Prof. John Breen offers the following response to Prof. Bill Stuntz's recent Weekly Standard article discussed here and here.
"With his recent editorial “The Inconvenient Truths of 2008: Four Things the Party Loyalists Wont’ Want to Hear” (Weekly Standard, Feb. 18, 2008), Harvard Law professor William Stuntz again urges pro-life advocates to forsake the realm of politics. Instead, he suggests that they should devote themselves solely to the task of persuading women not to make use of the legal right to abortion when confronted with an unwanted pregnancy. Indeed, Stuntz confidently declares that “the political phase of the culture war is over” and that pro-life forces have lost, citing the failure of the ballot initiative in South Dakota
in 2006 as proof.
Stuntz’s choice of the South Dakota
referendum as a basis for predicting the supposedly dim prospects of pro-life politics is a curious one in that he fails to take note of many features about the vote that indicate otherwise. First, he ignores the fact that pro-choice forces were united in their opposition to the ballot referendum which they saw as a crucial fight that had to be won in the nation-wide battle for abortion rights. Pro-life groups, by contrast, were clearly divided as the wisdom of such a frontal assault on Roe at this point in time. Given these different perspectives, it was not surprising that NARAL, Planned Parenthood and other pro-choice organizations poured money into South Dakota
and vastly outspent their pro-life opponents – another fact that Stuntz overlooks. Finally, the South Dakota
result is hardly a sign that the pro-life message has no traction as a legal issue since the initiative proposed a ban on all abortions except for those necessary to save the life of the mother. The pro-choice camp made the focus of its campaign cases involving rape, incest, and fetal abnormalities. While these “hard cases” account for a tiny percentage of all abortions, the strategy was successful in convincing a majority of the electorate to vote against the initiative. Had the proposal included exceptions for these cases, it likely would have passed by an overwhelming majority.
Worse than Stuntz’s misreading of the South Dakota
ballot are his comments concerning the history of abortion regulation. Indeed, Stuntz’s statement that “[i]n the years immediately before Roe, abortion was a crime, and the number of abortions soared” is simply misleading. While it is true that the number of abortions rose in the years just prior to Roe, the increase took place not because legal restrictions on the procedure were ineffective, but because of the fact that between 1967 and 1971 seventeen states enacted liberal abortion reform statutes, including, most notably, California and New York. Indeed, in New York City
alone over 400,000 abortions were performed in the first two years after the new statute was enacted, earning it the nickname the “Abortion Capital of America.”
Although calculating the number of illegal abortions prior to both Roe and the state liberalization efforts has not been without controversy, the best available evidence indicates that the total number of abortions doubled or tripled under the regime of national legalization fabricated by the Supreme Court in Roe. Not surprisingly, along with the staggering increase in the sheer number of abortions (from 744,000 in 1973 to a peak of over 1.6 million in 1990), Roe’s regime of legalization also brought about a comparable rise in both the abortion rate (the annual number of women of child-bearing age per 1000 having an abortion) and the abortion ratio (the annual number of confirmed pregnancies per 100 terminated by abortion).
Stuntz correctly notes that the abortion rate has fallen by about a third since 1980, but this welcome drop has not occurred in the absence of pro-life legal efforts. Plainly, cultural engagement – efforts to persuade women not to exercise the right to abortion through sidewalk counseling, crisis pregnancy centers, support for adoption, and other forms of witness – have been crucial in bringing about this reduction. At the same time, however, legal measures such as parental notification laws, laws against transporting minors across state lines, waiting periods, restrictions on the use of public funds, and the ban on partial-birth abortion, have played a vital role both in reducing the incidence of abortion and in educating the public about what is at stake in the procedure. Indeed, the law’s dual function – as teacher and regulator – has helped to underscore and reinforce the cultural message conveyed through non-legal means.
Beyond Stuntz’s misreading of what took place in South Dakota and his grossly misleading suggestion regarding the effectiveness of criminalization prior to Roe, it is difficult to understand why Stuntz insists that pro-life advocates have lost a political debate that has never really taken place. Indeed, Stuntz appears content to sound the call to surrender before the political battle has been joined. This battle simply will not take place in earnest until the moment when Roe has been overturned. Yet securing the demise of Roe necessarily involves the political process precisely because electing politicians who are sympathetic to the pro-life cause (or at least opposed to the judicial usurpation of politics) is indispensable in the appointment of judges.
What passes for argument regarding the supposedly futile nature of pro-life politics is Stuntz’s assurance that certain unnamed “political insiders” believe that “[i]n any national election in which abortion rights were squarely at issue, the pro-choice side would win, and win big.” Given the notorious unpredictability of politics (witness the fortunes of the candidates once dubbed by political insiders as the “inevitable” nominees in the current presidential contest) one wonders why Stuntz vests so much confidence in these prognostications. Still, it might well be the case that if such an election were held today the results would not favor the pro-life cause. Surely the moral and political groundwork for such a national debate needs to be laid, yet despite the fact that abortion has been an issue of some importance for almost forty years, no one could fairly say that a majority of voters have focused on abortion as a political issue to any real extent. Abortion is, after all, a ponderous matter that requires us to grapple with the most fundamental sorts of questions, including what it means to be a human being and the limits of personal autonomy in a free society. Indeed, precisely because it calls for serious dialogue about serious matters, most politicians and voters have been glad to let the issue remain in the “non-political” realm of the courts. Only a watershed moment, like Roe’s reversal, would urge a reluctant nation to have the kind of debate that it is has now postponed for well over a generation.
Although changing the law and the culture will undoubtedly prove to be an arduous task, the prospects for success are good. Indeed, despite having nearly every advantage – far greater financial resources and generous government subsidies, a media overwhelmingly supportive of the pro-choice cause, and the law in the form of a declared constitutional right – the pro-choice camp has been unable to accomplish its goal. It has been unable to convince the American public that an abortion is an inconsequential act – a procedure that carries no more moral weight than having a tooth removed or getting one’s hair cut. The polls indicate that the great majority of Americans would even now welcome far greater legal restrictions on abortion than are currently allowed under the framework of legal regulation invented by the Supreme Court.
In conclusion, Stuntz urges would-be culture warriors to follow the advice of Mick Jagger: “You Can’t Always Get What You Want.” Some might be tempted to think that by offering this conclusion – by insisting that law has no role to play in the transformation of culture – Stuntz demonstrates a kind of “Sympathy for the Devil.” This would be wrong, however, as Professor Stuntz forthrightly identifies himself as a pro-life Evangelical. Nevertheless, the truth is that only by engaging in both law and culture – politics and persuasion – will pro-life advocates achieve the “Satisfaction” of building a society in which unborn children are welcomed and protected as new members of the human family.
Consistently Opposing Killing: From Abortion to Assisted Suicide, the Death Penalty, and War, edited by Rachel M. MacNair and Stephen Zunes, is coming out April 30, 2008, published by Greenwood Press (Praeger). This volume seeks to make the case that issues of violence are connected, solutions are also connected, and there is persuasive power in being consistent in challenging violence in all its forms. Contrary to oft-criticized straw-man versions of the "consistent life" or "seamless garment" position, the book does not suggest that a lot of niceness should outweigh a modicum of butchery when it comes to voting. Rather, it argues that killing corrupts everyone who advocates any form of it. If issues of violence are considered on their merits and addressed more consistently, then stereotypes that many anti-abortion and anti-war activists have of the other can be broken and the public discussion addressing these divisive issues can move forward in a more mature and responsible fashion. To order, visit www.greenwood.com
I'm envious.
U. of St. Thomas, in Minnesota, Gets a Guest House by Frank Gehry
This
house, designed by Frank Gehry, will be moved to a retreat center in southern
Minnesota owned by the U. of St. Thomas.
A guest house designed by Frank Gehry, located in a western suburb of
Minneapolis, is being donated to the University of St. Thomas, in Minnesota. The
house, built in 1987 and known as the Winton Guest House, after the owners who
commissioned it, is one of Mr. Gehry’s few residential works and is considered
one of his best. It now sits on a property with a home by Philip Johnson, built
in the 1950s.
Kirt Woodhouse, a Twin Cities real-estate developer who has an interest in
architecture, said that he bought both homes in part to preserve them. “I really
feel like I am just a steward,” Mr. Woodhouse told The Chronicle. “I
didn’t want either home to meet the wrecking ball.” In 1997 another home in that
area, by the notable Minnesota modernist Ralph Rapson, was demolished to make
way for a McMansion. Mr. Woodhouse won’t say what he paid for the houses and
property, but they were listed at more than $3-million, according to a
Chicago Tribune article in 2001.
The Johnson house was sold and renovated. The Gehry house will be separated
into its
various distinct components, then moved to Owatonna, Minn., where the
University of St. Thomas has a conference and retreat center built
around a French Norman-style home designed by Edwin Lundie, another notable
Minnesota architect. (The home was designed for Daniel C. Gainey, who owned
Jostens, the class-ring company.)
Mr. Woodhouse will cover the cost of moving the Gehry house and reassembling
it. According to an article in Architectural Record, the Walker Art
Center, in Minneapolis, briefly considered taking the house, but the cost of
moving it to the Walker and putting it in heated storage until a courtyard was
ready was deemed too high. Asked why he decided to give the house to St. Thomas,
Woodhouse said: “The short answer is, Dartmouth College is too far away.” Mr.
Woodhouse is a devoted alumnus of Dartmouth, where he says his appreciation of
the arts was cultivated. But he added: “I think St. Thomas is a great
institution.”
Marlene Levine, the director of St. Thomas’s conference center, said the
house will be used for small-group retreats — particularly with groups that want
a place to do out-of-the-box thinking, given the architectural atmosphere the
house will provide.
Ms. Levine noted that Mr. Gehry will be in Minneapolis now and then over the
next couple of years, as he is designing an addition to his Weisman Art Museum at
the University of Minnesota-Twin Cities. She hopes he will stop by Owatonna for
a dedication of the relocated house. —Scott Carlson
Well, not so much the question as Rick's asking it: "So, Michael . . . what about cap-and-trade regimes as a way of controlling and reducing pollution?"
Did I say something--or did the NYT article say something--against a federal cap-and-trade strategy? Rick seems to think that one can't consistently support a federal cap-and-trade strategy and, at the same time, support leaving the states free to impose stricter controls on mercury pollution in their own neighborhoods--which, presumably, a state would want to do (even my own "red" state of Georgia) if there were an especially severe problem of mercury pollution in one or more of its neighborhoods. After all, recall that
A neurotoxin linked to learning disabilities, mercury is most
dangerous to fetuses, infants and small children, usually when pregnant
women or children eat mercury contaminated fish. The National Academy of Sciences
estimates that 60,000 newborns a year could be at risk of learning
disabilities because of mercury their mothers absorbed during pregnancy.
But, in fact, we needn't choose. We could have *both* a federal cap-and-trade strategy *and* freedom for the states to pursue a stricter strategy. (Yea, federalism! Yes, subsidiarity!) Here's what my friend/colleague Bill Buzbee has to say, by way of explanation:
You could have both. A cap and trade
scheme merely caps the level of some pollutant, then allows trading among
polluters so more cost-effective pollution controllers can sell unused pollution
allowances allocated to them in some way. Cost-effectiveness is the main
argument for embrace of cap and trade schemes in the environmental regulation
arsenal.
A cap and trade can victimize some and
advantage the wealthy, but won’t invariably do so. The literature is too
voluminous to do justice to, but basically a trading scheme threatens to move
pollution around, with high polluting clunkers most likely to buy pollution
rights to avoid having to shut down or invest in costly pollution control. If
the pollutants in question, or the polluting activity itself (say, industrial
operations, trucks, noise, etc) create localized effects, then “hot spots” of
high pollution or nuisances can result. Industry virtually always likes the
possibility of cap and trade schemes, as often will environmentalists in
settings where concentrated harm hot spots won’t result. If EPA’s ill-fated
mercury cap and trade scheme would have resulted in such hot spots of mercury or
industry concentration w/attendant discomforts, then industry would avoid costly
cleanup of their operations while the poor, who often live in lower value
neighborhoods near factories, would be vulnerable to mercury harms or
discomforts of adjacency to possibly expanded industrial operations. In
addition, a debate exists whether cap and trade schemes really encourage
innovation as do performance standards that can push industry to ratchet back
pollution. A cap and trade scheme, if the cap is set too high, will not prompt
innovation. As Michael Wara’s job-market paper on greenhouse gas trading shows,
a trading scheme can easily slow down the pace of innovation where the cap is
too high or gains from trade are too easy and hence most polluters have no
incentives to improve their performance. GHG emissions, however, do not pose a
hot spot risk. In the mercury pollution setting, where much of harm is to
health due to air deposition into waters and bioaccumulation in fish (look out
eaters of bluefin tuna), a trading regime with an inadequate cap could result in
many additional years of such mercury harms. Whether that would harm the poor
or wealthy sushi mavens, I don’t know.
A state could impose its own performance
standard on a mercury emitter that is more stringent than would otherwise be
allowed by a cap and trade scheme alone. Early arguments for trading about
10-15 years ago often assumed some minimal level of pollution control, but
advocated allowing those who could do better to sell their excess pollution
reductions. A state performance standard would serve to limit or constrain the
market for trades, but could co-exist w/out any direct
conflict.
I appreciate Michael's link to Prof. Buzbee's recent paper on pre-emption, and regulatory floors and ceilings. As Michael says, Prof. Buzbee is an expert in the relevant areas, and so his work would be quite useful to anyone trying to decide whether the the Bush Administration's federal-ceiling efforts comply with the relevant law or are good policy. And it would, it seems to me, be a good thing -- as a general matter, anyway -- if federal regulations in a wide range of areas were more consistent with this observation of Prof. Buzbee's:
Unitary federal choice preemption is an institutional arrangement that threatens to produce poorly tailored regulation and public choice distortions of the political process, whether it is before the legislature or a federal agency. Floor preemption, in contrast, constitutes a partial displacement of state choice in setting a minimum level of protection, but leaves room for other actors and additional regulatory action. Floors anticipate and benefit from the institutional diversity they permit.
That said, it does not appear -- from my quick first glance, anyway -- that Prof. Buzbee is arguing that cap-and-trade regimes are "scheme[s]" that would "let some plants evade cleaning up their pollution" or that to support such regimes amounts to promoting the "the interests of the economically powerful rather than protecting the public's health". So, Michael . . . what about cap-and-trade regimes as a way of controlling and reducing pollution?
