surgical strike: roe v. wade overturns self

By using past progressive tense, perhaps I am getting a bit ahead of the state of the art in artificial wombs. But then, if you doubt man-made wombs will be a reality in the not so distant future, you really need to read this story out of Popular Science.

There is a lot of grist for discussion in there.

If you have read Roe v. Wade, the implications of an artificial womb should be obvious. Science appears poised to send this jurisprudential non-sense the way of Plessy v. Ferguson.

The Curmudgeon’s Digest version is that Roe linked the government’s constitutional limits to the “viability” of the baby whose life a mother seeks to terminate. When the inevitable day comes that artificial wombs are a reality, Roe itself will no longer be viable on its own reasoning. Or at least not viable in the sense of “protecting” a women’s access to abortion.

So whether you want to limit abortion or make it freely accessible, it will all come back to the definition of life. Unfortunately, the abortion rights advocates do not embrace this essential discussion. Heck, based on my sampling here at the Disenfranchised Curmudgeon, nobody really likes to talk about it but me.

Since talking to myself is an ordinary thing in my world, I shall not be dissuaded.

That failure is not an option will certainly not impede America’s avarice for ignoring difficult questions. Why should this issue be any different than education, budget deficits or illegal immigration? Why should I expect that Americans give it the same attention that we give steroids in baseball or Brad Pitt’s latest conquest?

If it is important, we simply do not deal with it.

But then I like to think that the readership here is well above average and willing to tackle hard questions. So there it is again: what is life? Or even a better question: what is a definition of life that will be a working solution for our pluralistic society. We don’t have to answer this. But if we don’t, we’ll have to take what the politicians give us.

And that possibility is frightens me more than even the Patriot Act.

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war of the worlds

It is that season again. A Supreme Court nomination is again our nation’s political focus. There is no question that this has become a sham political debate and not a quest for a sound jurist.

It would be naïve to suggest that politics in the judiciary is a new phenomenon in our land. Marbury v. Madison itself was about the seedy intersection of politics and blind justice. What I am decrying is that the process has been emptied of all content whatsoever.

The divisiveness over Roe v. Wade has much to do with this, but this is itself merely part of a larger trend. A trend toward high stakes political gamesmanship at the expense of We the People. A trend away from the substantive decision-making and toward the blood sport of politics.

The Roe debate itself is minor in the context of the overall tragedy which is the extreme politicization of the American mind.

It is with some mirth that I observe all the casual conversations around the water cooler where the phrases “judicial activism” and “strict construction” are bandied about with cavalier certainty. But I derive no similar humor from the lawyer-politicians who consciously perpetuate the existence of these mythical jurisprudential antipodes. The shameless lying coming from both sides of the aisle should disgust any informed observer.

“Lying” will probably seem too harsh a word to many. But frankly if you make it through law school and still have an honest belief that this political terminology is of utility in the substantive discussion, then you are too stupid to deserve the degree. Sadly, I do not think that most of the CongressCritters are in fact stupid. They just play stupid on TV.

The truth you seldom hear is that this quasi-legal language exists solely as proxies for underlying political positions.

The funny thing is that many of the same people who carp the loudest about these issues are the same ones you will later hear lamenting the poor jurisprudence coming from our courts. As the ancient wisdom would tell us, we will reap what we have sown. Sow political seeds and what you get is political fruit. And political fruit is almost never good law.

Personally, I lay much of the blame at the feet of the Traynor and Warren courts. These “great” jurists and their brethren made it fashionable for courts to get into the business of making law. Brown v. The Board of Education led to the popular error that the courts are competent to be agents of social change. And have no doubt, “error” is exactly correct: as monumental as was Brown it is highly arguable whether the court ordered busing produced the social benefit many assume flowed strictly from that aspect of the decision.

My just saying something negative about Brown will undoubtedly prompt some ugly emails.

But I have a dream of sound jurisprudence that anchors our human rights in natural law rather than subjecting them to the whims of an inherently political legislature or their conscripts in the judiciary. Contrary to the myths you hear nightly on the news, returning the courts to their limited Constitutional function would not dictate any particular political outcome. Social Justice is possible without tearing our legal institutions apart. Liberty can be protected without shredding our Constitution.

But judging by the empty rhetoric I hear daily, my vision is destined to remain nothing more than it is: an abandoned dream.

i, heretic

Terri Schiavo’s impending death should give each of us pause no matter where we come down on the issue of her continued access to food. That I am on the side of life for Terri will come as no to surprise to those of you familiar with me. That I am mortified by the desecration of the rule of law by those who in a general sense agree with me will be probably less surprising to you still.

In a New York Times op-ed today, Charles Fried characterized the superficial problem well when he expressed dismay at the Republican’s situational contempt for the rule of law in light of their traditional patronage of that worthy cause. Whether the Republicans ever had a drop of sincerity in their support for the rule of law is hard to say, but it should be clear now that their purported high regard of America as a nation of laws is ultimately subservient to their political agenda. Unfortunately, a lack of fidelity to one’s stated High Ideals is nothing new for our political class regardless of which side of the isle on which they stand.

I seldom get more nauseous than when a Democrat or Republican is accusing other politicians of hypocrisy thereby achieving the epistemological marvel of hypocritical hypocrisy.

But my nausea today stems more from a profound discouragement that we as a society will ever be able to tackle complex ethical problems in a useful manner. We have become so dysfunctional that as a nation that we are not only unamazed at the politicization of a politically neutral moral issue, but we also unrepentantly accept this state of affairs as the norm. Our continuing voluntary acquiescence to content free dialog has brought us to this point where it is highly probable that we will come through the long and arduous “discussion” concerning Terri Schiavo and arrive at the other side with no more understanding or consensus than when we first considered the issues.

While I share the distress of many Americans over the need to find a socially useful definition of life, my greater terror comes from recognizing that the issues presented by the Schiavo case are of great simplicity when compared to profound bioethical questions that lie just over the horizon of popular consciousness. A society that cannot corporately determine that which is Life when dealing with familiar things such as the human genome will surely be dashed to philosophical pieces by the radical technologies which will explode upon us long before this writer reaches his actuarial expectation of the hereafter.

And make no mistake about it, what lays ahead is perhaps more daunting than what any of us can imagine. Will the mice with quasi-human brains that they claim are presently not allowed to fully develop be deemed worthy of any kind of human rights protection? What are we to do with other chimeras yet to be born? And fasten your seat-belts bio-sports fans because mere genetic tinkering of this kind is child’s play compared to efforts to use the building blocks of life to create fundamentally new biologies.

Hyperbole is scarcely even possible in these matters.

What is happening due to our collective inability to intelligently arrive at a conclusion on any issue that presents an ethical conflict is that we are abandoning some of our most important decisions to the political elite. Being dependable politicians, they of course pursue political advantage rather than leading constructive ethical debate. It is the ultimate in naiveté to be shocked by this.

The real shock is that we are missing here a great opportunity to set the law on the reasonable path of a presumption for the continuation of life. Certainly other positions are possible and should be discussed, but it seems likely that most Americans would favor a presumption of life in the absence of a prior clear expression to the contrary by the one who is no longer able to speak for themselves. Instead, we ogle the facts before us, stamp our feet in righteous anger and carefully avoid the uniquely American heresy of substantive dialog.

The politicians will have the last “laugh”, I suppose, because when the petition for injunctive relief to support the human rights of something akin to a pig-human chimera that can be shown to possess a brain with a human structure and chemistry, America will habitually turn to them to be told what to think. And what we must think will then of course depend on the red-blue topography of the upcoming election.

When bioethics questions come up, I often think about the line uttered by the Jeff Goldblum character from the movie Jurassic Park where he admonishes that “life will find a way”. As we set a course for tinkering with life in ways grander still than even what was depicted in that movie, it is a frightening thing to know that we proceed not only without a navigator, but without a rudder as well.

the tell-tale heart

I am entering dangerous territory.

The time has come for this Curmudgeon to test the waters of the third rail of American friendship: Abortion. There is little that divides Americans with a passion the equal of that held for this topic. I proceed with more than a little trepidation, because I can foresee the possibility of posts going back and forth with some rather ugly epithets. This fear has kept me from this topic thus far, but it is my hope to bring a little sobriety and decorum to the discussion. May God grant us all the wisdom and forbearance to make it so.

Now, if you bother to ask me, you will find out that I am very concerned about a woman’s right to choose what to do with her own body. Heck, I even care about men’s bodies too. I am a civil libertarian to my very core but you might not know this if you listen solely to what those that support abortion ‘rights’ say about those of us who are opposed. We are not a monolithic whole.

What genuinely keeps this civil libertarian awake at night is the tragic reality that outside of Christian circles, there seems to be little concern on this issue for anything other than a woman’s right to choose. No apparent concern about what must be the possibility, even in the minds of even the most ardent abortion rights proponent, that lives are being ended by abortion procedures. And there is a reciprocal lack of sympathy from within the Christian community for the honest quest for what seems to many to be a simple and straightforward Liberty to decide one’s own fate.

This lamentable gap in mutual understanding on the issue is evident in the very words by which the belligerents choose to label themselves. The rhetorical chasm that separate the “Pro-Life” and “Pro-Choice” factions really needs no further elaboration beyond stating those labels. If IT is Life, then IT has the basic human right to life; if IT is not life, then IT is but tissue that would be clearly within a women’s right to make decisions regarding.

Aye, there’s the rub: defining life.

In ancient English common law, life legally began at the first breath. It could be properly argued that this was a sensible view for the law of the day. The law endeavors to be nothing if not pragmatic and the complications of a then common place still-born birth could, in that age of hereditary rights, be of staggering proportion.

But “modern” medicine is on the march and the ancient bright line defining Life does not seem so bright and narrow in a day when a fetus is potentially viable as early as the twentieth week of pregnancy. Many, including myself, question whether the viability test offers a reasonable and logically defensible check on uninhibited abortion practice. The obvious point is that we have seen the viability threshold retreat from birth at the time of the Norman Conquest, to twenty-eight weeks at the time of Roe v. Wade, to twenty weeks today. The viability threshold is destined to retreat further and further until viability occurs at the time of conception.

Clearly, we should hope for a definition of Life that does not vary with the available technology.

It is easy to see that viability as a test was never very viable to begin with even were it not for its relativistic nature. It has been pointed out by countless others that a newborn baby isn’t viable without the constant care of a parent and many elderly and handicapped are no better able to care for themselves than a twenty-eight week old fetus. Viability only makes sense as a legal test, not a moral test.

But of course, we can’t legislate morals, can we?

The intriguing thing to me has been for some time that there is a logical definition of life that does not rely on esoteric argument, uncertain science or the Word of God. A molecular biologist I know would tell you that in biological terms, life logically begins at conception-the completed genome, in their view, defines our human being in scientific terms. Science thus provides an obvious and reasonable bright line that gets discounted, I am convinced, because it also happens to map perfectly to the line set out in the Bible.

That standing for conception as the beginning of Life is consistently reduced in popular discourse to being solely a “religious belief” is nearly enough to make my head explode.

As heart wrenching as the arbitrary viability test is to me, more wrenching still is the plain truth that we can not even as a society agree that some abortion practices clearly are on the wrong side of any reasonable Life definition. That we as a society tolerate late term abortions-abortions well after the hypothetical point of viability-is enough to make this Curmudgeon cry often and profusely.

This whole matter hits closer to home for me in the last year: try telling my friends, whose beautiful little girl I was able to hold in my arms, all one pound of her, six weeks before she was “supposed” to be born, that a 38 week gestation does not produce a human being. I suspect that Miss Parker will not agree with the radical pro-abortion camp either when she gets a bit older.

But when the tears dry and I reflect on our situation, I ask myself what are we to do? A society which evidently supports a return to the ancient definition of Life is not likely soon to adopt the definition which in my view science and reason compels. And there is a corollary question that haunts me: why is it primarily the Christian community that is sensitive to this particular issue?

The reason this corollary is haunting to me is a product of very recent history. It is not so odd that the issue of abortion is closely tied to the Christian Church-Christians have long been at the forefront of human rights. The best and most obvious example is the Abolition movement of the nineteenth century which was most unsurprisingly a phenomenon of the Christian Church. I would expect that Christians, based on the historical record, would be the first of our society to point out a profound social ill such as this.

But we live in a often self-contradictory world and the juxtaposition of the Christian Right’s outlook on the human rights of the unborn with that of their outlook on the human rights of homosexuals and resident aliens can not be passed over without scrutiny.

I, for one, stand for human rights without regard to one’s personal viability, color of skin, religious creed, level of intelligence or unrepentant sinfulness. It is clear to this Curmudgeon that the disease that infects us is not intellectual per se, though as I’ve written, a lack of critical thinking skills in our citizenry exacerbates the problem. The primary disease affecting us is selfishness. We want people to have rights as long as they agree with us. We want babies to be human when it is convenient for the mother and society. We want quality education as long as it doesn’t cost too much, run afoul of other parts of our political ideology or interfere with having a first class football program.

“I want what I want, when I want it.”

My five year old said that, but it is virtually a slogan for our me-centric society. And when I look coldly and objectively at America, I do not see much reason to hope for better. America has slid very far, very fast and nobody is reaching for the brake. Worse yet, those of us who suggest the brake be thrown are labeled wackos by our friends and traitors by the Attorney General.

I am inevitably drawn back to my recent theme of the Christian’s proper role in politics by what can only be described as my rather bleak assessment of social trends: they say you can’t legislate morality, but “they” are wrong. We can certainly encapsulate morality into legislation: just ask the citizens of the states who passed the anti-gay marriage amendments.

Those of you who count themselves as one among a Moral Majority can legislate volume after volume and fulfill all of your statutory desires. A Majority can apparently do as it pleases in the Brave New America. But the conundrum faced by a Moral Majority is that a stack of laws that would fill the expanse of the US Code and Federal Register are of no avail if the larger society does not subscribe to values reflected therein.

In quiet moments, after you are spent from striving against widespread adversity to moral legislation, realize that until you change the hearts of men, you haven’t created a better society. Realize that rather than a moral society, you have created a society of the cowed and criminal.

And when you get to that truth, it becomes time to put down the red, white and blue campaign signs and pick up a Bible. And this time, rather than thumping the cover of the Good Book, open it and read it. There are hearts that need to be changed. There is Truth that Christians are commissioned to share.

And realize then that the hearts that perhaps need to be changed first, beat inside our own chests.