Sunday Morning Coffee

A few of the articles I read this morning over coffee with short comments on each.

Protests against lockdowns and stay-at-home orders begin. Are these starting organically or driven by right-wing organizations?

Back in January when SARS-COVID-2 began to spread from China, a good friend of mine told me government would eventually have to shut down businesses and limit large gatherings of people in order to limit the contagion and protect the health care system. I responded that even if necessary, lockdowns like this would generate protest and backlash in the US if they lasted more than a week or two. Those protests have started.

This week a few dozen people gathered at Capitol Square in Richmond to demand an end to stay-at-home orders in Virginia by 1 May.

Both Capitol and Virginia State Police were on hand and had to remind the protesters to maintain social distancing guidelines since they said the groups encouraged participants to hug and share food during the event.

“The reason why I’m not wearing a mask is that I’m not going to have someone tell me I have to,” said protester Benjamin Wright, who lives in Richmond.

This kind of right-wing virtue signaling will spread across the US and could seriously limit the ability of US institutions to deal with this crisis. And make no mistake: it’s driven by right-wing organizations like the Proud Boys and part of Trump’s reelection campaign.

It can also lead to this kind of tragic outcome when people believe what they hear on propaganda networks instead of members of their own family.

In Pursuit of PPE

This story about an executive for a Massachusetts hospital system buying personal protective equipment for his staff demonstrates both the failure of markets to allocate resources to filling an urgent need and the failure of government to protect public health. Shortages will generate higher prices, but government should work to improve the situation by taking action to increase production, not throw up road blocks and threaten to redirect shipments on a whim.

Awarding high-dollar contracts for the purchase of masks from bankrupt firms with no staff that have never made a mask does not seem like the best way out of the PPE shortage mess.

The New England Journal of Medicine is a good general resource on SARS-COVID-2, by the way.

Just so this isn’t All Coronavirus All the Time…

As the Bernie Sanders campaign ended and the Democratic Party continued coalescing support around Biden’s candidacy, I got into it a bit with some Our Revolution folks on Twitter. I tried to make the point that for now policy has to take a back seat to ending the Trump disaster (not to mention what looks like nascent fascism) with little success. But I also pointed out that politicians like Sanders and Warren, supported by activist groups like the Indivisibles and Resistance organizations, have moved American politics to the left. So the reason Sanders’ Our Revolution movement failed to achieve electoral success has more to do with the failure of their “unite the working class” strategy than with refusal by Democratic Party elites to back progressive policies. More to come on this in the coming days.

ABORTION: What Is To Be Done?

This is a guest post from my good friend Elwood “Sandy” Sanders, who blogs at Virginia Right. and his first entry in our new “Lincoln-Douglas II: The Sanders-Scott Debates.” This essay will be cross-posted at Sandy’s site. You can read my initial entry in the series here.

Let’s Start With What It Is: Willful Taking of a Human Life

I found out in my research that there is some dissent or at least some questioning the idea that science says life begins a conception. From WIRED:

Inside the body, fertilization can happen hours or even days after insemination, as the sperm travels up the fallopian tube. This journey also induces changes in the membrane of the sperm, called capacitation, that ready it to fertilize eggs. (The discovery of artificial capacitation was key to making in vitro fertilization possible.) As the fertilization researcher Harvey Florman has said, “Fertilization doesn’t take place in a moment of passion. It takes place the next day in the laundromat or the library.”

But even fertilization isn’t a clean indicator of anything. The next step is implantation, when the fertilized egg travels down the fallopian tube and attaches to the mother’s uterus. “There’s an incredibly high rate of fertilized eggs that don’t implant,” says Diane Horvath-Cosper, an OB-GYN in Washington, DC. Estimates run from 50 to 80 percent, and even some implanted embryos spontaneously abort. The woman might never know she was pregnant.

Assuming that fertilization and implantation all go perfectly, scientists can reasonably disagree about when personhood begins, says Gilbert. An embryologist might say gastrulation, which is when an embryo can no longer divide to form identical twins. A neuroscientist might say when one can measure brainwaves. As a doctor, Horvath-Cosper says, “I have come to the conclusion that the pregnant woman gets to decide when it’s a person.”

Lest you think I’ve gone liberal on my readers, I think that whether human life begins at conception (fertilization) or implantation or gastrulation. I think it is clear that there is an awesome event going on here in the womb. It reminds me of my seventh grade biology teacher when speaking on the question of the reproduction of plants, said that how some things happen can only be answered by faith in God. Abortion almost always occurs after a embryo has attached to the womb. It is a willful taking of human life.

And good people can disagree about both the rightness or legality of abortion. But since it’s a willful taking of human life, it ought only to be allowed in rare circumstances.

Let me cite Secretary Clinton, yes Hillary Clinton, who said abortion should be “safe, legal and rare.” But not in the way she means.

I mean that abortion should be safe and legal in rare situations and here is my proposal:

Abortion should be legal only in three situations:

Life of the mother is in danger (or a serious physical threat to her life)

Rape or incest promptly reported to the authorities

A child is likely to be born with a serious deformity that will affect his or her quality of life in a substantial way.

Now, I do not say abortion is RIGHT (not sin) in some – even most of those situations. I would probably say abortion IS sinful in situations two and three described above. And after say 20 weeks, I’d drop situations two and three.

Now, we turn to the law. Roe v. Wade was a Supreme Court case decided in 1973 (January 22 – that is why the March for Life occurs about that time) which found that the Substantive Due Process clause of the US Constitution stated that in the early stages of pregnancy the abortion decision was up to the mother, her doctor and/or her pastor. But after viability, there was a different rule and then the state could protect life.

Substantive Due Process is a judge-made interpretation of the due process clause to invalidate laws the courts did not like. It depends on who’s ox is being gored as to do you like substantive due process. It protects abortion and contraception but also private schools, parental rights and by extension homeschooling. Substantive due process is problematic is that it is difficult to establish what are the parameters and limits of the doctrine to prevent judges from having the last word on laws in a democratic republic.

I think the solons in Washington thought they had decided the matter for good and only some extremists on both sides (Roe did NOT hold that a woman had an absolute right to an abortion) would fuss about legal abortion but the opposite occurred.

It must be respected the pro-life position; they believe they are saving babies or future babies from certain death. Now almost every politician in the state legislatures (and most in Congress as well) were male. It might have been better if those male legislators had been more discreet and sensitive in their language/discussion of intimate decisions of women.

A future Supreme Court Justice (and future cultural icon) Ruth Bader Ginsburg suggested – when she was nominated for the Supreme Court – maybe the SCOTUS went too far in Roe:

The seven to two judgment in Roe v. Wade declared “violative of the Due Process Clause of the Fourteenth Amendment” a Texas criminal abortion statute that intolerably shackled a woman’s autonomy; the Texas law “except[ed] from criminality only a life-saving procedure on behalf of the [pregnant woman].” Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court’s splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have served to reduce rather than to fuel controversy.

But Justice Blackmun tried to, in Roe, write a comprehensive decision that answered every conceivable future question. Roe was described by Professor John Hart Ely in the Yale Law Journal as legislation and a decision that does not “pretend to be” constitutional analysis.

“[The abortion decision] is not constitutional law and gives almost no sense of an obligation to try to be….What is frightening about Roe is that this super­protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.”

I would rather have no legal abortions at all than unfettered judicial law-making. And I prefer not to have either one.

By the way, if you want to see how extreme the pro-abortion forces are, consider this paragraph from the Time article cited above on Ginsburg:

Kate Michelman, then president of the National Abortion Rights Action League, called on the Senators to determine “whether Judge Ginsburg will protect a woman’s fundamental right to privacy, including the right to choose, under a strict scrutiny standard.” The questioning was strong enough that Ginsburg’s husband Marty Ginsburg, one of the fiercest advocates for her judicial career, got academics to call the White House and clarify that she was talking about the Court’s thinking in 1973, not the ultimate decision.

I still think abortion ought not to have become a federal question. I believe the Sanders objections could be enshrined in law beyond state objection through the establishment of legal defenses required by the PROCEDURAL Due Process clause. In fact, Roe v. Wade could be upheld in such a way as to gut most “choices”. Overruling the case is not necessary.

But before we overthrow Roe, let’s consider the other side of the issue: If abortion is a willful taking of human life, than technically the government could assert jurisdiction over all women of child-bearing age similar to Ceausescu’s Romania where there were inspections of pregnant women. I would suspect few pro-lifers would agree with that kind of of regime and I certainly do not.

So where do we go from here? There’s always the curse of getting what you want. (One reason why Jesus does not answer every prayer with yes.) If Roe is overruled or severely limited, the GOP and pro-life Dems and Libertarians better have some reasonable solutions to this issue. The result of getting this issue wrong is to ensure most women vote a straight liberal Democrat ticket in most of the states and the Federal government for a generation, maybe two. I recommend pro-life lawmakers adopt something like the Sanders position with some serious but science/evidence based regulations of abortion based on abortion being a willful taking of human life.

The Sanders-Scott Debates Episode 1: Abortion

My first post in the Lincoln-Douglas II: the Sanders-Scott Debates series. We’ll both be following up in the other’s comment sections. Cross posted at Virginia Right. You can read Sandy’s initial entry here.

I’ve written in the past about existential issues – policy questions that settle the political debate for many Americans. Some focus on Second Amendment rights, others on taxes or religion. Abortion – reproductive health care – is one of the big ones.  

Most activists frame the abortion discussion in terms of rights. The pro-life side privileges the right to life for the fetus. Others fight for a woman’s right to reproductive choice.  Advocacy coalitions on both sides privilege the freedom of the individuals they wish to protect.

Rights often conflict in a democracy, and the adjudication of these conflicts forms the core of politics. Madison expected factions to argue and fight and try to convince others they’re in the right and should form policy. Today we’re so polarized that these existential issues divide us in ways Madison didn’t expect. So even when one side or the other wins power and acts to implement policy, the other side rejects its legitimacy. Abortion is, after all, murder if you accept the personhood of a fetus. If you don’t, the pregnant woman’s health and personal freedom take precedence. She is, after all, the only human being involved.

Settling the abortion debate then depends in part on settling the question of when life begins. But even if one side won the argument, and its opponents accepted the legitimacy of the policy they seek to implement, this victory probably does not lead to optimal policy outcomes

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Announcing Lincoln-Douglas II: the Sanders-Scott Debates

I’m happy to announce the start of a regular series, in collaboration with my good friend Ellwood “Sandy” Sanders, a blogger at Virginia Right. Each week Sandy and I will post articles on a specific topic, and then hold a virtual “Lincoln-Douglas” style debate on the issue. This Friday, April 17th, we’ll open the series with a back-and-forth on abortion.

Sandy is a Hanover County attorney who earned his J.D. at the University of Alabama in 1983 and now works as an Appellate Procedure Consultant for a downtown legal firm. He has written or co-authored ten scholarly legal articles, including one on the “Effect of the USA Patriot Act on Money Laundering and Currency Transaction Laws.” His resume includes work as an Appellate Defender, adjunct professor of law at the T. C. Williams School of Law (University of Richmond), and service on the Appellate Practice Subcommittee of the Litigation Section of the Virginia State Bar.  Sandy is very active in his church and supports its missionary work. He also helped bring curling to Virginia!

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Captain Crozier Relieved of Command

A couple of days ago I posted about how COVID-19 sidelined the USS Theodore Roosevelt. In that post I wrote that I expected the Navy to take any action necessary to protect the crew and get the ship back in action as quickly as possible. Now it looks like this didn’t happen quickly enough to satisfy her Captain, and he was not shy about letting people know. This got him canned.

After evacuating more than a hundred COVID-positive sailors to quarantine on Guam, Captain Brett Crozier became concerned that the Navy would not act fast enough to protect the rest of the crew. On 30 March, Crozier sent a sharp letter to his superiors pointing out that while the ship could fight if necessary, failure to rapidly disembark sailors during peacetime risked their lives unnecessarily.

This caused Acting Navy Secretary Thomas Modly to relieve Crozier of his command, ostensibly for going around his chain of command.

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Pandemic and National Security

USS Theodore Roosevelt (CVN-71).
U.S. Navy photo by Mass Communication Specialist 2nd Class Michael D. Cole
Public Domain,
http://www.navy.mil/view_image.asp?id=57046

One of three deployed US aircraft carriers has been sidelined by corona virus infections on board. This pandemic has, at least temporarily, taken this warship out of the fight. I would be surprised if it’s the only one, but even if it is we’re looking at a serious erosion of American war fighting capability.

The USS Theodore Roosevelt, a Nimitz class nuclear aircraft carrier, has a crew of about 3200, not including its associated Air Wing. More than four thousand Naval personnel were on the Theodore Roosevelt when the vessel docked in Guam with more than 100 crew members testing positive for the virus, according to the linked article.

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Health Care and Profits

The Trilogy Evo Portable Ventilator
Photo Credit Philips North America

A few days ago I had a conversation with a friend of mine who teaches economics and finance at the university level. I wondered out loud why the invisible hand of the market didn’t generate increased production of N95 masks and other protective equipment for medical personnel, not to mention life-saving equipment like ventilators and respirators. It seems to me, I said, that the risk-taking entrepreneurs who drive free markets should have been able to recognize an upcoming requirement for expanded production by late January. Even if not sold immediately, these items will eventually sell, if only for government or health care system stockpiles.

My friend chuckled a bit and explained two things to me. First, the people who make decisions for late capitalist firms do not gamble. They are risk averse and wait for orders to come in so they don’t get stuck with inventory they cannot sell. This is why you can’t find bathroom tissue at your local grocery store. More importantly, my friend continued, late stage capitalists use their market power not to innovate but to block the threat of innovation by other firms by securing control of production and markets.

Reading the news this morning I happened to spot a good example of this.

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Saturday Morning Coffee

A few links to things I read while having my Saturday morning coffee today:

One of the many things I’ve thought about since COVID-19 forced us into severe social distancing is the effect it must be having on military units. It has to have limiting effects on recruiting and basic training, and I”m not sure how tank platoons keep training and operating effectively unless medics can test and track the spread of the virus within the ranks. This story about the outbreak on the Theodore Roosevelt brings that worry home.

If you’re looking for a good Twitter “List of epidemiologists, researchers, public health experts & journalists tracking COVID-19” you could do worse than this one from @Joshtpm.

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Thoughts on Elections During National Emergencies

Voting in Person, 2019
Photo Credit: R. Stanton Scott

An authoritarian figure who has joked about being President for life runs the Federal Government during a pandemic that could literally kill millions of Americans and disrupt society for months. States are postponing primary elections and struggling to figure out how voters can cast ballots while keeping social distancing. Understandably, some people worry that Donald Trump might take advantage of the crisis to stay in power.

Lots of journalists have written about this, including Evan Halper in the LA TimesBlake Rutherford for The Hill, and Chris Cillizza for CNN. The general assessment boils down to “Trump may be desperate with the economy in the tank but has no power to postpone elections. His term ends on 20 January 2021 even if he could, and the Presidential Succession Act kicks in if he isn’t reelected or replaced through a Constitutional election before that time.” 

These discussions focus narrowly on two questions: whether States could physically hold elections during a pandemic using modern systems and what would happen if they couldn’t. Most agree that elections can take place if state legislatures hurry up and figure out how to use expanded absentee voting, other voting by mail systems, or even the internet. They also think that if for some reason elections cannot be held, someone other than Trump would take power based on existing statute.

What none of these articles mention is the Electoral College and the role of state legislatures in choosing these Electors. This is the group that actually elects the President, as we found out the hard way in 2016. These days voters choose these Electors by casting votes at polling stations or by mail because state legislatures want it that way – this is not a Constitutional requirement. This means that elections for President and Vice President can take place as long as state legislatures can meet and choose Electors before Election Day.  

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Sanctuary Cities and Nullification Theory

So conservatives who complain the loudest about “sanctuary cities” when it comes to immigration seem to be lining up to support “Second Amendment Sanctuaries” now that Democrats control the General Assembly. Yesterday I saw this first-hand at the Hanover and Westmoreland County Board of Supervisors meetings. Both Boards passed resolutions objecting to gun control laws that has not yet passed the General Assembly on the assumption they will infringe on Second Amendment rights.

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