Tuesday, 8 July 2014

Bellum Omnia Contra Omnus

Sometimes, it is better if one does not have to be right

Late last week, I learnt a new term.  "Hobby Lobby." Now, I know what the words "hobby" and "lobby" mean, so I didn't learn anything there.  What I learnt was that there is a company called Hobby Lobby, which, prior to last Wednesday, I did not know.  

This fact is rather unremarkable, and I doubt that had I not heard of Hobby Lobby before my time on this earth is over, the over-all impact on my life would have been even insignificant.

By now, of course, Hobby Lobby is no longer just a store selling tchochkes for crafting (this I know thanks to Wikipedia, the fons et origo of all sort of trivia).  They are the causus belli of internet flame wars that have become truly nasty.

This is due not because people suddenly hate making scrap-books, but rather, because of a decision by the US Supreme Court handed down that proclaimed that Hobby Lobby is not required to provide reimbursement for a set of reproductive serives due to an application of the 1993 Religious Freedom Restoration Act (RFRA) - which simply put, states that when the government act in a way that subverts the sincerely held religious beliefs of a person, the government must demonstrate that the desired goal supports a compelling government interest, and the action is done in the least burdensome manner possible,

In this case, in my opinion (and reading the various noise machines on line, I am not alone), the case is actually more of a proxy in the argument about federal power, and its use in the case of the Affordable Care Act (ACA, "Obamacare") proximally.

There has been an enormous amount of vituperation on social media and also in the real media, with the usual memes about wars on women, separation of church and state, wars on science, and the like.  It's helpful I think to point out that the entire fulcrum on which the argument rests is a classic case of laws of unintended consequences.

The RFRA was passed as a reaction against government over-reach into the religious (and cultural) practices of Native Americans.  The law was passed, oddly enough, in reaction to the firing of two men by a rehab centre in Oregon, when it found that the men were involved in Indian ceremonies involving peyote.  They sued, claiming that their First Amendment rights to the free exercise of their religon was being abrogated, which the Supreme Court denied (ironically to some, Justice Scalia wrote part of the majority opinion, and his opinion helped spawn the RFRA).  It's worth pointing out that the RFRA was, at the time, uncontroversial, passing on a unanimous voice vote in the House (controlled at the time by liberal Democrats) and by 97-3 in the Senate.  I would remind those who go ululate about right wing fundamentalism that one of the three NAY votes was right wing bête noire Jesse Helms.  

Both Barbara Boxer and Dianne Feinstein voted YEA.

Fast forward two decades.

I personally try to avoid wading into debates about abortion rights precisely because there is so much heat and very little light surrounding the debates.  This has been on plain view with this case.  The Hobby Lobby situation is a lot more than reproductive 'freedom,' of course, including whether corporations are entitled to protections, or indeed if they can be said to have religious beliefs at all.  Of course, this simplistic argument obfuscates the truth - 'corporations' are plainly legal entities made up of real people, and so the actual point is whether those who own corporations - an in this case, Hobby Lobby is more than 50% owned by a family, and that that family can have religious beliefs is not really an argument a serious person would enter in to- give up their rights when they incorporate.  

THAT is a debate that one can have dispassionately.

There are also elements of mendacity, in my opinion, in those who claim that Hobby Lobby is denying birth control to its female employees - in fact, Hobby Lobby does provide coverage for 16 of 20 HHS-mandated forms of contraception.

So the fight is really about whether the federal government can mandate four specific forms of birth control.  It's not quite accurate that this is a "war on contraception."

One could certainly have a sanguine discussion about what the role of "insurance" is, and what the proper reach of federal power ought to be.

What really concerns me is neither of these intellectual arguments.  What I find really disquieting about the sturm und drang is just how nasty, how personal, and how facile and simplistic the arguments have gotten.

Unfortunately, this is the fallout of the current tone of what I used to call "bumper sticker politics," which has evolved recently into what might also be dubbed "Twitter politics."  Real discussion is replaced with incredibly reductive punch-lines.

Personally, I find the question of abortion incredibly complex.  I've thought about it - a lot - and I honestly am ambivalent about the matter.  On the one hand, I am a firm believer that one's freedom to do as one chooses should be close to sacrosanct.  There are limits, of course.  As the old saw goes, my right to swing my arms ends at the tip of your nose.  But I support maximal personal freedom/

On the other, there is the issue of what is life, and what is humanity.  I've written about this before, mainly in the context of end of ife issues.  One of the primary - perhaps THE single most important - roles of the state is to protect the weak from the strong.  As Hobbes and others have observed, the state evolves to bring order out of the chaos - to end the bellum omnia contra omnus (war of all against all).  Without rules and police, the strong would quickly enslave the weak, and indeed, laws, police, and courst are a form of virtual power.  The laws exist to protect the rights of the weak against the interests of the strong.

And what right is more fundamental than the right simply to live?

So then, this issue - to me - is really one of how do we define life?  At what point is an unborn baby human?  These are not legal but rather, medical and ethical issues.  Stephen Singer, an ethicist at Princeton, has drawn fire in the past by suggesting that euthenasia for the terminally ill or the profoundly disabled might in some circumstances be morally defensible.

Personally, I find that a monstrous proposition.  But even if we decide - and make no mistake, if the law codifies it, then as a republic, we are then agreeing - that the disabled are not entitled to the same protections as the rest under extreme cases, who defines "extreme?"  Is it a physical defect? Mental?  Incapacity?  What?  

In the immediate case of pregnancy termination, it's of course not necessary to presume humanity of the unborn to allow abortion in certain cases - for example, if the health of the mother is at stake, then you have competing claims to the right to live.  The unborn vs. the mother.  We have in other areas justifiable homicide, so of course, there is precedent where one may take the life of another.  I am not arguing that abortion is homicide, only that if we accept the humanity of the foetus, then one can still permit abortion in certain cases on safe, ethical ground.

But if we accept that the foetus is, in fact, human, then it's very difficult, in my opinion, to argue that it does not have, at some level a right to exist without wading into George Orwell-levels of self-parody about the inherent inequality of life.

On the other hand, if we presume that the unborn is not alive, then we face the famous Zeno's paradox. Or what the conservative writer William F. Buckley used to describe as the tomato paradox.  That is to say, presuming that what is born after nine months is a human being and not a tomato, at some point, it must become a person.  The trouble then is, when does the unborn become human, and when is he entitled to the protection of the law?

Aside from Stephen Singer, few people have argued that one could kill a brand new baby, and fewer still a week-old infant.  So, is it the moment that the baby is birthed?  Is it the ability to live independent of the mother?  Maybe, but then, is a week-old baby really capable of living apart from its mother (or some other care-giver?)  If two parents were to simply leave their baby at home for several days without feeding or caring for it, I presume that they would be subject to prosecution, and that abortion supporters and foes alike would be in accord that this is called for in a civil society.

Put simply, the issue is not simple, and certainly not to the point that the combatants on both sides would have you believe.  I propose that it is not even really a religious issue at all - religion is incidental here; a sort of moral rules to help define life in a situation where science and medicine (and thus, the law) are not currently equipped.  But of course, religion is a philosophical choice, and not one universally shared, so this approach has its own very grave, not to say legal, problems.

This is, I think, why the debate is so fraught.  All but the most fervent supporters of abortion rights - Mrs Clinton included, describe a desire to keep abortion safe, legal, and rare.  If one is merely talking about a clump of cells, I suspect one would feel no qualms about their removal.  One simply does not hear about a desire to keep appendectomies rare.

The debate is complex, and I suspect, has no real, dispositive solution.  And thus, it is not reducible to simplistic claims about 'controlling women' as many frame it.  Those who question abortion (and by extension, forcing companies to pay for medical procedures that they see as being abortifacient) are not cartoon characters who hate women or are bent on tyranny over them or their bodies.

And I think that many on the pro-choice side, if pressed, would have to admit that this is true.  The logical conclusion of the opposite is that many of their friends and family members would have to be sociopaths or worse.  If someone you are friends with is simultaneously a woman-hating control freak, what possibly could justify your friendship with them?  

I have a mother, a wife, and a sister,  I know I personally could not reconcile being friends with someone I honestly thought hated women.  Attaching malign motivations to people with a differing viewpoint is rather like going to a blind man's zoo.  We feel their words; we judge the elephant's trunk.

It might be something else.

Finally, the problem here is really policital.  There is an awful lot of screaming; it becomes more pronounced in an election year.  And the fact is, the politicians have a lot to gain by making noise.  I find that the much of the politics of the American Democratic party are at odds with my interests and personal tastes, so I will admit my bias, but I believe that they are responsible for much of the misinformaion and noise.

Data have shown two things over the past 50 years.  First, there is a large, and growing, gap between men and women in terms of voting patterns - women are becoming increasingly reliable supporters of Democratic candidates.  The second is that, had suffrage not been extended to women, the Democrats would not have won a national election since 1964.  The Democrats need women to vote for them, and one of the key levers to achieve that is the issue of choice.  

The Hobby Lobby case is being waved like a political bloody shirt, but in fact, I suspect that the vote is, for many who are the loudest opponents, like a gift from the political gods.  2014 is an interim election year, and the Democrats are, according to polls, in big trouble.  This decision gives them a new, and large, cudgel.  

The tone of politics has gotten nastier, and with the advent of social media, more personal.  I have long believed in the adage that politics is not a pillow fight, but it's new that individuals are now becoming increasingly nasty to each other - with Twitter and Facebook, even to friends.

That is not a positive outcome in my book.  

Language matters; civility matters.  Your political opponents are not your enemies.  It's not always better to be right, particularly when arguing with friends.

In the battle of words, it's OK to take prisoners.

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