the notion of a tyrant or dictator is anathema to most citizens and most certainly to our founding principles. In Federalist 69 and Federalist 70, Alexander Hamilton painstakingly drew distinctions among the proposed roles and responsibilities of the President, those of the king of Great Britain and those of the governor of New York (which is a timely and interesting coincidence, given the restrictions being enacted in New York presently). He then explored the risks and benefits of a strong versus weak executive. Hamilton was making the case for executive authority to be vested in one elected citizen: the President. The Framers believed this would facilitate efficient action, balanced, of course, by the other co-equal branches of government, namely the Legislative and Judicial branches.

Over the course of time, Congress would enact necessary and proper legislation that expanded, and sometimes restricted, the authority of the President. Today, as mentioned above, that authority is not without significant breadth and depth. One indicator to consider is the number of executive orders issued by a president. In my lifetime (1972-present), the most prolific presidents in terms of producing executive orders are Jimmy Carter with an average of 80 per year in office and Gerald Ford with an average of 69.1 per year in office. The two presidents with the fewest executive orders per year in office were Barack Obama (34.6) and George W. Bush (36.4). Specific to declarations of national emergency, there are currently more than 30 active declarations, dating back to President Carter’s Executive Order 12170, which freezes Iranian government assets, and up to President Trump’s Proclamation 9994, which puts in place COVID-19-related travel restrictions.

In national emergencies, the President – any President – may activate military forces, marshal and direct the efforts of the private sector, enact curfews and suspend rights, to just scratch the surface of presidential authority.

Each generation faces its monumental challenge. Perhaps COVID-19 is ours. When facing such challenges, is the character of leadership a matter of consequence? I believe it is.

In the 59th chapter of the Tao Te Ching, Lao Tzu discusses the importance of moderation and simplicity in governing one’s life and in governing others. If a person understands this and understands the obstacles that stand in the way of moderation and simplicity, that person can be a good leader. In Federalist 57, James Madison writes about the character of leaders. Granted, Federalist 57 addresses charges levied against the Constitution’s plan of representation in the House of Representatives, but the characteristics Madison describes seem to be apropos to any leader. He writes, “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”

As we make our way through the COVID-19 pandemic, reflect on leadership. The two references above may be of use, or think about any other leaders you respect. Who is better, among the choices we have, to lead our nation. Hopefully, we’ll be past this crisis by November. Regardless, which candidate do you want, no, which candidate do you think (wanting denotes a decision made in part on emotion, thinking denotes a decision made on intellectual discernment) should occupy the Executive, cloaked in the mantle of sweeping authority? May we all choose wisely.

Monday, March 16, 2020

Week 32: Abortion

In last week’s post, I referred to abortion as one topic more controversial than that of the Second Amendment. No issue encompasses with such depth and breadth the principles of Life, Liberty and the Pursuit of Happiness as does abortion. Those who support each side of the debate claim their position better guarantees these fundamental American precepts better than the other side. Let us explore their positions.

As is often important when discussing a controversial topic, it is desirable to agree upon definitions.

Abortion. According to Medline Plus, part of the National Institutes of Health, abortion is defined as, “a procedure to end a pregnancy. It uses medicine or surgery to remove the embryo or fetus and placenta from the uterus.”

Embryo. According to Stedman’s Medical Dictionary for the Health Professions and Nursing, embryo is defined as “the developing organism from conception until the end of the eighth week; developmental stages from this time to birth are commonly designated as fetal.”

Fetus. Also according to Stedman’s, fetus is defined as “the product of conception from the end of the eighth week of gestation to the moment of birth.” Interestingly, this is the second definition in the medical dictionary. The first definition of fetus is, “the unborn young of a viviparous animal following the embryonic period.” Human women also are viviparous, meaning they carry fertilized eggs internally, as opposed to animals that lay eggs.

With some key definitions established, let us consider a very brief and extremely high-level history of abortion, specifically induced abortion. Some suggest that there has been abortion as long as there has been birth, but the earliest-known, written account of induced abortion comes from the Ebers Papyrus, which is dated to 1550 B.C. In addition to a wide variety of other information, it provides instructions for preparing a vaginal suppository, using acacia gum, dates, herbs, honey and plant fiber. This suppository was used to induce abortion. In the Code of Assura, dated to 1075 B.C., a woman who engaged in abortion was subject to trial and crucifixion. This is the earliest-known account of the death penalty being used as a punishment for abortion. To be clear, I only mention the Code of Assura as an example of such consequences for abortion. I am not arguing for or against such a penalty, as the code has inherent flaws in terms of the equitable application of punishments, particularly as applied between men and women. Since those times, many societies have established prescriptions and proscriptions related to abortion. Some have been based on legal precepts, some religious.

Jumping forward a few thousand years, the United States Supreme Court ruled in Roe v. Wade that the 14th Amendment’s Due Process Clause, which guarantees a right to privacy, protects a woman’s ability to have an abortion as part of their right to privacy. They did specify that there were varying degrees of protection for the act of abortion. In the first trimester, there is an unrestricted right to abortion. In the second trimester, the government may apply health-related requirements that would restrict the abortion right. In the third trimester, state governments could prohibit abortion providing an exception for saving the life of the mother existed. The court’s ruling is similar to the stages identified by Aristotle and his opinions related to abortion. He relied on a form and function assessment. Until the fetus was fully formed as a human and could essentially function as one, it was nothing more than a mass of material without a soul. Interestingly, St. Augustine for some time shared a similar view to Aristotle. Both based their opinions on an argument that may sound familiar to us today – when does human life start. More on that in a moment.

Today, the legal precedent established under Roe v. Wade is being challenged in the Supreme Court. Both Republicans and Democrats are hoping to win the presidency and to control the Senate so they may influence the makeup of the court. An important reason for this directly relates to the impact the court will have on the issue of abortion in the very near term.

As citizens, it is important that we all thoroughly understand this issue so that we may weigh in, by way of our vote, in the upcoming election. Some may argue that abortion is a woman’s issue. With all due respect, it is not just a woman’s issue. Excepting an immaculate conception, pregnancy takes a man and a woman to occur. This is true in the sense of traditional procreation. It is also true for in vitro fertilization (IVF), because a man must contribute sperm for this type of conception. Two key, intertwined issues are those of rape and life of the mother.

As a classical liberal, I believe that the choices people make for themselves, which affect no one but themselves, are none of my business, nor are they the government’s business. Abortion does not qualify as such a choice, primarily for the reason that a fetus is created, in part, by a man. As such, he must be an interested party. Beyond the two people contributing eggs and sperm, each citizen is involved in abortion, not by choice but by legislative fiat. Efforts are and have been afoot to legally require the coverage of abortion in both public and private health insurance plans, as well through public funding of private organizations, such as Planned Parenthood. As taxpayers, Democrat policies would have us fund abortion through grants provided to Planned Parenthood and through benefits conferred through Medicare and Medicaid coverage. Their policies also would require private health insurance to cover abortion. Slick politicians will argue that the money the federal government provides to groups like Planned Parenthood does not go to providing abortions but to other operational costs. This is nothing more than a shell game. Federal dollars free up other monies for use in other service lines, like abortion. At this point, I’m not making any moral argument. I’m just advocating an honest and forthright discussion.

As to the moral argument, there are some who believe that abortion, at any stage of development, is murder. In all transparency, I would count myself among such people. By requiring me to fund, even nominally, or in some other way provide money that frees up other money to fund the act of abortion, I am being required to participate in a sinful act. There are those, on the other hand, who believe it is immoral to require a woman to carry a child to full-term if she does not want to do so. If we did nothing more than prohibit any type of direct or indirect public funding of abortion, we would partially address this moral dilemma by freeing people from financially contributing to a procedure they consider immoral and by allowing others to privately pay for a procedure they believe to be moral. Again, this is only a partial solution to a much bigger issue.

The Fifth Amendment of the Constitution of the United States of America, which relates to crime and punishment, states that no person shall “be deprived of life, liberty or property without due process of law.” This same language is used in the 14th Amendment, which addresses citizenship. In the context of abortion, this begs the question, when does life begin?

For some, life begins at conception. Two living cells (i.e., egg and sperm) join to create a multicellular, living organism. By definition, an embryo exists at this stage, and by definition, it is a “developing organism.” But what does it mean to develop? According to the New Oxford American Dictionary, it means to “grow or cause to grow and become more mature, advanced, or elaborate.” The phrase, "and become more,” is predicated on something existing in the first place. So, what exists? To answer that question, we must look at the parts that form the whole. I presume all would agree that the mass of cells, which differentiate and specialize during this developmental stage, are human cells, programmed by human DNA. Consequently, for a human to “become more, mature, advanced, or elaborate,” a human must exist from the beginning. After all, something can not become more of something it is not already.

For some, this may seem too simplistic and life must begin at a later stage. Like Aristotle’s rationale and that of the Supreme Court in Roe v. Wade, there must be a viability test. The mass of cells is not a person until it becomes viable. What does that mean? According to Stedman’s Medical Dictionary for the Health Professions and Nursing, “viable” means “capable of living; denoting a fetus sufficiently developed to live outside the uterus.” The Supreme Court drew lines for sufficient development along the trimesters of pregnancy. At the time, perhaps this made sense in terms of viability. As medical science has advanced, though, viability is continually pushed back earlier and earlier in the gestational timeline. Premature babies are kept alive at ever-earlier stages in development. What was considered an unviable mass of tissues 40 years ago is now considered a viable human being.  It seems that the value of a person’s life should be based on something a bit more objective. A bit more on viability will be discussed below.

In a broader sense, using viability begs some larger questions about life and death. Who decides viability? Who regulates it? Is any individual viable? Without many others supporting me, I am fairly certain I do not have the full set of skills requisite for survival on my own. It would seem, therefore, that I am not viable. Consequently, could some power that be determine my life to be forfeit to the greater good? I admit this may be taking the argument to an extreme, but it does represent the slippery slope that is the argument of viability.

Another argument for abortion is “parthood,” which states that the embryo or fetus is part of the mother’s body, so it should be her decision in terms of what to do with it, much like an elective surgery to remove some other growth. True, the embryo or fetus is attached to the mother by way of the placenta and umbilical cord. Is attachment actually the same as being part of the body? Let us first consider what makes up a body? Our bodies include musculoskeletal, circulatory, nervous, integumentary, hematopoietic, immune, respiratory, digestive, urinary, endocrine and reproductive systems. Of specific interest to our discussion is the reproductive systems, namely the female reproductive system. It includes “internal” reproductive organs: ovaries, fallopian tubes, uterus and vagina, and “external” reproductive organs: vulva and clitoris. It also includes a temporary organ called the placenta that connects the fetus to the woman’s body.

By definition, an embryo or fetus is not included as part of any human organ system. In fact, it is something separate that is connected to the woman’s body through the placenta. The only somewhat-related metaphor I can think of is that of conjoined twins, in which two entities share some common organs and/or organ systems. Even in this situation, they are viewed as distinct individuals.

Another situation that arises and confounds the “parthood” argument is the murder of a pregnant woman or the wounding of a pregnant woman that results in the termination of the pregnancy. In the former situation, a perpetrator is charged with two counts of homicide. In the latter, with one. How can a murder of the embryo/fetus take place if it is not a human being?

A common accusation made against the conservative perspective on abortion generally and the pro-life perspective specifically is that they ignore science. Based even on this cursory review, it seems that science, by definition, disproves the “parthood” argument, as does the legal considerations related to homicide. If nothing else, this review gives us some food for thought.

The counter argument to “parthood” is the “container” argument. The woman’s body is essentially a container, as the name of the argument would suggest, for the developing child. This seems to comport more closely with the physiology we previously reviewed. Given that a woman and an embryo or fetus are distinct entities, we must explore the relationship between the two.

If the embryo or fetus is not a human being, the argument is clear. The organism has, in a certain respect, no more value than a parasite that is leaching resources from the woman. That being the case, the woman not only has a right to remove it, but she has a duty to herself to do so. Clearly, though, this is not the case. With the exception of rape, a woman chooses to engage in intercourse, knowing that it may lead to pregnancy. With the exception potentially of mental illness, a woman would not voluntarily infect herself with a parasite. From a physiological perspective, too, there is a difference. For pregnancy to be possible, the woman’s body produces a temporary organ – the placenta – to foster a suitable environment for the embryo/fetus to develop. This does not happen in terms of some parasite.

We return, then, to the earlier discussion of when life begins. Once that is determined, how can abortion be anything but the deprivation of life of another individual human being?

As “viability” has been and likely will continue to be a moving target, it makes this approach to determining the point at which one is a human being quite subjective. It’s even more so for the poor, who have limited access to higher level prenatal care, and as we all know, this disproportionally impacts in an adverse way minority women. Consequently, a de facto condition exists, similar to the so-called “separate but equal” application of law during the Jim Crow era, of inequality as it pertains to defining the very condition of humanity. For members of the higher socioeconomic groups, viability is applied differently than for those of lower socioeconomic groups. Furthermore, because socioeconomic disparities tragically fall along racial lines, this approach to determining viability and humanity itself is inherently racist.

As discussed in prior posts, I firmly believe that there cannot be equality until all laws and standards are applied equitably and blindly to all people. The only objective standard that treats all women and all unborn equally is that which asserts that life begins at conception. It seems to me that this also comports with the science of the matter. The mass of cells is indeed alive. The mass of cells function based on human DNA. If a whole is truly the sum of its parts, in this case the fundamental parts being human DNA, how can the embryo/fetus be anything other than a human being?

When the issue of life itself is on the line, why would we, as a society, apply a subjective standard in lieu of one that is objective?

I have mentioned the issue of rape. Admittedly, my personal position on this issue is less clear. Certainly, I would hope that a conceived child not be punished for the aggressive act of a rapist. As for the rapist, I favor life in jail and throw away the key! Next to murder, it is the most egregious act of violent aggression that one person can take against another. We, as a society, should have no toleration whatsoever for the act of rape. Period. The difficulty for me is that in such a case, the woman in no way voluntarily engaged in the sexual act that resulted in conception. In principle, I cannot support a child’s abortion in this case. In practice, though, I think about the physical, mental and emotional trauma to the woman. Personally, I cannot condemn her in this situation for making what I am sure is the most difficult decision of her life. For women who give birth under these circumstances, I have the greatest admiration for their bravery and compassion. For the woman who cannot, I do not believe I am in a position to damn her. For her, I believe it is my moral obligation to have compassion for her.

In situations of the choice between saving the mother’s life or the baby’s life, I believe it’s a decision that must be made between a woman and her physician, and depending on the family dynamic, the woman’s husband, too. This is not to say the husband has the right to say who should live and who should die, it is simply to acknowledge that in some families, this is a decision the wife and husband may choose to make together.

The challenge is that abortion is so personal and often such a difficult decision for people. It is important to recognize, though, that it is a decision that has greater impact than simply on the health choices of one person. As you consider the issue of abortion, which of the principles discussed above do you embrace? Which can you defend? As you listen to the candidates for the presidency and the legislature, which ones will advance your position?

  Day 1: Vote your conscience   Over the past month, social media posts, tweets, chats, etc. have been replete with “vote as if…” admonition...