Sunday, April 22, 2007

This Has Nothing To Do With Engines

Had a great weekend in Cooperstown, more on that to follow in a day or two. For now I just want to touch on Carhart II, the Supreme Court case about Partial Birth Abortion (or Dilation and Extraction) that came down last week.

I haven't read the opinion yet, and unless I get really motivated I probably won't. I'm not sure how Kennedy presented the arguments, or which he chose, or what exactly he said, but I trust him to write pretty mainstream, well-elucidated opinions. As far as the Justices go I've found him to be pretty capable and routine. He's certainly keeps his personal passions out of the opinion better than a Justice Scalia or Ginsburg, and he's not as, um... (what's a nice way to say slow? Oh nevermind, I don't want to slander - well, I guess this would be libel - a Supreme Court Justice. Especially as a practicing attorney. I'll leave you to guess who I was going to mention.)

Anyways, what's interesting to me isn't so much the decision or the reasoning of the decision, but rather it is the reaction to the decision.

I haven't seen much of a reaction from the pro-life community. They've said that they approve of the decision, and that it might be cause for hope in future efforts to restrict abortion. But it certainly isn't going to change their legislative or political agenda; they've been working hard for a long time, and they're going to continue doing so, regardless of how this case turned out. Maybe even more important is that they don't see this as a huge victory. Carhart II didn't restrict access to abortion, and it won't decrease the numbers of abortion. It only restricted a method of abortion. So it wasn't a huge victory for pro-life people.

Despite this fact, it seems the pro-choice advocates are up in arms about this decision. The reason is that they perceive this as a big, big loss.

Why? Because until this case came down last week, the Supreme Court jurisprudence was pretty much "all pro-choice, all the time". I can't think of a single other case, other than ones permitting parental notification laws, where the pro-choice advocates lost. So the simple fact that they lost a case is in itself a huge blow to the pro-choice movement.

Even more startling is that the Court didn't exactly follow the bright-line tests (i.e. "there must be a health exception for the bill to be legal") that they had used in every single other decision.

The fact that the Court moved away from these bright lines can be seen as cause for worry for pro-choice advocates, and cause for hope for pro-lifers. Looking at it more neutrally (and despite my pro-life positions, I'm trying to analyze this in a more detached light), it seems maybe the Court has finally decided to work for a balance.

Like I said, until recently it had been all pro-choice, all the time. There had been bright line rules instead of balancing tests (which are common in just about all other areas of Constitutional jurisprudence, even free speech!), and those bright-line rules universally favored only the pro-choice interests. It wasn't difficult to see that the scales were tipped entirely in one direction.

Now, the Court seems to have signaled (though I won't be confident saying that is true until we get another similar decision) that they're willing to try a new approach to the abortion question. This doesn't guarantee any future results down the line, and maybe the balance will be struck exactly where it is now, all in favor of the pro-choice position. But the possibility exists.

For pro-life advocates, it's a small sign that they should continue with the hope they already had. For pro-choice advocates it's a sobering realization. The Court has now indicated that losing a case is a possibility for the pro-choice position. That's something they've never had to deal with before.

The motion to defeat it is repeated


Jeff said...

Wait, what about the "clear and present danger" test for free speech (which might hold the record for best jurisprudence to ever come out of a horribly decided case)? Isn't this a rather bright-line test? Seems like with very few exceptions (Miller v. California, anyone?), the Court's been pretty good with free speech.

Speaking of which, I don't think it would be libel to write "Justice X is slow" since it'd pretty obviously be your opinion. You're not trying to present that statement as absolute, verifiable fact meant to be taken at face value. But then, I'm not a lawyer.

Matthew B. Novak said...

Actually, I think "clear and present danger" is a balancing test. I mean, it's presented as a bright line, but if you look at the cases decided under it, I think you find differently. I'm a year or so removed from actually reading these cases, but I remember being struck by the fact that most free-speech cases seemed to be a balancing act, in which it was ok to limit speech, at least sometimes. I remember being horribly offended by that notion, given the absolute language of the Constitution - "Congress shall make NO law...". So even though our speech is relatively free, it is burdened by some rules. And even though abortion is nowhere to be found in the Constitution, it was essentially a right unburdened (at least prior to viability). You've gotta admit, that seems a bit strange, right?

Oh, and I think as an attorney I have some sort of ethical obligation to respect judges and Justices. I don't know, I'm an attorney. We're not usually good with these ethics thingies... ;-)

Zhubin said...

What are you talking about, all pro-choice, all the time? The Court has upheld all sorts of laws restricting the places a woman can have an abortion and the time in which a woman can have an abortion, not to mention upholding government laws eliminating public funding for abortions and even ADVICE on abortion, and requiring the woman to notify people about having an abortion.

But through it all the Court has at least had the humanity to agree that when a doctor makes a decision about what is needed to protect a woman's health, the law must respect that. And now that line is blurred.

That's why there's such an "interesting reaction" to this decision. It's the beginning of an unconscionable intrusion into the very core of reproductive rights, and it signals the Court's willingness to put the moral judgment of fringe wackos ahead of doctors' professional care for their patients.

Matthew B. Novak said...

What are all these laws the Court has supposedly upheld? They've drawn the pre-viability line, so there are some post-viability restrictions that exist, yeah, but that's old news. They've said the government doesn't have to pay for them (and since the government doesn't have to pay for all sorts of stuff, that's not really all that surprising). What pre-viabilty restrictions has the Court upheld? With the single exception of parental notification, I can't think of one. And considering that other notification/advice laws (i.e. woman notifying a husband) have been struck down, I think you're hard pressed to find many instances when the pro-choice agenda hasn't been upheld [and please, if they're rules that apply to most minor surgeries (like the fact that you have to have a pre-surgical appointment at least a day before the actual surgery) and the Court has upheld them, then they don't really count as abortion restrictions; those are health laws, not abortion laws.]

And I'm not saying I don't understand the fear with which pro-choice advocates are reacting. Yeah, the two biggest bright-line rules they had had going for them (pre-viability restrictions pretty much can't exist and health exceptions must always exist) have been, at very least, temporarily ignored, and at very most, completely eliminated. We won't know until we see more decisions. That being the case, I don't think we can hardly call this "the beginning" of anything, since it could just be an isolated exception. Of course, there is the natural fear that it's the start of something bigger, and that is always a possibility.

Oh, and words like "unconscionable" and "fringe" aren't going to carry too much influence, regardless of how badly you might want them to prove true (I'll ignore the use of the word "wackos"). The debate is still going on, and whether a restriction on abortion is "unconscionable" is still very much an open question. This decision just reveals that fact. That's obviously bound to scare pro-choice advocates who previously thought the question had already been resolved in their favor.

Zhubin said...

I hardly think that just because the Court has previously drawn a line (or two, in this matter) regarding how far Congress can restrict abortion, its decisions are "all pro-choice, all of the time."

I wasn't using fringe or wackos to describe the current law - I meant that the Court has now signaled its willingness to consider congressional judgment over the judgment of a patient's doctor, which opens the door to any fringe wacko's judgment. And I don't know why you're trying to debate whether "unconscionable" is an open question. That was not a factual assertion (how could it ever be?), just my opinion.

Matthew B. Novak said...

It's not the fact that Court has drawn lines which made it "all pro-choice, all the time" it was the effect of those lines and where they happened to be drawn. Pretty much, you couldn't have an abortion restriction pre-viability. Sounds pretty lopsided to me.

As for the fringe wacko thing - I think it's a far cry to say any fringe wacko's moral beliefs will trump legitimate medical practice because of this case. Simply put, D&E was not a necessary procedure. Some doctors - those who used it regularly - said it was a necessary procedure. But no one was saying there aren't other safe alternatives. It was completely reasonable - medically reasonable - for Congress to find what they found. And I don't know about you, but I'm sure as heck glad that we don't just allow any procedure any doctor thinks is good for a patient. There needs to be restrictions on a doctor's professional judgment. They're not some God-like figures who actually always know what is best for patients; they're just regular fallible folks who bring their own values and issues to a treatment decision.

And lastly, regarding the "unconscionable" debate. I just threw that in to highlight the fact that there is an ongoing debate. In my experience a lot of pro-choice folks really think the abortion question is settled, and I was just trying to call attention back to the original point of my post - that everything is still ongoing, and that fact is a scary one for pro-choice advocates.

Zhubin said...

IDE is medically necessary in same cases, due to the weak uteral lining in some women and the possibility of infection from fetal tissue left from a non-intact DE. And even assuming that there is disagreement in the medical community over its necessity, that is an argument against congressional intervention, and until Carhart II the Court respected that Congress has no business weighing in on medical debates, as Ginsberg so wisely noted in the dissent.

As for your statement that there needs to be restrictions on a doctor's professional judgment, there are plenty of restrictions already, from state licensing to professional ethics boards to the good ol' fashioned free-market method of just choosing another doctor. Even if they weren't there, the idea that Congress is somehow qualified to determine the appropriate restrictions on the actions of a profession whose services depend entirely on the unique needs of each one of its millions of patients is not worthy of any consideration.

Indeed, I would be absolutely astounded over your desire to see Congress intervene in your doctor's professional judgment over your health, if I thought for a second that that was what you really wanted, and not just Congressional intervention in medical procedures you yourself will never need and consider immoral.

Matthew B. Novak said...

Zhubin - Aren't you the same Zhubin who railed against silicone implants being put back on the market? Maybe I'm mistaken, but I thought there was disagreement in the medical community over the risk posed by silicone implants? And yet you thought they should be banned - in effect, that Congress or a federal agency should weigh in on the medical debate?

Second, I think you're failing to make the distinction between medically "necessary" and "preferred." No one is claiming that other procedures are ineffective or inherently dangerous, only that they carry a slightly increased risk of infection/sterilization (risks which aren't completely absent from IDE if I recall correctly). That's a far cry from medically necessary.

Third, I'm convinced we need moral restrictions on doctors, above and beyond the ones you list. I'm all for non-health based restrictions on doctor's professional judgment. There are some procedures which are so morally offensive that they should be banned, no matter what the health consequences are. Take, for example, embryonic stem cells. Even though there's a decent chance I may some day directly benefit from research done on embyonic stem cells, I'm willing to say we should limit our research on them for moral reasons. Or how about forced organ donation? We could mandate that people donate one of their kidneys to those who need them, since the donator could live on just 1 kidney. But we've banned that sort of thing (or don't require it I suppose) because we find it morally offensive.

Finally, it isn't just procedures I'll never need or want, it's all procedures I find to be morally offensive. If the majority of our country found vaccination morally offensive, and therefore outlawed it, I wouldn't argue that Congress was overstepping it's authority; I'd try to convince people that vaccinations were not immoral. Two very different fights, and you're clearly inclined to choose the "Congress' role" fight instead of the "abortion morality" fight. I wonder if that's telling.

Matthew B. Novak said...

p.s. How do you find time to do this sort of thing while at work? (I'm assuming you're at work, right?) I thought you worked at a big firm. Legal Services is much more flexible...

Zhubin said...

I'm not talking about risks, I'm talking about medical necessity. And there is no debate in the medical community over the necessity for breast implants. And even if there were, there is a significant difference between a procedure that a doctor thinks is necessary and a marketed product that has not been tested. It's the difference between a doctor telling me that I need surgery to remove a tumor and a company telling me to use their brand-new tumor-removing scalpel that's made out of highly-enriched uranium.

I will withdraw my point about you condemning procedures you will never need to the extent that you condemn embryonic stem cells. Nonetheless, I strongly deplore your belief that Congress has the authority to impose your moral code on others' private, doctor-supported medical procedures. The forced organ donation analogy is not on point, since that requires the forced participation of another person. A woman's choice over her reproductive future does not affect you. Ditto for her decision to take a vaccine.

As for your point about choosing fights, the only thing that's "telling" (aside from your apparent disregard for the limits of Congressional authority - you would really just concede Congress's authority to impose any law the majority supportS?) is that I don't think debating the morality of abortion with you is going to be fruitful. On the other hand, I'm hoping I can convince you of the serious practical, ethical, and legal problems with granting Congress the right to impose its moral judgments on a doctor's professional opinion regarding his or her patient's health.

(I'm doing doc review this week. Taking a break here and there.)

Matthew B. Novak said...

Though I acknowledge there are certainly some differences between the method of abortion/breast implant issues, I sincerely doubt that those are relevant differences. If silicone implants were still outlawed, as you (and I) had hoped, here's what it would look like:

Both the implant and abortion situation would have a patient/doctor duo making an elective, non-necessary medical decision (yes, elective, especially given the availability of abortion methods other than IDE, and the fact that abortion itself is almost never a medical necessity). In both situations there is a governmental body that has come to a determination that a medical procedure/product is unpalatable (and since the implant is actually permanently implanted, it's really more like an ongoing procedure than a product, like the scalpel example you gave). In both situations the governmental body substitutes their judgment for that of the doctor and patient.

Both cases have a patient/doctor decision being trumped by government because there is a particular medical option that we as a society find unpalatable. It seems to me that those are the relevant issues, particularly when you're talking about whether or not the government overstepped their bounds. In the IDE case you've said government is going too far. In the implant case you said it was OK for government to ban a medical option. I honestly don't see much distinction.

As for the forced organ donation - I do think the analogy is still on point, given that abortion surely affects others (potential child, father). And, aside from that, we can always simply modify the analogy slightly so that instead of forced live-donation we force after-death donation. But we as a society still wouldn't do that, because we'd still find it morally offensive.

I wonder why you don't think a discussion of the morality of abortion would be fruitful? I'm always open to considering new arguments, and though I've never heard one yet that successfuly paints abortion as a morally acceptable option(or at least morally neutral, given that there are moral implications for multiple parties), I'm happy to entertain the idea that such an argument could exist.

Lastly, of course I recognize that there are limits on Congress' authority. They obviously can't make someone profess a religious faith, fly an American flag, vote for a particular individual etc., no matter how strongly the majority feels about those issues. But there are all sorts of realms where Congress imposes "it's" (read "the Nation's") moral judgments on our society, and there's nothing so sacrosanct about physician's opinions that they should be protected from those judgments in the same way that we protect religious expression, free speech, and the right to vote.

Zhubin said...

Both the implant and abortion situation would have a patient/doctor duo making an elective, non-necessary medical decision (yes, elective, especially given the availability of abortion methods other than IDE, and the fact that abortion itself is almost never a medical necessity).

No, not true. Listen, I am not going to accept your determination of the medical necessity of IDE. Even if you had an MD, or a relevant PhD, or were in any way qualified to provide an opinion on it, which you are not, the medical consensus is in favor of IDE's "significant safety advantages." The determinations of numerous medical associations and doctors are not eliminated by your blanket assertions.

When a doctor determines that an IDE is the procedure that will best protect a mother's health, it is unconscionable to prevent it - especially when the only reason you are preventing it is that you find the specific method of abortion immoral. You're not even preventing the actual abortion, for crying out loud. You're just forcing her to use a different method that has a greater risk of injuring her. Even assuming that Congress has some authority to override a doctor's decision, surely it must require a a higher standard of purpose than that.

In both situations there is a governmental body that has come to a determination that a medical procedure/product is unpalatable (and since the implant is actually permanently implanted, it's really more like an ongoing procedure than a product, like the scalpel example you gave).

No, it's not. You are confusing procedure with product.

I am not against the breast implant procedure. If a doctor were to tell a patient that breast implants are what is best for her health, I do not want Congress to tell her otherwise, especially if it does so only because it finds breast implants immoral. A doctor is the one qualified to make this decision, and if any other entity is qualified to make an overriding counter-judgment, Congress is certainly not that entity.

I am against a company marketing a breast implant product that is untested for safety. That is an issue to be determined by scientists, not by doctors, and I think that a "gateway" approach to consumer products, headed by an apolitical agency staffed by professional civil servants, is the best way to ensure consumer safety.

As for the abortion issue, I have no argument to provide you that you have not heard already.

As for the physician-as-sacrosanct issue, I agree that their opinions should not be afforded a constitutional level of protection. Again, the issue is who should have the authority to regulate their determinations. As I've said before, there are already a host of entities that do so, and Congress is utterly unqualified to join them.

It is extremely dangerous to open this door of Congressional interference in the private medical decisions of others. It doesn't just stop with abortion. Think of Schiavo. Think of the inevitable debate over gene therapy. You just don't want Congress peering over your doctor's shoulder.

Matthew B. Novak said...

I don't know where you're getting this medical consensus on IDE. And I'm not just making blanket assertions regarding medical consensus. Congress didn't find a medical consensus. The Court didn't find a medical consensus. There simply is no medical consensus.

As for the consistency of your positions on implants/abortion procedures, I'm willing to give it to you here with the following qualification: those are some pretty fine distinctions you're drawing. Realistically I don't see a bright line between the two; they're certainly more like different points on a continiuum than they are on opposite sides of a clearly defined view. Oh, and I think that maybe we need to have created a third category, since implants really are different than products, ala your scalpel example. Be that as it may, I'm willing to drop this one because it doesn't seem to be the heart of the issue, which is of course the appropriateness of Congress' actions:

It is unconscionable to prevent [IDE] - especially when the only reason you are preventing it is that you find the specific method of abortion immoral. You're not even preventing the actual abortion, for crying out loud. You're just forcing her to use a different method that has a greater risk of injuring her.

I'm actually inclined to be more ok with Congress eliminating a particular method for a procedure when it doesn't take away the possibility of the underlying procedure itself. Let's be perfectly clear here, even if we posit that IDE is the absolute safest way for abortions (be they late stage or otherwise), no one is contending that there aren't other, perfectly safe and minimally risky alternatives available. The increased risk is so small that it's almost not even worth arguing about. I seriously doubt that's what's inflaming such passions. Even if the increased risk of non-IDE procedures is really waht's motivating the pro-choice position on this, I gotta tell you that I think the moral value of eliminating IDE clearly outweighs that miniscule increased risk. IDE - no matter what you call it, or how you paint it - is borderline infanticide, and I'm being as generous as I can calling it that. Most people are offended by IDE, and the value we get as a society by eliminating it is certainly worth the tiny cost of a small increased risk in less than 2% of all abortions. If you want to make the increased risk argument, that's what you've got to say: That it's better to be a society that accepts infanticide than it is to impose a slightly increased risk on less than 2% of women seeking abortions. I don't think most people would take your side there.

But I don't think that in itself defeats your claim that the moral value is no reason to impede a doctor's judgment. There are two responses. First, I think you're seriously underestimating the value we derrive from being a more moral society. I think we suffer for our immoral actions (capital punishment, great numbers of poor, stupid unjust wars for oil) and that we benefit from our moral actions (aid to other countries, expansive voting rights). Being a society that allows IDE is so morally reprehensible that it damages us greatly. We really benefit from eliminating IDE.

Now of course I doubt you see IDE as morally reprehensible, but maybe that's not true? I suppose if I were to really hold you to your argument you'd have to say that if a doctor deemed it necessary a morally reprhensible act should be allowed. Regardless, there is another response, and that is simply that we make these moral judgments all the time. The forced organ donation example is on point here. You've said that it isn't because we have a third party involved. But again, IDE has implications for multiple parties as well. But even more importantly, the response is, "so what?" Let us hypothesize a doctor who determined his patient needed a kidney, that the patient had a living relative who was a perfect match and who would be a prime candidate for donation, therefore the doctor made the medical determination that the relative should give up a kidney. Why wouldn't we allow that? Because we find that medical judgment to be morally reprehensible.

And, if that doesn't work for you, we'll slightly alter the situation, and we go back to the after-death donation scenario I mentioned last time. Again, we as a society have made the determination that even forced-after-death organ donation is morally reprehensible, and so we don't allow it.

So how about it? Should we mandate forced donation (either living or after-death) if a doctor deems it "necessary"?

there are already a host of entities that do so, and Congress is utterly unqualified to join them.

It is extremely dangerous to open this door of Congressional interference in the private medical decisions of others. It doesn't just stop with abortion. Think of Schiavo. Think of the inevitable debate over gene therapy. You just don't want Congress peering over your doctor's shoulder.

Actually, I do want them peering over my doctor's shoulder. First, because Congress isn't just a bunch of people in Washington - it's a representative body that I can affect and influence (both directly and indirectly), so Congress should reflect the moral will of the country, which goes back to the question of moral value.

Second, why is Congress not qualified to join the bodies that govern medical decision making? Since all of those other bodies that govern medical decision making somehow draw their power from Congress/The States, it seems they're exactly suited for the task. Factor in that many of the other oversight bodies are limited in their expertise to technical issues, and don't have the moral or ethical oversight that only Congress is capable of. Finally, I don't trust medical ethics boards, etc., since usually they're just made up of a bunch of doctors anyways; Congress provides an outside voice, reflecting our collective will, that is specially situated to make moral judgments about the kinds of medical procedures we find acceptable.

Now I'm glad you brought up Schaivo - because the fact of the matter is, that was a train wreck. And if you look across the country, that was widely regarded as a train wreck. Not because Congress got involved, but because what certain Congresspersons were trying to accomplish [keeping her alive] was exactly contrary to the collective moral will. In the end, Congress got to the right decision, the tube was pulled, and certain idiot Congresspersons were not re-elected and/or resigned! That's the system working! Moreover, I think Congress' debate on the issue helped clarify our nation's moral view on the topic of human vegetables, that we as a country find pulling the plug to be morally acceptable, and that's much more obvious now that it was before hand.

As for future debates, I do want Congress hashing these issues out, because they're a proxy for our entire nation. I'd much rather we as a collective decide what to do with gene therapy than leave it up to each individual doctor. I'd rather we be a morally just nation than a slightly healthier one.