What to do when doing nothing isn't an option?

"In a previous post, I claimed that there is a bias in public policy debates toward doing something, rather than nothing, even if doing nothing might be the right thing to do.  But I also promised in a future post—this one!—to say more on the matter.  The gist of my earlier post is that people in the liberty movement often lose arguments by simply denying that there is a problem, or by claiming—which amounts to the same thing—that the proposed solution won’t work, and therefore “we” should do nothing.  Since libertarians often want the state to do nothing (though the “Right Kind of Nothing,” to be sure!), this seems facile.

We can do better, I think, by agreeing with the premise that there is a problem.  Often, a small restatement of the problem helps.  If someone is upset about inequality, I always wonder what they are really worried about.  So, I ask:

Isn’t the real problem not inequality, but poverty?  Rather than taking envy, which is a sin, and trying to raise it to the status of a virtue by calling it social justice, why don’t we try to help poor people?  Furthermore, if the poor in the U.S. have it so rough, why do genuinely poor people from the rest of the world want so desperately to come to the U.S. and be poor here instead of being poor where they are?
As you can imagine, hilarity ensues.  Still, I actually agree that poverty is a problem.  The best cure for poverty is a job, however.  If I can get my conversational partner to agree on that, we have a place to start."

There's several issues on which this is a useful critique. The War on Drugs or the War on Terror I'm not inclined to see as very serious problems worthy of massive state involvement, much less along the lines that the governments involved have typically proposed to wage these fights. But I'm fully aware there are (many) people with serious problems with drug addiction and some (very small) number of people who might wish to commit acts of atrocities upon civilians and citizens in this country for political or discriminatory purposes. It's very easy to see that these are problems worthy of "doing something" about. It is not so easy to convince people that "what we are doing" or "what is proposed to do about it" is not helpful toward alleviating those problems or indeed may be making them worse rather than better. But supposing that's done, there still needs to be something involved as an alternative. I typically would propose something at that time, assuming people are still listening. Likewise if people want to complain about legal abortion I can point out that there are pretty beneficial things going on (even at planned parenthood) that have made abortions less likely. And have done so far more safely and easily than whatever it is they propose to have people do. This isn't exactly greeted as wondrous news either.

So I would suggest one of the problems is simply convincing people what's going on isn't actually working usually succeeds in moving the goalposts. And that will usually show they have other preferences revealed besides actually dealing with a problem as listed. That can be helpful and clarifying. But it is usually not that productive. I'm less convinced that there's a case to be made that immigration is a serious problem. Or that Citizens United has undermined democracy in some critical way. So sometimes there's a strong problem of not seeing a problem and not being able to find some common ground.

The bigger problem this identifies therefore is simply not wanting to find the common ground for many libertarians. By ignoring the possibility of pushing the existing state toward a more free society in favor of demanding the demolition of the existing state this is engaging in a pointless intellectual exercise. Nobody else fights that battle. The hill to die on there is of no value to the existing world. By contrast, pushing the state to do a little less somewhere is something almost everyone does some of the time and to which is a cause people aware of things government does (and probably should not do) can usefully apply themselves.

Liberals wanted the state to be less discriminatory in marriage laws, and allow both straight and homosexual couples to marry. I viewed this as a positive benefit in the freedom of individuals, as deciding who to marry and accord various privileges and benefits to is a significant act for (most) individuals, and as such it should be to someone of their own personal choice rather than someone the state approves of such choosing. The correct and helpful response to this as a movement was not "demand the state abolish thousands of marriage regulations" by "abolishing marriage as a state institution" but rather help to see that the state applies them in a non-biased way. One could always come back around later and start tearing up some of the less useful and effective regulatory benefits once that benefit to freedom is established. Start with the benefit to others first though, or it is less clear that your motive is in fact the liberty of human beings (and is not something else like "traditional religious views should dominate the public sphere").

In other spaces. Liberals used to have a civil libertarian streak (during the Bush administration, it has clearly faded now that Obama was in charge of the nefarious organs of power to which they objected), and wanted to limit (if not abolish) the powers of the surveillance state to impinge on the rights of citizens to privacy and protection against general and unreasonable searches. This was a useful ally to have to protect the rights of individuals and their freedom from an overextended state. While I'm often more dubious of the interest of modern conservatives to protect individuals and individual liberties (particularly their current crop of Presidential candidates), they do occasionally nod toward making less arbitrary regulatory red tape in the formation of businesses or the sale of otherwise safe goods or to the experimentation of new goods. As an example, medications long approved for sale in both the US and EU for instance should be purchasable from EU sources, at steep discounts, and in general, much of the FDA's drug regulations seem more productive at (excessively) protecting existing markets than allowing new and safe drugs to enter and compete (and perhaps lose). Conservatives have noticed this as a fair target for reform. They've also slowly started to help to push against the growth of the prison state, because of its bloated size and ineffectiveness at continuing to lower crime while also re-integrating some of those we send away to prisons and jails in the first place.

It would be helpful if these sorts of pragmatic approaches predominated. Seek some form of common ground, and then ruthlessly ally with whomever demonstrates a path toward it that can be agreed upon.

Ignorance is not a merit badge

This isn't a complaint about any one in particular. I've become frustrated by an increasing number of discussions and debates and political topics where I observe that one or both sides, or a variety of their participants appear to not understand the topic. But still wish to fan their ill-considered opinion into the fray. Much of this is, I think, that most of us do not know very much about either the other side, or the people about whom such fights are being waged. It's also very cheap to air an opinion into the fray and there's often very few interlocutors who will know enough to push back.

An example: abortion. Most of us probably do know someone who has had an abortion, or someone who has had a partner/spouse who did. But most of us don't discuss it, either if it occurs, or go about indiscreetly inquiring about it. It's not exactly a topic that comes up and isn't liable to be a very comfortable topic to discuss. Many women or families that have them are likely to not want to discuss it on the (reasonable) fear that some number of people will be extremely judgmental. They will prefer to remain friends or have quiet family dinners than to discuss this activity and decision with others on the risk that they will decide this is some unforgivable behavior. Or it will have happened so long ago as to be seen as immaterial. Similarly, it is a comfortable assumption to believe that abortion is something that "other people, not like myself" do, and probably seen as impolite to presume that it is occurring among the circle of associates we have collected and ask about it.

All of that means that abortion politics and debates about abortion center largely on these vague assumptions about who is getting abortions, vague assumptions about why they occur, and the various preconceptions one has about those decisions, how they are made, who makes them, and what we should do about it. In fact, these would be much simpler discourses if we know or could conceive of someone we know who did in fact get an abortion. Instead of these amorphous characters upon which we may pile our assumptions made from ignorance. We can, in the absence of this personal experience, rely on data that is collected. A composite may be made. But that will still be a stranger that we imagine. Not a friend. Or a former classmate. A former teacher. A former lover. And so on through the range of possibilities.

Throughout discussions over the last several years, I have noticed this ignorance of the topic becoming a serious problem for how people are informing their political decisions or activism, or how they are discussing issues therein with others. People are unaware of how often police shoot or assault suspects (part of this is that US police forces do not keep proper statistics of course). How often they raid people's homes in full tactical military gear (again, most states don't keep or report this information). How often those raids find not only few or no illegal drugs (the most common basis for such acts), but no weapons either (the most common basis for why they needed the aggressive military raid). How often police are killed or assaulted by suspects (this is tracked, it's been going down). Whether the crime rate is going down (most cities it has, by a lot). People are unaware of why abortions happen or who gets them. Or who has miscarriages and how common those are and whether laws intended to punish and restrict abortions might not also punish women who have had miscarriages with criminal investigations. People are unaware that women in lower class or lower income jobs probably won't get the ability or time from their employers to use a breast pump to aid in breastfeeding while at work. Or that they don't have access to basic family leave policies and sufficient income that will allow women to recover mentally or physically from pregnancy if needed and for new parents to spend time with a new child and the time and energy that requires and must return to work very soon after giving birth if they wish to continue to pay bills or keep their job. People are unaware of how Muslims behave. Or atheists. Or even (other) Christians. Or are unaware that their own grandparents might be in favor of gay weddings. Or that they are not. People are unaware of what gun owners are like and why they want to have and keep guns (or unaware of why other people might have some reasonable fear of guns). People are unaware that putting calorie counts on fast food doesn't make most people order healthier; it might work the opposite way even. Or that paying for health care more easily doesn't make people go to an actual doctor for their health needs; they still go to the emergency room instead, maybe because they don't have time to schedule appointments during working hours. People are unaware of the actual time and energy involved in being working poor in our society and the impact this has on decision making or the ability to do ordinary "middle class" things, or the moral and ethical decisions that may be altered because of the need to rely on others for basic status and survival purposes. People are unaware of others in many contexts.

And yet we all presume to know a great deal and presume that other people should not only know these things that we think we know, but that they should behave as we do, with our different incentives and experiences left unexamined.

From observing and talking to other people, I think there are two basic roots to this problem

1) The belief that other people are fundamentally "like me". I do not generally share this problem. It exists for me, but it is not as infectious an idea as I can easily find and deliberately push forward things that make me "different" and will challenge this assumption when others care to look at it. I admit and sometimes revel in the fact that I am an odd ball outsider observing other people. My politics are often more radical. I won't vote for candidates I can't support in good conscience (most people vote for the lesser of two weevils. Or it is evils. I'm not really sure what they're implying I should be doing). I don't practice any religious or spiritual traditions. Consequently from this "outsider" perch, my perspective shows me that there isn't as much of a difference between Christians and Muslims (or Scientologists even). Or from Democrats or Republicans (or libertarians). From heterosexuals and homosexuals. Or from Bob and Linda. Most people are pretty depressingly normal once you get to know them, even if they believe or say wacky things sometimes. They have to be very strange indeed to be surprising. Maybe some things or people are worse and more destructive than others or other things are better and more apt to form a prosperous and pleasant environment in which to live and work, but they're not so fundamentally distinct to be unrecognizable. (That in itself is depressing, in that these supposedly very distinct worlds can collide and destroy very easily what is built because they aren't coming from places that are very far apart most of the time).

Most of humanity seems instead to assume that other people they know and associate with fundamentally agree with them on many things rather than admit this possibility that they might be "weirdos". Sure maybe Bob likes the Yankees or sometimes votes for Democrats. Or maybe Linda has a better job. Or whatever. Basic worldviews are in alignment. Basic outlooks and perspectives. Basic status and welfare is generally similar. So we assume they're like us and that they think and agree with us on many points. On many points, that's maybe true. We do have friends that are often more like us than not. Our families are usually like us. But we aren't clones. We don't spend the time to investigate these distinctions. We do not listen, and we do not ask. We've assumed we already know all we need to and that what we don't know won't be that shocking.

Note: This doesn't mean that all people are similar and same in their quirks and oddness, rather that our odd quirks aren't usually that distressing or that weird to isolate us. The key is that most of us don't bother to consider they are there at all in other people despite that we may spend a lot of our time concealing or otherwise dealing with our own quirks.

2) The lack of networks for most of us for accessing people who are "others". If we are white, we don't have many black friends. If we are rich, we do not have many poor friends. If we are Christian, we probably have few atheist friends. And so on into less pleasant circumstances for some of us (these aren't equivalent categories but rather examples of things we don't like to consider: we don't know of the women who have had an abortion, we don't know any Scientologists, we don't know any Neo-Nazis, we don't know Young Earth Creationists). And we lack the imagination to perceive how that may (or whether it should) change. There is little or no percentage or gain perceived. There is more to be gained by more tightly winding our way up. Not by looking around at the people around us that are "in the way" and aren't part of the group.

Some of those "others" may actually be distasteful and unpleasant. That's to be expected. We are also encouraged, in order to keep and earn some respectability, not to know and associate with of many of these unpleasant groups where they are in public disfavor. Knowing someone who is explicitly racist or sexist is uncomfortable (for some people, even implicit expression of biases is uncomfortable and worthy of challenge). It probably should be, or at least be pushed back upon and challenged where it is encountered, as there seems to be little benefit to such practices and demands made by racists or sexists if enacted where they are made widely and openly without any social consequence. Knowing a woman who has had an abortion is also probably uncomfortable for many people. Maybe it should not be. Knowing someone who has been arrested? Knowing people who are serving in the military? Knowing politicians trying to get elected? Cops trying to uphold law and order? And so on. We should not pretend that these are people totally alien to us, any more than they should toward us. Often this is the framework that emerges. Christians versus atheists. Cops versus the general public. Politicians toward the public and each other. These frameworks of intense opposition are not obviously and necessarily helpful. They are easy ways of discussing a debate that we know little about because we probably know little about the relatively small number people on the other end of it, or the many more people who are observing this debate with only partial interest and investment of time and attention, or even and most importantly the people whose actual lives are going to be impacted by what, if anything, comes out of our discourse and elegant arguments and shouting matches.

Perhaps a different approach would help. If a state wants to pass a law that might be seen as permitting discrimination, maybe it would be useful to have the voices of people who might be discriminated against involved in the discussion and formation of such laws to be heard and discussed even if in opposition to their crafting and language. Or a state wants to pass a law that might restrict access to abortion, perhaps women, families, and doctors should be consulted. Or perhaps if we're going to form a set of international sanctions upon a country, we could then talk to them to see if we can find ways to accommodate both sides demands in a reasonable manner. These are not complicated steps but they are apparently difficult to achieve. We would benefit by having to interact more with actual people once in a while.

The world isn't a zero sum game. One of the prices of living in a pluralistic and highly elastic (and thereby unequal society) is that eventually and sometimes the various disparate parts start clawing at each other. Sometimes these disagreements become fundamental and impossible to work around. But one of the benefits of living in such a society is that there are opportunities to find ways to prevent that, for people to all prosper and get what they want or need. They don't even need to get along or like each other that much at all for that to happen. A very modest level of respect of the identity and intentions of others suffices.

An exercise perhaps to help. Start with the assumption that you do not know what they are thinking, what they have done, and what they wish to do and why, and that maybe you should investigate that more before doing things that might effect them. Or if that's too much, try to imagine that someone you know closely is like this person. How might that impact your thinking? Or your friendship or work relationship or marriage? A little humility and a little awareness of ignorance in some of these debates might open the floor to more opinions and more knowledge.

A few narrow points

The conclusions don't necessarily create the idea that conservatives have figured out how to address the concerns of women (or single mothers in particular). But there were a few morsels of ideas and concessions in here (of course, Frum isn't widely considered a conservative by other conservatives). 

"the pro-life movement really does seem to have changed American minds about the morality of abortion. Only about one-fifth of Americans wish to see abortion outlawed—a proportion that has remained steady since the mid-1970s. But the proportion that thinks abortion is wrong has edged up over the past 15 years: Only 38 percent of Americans now describe abortion as “morally acceptable.”"

- This trend explains much of the strategy behind most abortion restrictions as if most people seem to think what is being done is wrong, but aren't willing to ban it outright, the restrictions will sound like sensible methods of "getting people to think again" while ignoring the actual impact of the restrictions. It's also why I think that if Roe were ever overturned, pro-lifers are screwed as they have to defend the idea that not only is it "wrong", but it should be illegal. A prospect which is not a clear line for crafting jurisprudence, as evidenced by our fraught history waging the drug war, or Prohibition before that, among other examples. It seems even less likely to lend itself to clear jurisprudence where metaphysical assessments of the origins and meaning of human life are concerned, and these become intertwined in a variety of scientific or natural phenomenon (such as miscarriages).

The major problem with the trend is that it does two things.

1) Confuses the population's terminology and labels. "Pro-life" is more broadly interpreted than "someone who wants to ban abortion". "Pro-choice" is mostly becoming limited to people who don't want to describe themselves as "pro-life". The popularity of both labels gives the basic impression that the ardent pro-life position, or the ardent pro-choice position, are more popular than they really are. The vast majority of people are instead in a fuzzy zone and have few strong opinions other than that "it seems wrong", or something to that effect (the famous Clinton formulation of "safe and legal but rare"). Neither position should have much dominance if popular will is sufficient to argue the legal merits of abortion (I do not believe it should, and possibly even pro-life persons would agree with me on that point when they recognize that they do not stand before the majority).

2) In truth, both labels are functionally meaningless. By acknowledging that neither position does hold sway, we should be able to acknowledge properly that most other people are not in some carefully thought out and fervently advocated position on this issue and will hold neither "pro-life" or "pro-choice" politics as a result. If most people seem on simple reflection to agree that we should have fewer abortions because they are "wrong", then the actual disagreement is over what methods would best produce that outcome of fewer abortions, and not so much over the labels we use to argue to that result.

Frum's piece points out, without actually refuting, the standard pro-choice liberal narratives. Access to birth control and various restrictions on abortion account for example for why Europeans have fewer abortions than Americans (often much fewer), or for why the teen pregnancy rate has been falling as a source of decreased demand.

In addition, regardless of whether these factors decrease abortions significantly or not they may have positive effects on these concerns about the "traditional family", such as by allowing women (or potential husbands brought on by "shotgun weddings") to attend college or university and get a degree or decent job instead of attempting to raise a child on a lower-income education and salary. And increased use of birth control has beneficial effects within families, as indicated large numbers of abortions are to women who already have children, indicating unplanned or undesirable pregnancies possibly from inadequate birth control or lack of use, or by decreasing the spread of sexually transmitted disease. We might say those are positive externalities brought on by the use and accessibility of both birth control and to a lesser extent abortion.

Frum's basic argument seems to be that the problem is that in the narrow focus on abortion, social conservatives have confused away the arguments for marriage (and in a related story, also did so by trying to argue against same-sex marriage, and have mostly lost or conceded that fight). In theory such an argument does not actively offend anything. It seems unnecessary in theory to press an active social case for women to be married, whether to men or women, in order to raise children versus the legal and political arguments. In practice there may be merits to it as the "marriage" crisis, such as it is, is largely a problem of the lower socio-economic class who either do not get married or may marry younger and get divorced sooner, and is also less likely to use birth control (but not abortion), and as a result, creates a significant population of mostly poorer and poorly educated single mothers. The upper-socio-economic class gets married later, typically after educations and careers are well-in-hand, and tends to not have children prior to that point. We are also likely to see these as cyclical effects for single-parent homes to produce children who receive poorer educations and thus poorer economic opportunities (among other possible difficulties in childhood).

Having diagnosed this as a potential social ill worthy of attention however, Frum's solutions are more to fret over how we may encourage marriage or to experiment with incentive structures rather than regard the economic and educational choices of people within these single-parenting problems as problems worthy of solution in their own right prior to advancing the agenda of "get more people married" as a second order problem that may help resolve these struggles but which may be considerably more difficult without addressing these structural problems underlying the decisions not to marry for many. These problems can be innumerated thusly:

1) Social welfare safety nets often scale poorly, providing bad incentives to improve the economic state at the marginal position of poverty. Foremost among these with a poor structure is typically state subsidies for day care. Food stamps typically phase out more smoothly. Housing and childhood assistance does not. This can impact household structure by limiting the total household size. This can have the effect of preventing marriages because the marginal assistance from the state declines much more than the amount of additional income provided from a second parent, or failing that, it can have the effect of preventing one or both parents from working at various points during a year to avoid a loss of subsidies.

2) Time management in parenting is a tremendous problem with the attending demands of raising small people into adults. This was previously resolved by two-parent households where one parent (almost always the mother) stayed home to handle most of the home and parenting duties. This is neither as straightforward an option as it was in the 1950s imagination land of conservatives (because often women may have better educational or employment options than the fathers of children), nor something that is always possible even in two parent households today (requiring both incomes for sustainable lifestyles). The solutions here are fairly well known; access to day care (many ways to achieve this), access to flexible scheduling in more occupations (so that parents can take time to deal with home concerns), and some variety of parental or family leave time (whether paid for by employers or the government). With other possible assistance measures like moving back the start of the school day added in for good measure.

3) Because of poor time management flexibility, attaining an education or license for a better occupation can itself be a considerable stretch of this valuable resource (time). We have attempted to resolve this by subsidizing college education costs, but this typically has resulted in ballooning education costs and more student loans rather than more practical outcomes; like well-trained professional skills accruing to graduates. Additionally, since the focal problem is dealing with under-educated poorer people with limited time, such a focus on providing access to college educations is ridiculous as a solution. Most such people, whether from ignorance or time constraints, will not succeed in obtaining a degree no matter how much money is thrown at the problem (within reason). The fix for that requires addressing disparities in K-12 education, not in trying to repair the damage much later, after the fact.

Instead of this focus on college education, fewer jobs or professions should require occupational licenses, along with any accompanying educational requirements, from the state. If they do require licensing from an employer, or there is a potential market benefit to advertise having achieved special training in the craft or art involved, that should be a separate matter. But with the state providing a clear hurdle to entry of various professions, this prevents many people from starting competing or side businesses that they could in fact do things like time management (by largely working from home for example) or to use the profits to fund an education for themselves or their children.

More on the advance by nickels and dimes

I've often had some strange opinions. Or what must seem like strange opinions to most people.

So. This one is kind of out there too. I don't think the problem for pro-choice people is defending Roe v Wade in the Supreme Court. That's not going to be overturned for one. And if it ever is, the problem is then on pro-life voters to defend a minority position in almost every state (the complete ban of abortion) by making that their intended legal framework. My thought has long been that if Roe were ever overturned, the pro-life movement shrivels and dies because it can't win that way and Roe is a rallying cry that it doesn't get any other way. 

The real problem has been, especially over the last few years, a system of nickel and diming the effective options of what it means for pro-choice to be actually exercised. To restrict; primarily with tedious, invasive, expensive, and mostly unnecessary legal frameworks to run a clinic conducting abortions and to obtain access to it from within a state (waiting periods, ultrasounds, descriptions, parental notification, restrictions on IUDs, etc). Most of that is controversial and well-known to be useless and arbitrary rather than meaningful restraints among pro-choice advocates, but such advocates are also not very common (ardent pro-life voters are roughly as common). Most people are squishy and uncomfortable with the topic and without much contemplation will feel these are reasonable restraints. Even though they're not useful to protect anyone except to waste more time or money for those who want or need access.

But it's also starting to punish. And this is more where it gets scary and strange. 

"Based on the belief that he had an obligation to give a fetus a chance for life, a judge in Washington, D.C., ordered a critically ill 27-year-old woman who was 26 weeks pregnant to undergo a cesarean section, which he understood might kill her. Neither the woman nor her baby survived."

"documenting 413 arrests or equivalent actions depriving pregnant women of their physical liberty during the 32 years between 1973, when Roe v. Wade was decided, and 2005. In a majority of these cases, women who had no intention of ending a pregnancy went to term and gave birth to a healthy baby. This includes the many cases where the pregnant woman was alleged to have used some amount of alcohol or a criminalized drug. 

Since 2005, we have identified an additional 380 cases, with more arrests occurring every week." [Bold mine]

This is in combination with cases like that in Texas earlier in the year where the state was attempting to keep a pregnant but brain-dead woman "alive" long enough to deliver a baby against the family's wishes and before the legal statutes required it (which is grotesque and macabe enough that there are legal statutes requiring it rather than allowing families to decide this). 

The problem with these legal changes isn't just that it presents these arbitrary distinctions over the access of women to abortion. It's that it now potentially criminalizes basic medical decisions, places judges in positions of authority over the health risks or even the lack of life rather than doctors and patients making these decisions, and in some cases, criminalizes terrible things happening to women naturally. Miscarriages. Which are much more abundant than people realize. Or severe health problems placing both her and a probably very much wanted pregnancy at risk. These demands and realities are placed at odds with legal codes that are not as accommodating. Even if women are eventually cleared of any "wrong-doing" and even if one agrees with the fundamental "personhood" legal basis behind many anti-abortion legal codes, that we should be demanding the intrusion of the state onto personal liberties of women who have suffered a considerable loss, or been through considerable trauma and risk to their own lives suggests that we have accorded the state far too much power over this. And far too much power primarily for the purpose of punishment rather than power for the purpose of protecting the life and safety of citizens. 

As a corollary to all of this. I'm still extremely baffled by the Democrats election strategy being premised largely on fear based positions relating to abortion politics. As noted above, there is not actually a grand divide of people for whom this is a single-issue vote that they will always turn out to vote for or against. There are some people for whom this is an issue, but there were not many. The electorate seemed mostly concerned about their economic prospects, with maybe IR (ISIS) and other assorted issues mixed in. And what's more, this has never actually been a "women's issue" in the sense that it motivates women to vote uniformly or as a bloc of voters. It is a women's issue in the sense that it is women getting abortions or in need of them; men obviously don't need them as we can't have one. It is not a women's issue in the sense that there are more women in favor of abortion (men are usually slightly higher in support in polls, especially later term) and that thus running such ads or campaigns based upon the (legitimately) terrible things Republicans could do in office on these issues would turn out women FOR Democrats. It doesn't break that way. It was just as likely to either: 
a) get women to go vote FOR Republicans, because there are numerous women who actually favor such policies and want to see them enacted. Women break evenly here rather than "for" choice (although most women still have a "abortion for me and not for thee" style convention to this "choice").

b) get women annoyed at the men in these campaigns for thinking this is the only issue on which they are concerned and annoyed enough to stay home and not vote or annoyed enough to vote for the other guy. 

That was a textbook stupid campaign in other words. 

Unicorns

But they may not immediately see why "the State" that they can imagine is a unicorn. So, to help them, I propose what I (immodestly) call "the Munger test."  

1. Go ahead, make your argument for what you want the State to do, and what you want the State to be in charge of.
2. Then, go back and look at your statement. Everywhere you said "the State" delete that phrase and replace it with "politicians I actually know, running in electoral systems with voters and interest groups that actually exist."
3. If you still believe your statement, then we have something to talk about.

This leads to loads of fun, believe me. When someone says, "The State should be in charge of hundreds of thousands of heavily armed troops, with the authority to use that coercive power," ask them to take out the unicorn ("The State") and replace it with George W. Bush. How do you like it now?

If someone says, "The State should be able to choose subsidies and taxes to change the incentives people face in deciding what energy sources to use," ask them to remove "The State" and replace it with "senators from states that rely on coal, oil, or corn ethanol for income." Still sound like a good idea?

How about, "The State should make rules for regulating sales of high performance electric cars." Now, the switch: "Representatives from Michigan and other states that produce parts for internal combustion engines should be in charge of regulating Tesla Motors." 

While I agree with these insights, and try to apply them fairly rigorously to things protected Constitutionally (such as free speech or freedom of conscience exercises), I think the explicit value of public choice theory is to be skeptical of the efforts of the state or those proclaiming the need for a state to intervene. And not to immediately and reflexively eliminate it. While that elimination may be desirable in its own ends, for a variety of public choice and private goods problems that are better left to markets to resolve (most forms of occupational licensure for example), I'm not convinced that this is an argument that libertarians should be advancing as the main goal when arguing with people who believe in unicorns. 

Here's a simpler argument to evaluate: 

1) Establish publicly what it is you hope to accomplish using state action. What is the actual problem we are hoping will be resolved or reduced. Presuming this is not Constitutionally restricted ("I want to shut up people with whom I disapprove or disagree!", "I want to require people to worship in the same way as I do"), we can proceed further. 

2) Describe why this cannot be resolved without the intervention of the state (why do we need a law for this instead of leaving people to their own devices?, or otherwise expressed as "is this actually a/the problem?") And also by what mechanism the state will do so. If it is unlikely the state will adopt the general outlines of the mechanics you desire, are you aware why this is so? 

3) Construct a mechanism that allows for the results to be evaluated, showing that it reduces problem X (or at least that problem X is being reduced). If people are unwilling to do this when they are discussing policy, they are not actually interested in doing #1 and we should require additional information as to their intentions (eg, this is where the "corn ethanol" subsidies come in, or the "WMDs" in Iraq.) Note: it is very difficult to separate state actions from those of the public or market responses in many cases. In some cases it is obvious what has done the lion share of work, in others the state's actions spawn public or market responses of their own that are "unintended" consequences. Nevertheless, we should want some method of evaluating simply whether the intentions of the policy are matching up with the effect, or whether the intentions have other goals in mind that are undeclared. 

A large portion of public policies proposed, enacted, or supported after the fact (by conservatives or liberals) fail on this sort of cost-benefit analysis to show they are achieving some putative goal. Drug use is pretty consistent. Abortions have been declining as a procedure for well over a decade despite being legal (suggesting bans have little effect), and declining more in states and legal regimes that are less restrictive on sex education and especially birth control than in states that are imposing onerous and wasteful regulatory burdens on the procedure (waiting periods, parental consent laws, ultrasounds, etc). Various gun control regulations constantly proposed have little or nothing to do with the underlying violence in our country and its cities and towns. Militarized police forces and deployment of equipment have little to do with the level of violence and its accompanying risk to police or the public safety within a given community. "Stop and frisk" searches don't find many guns. And so on. 

I noticed a lot of these philosophical problems during the lead up to the PPACA being enacted. We were told the problem was lots of uninsured people lacking access to quality health care. I am dubious this was the actual problem, for many reasons on its own merits; lots of uninsured people were transitory, many were "young invincibles" with limited need for health insurance, etc. But primarily I think it was a symptom rather than a causal agent. I saw two bigger problems at work; employers providing health care insurance instead of wages or other benefits (vacation time or family leave for instance), leading to the lack of an effective individual market for insurance, and rising health care costs owing to third party payment structures and an accompanying lack of transparent pricing. We sort of dealt with the latter problem and the rise of health care costs has started to slow over the last few years. It is unclear if this was achieved by legislation however and not simply a decline in incomes leading to substitution effects (for example, people self-medicating with alcohol or drugs, that prescription drug crisis didn't come out of nowhere) or people not consuming health care because of diminishing purchasing power from income stagnation or diminished savings, and so on. 

The former problem meanwhile reared its ugly head again in the form of contesting birth control mandates already. And more pressing, continues to be a problem for people in between jobs, or who have lower quality insurance provided and cannot get or afford better insurance they may desire, or who have insurance that is well above their demands or needs provided (which in turn leads to overconsumption of health care since those lost wages can only be consumed by taking health care as payment). 

I also encounter this frequently in calls for foreign interventions. I'm not sure what precise mechanics sending bombs and rockets and troops abroad establishes the goals that people proclaim (spread of democracy!, end to internecine conflicts caused by years of enmity and strife!). I'm skeptical that sanctions usually achieve much (see: embargo, Cuba). And so on down the line. What I am not saying is that we should do nothing, or that any and all diplomatic or military efforts will be fruitless and counterproductive, but I don't automatically agree we can do something about every problem on the globe and I do not automatically agree that since we "should do something", whatever someone proposes as a bold plan of action is that something. I'd like to know if it has some chance of success, or if it has a history of working, and so on. I apply that same skepticism to the public machinations of the state at home. Maybe the state can do something, if imagined "perfectly". If we have to imagine a perfect state to do it, it probably isn't going to get done though. What we need is things that can be imagined as "good enough", and if those are effective enough, easy to implement, transparent to evaluate, and do not cost exorbitant sums in taxation and relative individual autonomy, then they're probably fine. Markets at some level require and imply the existence of a state (who else may grant and enforce property rights and general laws in a less arbitrary way if not a third party?). Perhaps a much smaller one than the one we have, but a basic state is in there somewhere to grease the wheels of trust and transaction costs. What that does not imply is that anything and everything the state does is automatically legitimate and good. 

Hobby Lobby

Silver linings. Maybe a toilet bowl lined with shiny things. But still. Shiny things.

1) It seems, as with Citizens United, to have pissed off the left-wing base that increasingly is the agitating energy for the Democrats. Citizens United, I don't think they are correct on most any sensible legal theory. This one I think was more questionable.

2) It does not appear to have actually denied anyone any access to birth control measures. There's a work around that the government used for non-profit entities that will be applied.

2a) We should really stop pretending in our society that "denying access", eg "banning" things is at all the same as "reducing the accessibility or affordability of" whatever it is. The second is still often bad, and may have bad consequences, or unequal consequences, but it is not (usually) the same as "criminal and civil penalties for". When many abortion restrictions are considered by states, those are effectively doing both. Where this decision was concerned, it did neither. The semantics are important here because people talking about actual denial of access when what we have is an increase in risk to accessibility in actual terms (because of money usually) are confusing the best practices of solutions. If the problem is people (women) cannot afford it, that's very different from people putting up actual roadblocks via regulations, like these: "you need a prescription, so you must go see your doctor first", or "the pharmacist won't fill those prescriptions for religious reasons", or "you must wait 48 hours", or "the clinic needs admitting privileges".

We're talking about accessibility in economic terms and there's ways to resolve that, via public policy if we choose (subsidies that phase out based upon income and need would have been far, far better than insurer mandates). If we're talking about accessibility in legal terms, then we have a very different problem, one that almost entirely depends upon public policy decisions. We should not be conflating the two kinds of problems. Stop it. Just don't. They can sometimes overlap in practical terms, but the fix for either is usually different. (This is probably why debates about freedom of speech in the wake of McCullen also annoy me, in that they fail to distinguish action, which is regulated or restricted, from speech, which should not be).

3) It is a fairly narrow reading of religion or religious beliefs. Which is amusing. I've seen it referred to as all of religion comes down to in the eyes of the conservative wing of the court is "unapproved fucking".

The first amendment protection of free speech restrains the government from doing very much about speech (which is why for Citizens United, I'm not sure what the corporate personhood element had to say or why people started running around complaining about a very long jurisprudence decision that "corporations are people" in legal terms). The first amendment protection of freedom of religion does likewise, but I'm not sure how this was squared with this decision. It did not permit other religious objections under the free exercise clause. Just this one part. It puts the court or the government in the unusual position of deciding which exercises of religion are acceptable within this context of employer/employee and thus regulating those. That was a very bad idea really. Either it means there will be many more cases of the same variety or the government will eventually say, nope only these sorts of objections are okay.

It's probably further evidence that employer provided health care plans are an incredibly stupid way to go. But it's mostly evidence that freedom of religion is poorly understood.


4) Of all the aspects of the ruling that are annoying, probably most annoying is why it was that this narrow religious objection was singled out as acceptable in the first place. The belief turns largely on a metaphysical belief about the nature of personhood as applied to fertilized human eggs (but not yet actually conceived via the scientific definition of conception as there isn't one simply because the term has no unified meaning) and thus what this means about the utility of certain kinds of birth control measures. Considering a vast number of fertilized eggs fail to implant in the uterine wall and thus become "conceived", and a further vast number are implanted but fail to develop for whatever reason and are miscarried, applying such a definition is based upon a flawed understanding of the nature of human reproduction. A definition that should be considered flawed enough as to carry little weight in the decisions to mandate certain kinds of birth control be carried under a company insurance policy because it is too fungible and arbitrary to be fairly used in legal terms. It would be like judging that it is okay that only people who believe the earth is flat can have unemployment insurance at this company. Not only is the belief wrong, it is functionally meaningless to the performance and benefits of the employees.

There were far better practical and legal objections to that mandate that had nothing to do with birth control. The fact that it was singled out suggests a focus by the right upon the aforementioned "unapproved fucking" of its own that may have merited the decision of the court to narrowly tailor the ruling to that one element of religious doctrinal thinking.

5) The other annoying part is the "closely held corporation" exception. While this is not the same as large publicly traded corporations, I'm not sure why this was somehow a right that should only apply narrowly to "smaller" corporate entities, controlled by few people.

6) Some of the decision turns on the question not of the size or scope of ownership, but on the profit motives of the companies involved. Which to me seems to have little or no bearing on what restrictions of these type may be applied, and in any case, which the government seems already to have accorded non-profit companies with special accommodations for religious liberty (however absurd in this case). Why it should not also do so with for-profit corporations is not something that I think is easily established, or why the government could not also perform a similar accommodation.

7) Another aspect of the decision itself has focused on the intentions of Congress and then subsequent interpretations of those intentions by the appropriate regulatory body. With the implication that HHS in promulgating regulations exceeded its authority. While this is debatable in this case, this reading of the case suggests yet another separation of powers battle, one of several over the last year, with the basic impact and import to be to rebuke the (bloated) expansion of the executive that took place especially over the last decade. I'm not sure this was necessary in this instance, but as a general matter, this is a laudable goal. Where it fails specifically is that Congress attempted to deal with this precise question and voted down the objection of religious practices.

8) Ginsburg's dissent is a mishmash of things I find agreeable and things I do not, much as the ruling itself is. The main thrust of the argument that I find of note and interest is the general practices of a law, if everyone must comply with a given law or regulation, religious exemptions are of little importance to them, and likewise if targeting the particular religious expressions are not the interest of the state in forming the law or regulation, as it was not in this case, then the law should stand. Again, I find this interesting in a general sense, but the specific law, requiring a private actor to buy something, as well as dictating the terms under which that something must exist, seems to be the wrong hill on which to fight that battle. It further becomes muddy because of the existence of exemptions for similar, but not same, formats of companies, exemptions which came into form primarily (but not wholly) because of religious exemptions. I do not find the logic that it in some way damages the accessibility of the contentious forms of birth control persuasive, because it is plain that there are already existing methods available to substitute to assure the interest of accessibility was maintained.

9) The main appealing quality (for me) of Ginsburg's dissent is where it remains tightly focused on first amendment free exercise readings, simply because for me this was largely a question of whether a particular belief was being infringed upon, and that in this instance, the particular belief was absurd. The problem there is that there are legal statutes in place that intend the courts not to challenge whether a belief is central and essential, regardless of its absurdity. And there does not appear to be case law in either direction suggesting that corporate entities, in their function as economic devices controlled by people, do or do not have access to those exercise rights of religious beliefs. The conclusion that they should is inferred from example. The conclusion that they should not is largely inferred by absence. This is not as clear and settled a matter as a result as it appears in dissent.

A series of mostly good things and some things mixed in.

Abortion protesters

This one can't be blamed on horrid anti-choice conservatives, or decisions of powerful men not understanding the lives of women.

9-0 suggests that the underlying problem was a violation of freedom of speech unequivocally. There are provisions in the ruling that still permit cities and states to craft laws restricting obstructive, destructive, or vicious action. There is little evidence that "calm rational persuasion", of the variety of offering "counseling", literature, alternative services, etc, has much of any influence on decisions for or against abortions being performed. Most women have their minds well made up and the main feature that changes it is their health or changes in fetal health, not some stranger passing out literature. Despite this, I can't actually think of too many occasions where such activities should be restricted and prevented. I can think of occasions where a more generalized message opposing abortion on demand would be so counter-productive to deploy that I question the wisdom of standing around and trying to talk to every woman entering a clinic (for example, rape victims, or women who are in the aforementioned health circumstances and effectively have to abort a potential child they may have otherwise wanted, without any choice in the matter).

I can't likewise think of too many occasions where such activities should be mandated and imposed by force either, as many states have attempted to do by law and fiat imposing the properties required, the processes used, and affecting the timing of a medical procedure being offered and supplied primarily via private funds. And, sadly, such attempts have often succeeded. If an anti-choice protester encounters an individual who denies their "counsel" and presumptions of wisdom, they may not find that more assertive or aggressive tactics of "informational counseling" would have any more impact and indeed, on those grounds there may be a reasonable need for the state to intervene to protect the privacy and autonomy of the individual. By preventing such people from say, publicizing the identities of women they encounter without permission (I should think HIPPA would have to apply there), or preventing threatening activities, menacing, and other disturbances of public order and serenity, or allowing private property rights the ability to remove people who are trespassing and protesting there rather than in a public space, and so on. The court was careful to suggest that these forms of regulations were acceptable in the decision (many people are conflating these forms of action as speech in their outrage over the decision, suggesting they did not read the actual decision, or they would have seen this: "Massachusetts could also enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. §248(a)(1) , which imposes criminal and civil sanctions for obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services. Obstruction of clinic driveways can readily be addressed through existing local traffic ordinances.....The Commonwealth's interests include ensuring public safety outside abortion clinics, preventing harassment and intimidation of patients and clinic staff, and combating deliberate obstruction of clinic entrances. The Act itself contains a separate provision, subsection (e) -unchallenged by petitioners-that prohibits much of this conduct. ......We have previously noted the First Amendment virtues of targeted injunctions as alternatives to broad, prophylactic measures. Such an injunction "regulates the activities, and perhaps the speech, of a group," but only "because of the group's past actions in the context of a specific dispute between real parties." Madsen, 512 U.S., at 762. Moreover, given the equitable nature of injunctive relief, courts can tailor a remedy to ensure that it restricts no more speech than necessary. See, e.g., id., at 770 ; Schenck, 519 U.S., at 380-381 . In short, injunctive relief focuses on the precise individuals and the precise conduct causing a particular problem. The Act, by contrast, categorically excludes non-exempt individuals from the buffer zones, unnecessarily sweeping in innocent individuals and their speech."). The ruling was more limited in that a more general silencing of "counseling"* was not an acceptable government regulation in that it did not impact public safety. Silencing or removing from public spaces people whose speech we have little regard for, and whose speech was unasked for and generally annoying is not really a property that I find the state should be invested in carrying out activities, no matter how offensive or annoying such speech is to us as individuals.

There should be no requirement that a woman seeking an abortion should have to encounter a doctor or protester or friend or any other random person that counsels against such a decision during the entire process. Many states doing so suggests that the public or the minority governing bodies representing the said public do not and have not investigated the process, thinking, agonizing, moralizing, and practical obligations involved. But neither should there be any requirement that no one should be allowed to speak up. The wisdom of many of our life decisions is open to interpretations and criticisms by others. Who we marry or consort with sexually in our private affairs, when to have children, whether to have children, where to live, where to attend universities or what field of learning to embrace while there, how to educate or discipline our own children, and so on. In some of those cases, we are assessed and judged by random strangers, co-workers, and other middling associates with whom we share only a limited need, if any, for those assessments and opinions. We accordingly can assess little weight to those opinions, even where they are vociferously and persistently expressed.

The bigger problem with abortion isn't putting up with people who disagree with abortion expressing their opinions and beliefs. It's getting access to safe and legal methods in the first place.  This ruling does not significantly decrease that access in a way that many existing laws do and it is there that the majority of effort of reform should be placed in pushing back. Not against the right of dissenting views to be heard at a point which for them is of the gravest concern.

*- I do not regard most anti-choice demonstrations and their views as legitimate forms of "counseling", hence the scare quotes. But they are usually  types of speech that should be protected, however repugnant we find the format and location of expression. I find this issue very similar to the Westboro ruling a couple of years ago, or flag burning restrictions being overturned. Free speech for me and not for thee is not what the First Amendment says. If you don't like what someone has to say, that's not up to you to get the government to shut them up. The best the state can and should offer is time, place, and manner restrictions on the actual speech, which may in some effects be applied here still, and then protections against stalking, menacing, threats, eg, "behavior".


Aereo

This is fairly mixed. I'm tired of cable company regulatory monopolies. Anything that cuts the cord is great. My main concern is how we should be paying for content generation. If Aereo was offering a business model that reimbursed cable channels (but not cable companies) directly for streaming or rebroadcasting their content, great. I'm not as familiar as I should be with their business model clearly. It sounds like there was a bizarre dissent focusing on consumer choices in relation to how content was protected under intellectual property rights laws. Which doesn't make any sense really. It also sounds like a) it was intended to be a narrow ruling, so it doesn't resolve the grey zone that much of the Internet exists within as far as content generation and sharing, and b) it doesn't really tackle or suggest the fundamental need for intellectual property rights reforms which undo much of the very broad protections that current IP law offers.

Hiring and Canning. 

Basically a simple politics and political procedural issue. Boring for outsiders, but great for people who wanted to see executive power curtailed or constrained at all. Which I did, though this was hardly the most pressing concern among executive powers I'd like to have had constrained. I found the whining about the Senate being obstructionist mostly partisan in nature, but also mostly pointless because of reforms in the appointment process (no filibusters, just hearings and straight up or down votes).

Riley. Or, how your iPhone is sort of secure. Or at least needs a warrant to be not as secure.
This was probably my single favorite decision over the last several years in a civil liberties sense. Finally. Does it hint at a broader need for digital rights privacy and protection from search and seizure rules and government surveillance? Not yet. But it's a start. That police now require a warrant to search an arrestee's phone is not a serious obstacle to investigation of ongoing criminal activities, which is partly why the decision was made so easily and so convincingly (rarely can you get 9 people to agree on anything). Warrants can be obtained within minutes, and on site (in part thanks to the same mobile devices at issue in this case). Police would at least need to show cause for the warrant in the first place. This is unlikely to be more than a pro forma objection and rarely have advocates pushing back against such need, but it is still a stumbling block for some jurisdictions or some police procedures (seizing mobile phones with video on them for instance for the purposes of destroying evidence of possible police misconduct, as but one example, an activity for which some courts have begun to insist police be punishable and accountable for as illegal misconduct in its own right). So it rightly deserves to be seen as progress in the push back against civil liberties abridgements that took place in the wake of terrorism fears and the endless drug war.

Another hypothetical debate on ethics.

This question came up in the context of the usual trolling of how crazy Christians are that atheists often engage in for fun (I suppose we do need to blow off some steam once in a while).

But basically the question would be this:
Suppose we can test neonatal fetal development for all manner of genetically disposed conditions or behaviors. So anything from Down's Syndrome as we can already, to autism, to homosexuality, to psychopathy, to alcohol dependency. Anything with a genetic marker and some level of biological natural determinism to it, that somebody might find undesirable. It could be as simple as tall or short children for that matter. (Note: I would not regard the argument that autism is supposedly caused by vaccines as legitimate and sensible or established science, nor apparently do most of the people who advanced that claim in the first place, but this variety of testing were it to be available would likely finally end most of that at least).

What are our ethical defences for justifying and reconciling the legal and moral status of abortion in the scenario where lots of people have this kind of information and begin genetically weeding out undesirable conditions (subjectively determined).

This isn't that far-fetched. Down's Syndrome once detected is nearly universally aborted. Something like Tay Sachs probably should be. On the other end of the spectrum we have already the ability to determine the sex of the developing fetus with some precision. It hasn't been far fetched for some male-dominated societies to terminate female pregnancies in favor of having more sons (or to practice infanticide for the same reasons). The problem ethically speaking already exists. We are already confronting it and many are discomforted by the notion of various issues being, in a sense, eugenically cleansed from society.

My general contention ethically would be that we have no obligation to make our moral revulsion into laws binding everyone to the same conventions of moral revulsion herein, and that attempts to do so would be fraught with the problems of what we might allow but what we might reject as a morally acceptable decision with the same outcomes. Abortion for this basis, but not for this basis eventually resembles abortion for me but not for thee. If somebody really, really wants a son and not a daughter, I'm not about to be able to talk them out of it, I'm not also prepared to prevent them from seeking and conducting the necessary procedures. Similarly with dealing with various mental disorders when raising a child, not every parent seems prepared for that if they could have a "healthy" child instead that I would be inclined to provide legal restrictions for any intense feelings of discomfort at their decisions. I already experience intense feelings of discomfort for many adults as they raise children. I'm not moved to provide significant obstacles to that process either out of some obligation to the species or our modern societies more specifically.

What we can have as an obligation is to try to talk someone out of it who seems inclined to use these kinds of "designer" preferences on their child, to amend or abort. We can try talking to them reasonably and without force or malicious intention at least. That obligation can already exist along side pro-choice attitudes even to the extreme of allowing any abortion at any time legally. We can find that we disagree with or (hopefully) want to understand further the motivations of this other human being as regards their actions. We might even be persuasive enough in our arguments that their fears on some matters are overblown and unjustified; psychopathy for example seems to need an environmental trigger, not just the genetic triggers, while autism is understood as a spectrum disorder with some modestly interesting effects at the low end. Or that their fears can be allayed in some other way; adoption, ease of medical care, cure, or advice for dealing with some more dreadful genetic condition. Coercion is not only a power of the state to apply and we as individuals by alternative to this power can seek to raise objections and concerns with the actions of other people without compelling their compliance through force and penalties of law. This would be like saying that a particular drug or narcotic should be more freely available by law, with few or no penalties for use or sale, but that people still probably shouldn't be high while at work (depending on their work perhaps) or while driving a car or operating heavy machinery or giving the drug to children without some medical reason.

I am not certain I find that all of these objections against abortion or genetic "meddling" are necessarily persuasive, and that there are many such designer preferences that I might have no obvious rebuttals to; where there are physical and severe mental impairments say that could be treated and removed on the more optimistic side of genetic capacities or detected and the potential child eliminated on the more probable end. I do think that our understanding, at least in my lifetime, of genetics is apt to remain limited enough such that some of these will not be conditions of a future child that we could identify accurately and with relative certainty, much less easily change or otherwise improve upon. There are others that will be in that realm of possibility. It behooves us to ask these questions of our ethical responsibilities in a relatively free society, what will we allow, what won't we.

There are already arguments prepared that we should heavily restrict the availability of some kinds of genetic information, not just for these neonatal purposes but for adults seeking knowledge of risks of cancer or other maladies as they advance in age. And that the basis for this restriction is in part to protect us from overcompensating our present wants over our future selves, or to prevent us from making decisions that are too broad and sweeping judgments. In other words, we are apt to make decisions that we would potentially regret later. This is, in some sense, the most powerful of pro-life arguments, though it lacks the certainty that it would be true in all or even very many cases to make it into some legal formulation.

As an example. Autistic children could very easily grow up to be modestly functional adults just as anyone else might, but with peculiar abilities or unique perspectives. We, as a set of prospective parents to this next generation we wish to see and raise, might find a great deal of joy and pride in that. Or we might be nightmarishly tormented by the inabilities of a child to communicate and connect and the resulting physical symptoms of internal anguish. Or both. In this case, I am not persuaded that the average person would, in the time that it would take to establish such testing, view their prospective child's diagnosis as a probable autistic as some variety of hateful and vengeful deity acting upon them and requiring extreme measures to prevent. Perhaps some would. But this does not strike me as the kind of information that would greatly alter many people's choices. My own suspicion is that it would be more like the kind of information that people already inclined to abort or give up a child for adoption would simply mark on the form as their reason. Perhaps I am blinded to the level of bile and hatred available for autism however and in this case this would be a more serious problem for neurodiversity issues. If so, I would submit that this is probably suggestive that we'd have a much bigger problem for biodiversity generally in such an environment where such information is available, and that we would probably want to be careful and restrictive on how available it is or how often it is used.

A similar example: homosexuals, in a society with improving legal recognition and improving social recognition would also be modestly flourishing adults, capable of engaging in relationships, and playing and working among others with decreasing levels of animosity tolerated publicly. The experience of many parents and friends or family members of such children as they mature into adults is to take the same pride and joy in those relationships, achievements, and progressions as they do with any other child, friend, or family member and this has, in time, shifted public opinion away from intolerance and toward a position of modest acceptance. A testing regime would probably disclose to us several things
1) There are more homosexuals genetically than are open in their relationship orientations, though it's also not very common other than as part of a spectrum.
2) This would include some people that we'd probably never have thought were homosexuals, sometimes including family members of virulently anti-homosexual individuals. Sometimes including virulently anti-homosexual persons themselves.
3) Whether pro-life persons are more interested in being anti-homosexual, and anti-human sexuality in general, or whether they are more interested in being pro-life. For some, if not many, this might be a difficult conflict to resolve philosophically and morally.
4) Whether many pro-gay-rights persons are also not all that tolerant and are mostly pro-gay rights because there are gay persons now, but if they could be gotten rid of, they'd be happy with that too. I suspect this too is also possible. Many people find the prospect of homosexual relationships disgusting or repellent personally and have considerable difficulty not transferring the prospect of that disgust onto other people who find it sexually appealing instead or onto others who are more indifferent to the likes and dislikes of other people.

Again, my estimation is that this kind of information will probably not move the needle very much toward more abortions. In a society where homosexuality is more fully shunned, with restrictive rights or even penalties, perhaps it would. And again, my estimation would be this might be suggestive of a larger biodiversity issue within the human population. I'm not aware of many eugenics based reasons that homosexuals would need to be prevented from even existing (for example, homosexuals can still reproduce, even naturally, though it takes some complexities if individually they never take opposing sex partners, those complexities apply also to kinds of infertility that we have overcome scientifically to some extent) and there are genetic and evolutionary reasons that are available in favor of their existence.

We would be on much shaker ground on topics like height or skin tone, at least as a basis for abortion. And we eventually end up back where we are now, where there are a small number of conditions for which genetic testing is available or will be soon and for which abortions are much more likely as a choice taken. The overwhelming preference of potential mothers and parents under circumstances of genetic results pushing into abortions suggests there's a widespread fear of particular conditions. Some of that fear is easily understood (Tay Sachs is universally pretty awful). A whole range of debilitating to devastating conditions are involved here alongside more prosaic concerns like "I'm too young to be a mom", or "I already have a kid and am a single mom" and so on. These reasons of fitness are a little more understood by the public to be "okay" than something like "This is a parasite feeding off my body" but I am inclined to think both are legitimate enough concerns. What is problematic is the near universality of reaction for some conditions implies that other lesser conditions or genetic tinkering would also be near universality.

I do not think that this concern absolves us of the questions of autonomy for women and families in decisions of parenting and parentage such that the appropriate response is to prevent testing or to prevent the abortions from being performed to respond to this aspect of abortion and its ethical quandaries. I do think the question becomes less complicated if we were ever to develop a gene therapy preventing such conditions but remains equally murky in how it might be resolved at a social level. What seems the direction out is to continue to give people better options and information to deal with what are perceived at present to be very complicated if not insurmountable problems rather than to obscure those options and deny access to information. The short answer here is that we want fewer abortions, for these kinds of reasons at least, then the answer is to overcome the social fears that are acting to constrict the public's reactions toward particular outcomes. On some of these conditions and concerns, that will be a modest but manageable task, on others, it could be monumentally difficult. On these latter, it might become preferable to allow other approaches entirely to enter the field in a socially accepted way if the desired goal is to prevent the abortions from being likely and occurring (say gene therapy, if available, adoption or increased social resources for parenting and education, if not).

A note on the debate over abortion

A more concise point which occurred to me about the entire "Constitution issue" in stark and frequent debate over the last few weeks is the manner it is used as a talisman for "you can/can't do X" rather than an argument for why X is even a good idea in the first place. Many gun control advocates seem more concerned with the things they can do on the basis that they can maybe get them passed and then maybe upheld in court rulings than whether they're all that effective that we need to pass them either. Similar problems arise in abortion restrictions, or the surveillance state. This practice bothers me perhaps almost as much as people ignoring each other's interpretations of Constitutional law and pretending that they do not exist. Suppose for the sake of argument that certain varieties of gun control laws or various commonly overturned abortion restrictions are really that great of an idea, we should be able to construct cases for amending the Constitution to craft these restrictions upon the people and that whole "it can't be done" debate would be kind of moot, if it is really that great of an idea that is, it could be done anyway.

In some respects this is why the balanced budget amendment idea keeps annoying me. If someone's going to sell me on it, it would help if they explained a) why it's needed, what problem it solves and b) what mechanics they'd use to achieve it from our current disparity in deficits or the long-term deficit problem. Why is it such a good idea in the first place? What effectiveness upon these United States would it achieve or attain that we're currently unable to do? What loopholes would be permitted, if any? And so on. It's a brainless or thoughtless way of expressing concern about a problem without really intending to do anything about it. This arises constantly in politics or political debate that signaling concern is more important than the real world effects, anywhere from minimum wage laws to guns to foreign policy. It's incredibly frustrating to see laws passed without much concern for how they would be used, who they really help/target, and so on.

Abortion debates are little different in this respect.

What is different seems to be a deeply rooted question that is only mediated through metaphysics rather than law. When is a life a human being, a person endowed with unalienable rights? The law, through the inherent subjective sloppiness of metaphysics, usually results in an arbitrary divisor of scientific viability. With the prospect of survival of life as a separate object and person from the being which has nourished and carried its development to that point but this says little about the questions that swirl around in the atmosphere of the debate, or for that matter much about the value and purpose and intention of creating such life in the first place.

What we find is that there are still, despite our legal framework, obvious fictions about that framework that pass by into unexpected or unanticipated places in the haste to deal decisively with objections or supports for the procedure itself and its own basis. In other words, nobody actually wants to talk about abortion itself, nobody wants to talk about miscarriages and other pregnancy related tragedies and mishaps, nobody wants to talk about the difficulties of child raising, nobody wants to talk about women and the value of autonomy and privacy of a large percentage of the human population to the economy, the society. Or, perhaps most absent from the conversation, the women themselves. What instead happens is a lot of talking sideways at these subjects as though they are awkward and untenable conversations.

In this way, it is very much like the gun control debate wherein one side presents arguments for regulation that seem mostly based on fears (somewhat rational, but largely irrationally constructed) and the other presents defences against regulation that range dangerously toward fantastical belief in the interests of a mostly complacent fat and happy and aging populace to rise up against any supposed tyranny. But mostly this one in particular.

Much of the pro-life/anti-choice arguments come off, at least to very pro-choice people like me, as "attacks on women", fundamentally. They represent a number of arguments but most of them seem horribly flawed in their understanding of human behavior and the general society we now inhabit. I would say a more accurate assessment is they represent a war on sex, with female sexuality being a primary problem in how women are interpreted by society.

One major flaw is a belief that sex is for reproduction. For humans, it is not. Sex is about communication, intimacy, love, recreation, reproduction, social status, etc. It is not a simple act we undertake only to produce offspring. In fact, it wasn't even this limited to reproduction before we came up with methods to prevent or reduce the likelihood of pregnancy, which have in advanced societies rendered the question as even more of a side line. Human beings just have sex way too often and without any obvious signs of ovulation to be doing so in order to produce progeny effectively from sexual couplings. We can even have sex in positions and methods rendering it impossible to do so, or can self-stimulate, and so on down the line of ineffective sexual reproduction. The "pill", and the condom before it certainly changed the social appreciation of sex, and certainly reduced the probabilities of sexual consequences in a noticeable way. But for humans the process of "have sex=babies" has never been a straight line even before we could put up some walls in the way. This retrograde idea needs to be simply eliminated from the conversation because it poisons the attitudes toward birth control, women, sex, sexuality, and basically the human condition in general, because it is false. It becomes a problem in this debate because there are many people opposed to abortion on the notion that people who have sex must accept the consequences and risks.

Except that those risks can be mitigated, and for most of us, are very, very small. The risks, not the objects we use to copulate with.

The average ratio of pregnancies from sex is around 1% of all sexual acts result in a live birth in advanced societies. If we assume from falling fertility rates that availability and use of birth control reduced this by a factor of 3 or 4, we're still talking about a very small percentage of human sexual activity being used for reproduction. Even considering post-menopausal women having sex or exclude the infertile more broadly doesn't get us to a more significant percentage of our sexuality for this one purpose. We might argue then whether sex ought to be more focused about reproduction and that its other uses are a social distraction, but this creates the practical question (similar to homosexuality and marriage's legal rights and contracts), of what to do about the aged or infertile. To say nothing of that it isn't a natural state of human societies not to have sex for a variety of purposes and that those purposes are equally useful to a vibrant and functioning society as producing and raising offspring.

That doesn't mean that it might somehow become intolerable to suggest or encourage that human beings should form (mostly) monogamous couples or that human beings be aware of the probabilities of pregnancy, or other risks of sexual behavior, and seek to mitigate them as probable risks, but the idea that "sex is about reproduction" is simply false firstly and secondly says nothing valid about the moral status of a fertilized egg, or a developing human embryo or fetus. Rather, it says something about the behavior and moral status we wish to ascribe to the person carrying said egg, embryo, or fetus.

The basis of this line of argument arises in the format of "women can't get pregnant from rape". It is a series of inaccurate assumptions or beliefs about the nature of pregnancy biologically and the nature of human beings sexually; beliefs such as that miscarriages and other pregnancy related tragedies and mishaps are rarer than they actually are (pro tip: they are about as common than abortions) because they are socially stigmatized and too rarely discussed, and a false dichotomy examining healthy adult sexual behavior, even where it might be limited to strictly "biblical" reproductive sex (and thus, in my view, unhealthy, or at least boring adult sexual behavior) and not recognizing that it includes a huge percentage of actions that don't do anything reproductive and probably never will. As a result a foremost problem with much anti-abortion rhetoric is that it characterizes the women involved inaccurately as killers who think having sex is more important than life essentially rather than women who may already have families, women with health complications, fetuses with health complications (that may not come to term anyway, much less adulthood) and so on.

If the character of the person involved is already questionably defined, then we're not going to understand how to reduce a number of abortions through restrictions or bans, assuming that's a goal that many people share. Most people when asked might say they are pro-choice but would not have an abortion themselves or would not want a significant other to get one except under very particular circumstances. These circumstances are not ideal or commonly conceived but can happen frequently. What happens then is that states have used a variety of methods to decline access or place barriers upon access. Waiting periods, mandatory ultrasound viewings, sometimes invasive procedures, parental or guardian permission, and so on, that often do not pertain to most other health procedures in legal forms, and have little to no effect on reducing the number of people who actually get an abortion who want one. What they can do instead is decrease the availability of well-trained and reasonably safe clinicians who provide them or make it more challenging for the people who do actually really want one for some reason. But they don't actually stop the process either. It simply gets transferred downstream to people who have sketchier clinics, or limited skills, or to people who still have these skills but are in limited supply, requiring trips across several states while encountering these invasive restrictions.

This is a major problem with the entire "judicial activism" argument in the first place. In that the question wasn't "what regime prevented women from even wanting to get an abortion" via a legal restraint on their availability but rather "what regime made it safer for them to do so". It is not an easy decision for most people, even as there are often terse and logical reasons in favor of it, these are not always convincing on matters of doubt and uncertainty surrounding the metaphysics of human life, its origins, and so forth, for many, many people. I suspect one of the reasons the "fetal pain" constraints, or the requirements to carry to term by a hospital (even if the mother is otherwise legally dead), and so on are popular is that people are just not comfortable within these morality questions and would prefer to have simple answers, or failing that, excuses that look like simple answers. There are not simple answers. The best we can do is "an infant could possibly survive and continue to grow after this point detached from the mother physically". That's it. Pain doesn't work because pain is a subjective enterprise for adults anyway and doesn't appear to be a scientifically valid prospect before viability anyway through the development of the nervous system. Dead mothers with near-to-term development and penalties for drug use by prospective mothers likewise suggest that we'd rather put up an easy wall than try to answer these questions. We don't want to punish miscarriages, but legal structures are often attempted to put in place that would or could. The reason that goes on is that both miscarriages and abortions tend to happen around the same time. And again, most people don't know miscarriages are pretty damn common, and don't have to be tied to anything obvious as a cause like drug or alcohol use that we should be punishing people who do use mind-altering chemicals during a pregnancy and policing this with invasive state powers.

I find myself constantly baffled that many pro-life advocates not only believe Roe v Wade was improperly decided, which I suppose is a legal interpretation they are entitled to support even as that notion involves a host of other problems for their privacy and agency as individuals, but that they somehow believe overturning it would matter. When for most people, most women seeking abortions, it does not. Even jurisdictional guidance it provided it would matter only for some women as most states would presumably leave them as legally accessible in some fashion. My estimation for the politics given the indefensible nature of some laws that are passed or attempted to pass that do fail is that they would be screwed as they would have to defend all restrictions they wish to make now plus the more ultimate restriction of none at all. Little or nothing would happen legally to shift the politics and such groups would lose their political viability for advocacy just as "traditional marriage" advocates (whatever that's supposed to mean) have steadily lost ground to gay rights movements.

We're ultimately punishing people for going through circumstances with the misfortune of not being ourselves, with the implication that all people should react to such events with the same exact feeling of joy and merriment and glory onto the universe/jesus/allah/buddha as the case may be. I think what this underscores is that it just isn't that easy for everyone to get pregnant, carry the egg through the stages of development to term, deliver the child, love and care for the child, supply for its basic needs and growth, raise the child, and observe and supervise their actions into adulthood as a moderately successful independent human being. Any one of those steps could be far more difficult for someone else that they'd feel a compelling need to make very different choices instead of the ones that we might prefer that they make. In order to override those choices, we should have to have a very good reason, and make that case to them as individuals. This is essentially all the court ruling said, is that there is a compelling reason at "viability" to make this case more broadly and to require a compelling and extreme basis for a procedure at that point, but not before that. Where we would remain free to choose, and also to coerce and influence (without resorting to violence).

Not everyone reacts to a miscarriage in the same way despite that being what must seem to be a devastating event for a woman to go through. Not everyone reacts to a pregnancy in the same way either. The spectrum between "well shit" and "sunbeams of joy on my every footstep" is real and has real consequences in how things are going to be handled, not just on the question of abortion but on questions of parenting or adoption too. The obligations, however desirable, of parenting are vast and should not be taken as lightly as to demand them for every pregnancy that occurs. Nor do we issue such demands for every child that is born of their parents that they be doting and caring and responsible adults. If we have the autonomy available to us on how to be a parent, we ought to have some respect for whether or when to become one. And if this is so, then seeing as a very large percentage of abortions occur for unplanned pregnancy, it might do to focus on ways to make pregnancy more often a planned effect. However best to achieve that; focuses on marriage to prepare people for collective child raising duties, focuses on proper and comprehensive sexual education to reduce unplanned pregnancy rates versus abstinence, which often has a damaging effect on teen pregnancy rates, or subsidies and otherwise expanded access to birth control, etc.

In so far as pro-life people believe the sole and fundamental argument is "its a human being", that's fine for their purposes. Maybe that's convincing enough for some people too. I'd even say that I admire that they make it even I don't think they have enough support to advance the claim. The biggest problem is that I don't think they make it consistently. Rape and incest exemptions to me smack of hypocritical political expediency rather than a logical argument flowing from this basis of an essential humanity, and bear weight directly on the logic that there are circumstantial elements. They apparently just have to be circumstances we approved of rather than more individually valid or autonomous reasons implying any moral agency. But I think this is all fine for what it is worth as a starting point. The problem is that we live in a world that ascribes this a very different legal basis, out of the necessity of pragmatic objections that policing abortions would intrude onto policing miscarriages, and out of the necessity that making these decisions in some other way invites more controversy (for now). Even for the many people that agree this is the metaphysical grounds, and that abortions are in some sense wrong, people may place them on gradients of "wrongness" that are less on par with murdering a child or another adult person than would be the case if they accepted this as a literal fact of humanity. They're complicated questions about personhood and even identity (and to be fair, even the bible's ancient text seems to have passed on this up even a month after birth, and had nothing direct to say about prenatal circumstances). That's why we don't talk about them, we talk around them or we just assume the answer, provide it for everyone somewhat blithely and condescendingly and move on. Pro-choice advocates don't get out of jail free by being correct that these are unresolved questions empirically or even innately subjective questions by nature of their metaphysical source anymore than pro-life advocates get any points by making up an answer and declaring it correct.

People probably should think much harder about what they are doing, both before they get pregnant or get someone else pregnant and then afterward on what they want to do about. These are not insubstantial societal goals. The question is how they should think about, or what do they focus upon harder. Far too much of the debate is divorced from the practical realities. So viability is at question around 24 weeks. Only 1% or so of abortions are performed after that, typically for medical reasons. Most people can say; that's not me. The "fetal pain" question has an answer sometimes made up at 20 weeks, sometimes made up earlier or later. At 20 weeks, it is only about a half a percent higher than 24. These are statistically tiny quantities of people that are impacted directly, so legal restrictions seem easier to design and support. Roughly speaking, only 10% of all abortions happen after the first trimester at all. And among these, we are still talking mostly about women close to the 13-15 week scenario where there may have been accessibility or affordability questions for the procedures pushing them outside the earlier window rather than some other source of delay.

We're talking about abstractions instead of some thousands of actual women per year when talking in this way. I think this diminishes the problems they have, the problems they experience, and the availability of their options as they see fit to exercise them. But it is also necessary to point out that the vast majority of people involved, to say nothing of the general public when asked, apparently see that this is modestly acceptable and appropriate as a decision to make at one point, but decreasingly so as it progresses in time and that they will have varying reasons for why this is so. It is not simple as saying "at conception", or some other nonsensical metaphysics answer for most people, just as it is unsatisfying to say "at 24 weeks" to others. I am something of an extremist that would say "at live birth", whenever that occurs, but I also don't have a womb over which to exercise the decision making. Men seem to be a little more pro-choice after all. But I also recognize my position is at an extreme. It is not a popular convention to hold to and not a popularly practiced ideal. This applies also to its opposite. A restriction of behavior which is commonly performed and not supported by popular will is liable to be a defunct legal fiction rather than an effective and well-enforced law. I could and would not make or advance a claim that a preferred legal structure might impose abortions on families with too many children or for certain kinds of people by the same notions of impossibilities and the impracticality of control of human behavior versus what people want to do in actual behavior. I suppose people could claim this is more serious a moral violation than traffic laws or narcotics use, and certainly it is rarer per capita than either of those, but it isn't demonstrated that it is in fact more seriously destructive to destroy potential human lives versus actual living and breathing human beings' destructive capacity. It should seem at least vaguely plausible that most women could just as easily produce children at other times in their lives instead of being compelled to produce them at any time we as outsiders require they should and this argument seems to be acceptable enough to most.

A much larger societal effect question surrounds issues like Plan B contraception or (incorrectly called this in most cases) abortifacient drugs. It is unclear to me personally and also scientifically why these are a bigger concern and more controversial publicly than abortions generally, even in the first or early second trimester that, aside from the most ardent pro-life advocates, the general public seems fairly blaise about. It is bizarre that birth control generally is treated as some kind of controlled substance, with constraints to access and a social disdain for many of the more effective forms. IUDs have a troubled US history, but they're quite safe now for example. Hardly anybody uses them in this country and they're often targeted by anti-abortion restrictions to be further restricted alongside. Condoms are locked up in some stores or some parts of the country but not in others. Suggesting the problem isn't theft prevention but rather passing a sentence of moral approbation for the devices and their associated uses by otherwise responsible teenagers and adults. These are highly effective objects at reducing rates of pregnancy used properly, which ought to be an object of considerable interest in reducing things like teen pregnancy rates (which have very high abortion rates), or the rates of abortion in poorer or minority communities, also higher than the general public. But the public seems afraid that somehow admitting this is akin to admitting that sex is okay generally and that sex is probably something their children will do. I suppose this is akin to children admitting their parents and grandparents still have sex too and "oh boy" isn't that uncomfortable to consider. But the fact remains, teenagers will do it anyway despite our efforts, schemes, and plans to prevent it. Some effort should be made to accommodate the problems rather than punish people for these actions. Some states still attempt to punish sexual conduct by minors with extreme penalties (eg, receiving a blowjob as a teenager from another teenager of similar age can land people in jail or as a registered sex offender), even as these laws have been struck down for adults. We're still having an ongoing discourse about what to do with these same children sexting with their phones and spreading photos and video of an explicit nature. Treating this as child pornography and its distribution seems no more appropriate than parents and other elders ignoring it entirely from a moral standpoint, but still the idea that it is by itself worthy of criminal sanction at all seems ludicrously popular.

I suspect it would help if we had a broader and more open conversation about what it means to be sexually active, rather than running around pretending everyone who wants to have sex, particularly women, are just horny or slutty. I do not see that conversation starting anytime soon. Indeed, I see people still running as fast as possible in the other direction. 

That leaves us with the unenviable task of trying to explain that large quantities of abortions occur both globally and in this country for reasons that most people find acceptable enough not to object strenuously to, even if they remain uncomfortable with them, and under circumstances that most people are not prepared to object to. And that large quantities of these that do occur could be prevented under circumstances that large percentages of the population already have access to and undertake as precautions and sensible restrictions on their own behavior (proper use of birth control, use of non-reproductive sexual habits in the absence of available birth control, etc). That is not an easy and quick solution to a difficult and controversial problem of course. I tend not to see many easy ways out. Banning the whole thing, or crafting very particular exemptions, isn't politically popular, creates new risks and dangers, and isn't likely to be very effective anyway as a result and naturally so long as there are pro-life advocates, and the issue remains more divisive than gay marriage or marijuana use, it's unlikely to shift significantly that ardent pro-life voters and their more sensible concerns could be, or even should be, ignored. Unfortunately the atmosphere of debate is often clouded by a lot of insensible ranting that has little to do with the problem or becomes counterproductive to this as a central policy goal of reducing the number of abortions to a much lower quantity than is presently done. If in fact those other sources of ire, such as human sexuality or birth control, or female autonomy generally, are more pressing concerns, it does not speak much to the supposed value of human lives that they should be getting in the way.