Good morning,
THE FRAMERS AND WHETHER THE COURT WOULD EVER HAVE UPHELD ROE, EVEN IF “CORRECTLY” ARGUED
There is an ongoing debate about constitutional interpretation—whether we are to construe its words as absolute or whether it is a living document, malleable to the times and advances in science. Some would suggest the Constitution is not unlike the bible, with seemingly conflicting ideas that can be interpreted by the reader. David Lash touches on this:
“I just don’t get this obsession with the intent of the Framers. I would be shocked if the Framers thought they were laying out rules rather than principles. They knew that things change, things evolved, and their “intent” was to create a framework, a way to address government as things evolve…And let’s face it – being bound forever by the innermost intentions of a bunch of rich white guys is a silly way to run a government. Not a single woman was involved in the drafting of the Constitution, so of course there was no mention of abortion. Not one single solitary woman. And that is supposed to bind us for all time? The Constitution should be seen for what it was – an outline of principles by which to govern.”
“I think it is silly to assume that these justices would not have reached their conclusion-in-search-of-a-rationale if Roe had been decided on equal protection grounds. They could have upheld Roe on equal protection grounds… But they made it clear they believe abortion is the killing of potential life and that was the overriding concern. Equal protection is just as easily overridden on that “moral” basis. And, by the way, at least some of the reasoning behind Brown v. Board of Education was that separate-but-equal was sociologically damaging to children. A change in that thinking, new evidence that such a conclusion could be wrong, might be a basis to reverse that decision.”
DATA ON CONTRACEPTION
Adam Torson shared with me a Brookings Institution publication about family planning, which goes a long way in addressing how the Dobbs case will have an effect on contraception and family planning post-Roe. What surprised me is the high failure rate of most forms of contraception. The report notes that “intrauterine devices (IUDs), are the gold standard in contraceptive use. [They have] low failure rates (about 1 percent) and guaranteed contraceptive coverage for an extended period (most for up to five to seven years.”
“However, the least effective contraceptive options have considerably higher failure rates than the most effective, reversible options… 38 percent of women will become pregnant within five years while using the birth control pill as their primary form of contraception. After ten years of relying on the pill, 61 percent of women will become pregnant. For less-effective methods, the failure rate is even higher; condoms, if used over ten years, have a cumulative failure rate of 86 percent.”
What I conclude from this is that, like it or not, even those women who are careful about the use of contraceptives, many will get pregnant. And we should be very concerned that IUDs are in the sights of the anti-abortion activists, presumably on the theory that once the sperm meets the egg, fertilization begins the inevitable march toward life. And IUDs limit implantation of that “nascent life.” I fear we may learn before too long that insemination is the beginning of life in many states and, perhaps eventually, on the federal level..
FAMILY PLANNING
I have been dumbfounded by the idea that those most adamant about the evils of abortion nonetheless also are against contraception. Not surprisingly, the Brookings report notes that access to contraception and family planning counseling reduces the incidence of abortion. Here is the report’s conclusion:
“States that invest in robust family planning… have seen improved life outcomes for women and a decline in abortion rates. A program in Delaware that increased access to contraception, especially LARCs, coincided with a 37 percent reduction in the abortion rate from 2014 to 2017. A similar program in Colorado, the Colorado Family Planning Initiative, coincided with a 50 percent reduction in teen abortion rates from 2009 to 2014..”
Life outcomes improve and abortions go down. But will many states follow the suggestions? Unlikely.
The authors, Sawhill and Guyot, propose that states invest in social marketing campaigns and contraceptive counseling training for health care providers. In summary, with the overturning of Roe, education on contraception and family planning will be key to reducing the devastating impact of the Dobbs decision.
GOVERNMENT SUCCESS THROUGH REGULATION
I wrote a few weeks ago about government programs that are successes and those that are failures. Adam Torson notes that the New Deal programs must be on the list as among one of government’s greatest successes. He goes on to note how “anti-government types purposefully undermine government programs and then point to their failures as evidence that government programs can't work.”
One place where the “anti-government types” try to undermine the success of government programs is the vilification of government workers. These people are part of a bureaucracy that enables and enforces legislation passed by Congress, Adam cites Michael Lewis's book The Fifth Risk, which describes “the unsung heroes of the various government bureaucracies, from weather prediction to rescuing people at sea… [conveying] the point that there are myriad and numerous government functions that are invisible but essential to our everyday lives, many of which the Trump administration endeavored to destroy or monetize, or which they destroyed through sheer incompetence.”
Among the instrumentalities of the bureaucracy that were starved of funding and attention under Trump were those addressing public health and the preparing for a pandemic. This often is lost by those who seek to portray Trump as responsible for the vaccines against COVID.
There is a strong sentiment in the Republican Party today that there are faceless bureaucrats—the “deep state” that is making law beyond that reasonably contemplated by Congress in passing laws. Of course, this is a canard. Bills passed by Congress necessarily are general and incomplete, sometimes internally inconsistent, and not completely thought out, relying upon a federal agency to propound regulations to further and refine the intent of the law.
The Court seems poised to head toward finding that Congress must legislate each and every nuance of a law. This is where they are headed in limiting the Environmental Protection Agency from, well, protecting the environment, through regulation of greenhouse gases. Last term’s case limited the EPA’s reasonable extension of the enabling laws to include limiting CO2 emissions, which constitute the greatest contributor to greenhouse gases that warm the Earth. Once again, a Court with an agenda in mind will look for flimsy legal justification to achieve its ends.
HOW ABOUT THE SECRET SERVICE?
Where are all the people who were concerned with Hillary Clinton’s emails now that the Secret Service’s emails from the January 6th period have been deleted from their servers?
Have a great day,
Glenn
From the archives:
Good morning. Usually I do not engage in debates pro or con about abortion. I would (purely) guess that the framers would take the non-scientific, maybe common-sensical, and easy approach that you don't have a person until the baby is out, in mom's arms. Right or wrong, but that's just my guess.
The ability for the woman to choose would be based upon an individual liberty argument. Don't tread on me.
I love your book lists. Thanks. Two I read a good while back I can recommend.
In 1985 polymath Peter Ackroyd wrote a detective novel Hawksmoor. I loved it. Chapters alternated between London 1715 the Assistant (to Chief) Architect of London, the building of churchs, etc. and the modern day (1985) setting involving a detective trying to solve crimes in and around said churches. You will enjoy how the two periods meet, in certain senses. Sadly, no movie has been made. At the time of reading I pictured a youngish Jeremy Irons as the Assistant Architect, and Bob Hoskins as Detective Hawksmoor. Too late for them now. Time for this book again, if I can find it.
Next, an excellent novel by Richard Powers. Gain. Like the earlier suggestion, two strands in different time periods meet to affect a young woman's life in the midwest USA. Again, in the 1700's two (brothers?) candle makers grow their business, emigrate to the USA and, well, (not to spoil things), keep growing their business. And the life of our midwestern housewife in current times, with young kids and garden in the backyard, goes on, to eventually be affected by the two brothers' efforts. A wonderful book, imo.