Toward a Compromise on Abortion

The Washington Post writes today about how Roberts is moving the Court. Perhaps now is the time to take this issue outside the Court's purview.

Why Compromise?

Simply put, the controversy over this issue is tearing at the fabric of civil society in this nation. Unless common ground is sought, this is not going to change. This issue, to a large extent, dominates all of the others in the two major parties. Dealing with it intelligently and reaching a solution allows the nation to move on to other pressing problems. Finally, it will deprive those who subsist on this controversy of their fundraising base, which is good for the flock that they fleece with regularity.

Who Compromises Where?

The proper venue for this compromise is the United States Congress. The goal currently embraced by the Right to Life movement is unreachable and ill advised. Overturning Roe v. Wade and sending the matter to the states would further divide this nation into abortion states and police states and would prevent few abortions, as women form police states would travel to abortion states to obtain the procedure or return to self-induced and clandestine procedures. Overturning Roe, as a policy proposal, then fails on both effectiveness and equality grounds. The legal theory which holds that state legislatures should decide this issue also holds that federal supremacy in civil rights for racial and sexual minorities should be ended. To overturn Roe in this way would chip away at that supremacy, which flies in the face of the plain language of the Fourteenth Amendment of the United States Constitution. The right of sexual privacy and even the undue burden test rely on the finding by the Supreme Court in Roe that the unborn are property. To reverse this finding, they must be granted citizenship rights at some stage prior to birth. Only the United States Congress, which is sovereign, has the authority under the Constitution to do this, particularly the Fourteenth Amendment.

Compromise over What?

They key to compromise is to define the question over which the compromise will take place. For the Right to Life side the question is “When does life begin?” This question does not get us very far toward compromise. It is essentially a moral question which can inform the law, but cannot dictate it. Further, if the moral teaching in question relies on moral authority rather than reason alone, it must be relegated to a religious teaching which may not be controlling in American policy. For the Pro-Choice side, the question is “How do we protect women’s health?” This is also the wrong question (we are assuming that if a woman’s life in danger, the child’s life can be forfeited), because once you determine that the child has legal rights and is not property, a balance must be struck between the rights of the child and the rights of the mother. Therefore, the question is, and always has been about when the child is an object of law. One can ask, “When shall the child be granted citizenship?” but that does not really help defuse the issue. There is a better way to state the question to get the needed answer, specifically “At what point in the pregnancy should the parents be able to file a wrongful death suit if the child dies?” As we shall see, this question puts the entire issue into focus, because obviously if the obstetrician can be sued over the wrongful death of the child he should not be allowed to kill it. The converse is also true. If he is not required to save the child, it cannot be the object of law.

This question is inherently better, because it lays bare one of the motivations of the right wing in this issue, its desire to preserve the traditional family and the role of women within it as chattel for child bearing. Most don't actually say this, but some do, which confirms the pro-choice sides deepest suspicions. This is why the debate must shift from morality to legality.

Compromise over When?

The Right to Life movement believes that life begins at conception, echoing papal encyclical Humanae Vitae for what can only be described as political reasons. Of late, in the stem cell research funding controversy, the President’s bioethicist has echoed this stance, even though this does not agree with what standard embryology text books state. Those texts referenced by the Encyclopedia Britannica clearly show that gastrulation is far more important. Prior to gastrulation, the development of the blastocyst is governed entirely by the mother’s DNA in what is called generative development. Twinning can occur prior to gastrulation. Most importantly, non-viable hybrids between species divide until gastrulation, at which point they die. Returning to our central question, there could be no cause for action against an obstetrician for the death of a blastocyst, as it is more common for them to die than to survive. To allow such a cause would lead to either decimation in the profession or attempts to save blastocysts which can never be viable.

The next conceivable marker is the commencement of the fetal heartbeat. This point is attractive, because it mirrors the marker for the end of life, the cessation of cardiac function. The difficulty here is that a large number of embryos naturally miscarry after this point due to fatal mutations or chromosomal abnormalities. In essence, these embryos are better dead and offering the parents a legal remedy would again be counter-productive. It is interesting to note that at least half of the embryos that achieve gastrulation do not survive due to natural causes. Presumably, the same mortality rate could be applied to first trimester abortions, meaning that half of them would have died anyway.

A final marker, before birth, is the development of the lungs. Infants born before this point require prolonged extraordinary and heroic measures to develop. While these measures are often taken with great effect, they should not be considered a requirement. In other words, the failure to provide these measures should not be actionable. This is essentially a standard of viability, although viability as a concept is becoming quite meaningless as technology pushes back what is possible in neonatal care. However, what is possible need not be mandated. The development of lung function is the kind of bright line for in utero development as well. If a child dies prior to this line, it is surely a tragedy, but should not be actionable. If the child dies after this point, the obstetrician should be liable if there were any way to prevent its death.

Compromise over How?

This is the other key question. If we depart from the legalistic model, we can go farther. Now, if a child is aborted after its lungs have developed, this would be considered manslaughter or murder. Before this point, after the first trimester the safest method of abortion would likely be induction of birth with the withholding of respiratory therapy, unless someone wishes to come forward to adopt the child, since the so-called partial birth procedure is now outlawed and the other remaining method for second trimesters is medically riskier for the mother. The more important How is how to prevent abortion in the first place. This is where we depart from criminal sanctions and propose methods to incentivize childbirth. Three proposals come to mind. The first is a broad based refundable tax credit for each child and dependent spouse, with both state and federal credits of $500 per month and a minimum wage of $10 per hour to be paid over and above any credit (this is to prevent the use of the credit as the sole wage). The second is the funding of students with children by the government rather than their parents, so that no teens career is ruined because they choose to have a child. This funding would be provided to the father as well, provided marriage or domestic partnership is entered into. The third is the payment of tuition for all students up to grade fourteen or tech school, with a stipend to be paid to each student as an incentive to finish. After this point, academic students would find an employer who would pay the remainder of the bachelor’s degree plus any graduate education. All of these items take the incentive from abortion, especially the cash payment for children, which will also go a long way toward saving Social Security by encouraging childrearing. This payment is even high enough that a man whose wife has a child conceived outside the marriage, he likely won’t care (and if this amount is too low for this purpose, the rate should be increased). These provisions force the pro-life movement to conform to the Catholic social justice agenda as it wishes to buy into the Church’s reproductive agenda. Any party which adopts it will likely attract those pro-life Catholics who have, of late, joined with the Republicans (although many have returned to the Democratic Party over the mishandling of Operation Iraqi Liberation (OIL)).

The Iowa Center for Fiscal Equity: Tax Day: Why We Pay and How Not To

The Iowa Center for Fiscal Equity: Tax Day: Why We Pay and How Not To looks at Kevin Hassett's Outlook piece in Sunday's Washington Post. Hassett ignores the tax rates extant during the Clinton years and the fact that most of us file to get money back, not to pay taxes. I point this out in the linked piece and offer a proposal to eliminate filing for most people right away and for wealthy non-business owners in the long term (after the debt is paid off and overseas militarism abandonned). Frequent readers already know these proposals. For those who don't, let me make one thing clear - if you don't want to file taxes every year, perhaps you should start voting for a new party - this one.

Tax Day: Why We Pay and How Not To

In the Outlook section of yesterday's Washington Post, AEI Senior Fellow Kevin Hassett analyzes why we pay taxes, noting that between 1983 and 2003, tax rates for both middle and high income earners are both about 30% when all taxes are included. Of course, he misses the 1993 data point, where taxes on the wealthy were a bit higher due to the Clinton tax increase.

It's not just about the rates, however. The reason we pay is that for most individuals, taxes are withheld from our paychecks - including contributions to Social Security. The April exercise for many taxpayers is about getting a refund rather than paying taxes.

Readers of this blog will know that we at the Center are in favor of eliminating the filing of personal income taxes for most taxpayers, with the notable exceptions of sole proprioters business owners and the wealthy. Employers collect most of the money gathered by from wage income and must report it. It is a simple step to simply make them responsible for the taxes, allowing employers to decrease gross income, but not the net.

This would have the same effect as a consumption tax, except that the revenue paid would be hidden. Additionally, subsidies for poor and large families would be handled by increasing wage equality and by transferring popular credits for home mortgages and family size to the employer who would then pay these to the employee as part of the salary. The reason wage equality would increase is to prevent employers from shifting all compensation to family size credits and paying no other wage at all. This would also solve the problem of taxing dividends twice for all but high income earners, since the business income tax would be a hidden VAT, so that all value added and paid to households (whether in salary or dividends) would be taxed at the firm level.

We also propose that many government functions, such as public education, higher education, workforce development and social services be undertaken by employers or by charitable organizations designated by the employees and that a tax credit be awarded to firms for funds so diverted. This should quiet the critics who want taxes to be as uncomfortable as possible so as to "Starve the Beast." The best way to starve the beast is to make it compete with other beasts for food. Some individuals will likely favor a public system and will voluntarily fund it. Others will fund a private system and shift their service usage accordingly. The only residual taxation would be to fund domestic military costs, which might be funded by a minimum tax which is collected as a visible sales tax. This will give some impetus to minimize these costs.

Sole proprietors continue to file because they are businesses. The rich will continue to file because the only way to tax them at higher rates, forcing money into the consumption sector to counter those funds paid to them in net interest on the National Debt, is to do it directly or to add a surcharge for payments to these families at the employer level. Of course, this would require disclosure of personal financial data to the employer and to anywhere you have investments. Most would rather simply disclose to government to pay what would be a surtax of 3% to 15% of income and the liquidation of any inherited assets, both over $100,000 per year. This surtax would end when the National Debt is retired, including that portion held by Social Security and any transition costs to privatize it, the contingent liability to the World Bank/IMF is also retired and overseas military postings are ended (since these are a source of future debt). This would make wealthy conservatives into peacenicks rather quickly, freeing up national assets for better use.

Women's Equality Means Accepting Stay at Home Dads

In yesterday's Washington Post Book Review, Rachel Hartigan Shea reviewed Leslie Bennett's The Feminine Mistake, which adds to the chorus of feminist authors saying that it is a mistake for women to stay at home with the kids if they wish to go back to a real job.

She is likely right, although she ignores half the equation. Men returning to work have the same problems. Of course, I would have rather not returned to work at all, or at least until my daughter is in high school. Women will not be free to return to work until men are free to be the stay at home parent. In fact, women won't get equality in the workplace until they give us Dad's equality in the home place, including the right to play golf when the kids are at school rather than going back to work.

So, when we men have the freedom to become full time care givers without social approbation, especially from our wives, women will not be entirely free to return to work at their professional salaries. Whoever has the better job should stay at work, while the lesser employed partner should stay at home. When men are as likely to be stay at home parents, you will get sexual equality in the workplace, since the mommy track and the daddy track will be as common and women will as likely be the hiring manager, having not left the executive track.

Now, to the central question, is it inappropriate to discriminate against those who would take the parent track? It depends on the competition. If the competition is driven and that's what management wants, it is likely that that will be what management gets. However, managers who prefer driven subordinates would be advised to watch their backs (since those driven subordinates will be after their jobs as well).

The other part of this equation is the lack of a living wage. If the working party were paid enough for lodging, etc. both parents would not need to work. If this justice problem were solved, the others would solve themselves. Frequent readers of this blog know our solution to it, a tax credit paid to each family (to the highest salary employee) for each dependent large enough to provide for the family - at least $500 per month federal with a matching state credit, depending on the cost of living in the state. This should be paid as part of the salary, not at the end of the year, and ideally would be part of a tax reform that shifted filing responsibilities to the employer (who collects and reports anyway).