The 2015 Ordinary Synod on the Family has today reached an “Extraordinary” compromise between “liberal” and “conservative” factions, De Civitate has learned. Speaking under condition of anonymity, Fr. Xavier Rynne of Boston confirmed that Catholics who have divorced, remarried, and remain sexually involved – thereby committing themselves, according to the constant teaching of the Church, to a life of unrepentant adultery – will be allowed to receive the Eucharist, a major victory for a faction led by Cardinal Walter Kasper, which has emphasized the importance of “mercy” over “legalism” and “the Gospel of Jesus Christ”.
However, in order to win support from reactionary bishops whose obsession with obeying Jesus borders on the Pharisaical, the enlightened Franco-Kasper faction was forced to make major concessions to conservatives. Although not all agree: “I prefer to see this not as a concession,” said Vatican spokesman Fr. Federico Lombardi, “but as a wonderful opportunity for irregular couples to learn a new language!”
Under the apostolic constitution ratified Tuesday morning, remarried Catholics may present themselves for communion at Holy Mass only if the Mass is said entirely in the Latin language, with the priest facing away from the people, using the medieval Tridentine Rite. They must receive the Body and Blood of Christ on the tongue, while kneeling, at an altar rail, may only receive if they have also received the Sacrament of Reconciliation within the past forty-eight hours, and will be strongly discouraged (like most followers of the “extraordinary form”) from receiving every week, or even every month.
Immediate reactions are mixed. “Two steps forward, one step back is better than no steps forward,” wrote Michael Sean Winters of the National Catholic Reporter. “It’s past time progressive-minded Catholics started paying attention to the burgeoning Traditional Latin Mass movement, and this gives us a great opportunity to start looking at ways to support that movement. After all, if the TLM is exploding in membership and interest despite the huge demands it places on its supporters, then how much more would it grow if we got some Marty Haugen tunes into the TLM hymnals?”
Reached for comment at his confessional, Fr. John Zuhlsdorf, resplendent in camel-hair vestments, remarked, “Repent! For the day is at hand!” ate a locust, and then asked this reporter, “Seriously, are you here for confession or what? And how can you even tell what I’m wearing from behind the screen?”
The Society of St. Pius X has issued a vigorous condemnation, but, Superior General Bishop Bernard Fellay noted in his statement, “To be fair, we were going to issue a vigorous condemnation no matter what.”
Marianne Duddy-Burke, executive director of DignityUSA, cancelled plans to release a statement of her own, saying, “Bishop Fellay pretty much covered it.”
As a child, I was a religious fan of Bill Nye The Science Guy’s PBS show. I watched every episode, and, as a result, I didn’t actually need to pay attention in science class until about the middle of 6th grade. On a few occasions, I even corrected my teachers with information gleaned from his program! I wanted to be a scientist when I grew up, and that was largely thanks to The Science Guy. (I did end up a computer scientist, technically, but, with a mere B.A., I’m really a tradesman.) Nor are Bill Nye’s talents limited to explaining science to children: his episode of Stargate: Atlantis was one of the best things that ever happened to that franchise. My faith in Bill Nye was not extinguished by growing up. When I saw that Nye had come out in favor of anthropogenic climate change, that was (more or less) when I stopped seriously arguing the point. As the old saying goes, “Nye locuta est; causa clausa est.”
I’m reconsidering that decision.
Bill Nye put out a video last week arguing for abortion rights. I’ll let you watch it.
You watched it? Good. Then you noticed that the entire video only includes one scientific claim, at the very start of the video. And that claim is clearly, indisputably false. Nye says:
Many, many, many, many more hundreds of eggs are fertilized than become humans. Eggs get fertilized, and by that I mean sperm get accepted by ova — a lot. But that’s not all you need. You have to attach to the uterine wall, the inside of a womb, a woman’s womb.
Wrong. Once an egg has been fertilized by a sperm, it ceases to be an egg or a sperm. (Both egg and sperm are destroyed by the process of fertilization, which includes the first mitotic cell division.) What is left behind is a human organism – specifically a very young human organism called a zygote.
How do we know a zygote is an organism? Because it fulfills the six criteria of life. You all know these because they (or some close variation) are in the first chapter of every ninth-grade biology book printed during your lifetime, but, if you want a refresher, you can find them here:
Response to the environment: Zygotes immediately begin interacting with their environment. Like any single microorganism, their interactions don’t have a big impact at the human scale, but they immediately begin absorbing and expelling chemicals in their environment.
Growth and development: Zygotes grow and develop. They start at one cell, then multiply to two cells, then four, and so on indefinitely, passing through other stages of the human lifecycle.
Reproduction: Zygotes reproduce. We’ll come back to this.
Complex chemisty: Zygotes are highly organized, coordinated structures with an unimaginably complex unified metabolism… like any multicellular organism.
Cell-based. Zygotes are composed of one or more cells.
Great. So we know zygotes are organisms. But how do we know they’re homo sapiens? What distinguishes a human zygote from a grown duck? Or a duck zygote? Or a bacterial colony? Or a human toenail?
For the first three, biology supplies an easy answer: human zygotes have the DNA of homo sapiens, while the others do not. But the fourth is harder. What actually distinguishes a human zygote (or, for that matter, a human eight-year-old) from a human toenail? Or even a human cancer? All appear to be alive, and all have human DNA. Let’s point to two key differences: growth and reproduction.
Toenails grow. So do eight-year olds. But what do they grow into? If properly nourished, eight-year-olds will grow, of their own accord, into adults of the species homo sapiens. Toenails, if properly nourished, will grow, of their own accord, into… longer toenails. This is a strong indication that eight-year-olds are homo sapiens, while toenails are not: you cannot grow into an adult homo sapiens unless you are already a child belonging to homo sapiens. Is everyone okay with this claim? Good.
Cancers grow. So do zygotes. But what do they grow into? If properly nourished, zygotes will grow, of their own accord, into adults of the species homo sapiens. Cancers, if properly nourished, will grow, of their own accord, into… more cancer. This is a strong indication that zygotes are homo sapiens, while cancers are not: you cannot grow into an adult homo sapiens unless you are already a child belonging to homo sapiens.
Not even individual sperm and egg cells will grow, on their own, into adult humans; they will merely undergo meiosis. Only by combining the two, destroying them in the creation of the new zygote organism, will you get an entity that is destined to become an adult human.
Let’s now consider reproduction.
Do toenails and cancers reproduce? No. (Cancers metastasize, but that’s not the same thing as reproduction.) This means that neither toenails nor cancers are actually alive, much less living human beings. (Individual toenail and cancer cells are alive, sure, but, all together, they do not form a living organism… because actually living things, by definition, can reproduce themselves.)
Do eight-year-old human children reproduce? No, not yet. However, they are developing the capacity to reproduce, a capacity written into their genetic code. When they eventually hit puberty, finish growing up, and get married, most eight-year-olds will reproduce. And to what will they give birth? Tiny members of homo sapiens, of course. A good rule of thumb in biology: if your babies are horses, you’re probably a horse. If your babies are human beings, you’re probably a human being. Today’s eight-year-old kids will give birth to tomorrow’s human beings. This implies that the eight-year-olds themselves are human beings.
Do zygotes reproduce? No, not yet. However, they are developing the capacity to reproduce, a capacity written into their genetic code. When they eventually hit puberty, finish growing up, and get married, most zygotes will reproduce. And to what will they give birth? Not horses. Not toenails. Not gametes. Babies. Today’s zygotes will give birth to tomorrow’s human beings. This implies that human zygotes are themselves human beings.
Of course, many zygotes die before they become adults. However, many eight-year-olds also die before they become adults. This does not make them less human. It just makes them less fortunate.
So we see that, as a simple matter of fact, any egg that has been fertilized by a sperm has become a human organism. Biologically speaking, you and I both began to exist at our respective conceptions. But don’t take my word for it! Take Science’s:
“Zygote. This cell, formed by the union of an oocyte and a sperm, is the beginning of a new human being. The expression fertilized ovum refers to a secondary oocyte that has been impregnanted by a sperm; when fertilization is complete, the oocyte becomes a zygote.” —Moore and Persaud, Before We Are Born: Essentials of Embryology and Birth Defects, 7th Edition. Philadelphia: Saunders, 2008. p.2.
“In that fraction of a second when the chromosomes form pairs, the sex of the new child will be determined, hereditary characteristics received from each parent will be set, and a new life will have begun.” —Kaluger and Kaluger, Human Development: The Span of Life. St. Lous: C.V. Mosby, 1974. p.28-29
“Although life is a continuous process, fertilization (which, incidentally, is not a ‘moment’) is a critical landmark because, under ordinary circumstances, a new genetically distinct human organism is formed when the chromosomes of the male and female pronuclei blend in the oocyte.” —O’Rahilly and Müller, Human Embryology and Teratology, 3rd Edition. New York: Wiley-Liss, 2001. p.8.
But don’t take Science’s word for it! Take abortionists’!:
“We can accept that the embryo is a living thing in the fact that it has a beating heart, that it has its own genetic system within it. It’s clearly human in the sense that it’s not a gerbil, and we can recognize that it is human life of a sort. But the point really is not when does human life begin, but when does it really begin to matter?” –Ann Furedi, chief executive of BPAS, the largest abortion provider in the United Kingdom, Abortion: A Civilized Debate, 5:48-6:10
“I think we have deluded ourselves into believing that people don’t know that abortion is killing. So any pretense that abortion is not killing is a signal of our ambivalence, a signal that we cannot say yes, it kills a fetus.” –Faye Wattleton, president of Planned Parenthood Federation of America, 1978-1992, in “Speaking Frankly,” Ms. Magazine, May / June 1997, Volume VII, Number 6, 67.
That last one was by far the hardest quote for me to confirm. I had to actually go the library and look it up on microfiche. While over there, I found that the article contained a few other gems:
“It makes sense to do this in the most humanitarian way possible, but there’s nothing especially humanitarian about death. If we shrink from that, then I think we really lose.” –Adrienne Ashe, former NARAL board member, ibid.
“The way in which the arguments for legal abortion have been made include this inability to publicly deal with the fact that abortion takes a life. There are real reasons for that, because if you say, ‘abortion takes a life,’ large numbers of people interpret this as ‘abortion takes the life of a person who is the moral and legal equivalent of the woman.'” –Frances Kissling, Founder, Catholics for a Free Choice, ibid.
“The purpose of abortion is to terminate the life of the fetus.“ –Catherine Albisa, “human rights lawyer” formerly with the National Latina Institute for Reproductive Health, ibid.
The very first sentence of Bill Nye’s science video about abortion, which happens to also be the only scientific claim Bill Nye makes in the entire science video, is demonstrably false. Authorities across the ideological spectrum concur that it is false. The facts permit no wiggle room, no shades of gray, no space for objections. What Bill Nye said is indisputably false.
In truth, all eggs that complete the process of fertilization are human. Every single last one of them. By the very fact of having completed fertilization, they are human. (Whether they are rights-bearing persons is, as Francis Kissling points out, a separate question.)
Having butchered science, Nye goes on to make a very brief argument – not a scientific argument, but an ethical one – about why killing a human zygote through abortion is not wrong:
If you’re going to say when an egg is fertilized, it therefore has the same rights as an individual, then whom are you going to sue, whom are you going to imprison, every woman who has had a fertilized egg pass through her? Every guy whose sperm has fertilized an egg and then it didn’t become a human, have all these people failed you?
Mollie Hemingway refuted this argument in the space of a single tweet:
If you think there’s no difference between Grandma dying in sleep and shooting her in the head, you might be Bill Nye
Yes, Bill, zygotes die. In fact, every zygote dies, because every human being dies, and zygotes are human beings. It’s just a question of when: humans can die an hour after conception or a century after conception, or anywhere in between. The difference is intent.
We don’t charge mom with murder if Grandma dies in her sleep; that would be insane. We do charge Mom with murder if Grandma dies because Mom stuck a shotgun in her mouth and pulled the trigger. If an embryo can’t quite implant and fails to survive, we’re not going to go down to Planned Parenthood and clamp their staff in irons for failing to somehow magically save this very young human being; that would be insane. But if a member of Planned Parenthood’s staff reaches into the uterus and kills that human being by tearing her apart, limb from limb, yes, of course that staffer is responsible for that child’s death, and of course he can be held accountable for his actions!
Let’s recap: in the only matter of empirical, scientific fact in Bill Nye’s science video, Nye is wrong. During the process of fertilization, a human life is created. “Pregnancy” may not technically begin until implantation, but you cannot change the fact that human life begins at human conception without throwing out a century of embryology and the very words “organism” and “species.” Those are the facts. And Science has nothing further to say on the subject.
Which is not to say that the conversation is over. There is still a philosophical and ethical argument to be had about whether or not a human child, immediately after conception, is (metaphysically speaking) a human person, bearing human rights, and subject to legal protections. But that argument is not a scientific one, and so, as soon as Nye tries to make it, he falls flat on his face.
The balance of Bill Nye’s video is an old man ranting about how stupid everyone is who disagrees with his demonstrably wrong science and poorly-formed ethics.
He accuses his opponents of scientific ignorance. Except, on the only scientific matter in the video, his opponents are indisputably correct.
He accuses his opponents of being mostly men of European descent. Now, I can’t help noticing that Bill Nye is himself a man of European descent. And I can’t help noticing that the majority of the pro-life movement is female. Pro-choicers always try to cast the issue in terms of women’s rights, but let’s remember that, as Andrea Dworkin pointed out, male abortion-rights advocates are not exactly white knights standing up for women:
It was the brake that pregnancy put on fucking that made abortion a high-priority issue for men in the 1960s – not only for young men, but also for the older leftist men who were skimming sex off the top of the counterculture and even for more traditional men who dipped into the pool of hippie girls now and then. The decriminalization of abortion – for that was the political goal – was seen as the final fillip: it would make women absolutely accessible, absolutely “free.” The sexual revolution, in order to work, required that abortion be available to women on demand.If it were not, fucking would not be available to men on demand.Getting laid was at stake. Not just getting laid, but getting laid the way great numbers of boys and men had always wanted – lots of girls who wanted it all the time outside marriage, free, giving it away. (Dworkin, Right-Wing Women, 95)
He accuses his opponents of trying to impose the text of a “5,000-year old book” (the Epic of Gilgamesh? He can’t mean the Bible, which is at most 3500 years old) on everyone, despite modern “scientific knowledge.” Except, of course, the Bible does not make a particularly strong argument against abortion (nor does Gilgamesh), and a great many pro-lifers are secular. One does not need to be religious to oppose murdering innocent human beings. Aren’t agnostics always telling me it’s possible to be moral without religion? Being an Aristotelian, I’ve always thought so, but “opposing the murder of innocent children” is a pretty good test of whether that’s actually the case, and way too many agnostics like Bill Nye fail it.**
He accuses his opponents of taking away time, attention, and resources from “more important issues.” (He doesn’t name any.)
He points out that we wouldn’t have knowledge or images of the conception and pregnancy process without scientists “who are actual medical professionals.” Um… okay. True. And? “And so then to claim to know the next step when you obviously don’t… you have to respect the facts.” Yes. Yes, you do have to respect the facts, Bill.
He opposes abstinence-only education, stating that the evidence doesn’t support it. That’s… fine, I guess, and may even be true, but has nothing to do with whether or not abortion is ethical. All this suggests is that Andrea Dworkin was on to something.
He asks his opponents to look at the facts, and to embrace a “fact-based” position on abortion.
I have. When will Bill Nye?
This is a shameful four minutes. It is at the Todd Akin level of scientific illiteracy. For any person claiming to be a public intellectual for the promotion of science, this video ought to be a career-ender, just as it was for Akin. After thorough excoriation by his peers, Bill Nye should be forced to spend a few years out of the public eye, maybe doing some actual research for a while, as penance for his sins.
But this will not happen. Bill Nye knew it would not happen. That’s why he felt empowered to be so careless and ignorant and pompous. A great many modern scientists (more than enough to form the scientific establishment) have decided that their skill in science makes them qualified philosophers, too. They are not.
Scientists are experts in gathering empirical data in their respective fields of expertise, analyzing that data, and drawing inductive conclusions from that data. Typically those conclusions pertain to the efficient or material causes of a substance (or class of substances), and, while always subject to revision (as is the nature of inductive reasoning), science as a whole has done an incredible job explaining the efficient and material causes of practically everything that is immediately accessible to human senses (and quite a bit besides). The data and reasoning that support (for example) the theories of gravity and evolution are as solid as anything mankind has ever built. Three cheers for science!
But science is not philosophy. It does not come equipped with the tools to do philosophy. It never could, because science is grounded in certain philosophical claims. Scientists dissect the world on the basis of sense-data; they are in no position to question (for example) whether, in what sense, and by what mechanism the sense-data is true.
I can hear a physicist reading along asking, “What do you mean, a mechanism in virtue of which certain data is true? Data simply is true or false. How could such a mechanism even possibly be conceived?” This is exactly my point: the scientist’s entire analytical toolbox is so dependent on certain pre-existing philosophical conclusions (these days, often some flavor of logical positivism) that it is incapable of doing even fairly primitive materialist metaphysics. That is fine. It is not their field.
One might then expect scientists to adopt the maxim of one of their positivist forebears, Wittgenstein: “Whereof one cannot speak, thereof one must be silent.” Scientists: keep analyzing being as chemical (chemistry), being as motion (physics), being as light (optics), and so forth, and let your poorly-funded, poorly-paid colleagues in the other building work on the analysis of being as being (ontology), and the difficult questions that flow from it (metaphysics, and ultimately ethics). Everyone is happy.*
The argument over abortion and unborn rights is a factual argument: ethical and metaphysical facts are not empirical facts, but they are still (putatively) facts. However, Bill Nye is about as qualified to make grand pronouncements on ethical facts as I am qualified to make grand pronouncements on the validity of the Copenhagen interpretation of quantum mechanics. I don’t want Copenhagen to be factually true, just as Bill Nye might not want it to be the case that unborn humans are, factually, rights-bearing entities, but I’m in no position to say it isn’t, and neither is he.
It would be one thing if Bill Nye were simply offering his two cents on a subject where he knew he was no expert; we all do that all the time in politics. (We have to make a lot of snap judgments in a democracy. It’s one of the weaknesses of the system.) Indeed, there are some fairly respectable, sophisticated ethical arguments in support of abortion rights. A humble attempt on Bill Nye’s part to articulate those arguments, without claiming the mantle of an argument from authority, would have been personally disappointing to me but basically inoffensive.
But Nye doesn’t do that at all: he wraps his utterly unscientific opinion, which is just poor ethical reasoning built on a foundation of a single, provably false scientific claim, in the robes of scientific authority and claims everyone else should listen to him because he is an Expert (while everyone who doesn’t is an ignoramus). I’m not angry because Nye uses his authority as a scientist to disenfranchise (and dismember) the unborn; I’m angry because his actions would be a gross abuse of scientific authority even if he were on my side! Ethicists can pretty much just point and laugh at this travesty of an ethical argument, then go back to the adult conversation they were having before Bill Nye made an ass of himself; Nye’s foolishness is no skin off their nose. But scientists should censure Bill Nye for making claims far beyond his competence and claiming scientific authority for them, because stunts like this don’t just degrade Bill Nye; they degrade the entire scientific project, dragging it into disrepute.
But that won’t happen, because Bill Nye is far from alone. Richard Dawkins should have been laughed out of every university in England following his absurdly poor chapter in The God Delusion covering philosophical arguments for and against the existence of God. Dawkins got them all wrong, both the arguments for and the arguments against. The man could not handle even the first page of Aquinas without melting down into a puddle of misunderstandings and non sequiturs! But Dawkins came through not just unscathed, but bigger than ever. So why would Nye expect otherwise? Scientists as a whole have not only forgotten what they don’t know, but are loudly declaiming about what they don’t know they don’t know (or at the very least silently allowing their colleagues to do so). For philosophers, that’s very irritating. For scientists, however, left unchecked, it is fatal, both to public support for science and the very possibility of doing good science.
For the moment, I think I’m going back to climate agnosticism. Maybe 97% of climatologists are right about anthropocentric climate change. Or maybe they’re motivated hacks who have built an academic structure of institutional oppression to suppress dissent and ignore inconvenient evidence on behalf of an unscientific ideology. Bill Nye was a trustworthy lodestar I could rely upon to sort out the scientists from the hacks… but now I know the man who fostered my appreciation for science is just a motivated hack himself. And the scientific establishment has given me no reason to believe that science is in any way “self-correcting” once politics are in the mix.
*Note that that three-word sentence, “Everyone is happy,” is perfectly inexplicable in scientific terms. You may be able to point to a brain-state upon which the experience of “happiness” is correspondent, or even supervenient – sup, Minsky? – but mere supervenience is hardly sufficient explanation of the subjective and immaterial phenomenon of happiness. Direct analysis of experiential data as such (as opposed to sense data) is simply a black box for science, and thank God we have philosophers to work on the problem instead. Meanwhile, he subject of the sentence, “everyone,” at least appears to imply the intelligibility of a real universal (persons), which immediately presents problems of composition. And that “is” – oh, man, let’s not even get into what the meaning of “is” is. Ask a scientist to provide a definition sometime, and don’t let him refer to the concepts of “being” or “existence” without providing definitions for them as well. Fun times! What we have here is a sentence that every scientist understands, but which which he is entirely unqualified to analyze.
**For the record, insofar as the Bible defends abortion, the Bible is in error.
I shut down my blogroll a while ago, because I discovered that all the blogs on it had either shut down or gone inactive. Blogrolls are wonderful tools for sharing and building up blogs that would otherwise remain obscure, but it wasn’t working well for De Civitate.
But now a blog I enjoy — full disclosure, run by a friend of mine — has survived and stayed active for a year (yay), so I have an excuse to bring back the blogroll. It’s in the right sidebar. I’m even adding pictures this time.
That’s a very lonely little blogroll. Just one item. It needs more. So: if you have a blog, and it’s a reasonably interesting blog, and it’s not about to roll over and die, and you’re willing to link back to De Civitate from your blog, thenget in touch with me (email@example.com) and we’ll talk about getting you onto my blogroll.
It is no surprise, of course, that Planned Parenthood brutally dismembers living human children. And the casual inhumanity with which their doctors commit and profit from murder can only be mildly surprising. After all, we have all read (or, perhaps, pretended to read) Hannah Arendt’s Eichmann in Jeruslaem. Yet the citizen journalist videos recently released by the Center for Medical Progress (watch them if you don’t know what I’m talking about) have thrown the sheer shocking evil of the abortion industry into sharp relief. I didn’t live in Harriet Beecher Stowe’s time, but I have always imagined the moral awakening that followed Uncle Tom’s Cabin felt something like what we’re feeling now.
The first, immediate, obvious, necessary, and urgent step to be taken, in light of the videos, is to eliminate Planned Parenthood’s federal funding. The need for this is obvious to any remotely ethical human being, but, sadly, we live in a world where people generally think of themselves as much more ethical than they are. So there are objections. And objections to the replies to the objections.
These are, for the most part, morally monstrous objections in the first place: we do not cooperate with profound moral crimes that violate inalienable human rights, not even if we hope to reduce the rate or evil of those crimes by our cooperation. Imagine if we’d waited for society — for the “alternatives to be reasonable” while we made certain that “the culture is ready” — for the end of chattel slavery. We’d still be waiting today. Year after year, generation after bloody generation, tens of millions of families destroyed, hundreds of thousands of people involved in supporting the institution, billions of dollars invested in it, uncountable suffering. What a terrible fate we’d be condemning the slaves to: we’d promise to free them, one day, or maybe their children, or their children’s children — but each day they would have to get up before dawn, underfed, under guard, and start picking cotton, or plowing streets, or whatever their owners wanted them to do. The promise of some future relief for some future individual would serve only to taunt the victim of today. A government that cooperates with an outfit like the Royal Africa Company or Planned Parenthood is no better than a government that funds child pornographers. It’s just not an ethical option, even if it were for the sake of some greater good.
But people get very utilitarian about dead babies they don’t have to look at, whose deaths aren’t mentioned on the evening news, and so they raise all sorts of utilitarian objections to defunding Planned Parenthood, and it is politically important for us to refute those objections. Fortunately, that’s pretty easy: the objections are uniformly terrible. Let’s take a look:
Objection 1: Defunding Planned Parenthood will reduce the availability of contraceptives and pap smears to women.
No, it will not. The Defund Planned Parenthood bill, which you can read here, explicitly redirects Planned Parenthood’s funding to other eligible health centers.
Objection 2: Women who rely on the Planned Parenthoods in their communities will be stranded far from contraceptive access. If they do not have the ability to drive, they will be entirely deprived.
No. In reality, other government-funded contraception providers outnumber Planned Parenthood by vast margins. Let’s look at just one such option, Federally Qualified Health Centers (FQHCs for short). There are 700 Planned Parenthoods in the United States, serving 2.8 million patients annually. By contrast, there are 9,170 FQHCs in the United States, serving 21.1 million patients annually (source).
In other words, FQHCs outnumber Planned Parenthood a dozen to one.
And, with rare exceptions, they serve the same communities. Take Louisiana. Somebody last night asked me to look up the impact of all the Planned Parenthoods in Louisiana closing down, so I did some research. Turns out, Planned Parenthood only has two centers in Louisiana, in the urban centers of Baton Rouge and New Orleans. Then I went to the federal government’s FQHC locator tool (which you can use for yourself here). Within 5 miles of the Baton Rouge address, there are 8 FQHC’s. Within 5 miles of the New Orleans address, there are 22.
Today, I ran a few similar searches up here in the Midwest, where Planned Parenthood has more of a rural presence. Fargo has a Planned Parenthood… and 7 FQHCs. Moorhead has a Planned Parenthood… and 7 more FQHCs. The Twin Cities are bursting with Planned Parenthood’s (8 of them, which fits Planned Parenthood’s urban strategy)… but they’re still vastly outnumbered by 58 FQHCs.
The country is crawling with FQHCs. Look at this map. Very, very few Planned Parenthoods exist in areas without an FQHC. Indeed: very, very few people live in areas without an FQHC.
There are a few cases, all in deep rural areas, where closing a Planned Parenthood inconveniences some of its clients. For example, if the Planned Parenthood in Alexandria, MN closed down, a low-income resident of Fergus Falls, MN would have to drive 55 minutes to Moorhead to reach the nearest FQHC. Of course, she already would have had to drive 50 minutes to get to Alexandria (“Alec,” as we call it), so the closure of Planned Parenthood would add 5 minutes to her drive.
Of course, a Fergus Falls resident could also walk to the nearby Mahube-Otwa Center, located in gorgeous downtown Fergus Falls. It’s not an FQHC, but it does provide birth control regardless of ability to pay, and it’s a lot closer than Alec’s Planned Parenthood. (It has locations in four neighboring counties, as well.) You wouldn’t know it from the Google Search Results, because Planned Parenthood dominates the search results, but Fergus Falls residents have several nearby birth control clinics. Why does Planned Parenthood do so much better than these local clinics? Because a good chunk of that federal money we give Planned Parenthood goes back into or offsets their enormous marketing budget. The point is: even outside the FQHC network, which is pretty amazing to begin with, there are a huge number of other ways for low-income people to get birth control.
There would be even more ways if we took that money away from Planned Parenthood and redirected it to actual doctors — which is what the Republicans are proposing to do.
Objection 3: But Planned Parenthood serves people regardless of their ability to pay. These other clinics with federal funding don’t.
No, that’s not true. FQHCs are required, by law, to serve all clients in their area, regardless of their ability to pay. (42 U.S. Code § 254b)
The very reason the FQHC program exists, actually, is to serve “a population that is medically underserved, or a special medically underserved population comprised of migratory and seasonal agricultural workers, the homeless, and residents of public housing” (though they are open to others as well). So, just like Planned Parenthood, FQHCs use a sliding fee scale to ensure that all their clients are served.
Objection 4: But not all of these FQHCs provide contraceptives.
Actually, they do. Again, they are required by law to do this. All FQHCs are required, as a condition of receiving their FQHC grant, to provide “basic health services,” including “preventative health services,” including “voluntary family planning services,” to their patients, regardless of their ability to pay. (42 U.S. Code § 254b(b)(1)(A)(i)(III)(gg))
Objection 5: But some FQHCs are religious, and use exemptions to avoid giving out contraceptives.
Not true. There is no religious exemption in the law.
No exemption is required by the First Amendment (even as interpreted by the Religious Freedom Restoration Act), because no one has a right to federal grant money if they aren’t willing to carry out the services for which the grant is given.
If you are a religious organization that refuses to provide contraceptives, that’s great, and you can open up a health clinic if you like, but it is not an FQHC, and will not receive FQHC funding.
There is one exemption in the law, but it has nothing to do with religion: clinics whose sole purpose is to serve migrant farm workers may have some of their care requirements waived, on a case-by-case basis, by the Department of Health and Human Services, at HHS’s discretion.
Objection 6: Well, these FQHCs sound great, but I’ll bet some of them provide abortions, so redirecting money to them from Planned Parenthood doesn’t really get you anything but a token victory.
Nope! FactCheck points out (in the course of criticizing a pro-life talking point) that FQHCs “do not provide abortions to any of their patients,” and have never done so.
Objection 7: It’s not fair to destroy Planned Parenthood when abortion is only 3% of what they do.
There are so many conclusive rebuttals to this. Let’s try three:
(1) Was it fair to destroy Bill Cosby even though rape was less than 3% of what he did? I sure thought so.
(2) As I’ve shown before, it’s more like 20% of what Planned Parenthood does. 50% if you exclude “taking donations and government money” and just focus on what their money does in the clinics.
(3) The 3% line is premised on some really, really silly accounting that counts “spending five seconds giving someone a $10 box of pregnancy tests” as a service exactly equal to “spending five hours performing invasive surgery.” Rich Lowry points out how cynical this is, and he does it better than I ever have.
Fun fact: when you slice the data another (more honest) way, abortion makes up 94% of the services Planned Parenthood provides to pregnant women. Their abortion-to-adoption-referral ratio? 149:1.
Objection 8: Reducing funding for contraceptives will only increase the number of abortions.
Well… everything we’ve been discussing up to now shows that defunding Planned Parenthood wouldnot reduce contraception access or funding. So this objection doesn’t even apply here.
Objection 9: Planned Parenthood is already barred (by the Hyde Amendment) from using federal funds for abortion, so this doesn’t help anyone.
This is a cheesy, almost meaningless accounting trick. Money given to Planned Parenthood that is not spent on abortions must by definition offset the money they do spend on abortions. Progressives recognize this (when it’s applied to religious schools they loath rather than the abortion clinics they love), and U.S. case law reflects it.
Planned Parenthood knows it, too. When Ronald Reagan tried to tighten regulations separating Planned Parenthood’s “family planning” business from its “abortion” business, they went to war, suing all the way to the Supreme Court (they lost) and tying up the law in litigation until Bill Clinton won the presidency and undid it.
Heck, if Planned Parenthood’s abortion business were so incidental and such a tiny part of what they do, why don’t they just stop doing abortions? That would instantly get them out from under all this political pressure.
It’s because abortion isn’t an afterthought for Planned Parenthood. It’s the center of a highly successful business model, which draws in customers with loss-leader contraceptives, which lead to a certain percentage of those customers coming back for abortions (all contraceptives fail sometimes), which provide raw material for Planned Parenthood’s side business in the dead-baby body-parts biz.
Long story short, the only possible reason you could have for wanting to maintain federal funding of abortion is if you want to protect and promote the practice of abortion. Anyone who says otherwise is either ignorant of the evidence, hasn’t thought it through yet, or lying.
EDITOR’S NOTE: I didn’t have as much time as usual to check this for typos or links, so please note any mistakes in the comments. Thanks!
Every time I see a presidential candidate, there’s a little voice in my head that asks, “Sure, that’s what they’re saying. But what are they really thinking?” This is a cynical voice, and it’s often quite wrong, but, in politics, it’s still healthy to consult the cynic from time to time.
There’s another voice in my head that believes everything everyone says about themselves, all the time. This trusting voice is no less important in politics than the cynical, and should also be consulted from time to time… but, if you want to read “Flattering Assessments of Presidential Candidates,” go read their campaign websites. Here are the unflattering ones. Some are certainly accurate, others may not be, but consider them my worst fears for each candidate:
Used to have the desire, skill, and ambition to be a leader, but, as the America he envisions recedes into the past, is content to vent his spleen and be warmly applauded for it by crowds that miss his America as much as he does.
A “compassionate conservative” who still kinda knows how to talk to Republicans, but is secretly seething that they have abandoned so much of what “his” party stood for. Sort of the Mike Huckabee of establishment Republicans.
A once-rising star who let the plaudits go to his head and will now burn like Icarus.
An intensely ambitious, furious man, with no particular principles beyond a vague affection for balanced budgets and low taxes, who’s willing to say anything to win… as long as it fits the elaborate superhero character he’s woven for himself, the Bombastic Budget-Cutter. Willing to play dirty in a state where dirty is part of the tradition.
The opportunist’s opportunist. While an intense progressive at heart — a soulmate for Sanders — she has sold out so many times and so hard (even standing by a husband she secretly despises) it’s impossible not to see her as Claire from House of Cards every time she opens her mouth. The real tragedy of Hillary Clinton is that, unlike her husband, she’s no good at selling out. Her many betrayals have bought her nothing but a truckload of distrust from all sides; her resume has lots of glitzy titles but none of the accomplishments she sacrificed her principles for.
The embodiment of conservatism’s worst instinct: the overwhelming desire to rend the flesh of insufficiently conservative conservatives, even at the cost of ceding power to progressives. Justifies this with an elaborate mythology wherein “energizing the base” matters more than persuading persuadables. The scariest thing is he might be right.
An articulate, believing, even inspiring conservative who keeps looking at her resume and can’t understand why she never wins any elections or runs any successful businesses. Has not yet realized that a good chunk of it is not about belief, but managerial talent and luck, neither of which she has enough of.
Half-Chafee, half-troll, Graham is running to ensure that an increasingly anti-establishment GOP stands for the same values he has stood for his entire career: corporate welfare and the military-industrial complex. Vain enough to think he might make a difference.
Infinitely frustrated by the fact that his political career was torpedoed by bad timing, bad luck, and a single bad State of the Union rebuttal, Jindal refuses to give up, and is thrashing out, looking for the attention he desperately needs wherever he can get it.
John Kasich Smuggy McSmugSmug.
George Pataki, Lincoln Chaffee, Martin O’Malley
Vain, highly insulated men with no sense of proportion. Just astonishingly vain.
A man of principle who made a conscious decision to compromise a little of what he believed in for the sake of attaining power, but, when that didn’t seem to be enough, kept going, and got lost somewhere along the way.
I can’t bring myself anymore to care about Rick Perry enough to write something mean about him. (Never mind, I just did.)
Drastically inexperienced (no more experienced than Sen. Obama was!) young’un who is so scared of making missteps that he makes missteps by trying to avoid making missteps.
A principled, intelligent, and consistent conservative, who has genuinely synthesized the social, economic, and foreign policy legs of late-20th-century conservatism into a single, cohesive, plausible platform… which is precisely what makes him so scary to so many. The Bernie Sanders of the Right.
A principled, intelligent, and consistent progressive, who has genuinely synthesized the social, economic, and foreign policy legs of late-20th-century progressivism into a single, cohesive, plausible platform… which is precisely what makes him so scary to so many. The Rick Santorum of the Left.
If you need me to explain the problems with Donald Trump, you are one of the problems.
An intensely ambitious man with an attachment to conservatism that runs deep only because he has lived with it for so long that its convenience has become conviction, not because he has any particularly clear basis for it, intellectual or otherwise. Fortunately for him, he has learned expertly the art of following The Conservative Script and only answering questions when it serves his purposes, so it’s easy not to notice.
The Lindsey Graham of the Democrats, with perhaps a little bit of the Jeb Bush “why can’t my party believe in all the things it believed in the ’90s?” to go along with it… with the important difference that establishment Democrats (unlike establishment Republicans) do not actually miss the days when economic conservatism and social moderation reigned supreme in Washington, leaving Webb without an audience.
Well, that was grim. I think I’m going to go back to deciding who to vote for based on who has the best 404 page.
I have long maintained that the Confederate flag should not fly over state capitols. It is the symbol of an enemy power, opposed to the United States. It has no business there. It is starting to come down in the few states that still honor it in that way. Good.
But it is wrong — simply, morally wrong — for the Democrats to try to strip the Confederate flag from the graves of Confederate soldiers. They are dead. They made the ultimate sacrifice for their cause, and their cause still failed.
They were wrong. They were rebels. They fought for an evil cause — indeed, for an evil empire, no less cruel at its heart than the Soviet Union or the Third Reich — whose destruction we rightly celebrate, and whose symbols we rightly abhor.
Yet they were also our brothers. They died in horrifying conditions by the hundreds of thousands, of bullets, untreated wounds, exposure, amputation, starvation, disease, moaning in wheat fields for their mamas as their lifeblood seeped out of them into the morning fog. To deny their very gravestones the right to say what they fought for is no less serious — in some ways, far more serious — than censoring a newspaper or banning a book. The living can still fight on against the censors to speak their piece; the dead are powerless. I don’t agree with what Confederate soldiers died for, but I’ll defend to the utmost their right to be remembered for it.
A couple years ago, I was trying to figure out how best to deal with rape cases. Rape is simultaneously one of the worst crimes that can be perpetrated against an individual and one of the hardest to punish or prevent. As I wrote at the time:
Our legal system, like every legal system, struggles with the problem of proving non-consent in rape cases. A rapist will often admit that sexual activity occurred, but will insist that it was consensual. The burden of proof falls on the victim. That is as it must be, since the defendant is innocent until proven guilty, but, under current law, it is very, very difficult to obtain that level of proof. If it turns into a case of “he-said/she-said”, the rapist gets away with it. Few rape cases that lead to an arrest end in conviction and prison time. Partly because of how difficult they are to prosecute, few rape reports lead to an arrest in the first place. And, given the high costs and low chance of success offered by the justice system, relatively few rapes are reported at all. RAINN estimates that only 3% of bona fide rapists are sent to prison for their crime. This is a tragic injustice.
At the same time, I was thinking about premarital and non-marital sex, which are bigger social problems than most people realize. While fornication used to against the law in all 50 states, those laws are now considered unconstitutional (because — one of this blog’s main themes — Anthony Kennedy is both a moron and a tyrant), and fornication has become socially acceptable:
The results have been predictable: premarital sex is more prevalent than it has been in millennia — perhaps in all history — while solitary motherhood has become both the curse of the poor and the luxury of the very rich. 41% of American children are born out of wedlock, and the number rises to an astounding 73% for black American children. Social pathology follows, as night follows day. I will not bother enumerating the harms inflicted on children by mass unmarried parenthood, because I no longer believe this is novel or controversial information, but here are a couple links to recent op-eds and research discussing the threat non-marital parenting poses to the next generation, from larger disciplinary issues to less successful careers. As it stands, there’s not much we can do about this. Even if there isn’t a constitutional right to sleep around, do we really have the desire or police resources to do anything about it?
At the time, I failed to note that fornication is also a key driver of the abortion rate (more than half of American reproductive-aged women are married, yet 85% of abortions are performed on the unmarried). I really want to discourage fornication.
One day, while making dinner and thinking alternately about these things, it occurred to me that rising rape rates are in many ways related to rising fornication rates, because the lack of a wedding vow prior to sexual intercourse makes consent much cloudier, and, in a culture where non-marital sex is widely embraced and even supported, it become much easier for a rape case to degenerate into “he said/she said” reasonable doubt. So I started to consider them together, and, within a few minutes, I had come up with an amazing idea which (I was pretty sure) nobody had ever heard before:
I have an idea that could make it easier to apprehend rapists without short-circuiting their due process rights, while simultaneously forcing people to think more carefully about fornication, reducing the number of abortions and increasing the rate of births that take place in wedlock — or at least within a truly committed relationship.
I propose that we add the following language to all sexual assault statutes:
“There shall be a rebuttable presumption that sexual contact between the actor and the complainant was non-consensual, if the actor is not married to the complainant.”
Here is what this says, in plain language: if you report to the police that you were raped, and the person you accused says, in defense, that you did have sex, but it was consensual, then it is no longer your responsibility to prove that you were violated against your will. It is the other person’s responsibility to prove that you did agree to have sex. The court would not presume that you gave consent, as it does today. Instead, it would presume that you are telling the truth — that you were raped. The only cases where the law would continue to presume that the sex was consensual are cases where the accused and the accuser are married to one another. There is a very good reason to make that exception: a married couple has publicly given sexual consent to one another, and has specifically requested that their sexual relationship be formally recognized under the law. Although marital rape can and does occur, it is right for a court to give the benefit of the doubt to the marriage.
Much of the rest of my post was dedicated to explaining what a rebuttable presumption was, and defending the fact that rebuttable presumptions (in a sense) invert the “innocent until proven guilty” standard of Anglo-American justice. (They do this for good reason, and they’re really quite common: example 1, example 2.)
My ultimate vision was that young people, in order to protect themselves from rape allegations under the new law, would start using what I called a “consent contract” before fornicating with anyone. This would establish consent and be sufficient to rebut the presumption of non-consent. (A contract would not be the only way to establish consent; they could also film themselves on their phones just before sex, verbally agreeing to it for the record.)
My first hope was that this new law would make it much easier to convict rapists. Rapists would not have signed a consent contract with their victims, and any cell phone footage would clearly establish rape, so they would have no way of rebutting the presumption of non-consent. Rape conviction rates would skyrocket — an obvious blow for justice
My second hope was that this new culture would turn fornication into such a social and legal minefield that it would effectively deter it in many cases. It is not easy to interrupt sex to sign a quick contract, and — don’t forget — you would have to sign one of these every single time you hooked up, even if it was with your steady girlfriend or live-in partner of five years. And you’d have to keep the records — written contracts and cell phone videos documenting every single sexual act you perform with any other person — for approximately ten years (the statute of limitations on rape in Minnesota is nine years). Until you married, sex would never be presumptively consensual. Those who refused to get and keep documentation would find themselves vulnerable to a rape allegation if their relationship ever went south. If some fornicators ended up unjustly convicted of rape, I wasn’t too concerned about it, since I already wanted them prosecuted and convicted under the old fornication laws. Affirmative consent would have effectively brought fornication laws back through the back door. Bwahahahaha! My evil plan to ruin and criminalize the campus hook-up scene would finally be complete! No doubt my shadowy overlords at the National Organization for Marriage would reward me richly for my guile!
I had two major problems with my proposal, though, and it languished in drafts and re-drafts for years and years as I tried to fix them.
The first big problem was selling it. Fornication, as we’ve established, is super-popular, and the Left — which simultaneously opposes marriage and supports people of any sort having sex at any time for any reason with no possible consequences — seemed particularly unlikely to support a proposal whose second prong would turn the hook-up paradise they’ve established on college campuses into a wasteland. The anti-rape provisions were nice, but would they be enough to make an ally of the cartoonishly villainous Erin Gloria Ryan? But this is just politics, and, deep down, I think most people know that fornication is bad, so I was confident that, in the long run, this proposal could make it over the finish line if packaged well.
The second big problem was far more fundamental. In the end, it was fatal. This legal standard makes it so that the best defense to a rape accusation is not “it was consensual”. It makes it so the best defense to a rape accusation is a counter-accusation: “I didn’t rape her; she raped me.” Assuming there’s no documentation — which there wouldn’t be, because it was a rape! — the situation would still be a he-said/she-said, much like it is today… with the important difference that the loser of the he-said/she-said would end up in prison for 25 to life. Think of how hard it is to come forward with a rape allegation today, and then imagine how hard it would be if you knew that coming forward carried a real risk that you’d be the one sent to prison instead of your rapist!
I tried to pooh-pooh this to myself, but, the more I thought about it, the worse it seemed. Serial rapists, knowing that creating simple doubt is no longer be enough to get them off the hook, would start trying to frame their victims for rape, Gone Girl-style. In order to get the drop, rapists could even start accusing their victims first, reaping the benefits of making the first accusation.
And the new affirmative consent regime would incentivize all this.
It seemed to me that the new rape regime would become, if anything, even worse than it is today, both for victims and for the falsely accused. The only people who wouldn’t be negatively impacted by the new rape laws would be the rapists. My proposal would still have the desired effect of completely ruining (and partially criminalizing) the consensual non-marital sex scene, which was great, but, if it meant worse outcomes for rape victims — who have a hard enough row to hoe as it is — I didn’t think it was worth it, so I put the whole thing on the shelf. I intermittently pulled it off the shelf and played with ways to fix it, but the only idea I ever had was, “Believe the woman is telling the truth and the man is lying.” Unfortunately, aside from being an obviously sexist and unjust rule of construction, it is simply a fact that men can be both raped and falsely accused, and both happen at low but non-trivial rates, so it wouldn’t be remotely effective. The proposal remained on the shelf. My post, quoted above, was never published.
This was 2012. Fast-forward to today.
As it turns out, I was not the first person to think of this. Tiny Antioch College tried something similar (only without the marital exceptions) in 1991. Everyone made fun of it, but, twenty-odd years later, about two years after I started working on this idea, California suddenly came out of nowhere and passed an affirmative consent law that applies to all college codes of conduct. California. Home of the Left. And the Left… cheered? Seriously, that link is Ezra Klein celebrating the fact that “men [will] feel a cold spike of fear when they begin a sexual encounter.” I’m happy about ruining fornication for everyone, but why are you? This link is Erin Gloria Ryan, whom I expected to be the foremost opponent of these laws, angrily denouncing the law’s detractors in her trademark, savagely ad hominem, style.
Libertarians freaked out, correctly pointing out that this law would not help stop rapes, but would only hurt casual fornicators. Conor Friedersdorf, a proud Leftie who nevertheless frequently engages in thinking, mentioned the counter-accusation problem I had foreseen. The mainstream Right noted the same things, but spent most of its energy mocking the law. (However, Heather MacDonald had a must-read piece dissecting the “neo-Victorianism” that this law represents, to which David Brooks had a must-read response.) The Right also continued arguing (correctly) that campus rape tribunals are kangaroo courts, farces of justice injuring both accusers and accused more or less at random (though they are increasingly stacked against the accused). These tribunals — mandatory under Title IX and dramatically expanded by the Obama Administration — have no business existing in the first place, because the proper venue to try a rape charge is in court, and affirmative consent policies only empower them to ever greater injustices.
(On that note, I thought it instructive that California applied the “affirmative consent” standard only to college codes of conduct, not to the California criminal code. Perhaps they recognize what a catastrophe it would be for all concerned if the affirmative consent standard weren’t just a tool to help college administrators persecute accused rapists, and were applied in a system that actually has due process of law.)
This all happened last year, and I figured the affirmative consent was doomed, so I made no comment. California passes all sorts of weird bills, and presumably the Left — given a little time — would realize that “affirmative consent” standards hurt rape victims and (worse!) undermine the Left’s pièce de résistance, the Sexual Revolution, leading them to withdraw support for the idea. I mean, once Jonathan Chait gives up on your feminist crusade, it’s all over. (I’m pretty sure that’s a Rule of Acquisition.)
But I was wrong. This has not happened. Affirmative consent has only grown more prevalent, although, even now, nobody has legislated it into criminal law. This week, I learned that my own local state university, the University of Minnesota, is on the verge of imposing an affirmative consent policy of its own.
What actually prompted me to finally post about this, though, after so many years thinking about it, was a tidbit I picked up on social media today: a group styling itself the “affirmative consent project” has started actually circulating a sexual consent contract. I laughed very hard. All my predictions are coming true! They are actually going to make kids sign a contract before they have sex, and save it for years! Every time they do it! My only mistake was in thinking that the Left would need some prompting from the Right to so radically violate their “stay out of other people’s bedrooms” principle they’ve spent so many years pretending to care about.
This is certainly amusing, and, in some ways, the first wave of affirmative consent is useful. But my next round of predictions suggests that increasingly savvy rapists will (easily) exploit the new rules, leading to an unraveling of justice for both rape victims and falsely accused rape perpetrators. I don’t want that. Even the destruction of the college hook-up scene isn’t worth causing more harm to rape survivors… and the lack of a marital exception to these policies means the damage could eventually extend far beyond fornication, harming all sexual relationships of any kind. We should repeal these policies before we get anywhere close to that.
I recognized these problems after only a couple hours thinking about the idea, and my concerns led me to shelve the idea for more than two years. But the State of California, and now the U of M board of regents, have now gone ahead and passed actual laws, affecting millions of people, apparently without bothering to think about it as much as I did for a blog post. Once these policies are repealed, everyone in California and on the U of M board of regents needs to sit down for a very long think about passing real, very powerful laws without bothering to consider their unintended consequences.
I wrote a version of this post on reddit about nearly two years ago. I finally got sick of digging out the link, so I am finally getting it up on De Civ.
On July 2, 2013, Assistant Secretary of the Treasury Mark Mazur announced that the Treasury Department is suspending two related provisions of the Affordable Care Act (popularly known as “Obamacare”) for a period of one year. (Chief-of-Staff Valerie Jarrett elaborated slightly in a post that same day.)
The first suspended provision, Section 6055 /6056, requires employers and insurance providers to periodically report health insurance coverage information to the Treasury Department. It is being suspended in order to allow more time to “consider ways to simplify the new reporting requirements” and for employers to “adapt health coverage and reporting systems.” This is reportedly legalese for “we’re not ready with the regulations, and you’re not ready with the reporting technology, so let’s try again next year.”
The second suspended provision, 4980H, generally known as the “Employer Mandate” or “Shared Responsibility Payment,” requires all large employers (defined by the ACA as, basically, anyone with 50 or more employees) to either provide Obamacare-compliant “minimal health insurance” to all full-time and some part-time employees or suffer substantial penalties (which were clarified as a tax penalty by the Supreme Court last year). The reason given for the Mandate’s suspension was simply that suspending the reporting requirements would render enforcement of the Employer Mandate somewhat impractical. Some Republicans have suggested that the real motivation is to protect the Democrats during the midterm elections.
However, this post is not about the motivations behind the suspensions, nor about the political and practical fallout. Those topics are discussed at considerable length elsewhere. This post is concerned strictly with the legality of the Administration’s administrative action.
The suspension of the reporting requirements is probably kosher, legally speaking. The ACA explicitly gives the Secretary of the Treasury vast discretion over when and how these reporting requirements are to be implemented. (Just read both suspended sections and highlight all the sentences that include the phrase “as the Secretary may prescribe” or “as the Secretary may require”.) Therefore, although it was certainly not directly intended by the legislators who crafted the law, and even though the ACA itself states (at Section 1514(d)) that the reporting requirements come into effect on January 1st, 2014, it is absolutely within the Secretary’s ambit to announce, “Yeah, sure, this technically comes into effect in 2014, but we’ve decided that the first due date for this section is May 1, 2015. See you then.” This legal evasion of a law’s official start date is almost routine procedure in Washington, especially when a piece of legislation turns out to be much broader than anticipated and needs a lot more rulemaking than Congress planned for. In fact, it is a fairly regular occurrence for the Executive branch to simply miss rulemaking deadlines that are set by statute, even though they have no legal authority to miss said deadlines. That’s unfortunate, but it’s not criminal so long as the Executive was making a good-faith effort to complete the rulemaking on time. Heck, sometimes Congress sets impossible deadlines; the Executive does its best.
To be sure, there are still questions about the legality of suspending the reporting requirements. Namely, while the Secretary may indefinitely delay the due date for the reporting, it seems that he may not suspend the reporting requirement itself, so, on whatever due date is eventually picked, employers will have to submit reporting for the entire period from 1 January 2014 up until that date. From the Treasury announcement (and subsequent IRS guidance), it’s not clear that that’s their understanding of the law. But, for all that, on my reading, there’s no obvious violation of the law in the decision to suspend the employer reporting requirements.
However, the suspension of the Employer Mandate itself is, pretty obviously, quite illegal. The ACA contains a mandatory “effective date” requirement at Section 1513(d), which reads, “The amendments made by this section shall apply to months beginning after December 31, 2013.” This is less ambiguous than Section 1514(d) (which uses “periods” instead of “months”). More importantly, the Secretary of the Treasury is simply not empowered to waive these requirements or the resultant penalties. The statute gives him a lot of power to do that with reporting requirements, but not with the taxes themselves. Now, Treasury may delay collection of the required penalties (§4980H(d)(1)), but the “assessable payment” itself is imposed directly by Congress on employers (§4980H(a)), is effective January 2014 (§1514(d)), with specific dollar-amount penalties imposed for specifically 2014 (§4980H(c)(1) and §4980H(c)(5)) which may be suspended only in conjunction with a much broader state-specific “innovation waiver” as described under §1332.
In short, the Affordable Care Act – currently the law of the land – says that this new tax penalty goes into effect in January 2014, and, apparently, the Department of the Treasury is, independently of Congress and the Constitution, cancelling that tax penalty for Tax Year 2014. Right-wingers like Michael McConnell and Michael Cannon are not alone in considering this action illegal; some on the Left, like Sen. Tom Harkin, and Jonathan Chait, as well as some in the Center, like legendary constitutional lawyer Ronald Rotunda, all seem to agree that this isn’t legal, and (as of July 2013) no prominent voices on the Left are speaking up to defend the action as lawful.
Two weeks after Obama Administration suspended the Employer Mandate, J. Mark Iwry, a senior Treasury Advisor, presented, for the first time, the Administration’s legal justification for this action in his testimony to the House Ways and Means Committee. He argued that this is a routine exercise of Treasury’s authority under §7805(a) , which grants the Secretary of the Treasury broad authority to make rules and regulations in order to enforce the Internal Revenue Code (which includes these penalties). But the obvious rebuttal is that this suspension action, and the rules associated with it, don’t enforce the Internal Revenue Code, but specifically and directly prevent enforcement.
Mr. Iwry cited half a dozen instances during the Clinton and Bush Administrations where, he argued, Section 7805(a) had been used to effect similar delays and suspensions, and if it was okay then, why shouldn’t it be okay now? This is perhaps not the strongest defense that can be imagined – “Bush did it first” does not exactly prove that “it” was actually legal – but it is something.
Nevertheless, Mr. Iwry’s examples are deeply unpersuasive. In some of his examples, the statutes in question granted the Secretary broad authority to suspend or even amend portions of the law Congress had passed in order to make it work. The ACA, as we have discussed, grants no such authority with respect to the Mandate.
In other examples, existing rules were deemed adequate to address the necessary provisions of new law as temporary rules while new rules were still under consideration. In other examples, reporting and tax collection were temporarily delayed… but in no case were tax penalties simply cancelled without authorization in the statute to cancel them. You can check for yourself: the authorities Mr. Iwry cited were Treasury Notices 2007-54, 2000-5, 2005-29, 2006-2, 2007-4, 2005-94, 2006-100, 2007-89, 2008-115, 96-64, 99-40, and Announcement 95-48. None of these cases bears even a plausible similarity to the case of the Employer Mandate suspension. Even though, in Mr. Iwry’s example cases, the IRS and Treasury did do a great deal of juggling with reporting requirements and the calendar, they always made certain, in the end, that the government was paid all the taxes that Congress had imposed. The suspension of the Employer Mandate (officially codified in Notice 2013-45) is not pushing off the due dates for the penalties until all the regulations and technology are in place, as it could (and should); it is cancelling the penalties outright – refusing to collect taxes that Congress has imposed. As it states, “no employer shared responsibility payments will be assessed for 2014.” This is illegal – blatantly so.
Mr. Iwry also listed as authorities several actions from during the Obama Presidency. Since the Obama White House is what’s under examination here, I have declined to confer precedential value on them, and I am not including them in my analysis. If the only legal leg the Administration has to stand on is that this very Administration has already broken the law in this way before, that’d be less of a defense and more of an admission of broad unlawfulness!
If the President can, on his own authority, suspend a duly passed, concededly constitutional law, indefinitely, despite the express orders of Congress as expressed by the statute in question, then we no longer live in a democratic republic, but a democratic monarchy, with the President being the ultimate arbiter of law and order and Congress being merely an advisory body. President Mitt Romney could simply suspend all of Obamacare permanently, effectively repealing it without ever getting a vote through Congress to do so. President Ted Cruz could announce that he is suspending indefinitely all the Obama-era tax hikes on high-earners and capital gains, returning to Bush-era taxation by fiat – or, heck, he could just suspend laws hither and thither until he’s effectively abolished the progressive income tax and imposed a flat tax in its place. President Hilary Clinton could announce that Congress is moving too slow on immigration reform and simply legalize everyone by suspending all statutes to the contrary. [Ed. Note: In the years since I wrote this, President Obama pretty much just went ahead and did this.]
Some of these policies would be good; some of them would be bad. But none of them, imposed by presidential fiat, would be constitutional, nor in any way compatible with our system of broad, consensus-based representative democracy. This is precisely why the Constitution requires the President to swear, on taking office, to “take care that the laws be faithfully executed.”
What legal remedies are available to restrict the president back within his Constitutional limits?
The normal answer is “lawsuit,” but it turns out that, in all likelihood, nobody has standing to sue the President over this, so, under Article III of the Constitution, the courts can’t adjudicate it, even if they agree that the President is violating the Constitution.
For its part, shortly after the President announced his lawbreaking, Congress did something quite unexpected to try to fix the situation: the Republicans actually decided, “Hey, we hate the employer mandate, so we are all for suspending it,” and they actually passed a bill, HR 2667 that gave the President statutory authority to make this change. Shockingly, rather than accept the legal fig leaf this bill would have provided, the White House issued a veto threat (presumably for political reasons; the GOP was exploiting the issue for political points) and HR2667 is died in the Democrat-controlled Senate.
This seems to leave us between a rock and a hard place. The courts can’t force the President’s hand unless someone can find standing to challenge the action, so the judicial branch is out of the game; Congress has already attempted to make peace by means of a statutory remedy and been rebuffed; and the President himself is doggedly refusing to change course even as he fails to provide even a plausible case for the legality of his action. The only remedy I can still see on the table is impeachment.
It seems like a very strange thing for Congress to impeach the President for suspending a law that a majority of Congress aggressively opposes to begin with, and ironic in the extreme to impeach the President for violating a law that he himself considers his signature achievement… but there is also the larger principle at stake: we have to protect the bedrock American principle that we follow the rule of law, not the rule of men.
I don’t like the idea of impeaching somebody over an issue that is closely tied to broader questions of health care reform, the most politically polarized issue of the past several years. I’d feel much more comfortable impeaching someone for something clearly apolitical, like murdering a prostitute or being constantly drunk all the time. I also (personal note) hate the idea of President Joe Biden. But the President takes an oath to “take care that all the laws be faithfully executed,” and clearly refusing to do so has to carry a price, or our democracy fails. “Repealing Obamacare” is not the most important issue to me, or even a Top 3 issue. But “maintaining the Republic” is. Especially in these days of judicial lawlessness, with hope for the Constitution being swept away by sheer zeitgeist, it is important to stand on our nation’s bedrock legal principles, even if those legal principles make no political sense.
The whole modern world has divided itself into Conservatives and Progressives. The business of Progressives is to go on making mistakes. The business of the Conservatives is to prevent the mistakes being corrected. Even when the revolutionist might himself repent of his revolution, the traditionalist is already defending it as part of his tradition. Thus we have two great types — the advanced person who rushes us into ruin, and the retrospective person who admires the ruins. He admires them especially by moonlight, not to say moonshine. Each new blunder of the progressive or prig becomes instantly a legend of immemorial antiquity for the snob. This is called the balance, or mutual check, in our Constitution.
A couple of years ago, I published a long piece for De Civitate in support of civil marriage. The “purpose of civil marriage,” I wrote, “is to promote positive procreation, which includes bearing and raising children, insofar as possible, within their intact families, so that they become productive, responsible, adult members of society… [I]t is a wise and prudent public policy.” I also argued against redefining civil marriage to include other loving, consensual, adult sexual relationships, on the grounds that doing so would undermine its public policy objectives while (paradoxically) opening the institution to charges of indefensible discrimination. I concluded, “A vote to redefine civil marriage is, in the final analysis, a vote to end civil marriage.”
Having said all that, I added in a postscript: “It is not unreasonable to want to abolish civil marriage entirely, on the basis that government interference in marriage does far more harm for children and the culture than it does good. I don’t think that’s true, but I’ve heard some good arguments (or at least starts-of-arguments) that make me suspect I could be wrong.”
In the years since I wrote that, those “starts-of-arguments” have blossomed, and I’ve come around to their position: civil marriage should cease to exist.
A friend asks, “How do I know what news sources are legit? Like, ThinkProgress, for example? Do they suck? I know many sites, but I have no idea which ones are regarded as actually having good information.”
This is a good question, and I wish more people would ask it. The growing ideological segregation of Americans is shutting down the immune system of the body politic, driving us further and further apart, and sending us (slowly) down the path that led (in the 19th century) to civil war. One of the biggest contributors to ideological segregation is the fact that many of us – especially the most politically passionate – get all or most of our news from sources which are strongly aligned with our own ideology. Progressives do not get news from FOX. Conservatives do not get news from Salon. (We even have competing, parallel entities, Media Matters and NewsBusters, dedicated to categorically discrediting the other sides’ sources. The mind-virus now has its own antibodies.)