154-A: The Kavanaugh Nomination: when enough is enough

"The more people rationalize cheating, the more it becomes a culture of dishonesty. And that can become a vicious, downward cycle. Because suddenly, if everyone else is cheating, you feel a need to cheat, too."  

--Stephen Covey (from BrainyQuote)

Update 24th September 2018: I did not see this essay featured by NBC news at the time of the hearings of Judge Kavanaugh and the writing of this (my) essay as well as its predecessor. It fleshes out the uneasiness I harboured about Judge Kavanaugh's ambition and desire to please superiors interfering with his moral agency.

David Brock on the political trajectory of Judge Kavanaugh.

BLUF (bottom-line, up front)

Likeable as he is and virtuous as his public life and demeanor are, Judge Kavanaugh has failed to earn his seat on the Supreme Court. A lifetime appointment to a position of almost unchecked ethical autonomy makes his confirmation too risky for me.

John W. Dean III on a history of Republican misrepresentations for the Supreme Court.

REASON I: Suppression of Transparency
There is an old saying: "Where there's smoke, there's fire." We have seen limited smoke, perhaps not enough for there to be a fire. What concerns me is why there is so little smoke. Simply said, the oxygen supply has been cut off, meaning that there has been far too little transparency in this hearing. Proper accountability -- always a thorn in the flesh for virtuous and venal people or conservatives, liberals and pragmatists alike -- is the bedrock of any democracy; transparency is its life-blood.

THE ATLANTIC article first questioning the integrity of Judge Kavanaugh's representation and nomination.

REASON II: Fear of Attack and National Security Only Go so Far

Almost all of us were not in the White House on the 12th of September 2001. People who were should be given the benefit of the doubt for subsequent actions in view of the extraordinary, even existential pressures to which men and women were subjected after 9-11. Yet Judge Kavanaugh's assertion of everyday being September 12th has a time span of four or five years in his case. That is a lot of September Twelfths to swallow. For example, a number of people -- including Attorney General Ashcroft, Deputy A.G. James Comey and, most publicly, the late Senator McCain (R-AZ) --vigorously opposed these policies of torture during the time that Judge Kavanaugh served in the White House.

Judge Kavanaugh ducks a lay-up from Senator Klobuchar (D-MN).

REASON III: Courage is Neither Subjective nor Optional
Nevertheless, if the actions taken were proper at the time, why hide them so arduously through prevarication at best, perjury at worst? Why not be up-front and either defend the policies; admit to making a mistake in retrospect; or, admit to unclear thinking imposed by post-traumatic stress disorder. After 9-11, P.T.S.D. likely tafflicted many people working in the White House and Pentagon at the time. Instead, Judge Kavanaugh's evasiveness indicates, to me at least, that deep-down inside he and other officials knew what they were doing was wrong.

Time to pierce the veil; why transparency still counts.

REASON IV: Partnering Propriety with Unwillingness

Judge Kavanaugh has wiggled out of far too many answers due to a stated desire of not opining on possible cases or the need to protect the independence of the judiciary. Sadly, through misuse, he has hackneyed these principles into excuses. The evasiveness has crossed that threshold of stagnant reasoning by turning these stock answers into non-sequiturs to questions that have little to do with judicial autonomy or possible / pending cases.

Senator Booker (D-NJ) on why prevarication matters and on his case for recusal.

  

REASON V: Everybody Else Doesn't "Just Do It"

The Judge's practiced monotone comes across as choking off accountability. The difficulty here is that too many Republicans apparently view legitimate questions posed by Democrats as 'obstacles' to be avoided and surmounted rather than anxieties to be addressed. This type of obfuscation and deceit-by-deflection has not been practiced, to the best of my knowledge, with the four Justices to the Supreme Court nominated by Presidents Clinton and Obama (i.e., Justices Ginsberg, Kagan, Sotomayor, and Breyer). This spirit of propriety has also applied to several recent G.O.P. Justices (e.g., that I know of, Justices O'Connor, Kennedy, Souter and Stevens).

SALON article investigating Judge Kavanaugh's history and the history of prevarication by other G.O.P. nominees to the Supreme Court.

REASON VI: Moral Agency and Ethical Autonomy

As I stated in the original essay supportive of Judge Kavanaugh's confirmation -- I know, I am being preposterously self-important here -- the question comes down to moral agency and ethical autonomy. Judge Kavanaugh's performance lays his moral agency (at least outside of church and civic life) -- into plain doubt. The bitterest irony remains that one reason Robert Bork's nomination went down in flames was that he did take ownership of his controversial positions, if I recall correctly after so many years. From that experience, several subsequent G.O.P. nominees seem to have inferred that honesty is not the best policy nor transparency the best manner.

The human stakes here -- and what of our children?

From some of those 'damned millennials' at this hearing:

PART-1: gun violence and African Americans;

PART-2: pre-existing conditions; as well as,

PART-3: clean minds need clean air.

CONCLUSION

Nice man. By a great many accounts, a good man. But one who takes to heart that 'all is fair in love and war . . . .' There are other conservative jurists who are more forthright and exercise the moral courage to take ownership of their views and past actions. A lifetime appointment to a position of almost unchecked ethical autonomy makes Judge Kavanaugh's confirmation too risky for me.

Letter 154: Judge Kavanaugh and Transparency

"More haste, less speed."
John Heywood, 1546.

"Trust but verify."
Russian proverb used by President Reagan in 1987.

UPDATE: 7th Sepetmber 2018: I tightened this letter home since it had been a comment on Facebook pasted into this space, with section headings and links added as well as incidental changes made. It does not change what I was writing four days ago. So it is right or wrong in view of subsequent testimony and events. 

What it does do is flesh out allusions to past events -- principally the 'Saturday Night Massacre' of 1973 and the 'Starr Report' and its recommendations of 1998 -- for those many who are not familiar with these events due to age or geography. For a particularly thorough analysis of the issues of transparency with respect to this Supreme Court nomination, please refer to the Slate article linked below, between the fifth and sixth paragraphs.

INTRODUCTION
The introduction by former SecState Condoleezza Rice of Judge Kavanaugh at tomorrow's Judiciary Committee hearing is a big plus for the prospective Supreme Court Justice. Judge Kavanaugh is more than adequately qualified to serve on the Supreme Court. Current red herrings about a Judge for whom he clerked or his Catholic background say nothing about him or his jurisprudence. The Democrats seem shrill and unreasonable. Their arguments over transparency, however, are timely.

IF IT WALKS LIKE A BORK . . .Let's go back twenty-one years to Judge Bork. So why did Bork get Borked for his seat on the Supreme Court? At first, I attributed it to his being a goofy looking fellow. But, even then, I knew that few people are as superficial as I. What seemed obvious to me at the time was that the Democratic majority in the Senate had over-reached the proper limits of its institutional authority of advice and consent. That constitutional power relates to evaluating a nominee’s fitness for the office, not the quality of that person’s politics. While I disagreed with his politics and judicial philosophy, I found Judge Bork's answers and testimony to embody sound, often brilliant reasoning. 

https://dlj.law.duke.edu/2015/05/advice-and-consent-in-the-appointments-clause-from-another-historical-perspective/ 

Only a few years later did I find out that Judge Bork had been the hatchet-man of the 1973 Saturday Night Massacre. To recall that incident, President Nixon wanted to fire Special Prosecutor Archibald Cox. Attorney General Richardson refused to do so and resigned. His deputy, William Ruckelshaus also refused to fire Special Prosecutor Cox and was himself fired. Finally, the Solicitor General carried out the President's wishes, acting as the interim Attorney General. That Solicitor General was Robert Bork. Some people believed that the Solicitor General may have been given career incentives to do to be the hatchet-man. That was a sore point for a lot of Democrats.

https://www.facebook.com/NBCNews/videos/10155996882128689/  

While I still felt sympathy for Judge Bork, I understood the visceral reaction among his opponents in 1987. Now, fast forward a score and one years to Judge Kavanaugh and the transparency issue, in which documents are being withheld that may bear on the Judge's actions and judicial temperament. This arguable suppression of documents by assertion of Executive Privilege for many -- and designation of 'Committee Confidential' of others -- has emerged as more urgent than Judge Kavanaugh’s aggressive disclosure and legal tactics vis à vis President Clinton's testimony to Independent Counsel Starr with respect to perjury involving sex with Monica Lewinsky. Judge Kavanaugh assumed the lead in authoring the case for impeachment, obviously another sore point for partisan Democrats. 

https://www.ted.com/talks/monica_lewinsky_the_price_of_shame 

Personally, that aggressive tactic toward President Clinton, both in questioning the President and then releasing that testimony to the inter-net raises troubling questions. For clarification, I came to believe that President Clinton should have been impeached and should have been removed from office. Nevertheless, I remember breaking down and crying when I saw that testimony on national television; it was unnecessary and a degradation of the office. So, those actions could be enough to question the qualifications of Judge Kavanaugh's elevation to the Supreme Court. The Supreme Court is not merely a judicial committee; it also acts as our Council of Elders. The acute suffering that Judge Kavanaugh's discretionary actions helped impose upon Ms Lewinsky makes me question his wisdom, a quality that must encompass magnanimity. 

https://slate.com/news-and-politics/2018/08/brett-kavanaughs-bush-documents-show-how-much-power-hed-grant-donald-trump.html  

Though a partisan sore point, the Democrats really would rather not go there for obvious political reasons and since public tributes to, and the behavior of, Judge Kavanaugh demonstrate his exemplary personal life and public virtue. Now there is a second sore point, likely reflective of a more serious contention of accountability, the Democrats call for more disclosure, arguing that only a small percentage of the documents requested have been turned over. The Republicans claim that Judge Kavanaugh has turned over a far higher number of pages than other nominees historically. 

MANY PAGES, MANY RAGES

Both assertions are accurate but fail to answer each other and utterly miss the point being raised. The size of the hole matters less than its timing.  The part of Judge Kavanaugh's record resolutely withheld relates to those years when he was a White House Counsel and possibly involved in the policies enabling torture and kidnapping of terror suspects after the attacks on New York City and the Pentagon on the 11th of September 2001. Understandably, this is a sore point with the opponents and later critics of Operation Iraqi Freedom. 

https://www.c-span.org/video/?c4746754/senator-mccain-president-bush  

Republicans may argue that, at least, 15% of the Senate Democrats confirmed, as C.I.A. Director, Gina Haspel, who was more intimately involved in these odious policies (that stained the legacy of one of my favorite Presidents). Fortunately, in the case of torture, the late Senator McCain, Attorney General Ashcroft, Deputy A.G. Comey and others raised holy Hell eventually to mitigate and end the policies. The rationale for Ms Haspel’s confirmation was that she simply followed Administration policy, as determined by the civilian Commander in Chief. By logical extension, so did Judge Kavanaugh. 

https://www.theguardian.com/us-news/2018/may/17/gina-haspel-cia-director-senate-vote  

The question here is not simply a repeat of the Nuremberg defense, but one that works. The dilemma underlying these grey-zone decisions of the past pits moral agency against ethical autonomy. Simply said, the current Director of the C.I.A. arguably has a shakey moral agency but, nevertheless, she enjoys little ethical autonomy. The same can be asserted of Judge Kavanaugh’s moral agency, should his actions fifteen years ago bear out an active enabling of policies on torture.  (For me, I failed to question these policies when I knew they were in place, viewing them as regrettable necessities of war; I was wrong, terribly wrong. Citizens, even insignificant ones like me, are accountable too if not publicly, then at least to their own consciences.) 

https://medium.com/@jackkrupansky/what-are-autonomy-and-agency-1928813394c7  

Both the Judge and the Über-spook are fine people; nonetheless, their moral agency has been open to question in the past. Hey, nobody's perfect. The question for me -- and why the Democrats' demands should be met -- centers on ethical autonomy. Director Haspel has at least two superiors above her in the Executive Branch: the President and the Director of National Intelligence. So, theoretically at least, she has limited latitude in her decision and actions. The Vice President can likely pull rank, too, but would almost never be in a position to do so. 

WHO'S IN THE DRIVER'S SEAT AND WHOSE SEAT IS IT?

Judge Kavanaugh's autonomy on the Supreme Court, however, will be far more open-ended, removing institutional accountability. Outside of an impeachment and removal by Congress -- unlikely in this case in view of this man's demonstrably fine character -- a Supreme Court Justice may answer to no one. So the issue of past moral agency becomes important, if not determinant. And accountability for past behavior must occur before Judge Kavanaugh ascends to the highest bench. 

http://www.latimes.com/politics/la-na-pol-democrats-documents-kavanaugh-20180824-story.html#  

The Republicans ought to release the documents in question since not doing so lends credence to the implicit accusation that they are seeking to protect Judge Kavanaugh from being held to full account for his role in the policies of 'enhanced interrogation'. For my part, were the nominee proven to be intimately involved, I would still view him as qualified. For me, at least, it is hard to imagine the pressures on the executive branch during the harrowing days following 9-11. While my support would remain in place, I would understand why others -- perhaps many -- would dismiss this nomination out-of-hand.

Letter 153: Fake News, Hate Speech, the Social Media and the 1st Amendment

“If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” President Jefferson, 1801; first inaugural speech

“As well-meaning as they might be, warning labels and Wikipedia links aren’t likely to solve YouTube’s misinformation problem, because it’s built into the structure of the platform, as it is with Facebook and the News Feed. Social networks have an economic interest in fuelling this process, in part because it keeps users on the platform.” Matthew Ingram, 2018; Columbia Journalism Review via Pew Media Research

UPDATE / CORRECTION, 11th April 2018: The essay mistakenly states that Facebook sells data supplied by users directly to advertisers. This is not the case, as Mr Zuckerberg explains here. Facebook monetizes such data by leveraging their usefulness to advertisers (e.g., in targeting advertisements to particular users).

BLUF (bottom-line, up-front). It may be time to review what political speech is protected; a private sector solution is available.

SUMMARY. Recent news reports about manipulation of, and misinformation disseminated through, the social media raise difficult and delicate questions about how the First Amendment applies in a day when technology has arguably redefined what censorship is and how the still relevant original intent should apply.

A private sector approach may exert judgement as well as standards. Rather, the idea of product and errors-&-omissions liabilities may prove to be more operative. The social media manufacture and disseminate information for end users and the latter pay for it in kind with their personal data. The social media monetizes users' data by selling them to advertisers.

SMOKIN' in the BOYS' ROOM 

Yes, it is censorship and the free press that we discuss and I appreciate an old friend’s timely clarification between individuals and institutions. The concern over censorship raised applies very well to individuals. The defense of President Jefferson of an individual's liberty to express outrageous speech and opinions held that their open airing, subsequent debate and ultimate dismissal by the larger society would attest to the vitality of that democratic polity.

In this sphere, I concede, algorithms will have to do. The social media also have the right -- obligation -- to edit and winnow out content they deem inappropriate at their discretion. The rub occurs when it comes to an institutional adversary, particularly another nation or régime, aimed at eroding the legitimacy of a working democracy -- since popular opinion and discourse are its center of gravity -- and threatening the institutions themselves. A democracy has a duty to protect its people and its discourse.

Adversarial governments, non-state actors, and bots simply should not enjoy 1st Amendment protections inside American public discourse. How to deal with these direct threats is challenging; the danger may not be very clear but it is very present. That is the dilemma. Similar to impulses toward censorship during the ‘Red Scare’ of the 1950s, Americans need to have faith in their institutions.

Source: "Walking the Brand Protection Tightrope"; Brand Quarterly.

In addition to questions raised below, transparency of sources of the identities of disseminated content visibly attached to bot-generated posts may suffice. Yet, like the debate about the 2nd Amendment, we face a question of scale. It is reasonable to assume that the Founders -- Messrs Jefferson, Mason, Madison et al. -- could not have envisaged the magnitude of lethality of contemporary 'rifles'.

Likewise, printing up a thousand pamphlets for local distribution, with multiple printings for regions beyond, is simply on a scale altogether different from the immediate dissemination of misinformation -- arguably dangerous (though not as evident as screaming '¡FIRE!' in a theater) -- through hundreds of bots and across thousands or millions of screens.

Additionally, this misinformation has been shown to make its way into mainstream media per the C.J.R. article. I believe -- and these are beliefs we debate, not opinions dressed up as self-evident principles to justify rigid and uncritical application -- that a democratic society is not betraying its ideals and liberties by defending itself against organized misinformation aimed at undercutting it.

Recent testimony by senior execs at Google, F.B. and Twitter at Congressional and Parliamentary hearings have shown that the algo-game is much like the myth of Sisyphus. The platforms are responsive yet smart black-hats then game the new rules; it reminds me of what happened in the corruption of Wall Street during my years in banking. 

Simply relying on rules without muscular and anticipatory discretion, as articulated by Niall Ferguson*, can be damaging through an undetected and unaddressed corruption of the regulatory régime. Nevertheless, discretion by regulators without codified accountability is a prescription for the gradual onset of tyranny. Remember the uneasy balance required here will remain publicly transparent and accountable. When the balance is disturbed, the society has the means to restore the balance. We saw this occur with enhanced interrogation and the NSA domestic surveillance programs. 

SO HERE are the QUESTIONS for READERS to CONSIDER:

• Is fake news protected speech?

• Is eliminating hate-speech from the public discourse censorship?

• Do bots merit 1st Amendment protections?

• What foreign entities operating outside of the U.S., if any, have 1st Amendment protections?

• Are the social media information platforms only or are they news outlets?

• Is editorial discretion by a social media platform a form of censorship?

• Are mandatory and evenly applied waiting periods before information release -- on key words and links -- censorship via prior restraint?

• If not prior restraint for shorter periods, how short should waiting periods be -- thirty minutes, several hours, one or two days?

• Are the social media information platforms or are they manufacturers and disseminators of content and data?

• If a particular social medium manufactures and disseminates of content and data (i.e., content for users and personal data collected for advertisers), would enforceable product and errors-&-omissions liabilities apply to the social media platforms?

• Does obscenity involve only content with no political, artistic, social value in a sexual sense?

So we circle back to the basic concern over censorship as a valuable resource in making a nuanced response to a subtle threat. Hackneyed thinking is even less effective than algorithms. Ironically, the publicity of Nikolas Cruz's hateful Instagram posts could very well have benefitted the public welfare by tipping people off to intervene.

In those cases, the social media would serve the common welfare by conveying censored information to law enforcement, mental health agencies, schools, and other institutions. Perhaps, in applicable cases, parents should be clued in, too. In that manner, the risk of copy-catting or momentum toward bloodshed generated by widespread dissemination of violent content might be mitigated. Yet the dark-net complicates things.

PRIVATE SECTOR BAIL-out?
A friend’s concern of censorship driving hate-speech and fake news onto the dark net has to be kept in plain view. An emotional response with the subtlety of a sledge-hammer could drive fake news to that less visible domain, quite foreseeably to impose consequences even worse than the antecedents addressed. So, the arguments above likely will not make much headway. The problem will persist.

If not a government-led approach to curtailing destructive content aimed at de-legitimating our institutions and freedoms or calculated to incite violence, what can we do short of intervention or overt censorship? Perhaps the private sector can chip in here. The thesis proposed here is that the social media manufacture and sell two intangible products.

The more visible product is content. The less visible is user data, often behavioral. Users pay for the content they consume or create by surrendering data on preferences and interests. The platforms monetize the collected data by targeting precisely the potential buyers for paying advertisers. Viewed as manufacturers and sellers of intangible products makes the social media accountable in an extra-governmental way.

When deceptive hate-speech and other content foreseeably incite violence (e.g., the Comet Ping Pong Pizza shooting in D.C.) or when fake news squarely attacks the legitimacy of U.S. institutions (perhaps libel against an institution), a product liability exposure could arise and, perhaps, be prohibitively expensive for the social media. This idea finds more traction with the former instance of violence and its inspiration caused by a defective content distributed to the consumers of it.

For damage done to public discourse, the liability of errors-&-omissions might attach to the social media, specifically the programmers of the algorithms or those that either edit or filter content. After all, if bots should not enjoy 1st Amendment protections (as I assert), then algorithms ought to be considered as something less than people committing willful mistakes or foreseeable negligence.

Beyond trying to be clever and evade censorship restrictions, this application of basic insurance concepts really boils down to aligning private micro-incentives, born in the private sector, with the communal interest of protecting ‘protected speech’ only. That is to say: creating an over-riding economic interest for the social media to exercise editorial discretion in the same manner that The New York Times, The Wall Street Journal, ‘PBS News Hour’, ‘Sixty Minutes’ and so many other media outlets, of all ideological bents, already do.

------

*Unfortunately, I can not track down the specific thought (on video) by Dr Ferguson. In essence, his thought was that the Bank of England had a better regimen of discretion and rules in the nineteenth century. As long as the regulators themselves acted as honest fiduciaries of the larger financial system, oversight worked better with direct interventions into the market to shut down or discipline institutions immediately before consequences could multiply into financial contagion. The closest example of this idea was the Federal Reserve’s intervention into the crisis precipitated by the collapse of Long Term Capital Management in 1998.

Letter 152 to friends and familiares: a defense of Senator Franken.

NOTE: this letter was written before I was aware of the emergence into the popular press of clear, if asserted, evidence of a pattern of conduct by Senator Franken. The take is largely the same. Senator Franken continued making text-book amends of apology, atonement and resolution. I regret that he felt compelled to resign. His fellow Democrats might have acted more appropriately by censuring him publicly.
--------------------------------------------------
THIS LETTER WILL ALMOST CERTAINLY NOT BE REPRINTED BY THE MINNEAPOLIS NEWSPAPER TO WHICH I SUBMITTED IT.

PERSONAL BRANDING IS OUT OF CONTROL; ALLEGATIONS SHOULD NOT BE ADVERTISING

Dear Editors and fellow citizens in a great state,

Thank you for publishing this note from someone in Alabama looking from afar on this allegation against your junior Senator. This letter is a reminder, more to me than to you, that we all make mistakes; it is what we do about them that shows the enduring content of our characters. Truthfully, as a conservative Republican, Senator Franken’s often abrasive manner, particularly toward Alabama’s favorite son (i.e., Attorney General J.B. Sessions III), infuriates me.

Nevertheless, y’all in Minnesota are fortunate to have a man of such high character representing you. The reading on 'The View' by Ms Tweeden of the Senator’s private note of apology was distasteful, at best. The good news is that the contents of that note reveal a leader of uncommon maturity, compassion and humility in addressing, with civility, an allegation that could end his career.

Does that note excuse the Senator's behavior, if it actually occurred? No. Senator Franken’s own words, however, provide you with evidence of his ability to face up to mistakes, learn from them and grow into becoming a better man. You are the State that has produced many giants of American liberalism. Please do not turn your backs on that tradition by turning your backs on this Senator.

Oh, if my Party's Senate candidate in my State had half the virtue displayed by Senator Franken, I would be so happy.

Very truly yours,

Ned

Edward J. McDonnell III, CFA PMP
Birmingham, Alabama

Letter 151 to Friends and Familiares: Choice versus Life: ¿whose right is it, anyways?

UPDATE: 15th December 2017

In a recent discussion with a rabbi, my Jewish friend and theologian observed that, in Genesis 2:7, "And the LORD God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living soul." He went on to say that, under Judaic tradition, life begins when a baby draws a first breath (implicitly, from God). The implication for my thinking is staggering.

For my adult life, I have assumed "instinctively" that life begins at conception. Since this was a matter of "straight-forward intuition", I had no reason to question this premise. Fact is that I grew up in an R.C. home, though not a strict one, at least theologically.

Had I grown up in a Jewish home, however, my "instinctive" assumption would be that life started with the first breath. That would make the pro-choice position "intuitively" evident. In no way am I saying that such an argument endorses abortion as birth control. It does not. Additionally, abortion has proven not to have become a form of birth control in the last forty-three years.

--------------
"The greatest destroyer of peace is abortion.” --Mother Teresa

"....Woman, where are those thine accusers? hath no man condemned thee?...She said, No man, Lord. And Jesus said unto her, Neither do I condemn thee: go, and sin no more." --Saint John 8:10 & 11

“Suddenly, I began to wonder: If one in three or four American women had an abortion at some time in her life--a common statistical estimate, even in those days of illegality-- then why, WHY should this single surgical procedure be deemed a criminal act?” --Gloria Steinem

NOTE: table added on 04may22

BLUF (bottom-line, up-front). The current legality of abortion – principally, Roe v. Wade (1973) – should remain in place unless two-thirds of voting age women (67%) consent to its being reversed.

Introduction. I have been fairly constant in my pro-life preference over time, though I believe there has to be compassionate flexibility built into the resolution of the larger issue across American society. These include the following:

• minors notifying parents of an abortion unless to do so would injure them or others;
• notification of the father – and of his anticipated responsibilities should the mother carry the pregnancy to term and not choose to place the baby into an adoption program – except when to do so would injure the mother or the baby;
• unfettered right to an abortion in cases of rape or incest;
• mandatory waiting period for the procedure with exposure to pros and cons of the decision;
• funding for pre-natal care including drug rehabilitation (if necessary), occupational training during the pregnancy and early child-care assistance after the birth of the baby;
• mandatory availability of the surgery across the country and within the states; as well as,
• affirmative adoption tax credits for the adoption of minority children.

Discussion. One point to emphasize is that, of all issues, out there in the political arena, the right to life versus choice is the one that requires the most compassion toward people facing this dilemma. Yet, the very compassion that so many pro-life moral irredentists lack remains, in my mind, inconsistent with their claims to righteousness. In the end, the only judgement publicly cast should be that of the Supreme Court in 1973.

J.C. Himself would never demonize women who terminate pregnancies – so many being poor and feeling abandoned – that many of my fellow conservatives do. One should consider seriously how (s)he might feel if a pregnant daughter or sister were unwed and, perhaps, underfed, chose to end an unwanted and crushing pregnancy. Remember what J.C. said to the adulteress who was not stoned after He said let he who is without sin, cast the first stone.

If one undertakes this exercise in moral fortitude, I find it hard to believe that (s)he would over-rule every impulse toward empathy and compassion. Aside from Xian theology, the over-riding point is that a woman retains an independent moral agency to determine whether the fœtus remains a part of her body or whether it constitutes a separate life. That is to say: as long as this question is unresolved, the moral right belongs to the individual, namely the individual woman.

Our Constitution makes it clear that individual rights in everyday exercise – even implied rights protected by Amendments IX and X – can not be curtailed by the Federal government. The States theoretically can restrict abortions but I can not favor this idea unless two-thirds (67%) of the women should first consent in a concurrent referendum. The idea of a concurrent referendum of women applies Calhoun’s “concurrent majorities” to demographics, not states.

The irony of this conservative pro-life stand. As far out of step as this thinking has often been with my friends, particularly women, in practice my thinking seems to be coincidentally aligned with what the American people think – and have thought consistently since the mid-1970s – with respect to choices by a woman during pregnancy. The extensive Gallup data have, embedded deep inside them, key findings.

Women have the right to choose abortion without restrictions in the first trimester of the pregnancy. This makes sense since other data indicate that many or most unplanned pregnancies are a consequence of failed birth control, either in working or in use by the one or both parents. Of course, that nudges the door open for whether birth control is itself permissible. For me, that door is ajar and – hypocrite that I am – I intend to keep a lid tightly sealed on it.

When the issue of reversing Roe v. Wade is in contention, Americans ramp up their opposition to such a move (i.e., during a conservative presidency). These data indicate, to me at least, that people want Roe v. Wade to remain in place. Its reversal is a theoretical nicety when a pro-choice régime is in power but when the rubber hits the road, the true preferences emerge.

Summary. Women have a right of dominion over their own bodies, whether the rest of us agree or not. Like it or not, a woman’s view of the fœtus as a part of her body rather than an utterly dependent life is intellectually defensible. The American people tend to agree with this idea of free agency early on in the pregnancy, though that support fades in the second and, radically, third trimesters. The consent of women is required for any curtailment of the implied right of privacy with respect to their bodies and lives.