21 June 2007

Abortion #2: Partial-Birth Abortion

The Objectivist
Dunkirk-Fredonia Observer
May 21, 2007

About a month ago in Gonzales v. Carhart (2007), the Supreme Court upheld a federal ban on partial-birth abortion. Justice Anthony Kennedy’s decision was shoddy and inconsistent. More important, it probably signals the breakdown of the Court’s ability to reason within the framework laid down in earlier cases.

In Gonzales, the Court noted that most abortions (85-90%) of the 1.3 million abortions performed each year are performed in the first trimester. The most common method is suction curettage in which the physician uses a vacuum-like apparatus to slice up and vacuum out the embryo.

In the usual second-trimester abortion, “dilation and evacuation” (D&E), the doctor dilates the women’s cervix and uses surgical instruments to tear apart the fetus. It may take 10 to 15 passes to remove the fetal parts. Sometimes the fetus is poisoned before it is torn apart. In partial-birth abortion (intact D&E), the doctor pulls the body up to the head outside the woman and then in order to allow the head to pass through the cervix, pierces or crushes the skull. In one variant, the doctor pierces the skull with a scissor and vacuums out the fetus’s brain (using a suction catheter).

In an earlier case, Stenberg v. Carhart, 530 U.S. 914 (2000), the Supreme Court held that Nebraska’s ban on intact D&E was unconstitutional. In response to this case, Congress passed the Partial-Birth Abortion Ban Act of 2003 (18 U.S.C. sec. 1531) which criminalized this method of abortion. The new law ignored Stenberg’s factual findings and provided a narrower ban that covered intact D&E and not other D&E methods.

The problem the Court faced was trying to allow the ban despite clear precedent (Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 [1992] and Roe v. Wade, 410 U.S. 113 [1973]) that held that an abortion ban is unconstitutional when it placed an undue burden on a woman’s right to a pre-viability abortion (viability occurs when the fetus can survive outside the woman). An undue burden occurs when a statute’s purpose or effect is to place a substantial obstacle in the woman’s path to an abortion. The Court also faced the awkward fact that Stenberg explicitly required any ban on abortion, including intact D&E, to allow it when necessary to protect a woman’s health.

The Court found the Act did not have the purpose of unduly burdening the right to an abortion for three reasons. First, the Court argued that the state may show respect for human life. The Act did this, the Court asserted, by protecting innocent human life from a brutal and inhumane procedure. In particular, it noted that intact D&E is too close to infanticide. Second, the Act helped to protect women who had this procedure done. The Court speculated that given the women’s fragile state, doctors might not fully disclose the details of the procedure. Women who had this done would then be at risk for psychological damage when they later learned what was done. Third, the Act protected the medical community’s reputation.

The Court also found that the lack of a health exception does not have the effect of imposing an undue burden on a woman seeking an abortion. It noted that medical experts disagree on whether the procedure protects women’s health. The Court then argued that disagreement among medical experts doesn’t prevent legislation in the abortion context any more than it does so in other contexts.

Justice Ruth Bader Ginsburg, normally the weakest Justice, went to town on these flimsy arguments. She pointed out that none of the three reasons were convincing. In response to the first argument, she noted that the claim that the ban shows respect for the life makes no sense. After all, it bans certain acts of fetal killing (skull destruction) and not others (tearing apart) based on the location of the fetus in the woman. This is obviously irrelevant. In addition, she noted, the ban won’t save the life of a single fetus since physicians will simply switch from intact D&E to other methods.

In response to the second reason, she noted that if the concern is that women are not giving informed consent, the obvious solution is require that they be provided adequate information. To deny them a choice due to concern about their well-being is to treat them like children. She also pointed out that the concern for psychological harm is pure speculation and not supported by science. Ginsburg ignored the third reason, probably because it is patently irrelevant.

In response to the lack of a health exception, Ginsburg noted that the Court has consistently required that laws regulating abortion, at any stage of pregnancy, safeguard a woman’s health. In addition, in Stenberg, it explicitly applied this requirement to partial-birth abortion. In addition, she noted that intact D&E is probably a medically necessary procedure in cases in which women have certain disorders (for example, bleeding disorders, heart disease, and compromised immune systems). This is because it produces less trauma to the cervix and uterus, lessens operating time, and reduces the chance of a fetal part being left in the woman. She noted that this conclusion is supported by the American College of Obstetricians and Gynecologists and the majority of highly-qualified experts on the subject.

Ginsburg’s criticisms hit their mark. Given the protection of other pre-viability abortion procedures, this ban does nothing to protect fetuses and probably endangers women’s health. As such, the ban is nothing more than an irrational attack on an abortion procedure with a bad rep. If Kennedy and his gang of five want to overturn precedent, they should do it directly rather than chipping away at it via haphazard arguments and armchair speculation.

The problem here is that the Court is looking for middle ground where there is none. The justices are trying to protect a women’s right to kill human life that is composed of relatively few cells (conceptuses and zygotes) while protecting more developed fetuses. Because there is no morally significant difference between them, because the Court has previously focused on the irrelevant point of viability, and because the Constitution is in fact silent on the issue, its decisions will continue to be contradictory and unprincipled.

07 June 2007

Steroids #2: Nothing Wrong with Steroids

The Objectivist
Dunkirk-Fredonia Observer
May 10, 2007

With Barry Bonds chasing Hank Aaron’s home run record, it’s worth considering whether professional baseball and football should permit steroids. For this discussion, I shall ignore the fact that the federal nannies have made steroids illegal (it is a schedule III controlled substance with punishment of up to one year for possession and up to five years for distribution).

National Review columnist Dayn Perry points out that athletes use testosterone, a male sex hormone, to increase strength and decrease body fat and thereby enhance their performance. It’s controversial whether adult males can safely use steroids. Charles Yesalis, a Penn State epidemiologist and longtime steroid expert cited by Perry, asserts that steroid use is probably safe when used reasonably and under a physician’s direction. The “probably” is explained by the shameful fact that in the roughly 65 years that anabolic steroids have been used (steroids derived from testosterone), there has not been a single epidemiological study of the effects of long-term steroid use. Nevertheless, let us accept the steroid-critics’ claim that they heighten the risk of different cancers, high blood pressure, elevated cholesterol, ligament and tendon damage, and addiction.

There are two types of rules that are relevant here. Constitutive rules make a sport what it is. For example, the notion that in soccer, players other than the goalie cannot touch the ball with their hands makes soccer what it is. Regulative rules merely affect how it is played. Consider, for example, the rule in baseball allowing for a designated hitter. Among the regulative rules are rules that prevent players from harming others or harming themselves. For example, the rule in football that prevents players from using their helmets to spear others protects against harm to others. Other rules prevent players from harming themselves. Both types of rules affect who gets to play and how well they do.

There is nothing wrong with professional sports permitting steroids. If a rule protects against harm to self and primarily affects who plays, then it is morally discretionary as to whether the league should adopt it. The rule permitting steroids protects against harm to self and primarily affects who plays. While I don’t think this is relevant, many people find this claim especially appealing when the protection doesn’t hurt the league business or decrease the quality of play.

Consider an analogy. In 2005, nearly 56% of NFL players were obese according to medical standards that focus on the height-to-weight ratio. According to Joyce Harp, a professor of medicine at the University of North Carolina at Chapel Hill, this puts them at greater risk for ailments such as heart disease, diabetes, and damaged joints. Still, it seems permissible for the NFL to permit linemen to weigh more than 250 lbs. even if doing so puts their health at risk. The players themselves decide whether to risk their health and heavier linemen don’t appear to be driving away fans or reducing the caliber of play.

One objection raised against the league permitting steroids is that it disrespects the game. This rests on a misunderstanding of moral duties, which can only be owed to things with interests (for example, persons and pigs) rather than things without them (for example, games and dirt).

A second objection is that steroids prevent baseball or football from being a true test of ability. It’s hard to know what to make of this claim. Players use an array of training methods that are anything but natural, whatever that means. For example, professional athletes benefit from computer-modeled biomechanical guidance, eye surgery that gives them better vision, sophisticated muscle and joint surgeries, laboratory designed nutrition, and scientifically tested conditioning programs. If they don’t prevent games from being a true test of ability, it’s hard to see why steroids would.

A third objection is that steroid use puts pressure on other players to use steroids. The same is true of the competitive pressure on linemen to bulk up or hitters to lift weights and most people think the league should permit these activities even if they endanger health.

A fourth objection is that steroids are aesthetically displeasing. For example, they disturb the sanctity of baseball’s hallowed records. Even if this is true, it’s irrelevant. There’s no duty to be aesthetically pleasing. For example, we don’t think fat people are moral failures. In addition, comparisons between generations are notoriously difficult and records hide this difficulty. For example, Rocky Marciano used to fight at roughly 192 lbs. He can’t easily be compared to modern fighters such as Lennox Lewis at roughly 247 lbs. since Rocky was much lighter. Other comparisons are similarly difficult. Baseball’s greatest player, Babe Ruth, didn’t have to face black players and pitchers like Bob Gibson pitched on a higher mound and didn’t have to face a designated hitter. In any case, the tradeoff between having the best athletes and comparing records is subjective and depends on what fans prefer. Given the vast amount of attention paid to the Mark McGuire/Sammy Sosa home run race a few years back, it wouldn’t be surprising if the fans preferred seeing the best athletes.

A fifth objection is that steroid use in professional leagues might encourage teens to take steroids. However, within limits, we don’t have to restructure entertainment to make it maximally safe for children. For instance, it is permissible for persons to watch movies that pose some risk to children (showing “The Deer Hunter” might encourage teens to play Russian roulette). It’s also permissible for professional hockey to tolerate fighting even if it encourages teens to do the same.

Leaving aside the law against steroids, there’s nothing wrong with professional sports leagues permitting steroid use. The league isn’t morally required to be in the business of protecting players against themselves. Nor is it clear that permitting steroids will hurt business or the quality of play.