On the Hyde Amendment, Single-Payer, Bernie Sanders, and Socialism

Hillary Clinton recently called for repealing the Hyde Amendment, the federal law which prohibits federal funds from being spent on abortion. That is, among other things, surprisingly radical for a candidate most known for her cautious, calculating, pragmatic manner. It's also interesting because Bernie Sanders, the generally more radical candidate opposing her, has not, to the best of anyone's knowledge, come out in favor of repealing the Hyde Amendment. Which is funny, when you think about it, because Sanders is thoroughly pro-choice, and of course is most notorious these days for his proposed single-payer health care system. In which the federal government would pay for all the health care.

But if the Hyde Amendment is still around, then that won't include abortion.

At best this would lead to a market for supplemental abortion insurance, or just to women paying for abortion out of pocket. That's the at-best scenario, and it's pretty much a nightmare from a reproductive rights perspective. The worst-case scenario would be if private insurance, and maybe even private out-of-pocket purchase of medical treatment, were actually outlawed, which would effectively outlaw abortion itself. (That would almost certainly be unconstitutional under current doctrine, certainly as to abortion and maybe more generally.)

So, the first thing to say about all this is that someone needs to ask Bernie Sanders about the Hyde Amendment. Like, yesterday. But that's not really the crux of the issue: he'll almost certainly say he supports repealing it. He assuredly does support it on the merits, and there's no great political loss to admitting it.

The deeper issue, I think, is what it says about him that he didn't think of this when he was drafting his proposal. Because, it's a big issue. In a single-payer system, every aspect of medical treatment is subject to intense politicization, and this is a country where that could get seriously problematic, very fast. This is actually one of the virtues of the liberal-capitalist order: it's very good at letting people decide what they want for themselves, and having there be people willing to give it to them (so long as they can afford it--aye, there's the rub), even if other people aren't too happy about that. Single-payer, even if it allowed private insurance around the margins, would complicate that happy "live and let live (if you're not poor)" picture a lot. That doesn't mean it wouldn't be worth doing; that "if you're not poor" part is a really big problem. But it's not just a fantasy issue. It's a genuine cost to achieving an awful lot of good, and Sanders shows no sign of recognizing that it must be paid. This is for me the big issue with the fact that, at certain points in the past, he wanted to let the states administer the new single-payer system. Really, Bernie Sanders? An awful lot of states would make decisions about what should and should not be covered that you would really not like. He's backed off that position for now, but the lack of attention to the analogous issues at the federal level, e.g. the Hyde Amendment, doesn't give me a ton of confidence that he understands the real problem here, or has good ideas for what to do about it.

And then of course there's just the fact that the politicization of medicine would add an entirely different dimension to the fight. Paul Krugman has been talking a bunch lately about how it's tough to get a single-payer system from where we are because it really would impose losses on a bunch of important stakeholders. Well, once you remember that the Hyde Amendment exists we've got a whole other fight on our hands. There's been controversy in recent years about requiring employers to provide insurance that covers contraceptives. Imagine the explosion that would ensue if we proposed to have the federal government cover the full cost of abortions for everyone. Which is not to say that we shouldn't do it! We should, in an ideal world. This is a fight that deserves to be won. That's slightly different, though, from saying that it would be won, or even that the victory would be worth the fight.* 

More to the point, perhaps, is that Sanders does not seem to anticipate that fight, or the others like it that would surely come. And this has me thinking about a recent Ta-Nehesi Coates article and its discussion of the view that Sanders and his ideological comrades have toward racial justice issues:

"[Sanders sees] black people not so much as a class specifically injured by white supremacy, but rather, as a group which magically suffers from disproportionate poverty.

This is the “class first” approach, originating in the myth that racism and socialism are necessarily incompatible."

My feeling about this is that it's almost the other way around. It's not that adopting socialism would make racism and its effects disappear. It's that racism itself, as a separate and distinct ideology, is a big part of what's stopping us from being more socialistic. There was some research, which I could probably dig up if I wanted to spend a bit of time on it, trying to figure out why, descriptively, causally, why the United States has such a meager welfare system. Ultimately the study concluded that it's all about race, or more specifically racism: American whites don't have solidarity with black people, and therefore resent having their wealth redistributed to black people in a way that middle-class Germans don't resent having their wealth given to poorer Germans. (Interestingly we can see a related phenomenon playing out in the European Union right now; it turns out the Germans and the French don't have that much solidarity with the Greeks after all, and therefore experience a similar resentment and a reluctance to support the much-poorer people of Greece.)

And similarly with issues of sex and gender. There's a lot about the social democratic agenda that is deeply threatening to the patriarchy, there really is. Just as there is with white supremacy. Someone like Sanders is right about that. But he seems to assume that this means we should focus our energy on attacking Capital (capitalized for sinister emphasis, of course), and that when we defeat it, all those identity-politics fights will take care of themselves. But I feel like if you don't appreciate the independent power of the patriarchy, of white supremacy, in American political life, then you won't appreciate the true nature of the struggle to make America better. And you'll lose. Because you'll rush headlong at the one enemy you're focused on and let yourself be surrounded by the other armies in their coalition. Better to attack each of those allies--whose support Capital needs but to whose defense Capital cannot necessarily come--in turn, and then leave the main enemy weakened and alone. But defeating white supremacy, defeating the patriarchy, that's a massive undertaking. It'll take years, decades really. Maybe generations. And it's not a fight that Bernie Sanders seems to see himself as fighting. Hillary Clinton does, if in an incremental way (though her opposition to the Hyde Amendment is impressively bold).

And that, I guess, is the socialist case for voting Hillary.



*Perhaps my favorite part of that fight would be the inevitable court case arguing that covering abortion in the single-payer system violated religious freedom. Because the logic there is damn near identical to the similar claims being made about mandated private insurance in a case like Hobby Lobby, but if we move it to the context of a government program then it becomes obviously absurd. There's no right to have the government not spend its money on things you disapprove of for religious reasons; that's absurd. We can tax you, and once we tax you it's not your money anymore. (The one exception is that we can't spend it actually supporting religious institutions you don't support, per the Establishment Clause.)

Hobby Lobby is About Sex, not Abortion

One of the questions in the Hobby Lobby litigation was whether the exemption sought by these companies could be extended to things other than contraception. Could companies whose owners held somewhat less mainstream religious beliefs decide to stop covering, say, blood transfusions, or vaccines? Could religious "freedom" become a shield for racial discrimination? Nope, says Justice Alito. The ruling is strictly limited to contraception. Other medical things like transfusions or vaccines he essentially said would have to be considered in later cases, and might or might not survive the same test that the contraception mandate failed. And he specifically said that racial discrimination in employment practices cannot find support in this decision, that the government's interest in eradicating that evil is strong enough and direct enough that "religious freedom" is no shield against it.

Kevin Drum comments that the logic behind limiting the decision to contraception seems to be about abortion:

I think it's important to recognize what Alito is saying here. Basically, he's making the case that abortion is unique as a religious issue. If you object to anything else on a religious basis, you're probably out of luck. But if you object to abortion on religious grounds, you will be given every possible consideration. Even if your objection is only related to abortion in the most tenuous imaginable way—as it is here, where IUDs are considered to be abortifacients for highly idiosyncratic doctrinal reasons—it will be treated with the utmost deference.

I don't think that's quite right.

Hobby Lobby and the Sanctity of Human Life

Ugh. Not a good day for the law. Not on any dimension. The policy of these decisions is horrible. Admittedly it's not as horrible as it could have been had Alito not decided to write deliberately narrowed opinions. But the price of that narrowness was absolute legal absurdity. I mean, there was plenty legal absurdity anyway, but the narrowness created even more. I don't really think it's possible to maintain that what the Court was doing today was law. Not really. And that actually offends me pretty deeply, as someone who believes that there is such a thing as doing law, for real, in the best sense of that word.

But here's a slightly ancillary thought I have about the Hobby Lobby decision. The purported reason why providing coverage to their employees that included contraception would have violated Hobby Lobby's religious beliefs is that certain forms of contraception were, in the store's owners' view, abortifacients. And we all know that opposition to abortion is that most sincere of religious beliefs; religious people of a certain type are committed to seeing abortion as murder, because they supposedly value the sanctity of human life. And, y'know, I gotta say, I see the ethical case that late-term abortion is something seriously resembling murder, or rather homicide (the difference being that the former assumes the wrongfulness of the act). I have pretty good reasons, I think, for not thinking this means we should criminalize it, although I do think there might be ways to regulate late-term abortions in some way. But I do think we should view late-term abortions as a pretty serious moral Bad Thing, and work hard to minimize the frequency with which it's the least-bad option.

But that's not what Hobby Lobby is about. Hobby Lobby is about birth control. It's about IUDs, which prevent the implantation of a fertilized egg on the uterus wall. This, like a few other forms of birth control (but unlike, say, condoms), prevents pregnancy after the moment of conception rather than before it. It operates at the post-zygotic stage. And therefore certain religious types, though apparently not the medical or legal community, consider it to cause an abortion, and to end a human life. (Apparently scientific types think life begins at implantation or something.) Here the ethics aren't so complicated: the ethical badness of destroying a pre-implantation zygote is precisely zero. It's the same thing as killing a bacterium. It has one cell. It has no computing power, no sensory apparatus. It does not have experiences. It cannot feel pain. It does not have a beating heart. It differs in this regard, of course, from later-stage fetuses, but zygotes and blastocysts are just ethical nullities.

Now, my point could be that it's ridiculous, and kind of sick, to think that destroying one of these nullities is the same thing as killing a living human being. But it isn't. Rather, my point is that it is deeply sick to think that killing a living human being is the same as destroying one of these nullities. That is to say, I don't think it's really possible that anyone at all reacts to the death of a blastocyst or a zygote the way one is supposed to react to the death of a human being. I do think it's possible that people react that way to the death of an eight-month fetus or whatever, and at some point in between it flips, but let's just say that that point is sometime after there are at least 16 cells in the organism. And so if you maintain that you view the two as equivalent, that you think IUDs are murder, well, that's gotta tell us something about how much respect you have for, like, ordinary human life, right? And it tells us nothing good. I think it's gotta tell us that the sense in which you condemn ordinary murder is somehow cheaper than it should be. If the value that you place on human life doesn't change from the moment of conception all the way through the moment of death, I don't think that value can be as high as the value that I place on human life from birth through death. There's just no way you can actually be giving that much value to a zygote, not really. Maybe you have some kind of theological sophistry telling you that killing zygotes is sinful, but you can't really believe that aborting them is murder, not the way we mean that word.

So either there's an act of dishonesty going on, at some level, when people say they think these contraceptive devices cause murders, or these religious types have just tipped that their conception of the "sanctity of human life" is awfully shallow. One or the other, and neither is exactly great.

Planned Parenthood v. Casey Says Some Weird Stuff About Stare Decisis

I am, obviously, a fan of the result in Planned Parenthood v. Casey, at least insofar as the "result" is "we're not overturning Roe v. Wade." (And, the result is precisely that, pretty damn far; the details are relatively inconsequential.) But I'm a fan of the result because I'm a fan of the result in Roe itself. Lots of people aren't, of course, and you get the sense that Kennedy, at the very least, and probably also O'Connor are among them. They, of course, are two of the three co-authors of the plurality opinion in the case, along with Souter. And that plurality opinion is not mainly remembered for its discussion of the constitutional law of abortion, because, well, it doesn't really discuss that all that much, no doubt because a majority of those writing it didn't necessarily agree on the merits with the reasoning of Roe. So instead they talked about stare decisis. And boy do they say some weird stuff.

How Far Could We Restrict Abortion?

As promised in my last post, I will now consider the following question: if I were put in total control of federal constitutional law, what is the most restrictive abortion statute I would consider upholding? There are basically three ways to answer this question: totally pro-life, totally pro-choice, or something in the middle. Or, to put it another way, you either need to say that a law prohibiting abortion from the moment of conception would be constitutional, that no law imposing anything more than good-faith time-place-and-manner-style regulations on medically-supervised abortion up to the minute, or perhaps second, before birth would be constitutional, or you need to find some convincing way to draw a line somewhere between the two. Obviously I don't adhere to the first position. I'm not at all sure, however, that I adhere to the second one, either. That requires me to draw some lines, and below the fold I will attempt to do so. First I'll sketch the outlines of what I think might be the most restrictive possible legitimate abortion law, and then I'll attempt to defend both why I think such a law might be constitutional and why I think violating any requirement I place upon the law would render it invalid.

Why Abortion Has To Be Federalized

My constitutional law small-group class has spent the past couple of days discussing abortion and Roe v. Wade, and there are basically two battles here. There's the battle on the merits, namely, if we have to decide how to balance the various quite compelling interests at stake here, how should we go about doing so? But there's also the institutional-role battle: is this something the federal courts should be handling? Since the constitutional text is ambiguous on many of the key points of the on-the-merits debate, shouldn't states be left to form their own democratic judgments? There's a problem with this, however. This is not really a case where the existence of important federal-constitutional rights is in question. Rather, the ambiguity concerns whether there are countervailing interests at stake sufficient to justify what look on inspection like violations of those rights. The pro-life case, in other words, is not about denying the importance of a woman's control over her own body (well, unless the pro-life movement lets its id speak a little too openly), it's about asserting the overriding importance of protecting the life of the unborn child.

If you wish to deny the existence of unenumerated rights altogether this claim ceases to be true, but the Supreme Court has never once done so. Once you admit that these rights, which are properly viewed as Ninth Amendment rights but which in practice go by all sorts of doctrinal disguises, exist, I doubt there are very many in American society today who would accept the consequences of denying a right to bodily integrity generally beyond the abortion context. So it's clear that, at least under the underlying principles of modern individual-rights jurisprudence, anti-abortion laws must interact, somehow, with constitutional rights, and the question is the nature of that interaction, and how far a state may legitimately go toward restricting these rights in this context. Obviously the Supreme Court must set a nationally uniform minimum protection level. Conceivably it could also set a nationally uniform maximum, too, depending on how strong it finds the countervailing interests in certain contexts. In the gap between maximal and minimal protection, or simply between minimal and complete protection if no maximum is set, states are given full license to conduct their federalist experiments in democracy.

But once those national rights are implicated, it simply becomes infeasible to allow an individual state to adopt, say, the proposed Mississippi personhood amendment. Someone needs to say whether the valid state interests that could be argued to exist in preventing the abortion of a given pregnancy, or in a given pregnancy scenario, are sufficient to negate the protective force of those rights, and plainly that someone cannot be the states. This is not an area where the Constitution can be seen as silent, as leaving things simply in the hands of state legislatures; it is, rather, an area where important values under the federal Constitution are in conflict, and if the Fourteenth Amendment says anything* it is that the solution to such a conflict must be a federal one. The alternative is for the Court to allow states to restrict abortion, and with it the rights of pregnant woman and their doctors, in ways which the Court believes, in its own considered legal opinion, are not sufficiently justified by any legitimate state interests. Or, alternately, for the Court to allow states to permit abortion, in violation of the fetus' right to live, without sufficient justification, if its conclusion on the merits was that certain kinds of abortion had to be criminalized, perhaps on Equal Protection grounds. Either way the Court would be allowing states to violate important constitutional requirements, simply because the answer how best to balance the various interests at play in the abortion debate is not immediately obvious from the constitutional text. I can't imagine any reason to favor that approach, other than substantive disagreement with the Court's on-the-merits judgment and a resultant desire to minimize that judgment's reach.

In my next post I will address what I think the correct minimum protection would be, i.e. what I think is the most restrictive abortion statute that could possibly survive constitutional challenge under what I would consider proper jurisprudence.


*Well okay, technically if the Fourteenth Amendment says anything it's that the government mayn't discriminate against black people as such. But in terms of the broader political theory of the Constitution, its basic effect is to nationalize individual rights.

Actually, It's Not Mostly About "Human Life"

Jonathan Chait has a post out today in which he argues that the abortion debate is simply the result of a fundamental and irreconcilable divide over a very basic moral question: when does human life begin? Because if, he argues, you believe as the pro-life side does that a one-cell zygote is already a living human, and therefore that all abortions are murder, then of course you think the government ought to ban abortion, no matter what burden that places on pregnant women and no matter how much you might like the idea of "shrinking government" in other contexts. Criminalizing murder is Government Priority #1, and we don't typically say, "oh, but not being able to commit this murder would be so inconvenient!" So the problem isn't that the right-wing pro-life types are hypocritical, but just that they're wrong about the premise. Quoth Chait:

"My side thinks the fertilized egg does not approach human status until much later in the process, which means the mother's prerogative supercedes any rights it has."

This way of looking at the abortion debate is, I think, wrong. Admitting that fetuses, even very young ones, constitute "human life" does not commit you to viewing abortion as murder, or to wanting to criminalize it. The reasons why not are somewhat tricky, but they're also, I think, pretty solid.

Policies, Justifications, and Taking It Back

I have not written much, or, well, anything about the recent Todd Akin controversy, in part because there's not much to say that isn't being said elsewhere. What he said was horrid, on a whole lot of counts, which I won't bother getting into here. The point I want to make is that he didn't just say all of this out of the blue. His notion that women rarely get pregnant as a result of rape was the justification for one of his policy positions, namely that abortion should be banned without exception, including stuff like the morning-after pill. To me, the fact that his quote was a justification for a specific policy is tremendously important in considering his "apology" for those remarks. Because the thing is, he has, of course, stuck by that policy. He still thinks abortion and the morning-after pill should be banned absolutely, with no exceptions. Presumably he still has reasons for thinking that. It's not remotely unlikely that his continued reasons for holding that policy preference are the same as the reasons he articulated and then got in trouble for. Unless he gives some alternate justification for the same policy, every time he continues to advocate his preferred policy on this issue he is implicitly re-uttering these same remarks about how women don't get pregnant much from being raped. For him to "take back" the justification without taking back the thing it's justifying just doesn't work, and I suspect has a lot to do with why this controversy seems to have staying power.

Now, as it happens he does have a parallel justification, and it's the second and much less focused-on part of the quote, about how the punishment in cases of rape resulting in pregnancy should fall on the perpetrator and not the innocent child. Honestly, I have a non-trivial degree of sympathy with that perspective as a private ethical matter, and in general think that the world would be a better place if people cared a bit less about where people's DNA came from, in these among other circumstances. However, none of that makes me think that abortion ought be criminalized, in these cases or in any other. I have a feeling that if Akin tries to make a particularly public articulation of this parallel justification, in a way that anyone hears, he's not going to find that the people who were offended by the first half of the quote get much less offended when he only uses the second half. And if he doesn't make it clear that in his own personal ideology this thing about punishment is capable of doing all the work of upholding his "no abortion (or morning-after pill) ever, no exceptions, not even rape" policy, then what I said earlier holds, and he hasn't actually taken back his full remarks, not one tiny bit.

Rape Abortions and Paternalism

Rick Santorum's argument against allowing abortions in the case of rape apparently includes the following: that it would "put her [the woman] through another trauma." I don't mean to comment here on the merits of the overall issue, but if our concern here is for the woman, surely we should let her decide? No woman who doesn't want an abortion gets one (and if they do, that's a different subject entirely); how do we make the woman's life better by denying her the choice of whether she prefers the trauma of an abortion to the trauma of bearing her rapist's child? Again, not commenting on whether the woman should have the right to make that choice vis-a-vis the fetus (here), but if we're concerned for the woman we should let her decide what's best for her herself, right?