Congress and the PBAA

Before going any further, it's important to understand what this act does and does not do. This act does not prohibit abortions based on the term or stage of the pregnancy during which they are performed (the Supreme Court decision seems to allow for that to happen, but we'll get there). What it does is to forbid a particular method of performing an abortion, known as an "intact dilation and evacuation" (intact D&E) procedure.

Congress elected to ban this particular procedure because it declared it "gruesome" and inhumane" and declared that it is "never medically necessary." But let us pause. Are we okay with Congress regulating the medical field based upon such circumstances? As a preliminary matter, let us dispense with the "inhumane" argument. If the abortion of a fetus is inhumane in one instance, it is inhumane in all instances. That is a larger question about abortion, not one specific to this procedure. Next, it is important to note that other D&E methods, not banned by the act, are no less gruesome. But is gruesomeness a sufficient ground for banning a medical procedure? Indeed, I think most of us would find any surgery quite "gruesome" - the slicing open of human skin, etc. The point is, in medicine there is a balancing test. Yes, the actions are gruesome, but we undertake them anyway because there are more compelling interests at stake.

And this brings us to the question of whether this procedure is ever "medically necessary." Note that Congress did not declare that the procedure was "never medically beneficial" or even that it was "never the best medical option." No, instead Congress declared that it was never medically necessary, which renders meaningless its exemption for the life of a woman. (Surely "necessary," if it is to have any meaning at all, must mean "necessary" to the life of the mother.) If a declaration of no medical necessity is all that is required, Congress would thus be empowered to regulate nearly anything in the medical field which it disfavors - end-of-life decisions, sex reassignment, and almost all types of abortion come readily to mind. This should give us all pause.

As a final point, Congress's greatest failure in passing this bill was to omit an exemption for the health of a woman. Other methods of abortion can pose risks of serious complications in some women. This may not be frequent; indeed there appear to be less than 5,000 of the banned procedures per year. If continued pregnancy poses a serious threat to the mother's health, should she not be able to have an abortion? Should the specific procedure used not be the safest possible one as determined by a certified physician?

Without going into it in great depth here, there is also a fascinating question, already widely debated in conservative circles, as to whether Congress, as opposed to state legislatures, may pass this type of legislation. Our federal government is one of enumerated powers (if broadly construed enumerated powers). But to construe its Commerce Clause powers this broadly may be to abandon any notion of "enumerated powers."

I will address the Supreme Court decision in a later post.

Ugliness

There has been so much ugliness this week. It's been almost unbearable. From Virginia Tech, to the Supreme Court ruling, to me deeply wounding the feelings of a friend, and now this:

Youtube: 'Christian' audience walkout at Mike Daisey

I found it in the Stranger blog. Basically, this solo performer was giving his monologue and used the word "fuck" a few times - and then his performance was interrupted with a throng of people in the audience getting up and walking out. And then some guy came up to the performer and poured water on the handwritten manuscript he was reading from. I felt sick.

But the guy was really full of class - he really wanted to have a conversation with the angry folks. And later he posted this all to his blog - and what he wrote about it gave me shivers. It was graceful, principled, outraged, compassionate, and insightful all at once. Please read it.

It Begins

I had held out hope, but I suppose we all knew this day would come. The Supreme Court, today, upheld a federal law banning a type of abortion. Yes, the Supreme Court upholds federal laws all the time. But this one was widely expected to be struck down because similar bills passed at the state level had previously been held to be unconstitutional. In general, if an act is unconstitutional as impinging upon the rights of the people, it doesn't much matter WHO passes the unconstitutional law, it remains unconstitutional. That is why commentators anticipated this federal law, which was a response to the court's ruling, to similarly be struck down. That was before, of course, the composition of the court changed; more specifically, that was before Justice O'Connor was replaced by Justice Alito. Both Alito and Roberts voted to sustain this law.

Today's decision raises two separate issues: (1) the political wisdom of the Act itself and (2) the wisdom of today's decision by the Supreme Court. These will be the subjects of a future post, once I have had time to parse the opinion itself.

Pharmacists and Contraceptives

Over the past few years, the issue of whether pharmacists should be required to dispense so-called "morning after" birth control pills has been debated widely in Washington State. Today, the Pharmacy Board, after a substantial amount of discussion, consideration, and re-consideration of proposed rules, unanimously voted to require drug stores to dispense lawful prescriptions while allowing individual pharmacists only the discretion to have another pharmacist on-site fill the prescription instead. I find this to be an eminently sensible decision. Without rehashing the entire debate, here is why.

This issue presents a conflict of interests: (1) that of the patient, who has an interest in having a prescription filled and (2) that of the pharmacist, who may harbor moral objections to the particular prescription.

The interests of the patient have been through at least one level of review with a doctor, who wrote the given prescription. This, to me, serves to enhance the validity of the patient's interests. Given that refusals to fill prescriptions have often centered upon prescriptions preventing conception, the interest in avoiding an unwanted pregnancy is generally a very serious one. We must, of course, balance this against the interests of the pharmacist who objects.

The pharmacist's interest, on first blush, is also a fairly strong one - the right to behave in accordance with one's moral, religious, and ethical beliefs. This interest is, however, undermined in that being a pharmacist is a profession licensed by the state. Such licensing creates responsibilities. One such responsibility is to fulfill lawful prescriptions, regardless of personal convictions. The pharmacist is, of course free to seek other lines of work involving no such professional responsibility to the public (working in the pharmaceutical industry, for instance).

Weighing the competing interests, then, the balance seems to fall decidedly in favor of the patient's interest. Were doctors able to both create and fill prescriptions this would be a closer call, but currently, the only way to meet the patient's needs in every case is to require pharmacists to dispense all lawful prescriptions. As such, I applaud the Pharmacy Board's decision.

Easter for Diplomacy

This is a beautiful photograph.


Speaker of the House Nancy Pelosi is in Syria. Earlier this week she's been in Israel and Lebanon. There's lovely footage of her touring a bazaar in Damascus, enjoying free samples from various vendors, and then visiting a mosque in her beautiful headscarf and making the sign of the cross at the reported depository of the head of John the Baptist. She's due to meet with Syrian President Bashar al-Assad to discuss Syria's role in stabilizing Iraq, it's peace process with Israel, and in general to begin the process cleaning up after the Bush administration's drunken bar-fight diplomacy.

The White House thinks this is bad.

Two remarks: first, as much as I have been critical of Congressional Democrats, this is really, really cool. The next time a conservative war-apologist says that liberals aren't doing anything to help the situation in Iraq, I might point this out. Diplomacy is the most effective tool our leaders can be employing right now to HELP the Iraqi people, and incidentally, "the troops" as well. It's sad that the Speaker of the House needs to be the one attending our foreign brothers and sisters - in theory, the President and the Vice-President get replaced by the Speaker only if they're dead. In our case, they're just incompetent.

My second remark is a quote:
"Blessed are the peacemakers, for they will be called children of God." - Matthew 5:9

What a sad day when the ostensibly "Christian" president denounces a person for peacemaking. It is now Holy Week in Western Christianity - this weekend, Christians remember how God turns domination and death into liberation and life.

Out of the darkness of Bush's "doctrine" and betrayal of the global community, let there be a resurrection of respect, dialogue, and hope.

Good work, Speaker Pelosi.

Happy April Fools Karl

A gift for Karl from a blog I ran into today:


Comments, Karl? I can't say I agree, but I'm trying to have a sense of humor. Being that it's "Fools Day" and all, I figure the heathens can have a break for once.