Big Jolly Politics

politics in Harris County and Texas

Why Protect Life?

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One sentence sums up the political dysfunction in today’s environment. The free market of ideas only works when there are buyers. Debate and discussion only better the system if positions are subject to change – otherwise it’s arguing and lecturing. When positions become engrained sometimes the why becomes lost. To that end, an examination of why protect life serves as a moment to reflect, and will help reaffirm the why part of the equation and advance argumentation, as opposed to the arguing that so often characterizes the debate.

In order to understand the context of the current arguments for and against the right to life it’s necessary to examine the history of the unborn, for this history sets forth the rational for defending life in today’s culture. While all ideas must be examined on their merits absent any outside influences, an idea that runs contrary to a long established position carries an extra burden of establishing how the long established position is erroneous or harmful. Claims of enlightenment, or the opposite, asserting that the historical position is primitive, are self-serving allegations. They do not serve to establish the merits of the new position or demonstrate harm that flows from the historical position.

To begin with, life itself is not what’s being protected. Only the most radical would object to killing a cockroach. Historically, even human life itself isn’t where the protection lies. Protection arises at the point of ensoulment. It was the living, ensouled embryo that warranted protection. We do not, and cannot, know with absolute certainty when ensoulment occurs. It’s a matter of faith, not science. It cannot be proven. As a result, scientific advancements imparting new knowledge challenged philosophical conclusions, and as science advanced philosophy advanced in light of the new knowledge resulting in a changed belief about the point of ensoulment. Today, the prevailing belief is that ensoulment occurs with conception, and so the protection of life begins at conception.

The culture of life has roots in religion. The western religions all have a long history of disallowing abortion. For different reasons, the eastern religions also disapprove abortion. Islam has characteristics of both western and eastern religions.

With the western religions the prohibition on abortion is clear. In the Jewish tradition, Sanhedrin 57b states, “Whoso sheddeth the blood of man within [another] man, shall his blood be shed.” The implication is clear, shedding the blood of a “man within man” refers to the unborn child. Early Christian teaching also directly forbids abortion. The Didache is one of the earliest Christian texts, written around 100 AD, so it states the position of both Catholic and Orthodox beliefs as the separation had not yet occurred. The Didache states, “you shall not murder a child by abortion nor kill that which is born.” The phrasing not only is explicit in prohibiting abortion it also specifically acknowledges that abortion is referring to the unborn by contrasting it to “nor kill that which is born.” Not only that, the Didache notes that abortion is a “grave sin” rather than “other sins” suggesting the gravity of the teaching.

With the eastern religions the tone is one of disapproval rather than prohibition. In Buddhism abortion violates the precept against killing, but the general inclination against abortion is not absolute. Abortion must be considered on a case by case basis and is permissible when “the unborn child will be retarded or if the birth will create serious problems for the parent, these are cases where there can be an exception.” In Hunduism the principle of Ahimsa requires a negative view of abortion. But just as with Buddhism this is not an absolute prohibition as, “though abortion is wrong, it is worse for a child to kill his mother” so abortion is allowed to protect the life of the mother.

Islam has features of both eastern and western religions. In Islam it is impermissible to have an abortion unless the pregnancy is a threat to the mother’s life or would leave her handicapped. This follows the eastern religions allowance for an exception on the prohibition of abortion. However, in instances when it is permissible to abort the exception only applies until the soul has been infused to the body, accepting the ensoulment tradition of western religions.

While the culture of life has roots in religion, the culture of death has ugly roots; there’s no other word to describe it. The culture of death existed before abortion with the roots originating in infanticide. Infanticide has existed since at least the ancient Greek city-states. Abortion is the current face of the culture of death, and while words like eugenics are thrown around to describe the genesis of the abortion movement it’s more accurately described as an observation of the outcome created by the underlying values that gave rise to abortion. The warrant upon which abortion is supported is that not all ensouled life has equal value, and at some point ensouled life is disposable. The assigning relative degrees of value is just a manifestation of the underlying warrant. Eugenics is one result of a belief that not all ensouled life is equal. As the heinousness of eugenics has been realized other results have come to fill the void and established and promote a culture of death.

With the culture of death sometimes victories occur in marked changes in the law such as legalized abortion or euthanasia, but more often and more seriously the culture of death advances by a pervasive creep rather than major lurches forward. No area is spared the creep of the culture of death. Even Texas, while proudly pro-life, even Texas has accepted some culture of death argumentation and implemented policies at the legislative level. Regardless of your belief on the necessity of the Texas Advance Directives Act, two things cannot be disputed. One, the act shifts medical decision making from the patient (through their surrogate) to medical personnel. Two, the medical personnel are given legal immunity for their actions. The culture of death’s pervasive creep carries the day in this instance.

In her diary, St. Faustina often noted Christ lamented that souls rejected grace. When a soul accepts grace the acceptance is self evident in the soul’s works. To this end, the culture of life has expanded to encompass more than opposition to abortion. Crisis pregnancy centers, Gabriel Projects and similar organizations try to account for, care for, babies both before and after birth. This has lead to a logical extension of protecting the babies health in the womb. This can take the form of organizations such as the March of Dimes, but it also can take place in the form of legislation extending insurance coverage to the baby, and awareness of and prevention against specific birth defects, such as drug regulation by the FDA and environmental regulation by the EPA.

Just as when a soul accepts grace the acceptance is shown in the soul’s works, so too when the soul rejects grace the rejection appears in the soul’s works. The rejection of grace has lead to the creep in the culture of death becoming a cause for proponents. Look at how quickly the debate has evolved since Terri Schiavo’s case was decided. With her case, there was at least facially an open question of self determination being administered through her surrogates (specifically her husband.) She died on March 31, 2005; and only 4 months later articles were being written in support of euthanasia for babies. Now, the talk has shifted and arguments are being proposed for “after birth” or “4th trimester” abortion. This isn’t euthanasia for babies, but outright support for infanticide. The culture of death has come full circle, the victories along the way pave the way for the creep to expand back to the root to strengthen the culture of death.

That is why we must fight to protect life. The culture of death is self-sustaining and is never satisfied.

Beyond Abortion – Protecting Life in the Womb

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The right to life movement is rightly concerned with curtailing abortion. However, with the stinging defeat of HB2 perhaps it’s time to step back and look for other ways to protect life in the womb. I wrote earlier about the need for alternative ways to attack abortion. This is a follow up with a specific way that the legislature can enact this upcoming session. Some have suggested that since the posts are long that I add a “take away” paragraph at the bottom. One is present below.

Hopefully everyone learned a couple of lessons with the demise of HB2. First, a direct assault on abortion is unlikely to survive judicial challenge. Even if a conservative is appointed to the Supreme Court any legislation that directly limits abortion is unlikely to get 5 votes. Second, even if the legislation has some lip service of being a health and safety bill if it’s not truly aimed at health and safety it will be reviewed as an antiabortion bill.

With that in mind, the thought process needs to turn to what can be done to protect unborn life and still pass judicial muster? While many potential avenues exist, one of the most basic is to achieve a change of the hearts and minds of those involved in the process. Although the end result may have an indirect impact on abortion since the goal is other than abortion a piece of legislation that tries to entice others to choose life rather than death should survive review since the aim is other than a direct impact on abortion.

Planned Parenthood can object to the contrary all they want, but the truth of the matter is abortion is big business. If the business aspect of abortion can be tilted to choosing life rather than death then the incidence of abortion should drop as a result. Many groups attempt to address the financial impact from the prism of helping the mother in hopes she will choose life. However, other actors are involved from a financial aspect. Rather than trying to cut funding for abortion providers, how about trying to change the financial picture to where the doctors have an incentive to recommend treatment for prenatal issues rather than recommending abortion?

The current status of the law is that life exists in the womb, and that evidence of life is found roughly three weeks post conception. The Texas Penal Code section 1.07 defines terms found in the code and notes, “(49) “Death” includes, for an individual who is an unborn child, the failure to be born alive.” The Texas Family Code section 151.002 gives examples of what constitutes “evidence of life” to include, “beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.” The medical literature varies on exactly when the heart beat begins, but the literature has a narrow range of 18-22 days. So the current status of the law is that life is established at around 3 weeks from conception.

With that as a backdrop, the question becomes how to use the current law to give financial incentive to doctors to recommend treatment rather than abortion? This goal can be achieved by implementing the current laws more fully. This can be done by requiring paternal insurance coverage to cover prenatal care along with maternal insurance coverage. It is simply a matter of legislative action and ensuring that the Affordable Care Act doesn’t explicitly speak to the contrary and cause preemption.

In terms of crafting legislation, the legislative findings and intent are critical. The actors need to be careful to establish the health and wellbeing of the child are the driving motivations. Antiabortion forces are likely to try and establish a heckler’s veto. This means legislators need to be careful not to tout any incidental impact the bill may have on abortion. Any potential changes need to be in separate bills so that they must be challenged separately if they are challenged, and are considered separately. Importantly, the committee hearings must be limited to the specific topic at hand. The committee hearings must also make specific findings of fact related to the specific ill the legislation will remedy. The legislative sponsors need to make speeches on the floor about the underlying intent of the legislation to establish the purpose of the legislation rather than allow the antiabortion forces to establish the purpose of the bill. And the legislation itself must make findings related to the committee testimony to establish a permissible action rather than allow antiabortion forces to frame the legislative intent as they did in HB2.

By way of example, a bill could be as follows:

Texas Insurance Code

Sec. 1366.003. OFFER OF COVERAGE REQUIRED. (a) Subject to this subchapter, an issuer of a group health benefit plan that provides pregnancy-related benefits for individuals covered under the plan shall offer and make available to each holder or sponsor of the plan coverage for services and benefits on an expense incurred, service, or prepaid basis for outpatient expenses that arise from in vitro fertilization procedures.

(b) Benefits for in vitro fertilization procedures required under this section must be provided to the same extent as benefits provided for other pregnancy-related procedures under the plan.

is modified to read:

Sec. 1366.003. OFFER OF COVERAGE REQUIRED. (a) Subject to this subchapter, an issuer of a group health benefit plan that provides pregnancy-related benefits for individuals covered under the plan shall offer and make available to each holder or sponsor of the plan coverage for services and benefits on an expense incurred, service, or prepaid basis for outpatient expenses that arise from in vitro fertilization procedures.

(b) Benefits for in vitro fertilization procedures required under this section must be provided to the same extent as benefits provided for other pregnancy-related procedures under the plan.

(c) In accordance with Texas Family Code section 151.002 establishing that evidence of life includes “beating of the heart” an issuer as set forth in subsection (a) must provide coverage for the unborn child regardless if the policy holder is the unborn child’s mother or father.

The list of findings can set forth the amounts of monies the state pays out for prenatal care, the burden that single mothers have meeting deductible/copay requirements, etc. With the findings directly addressing prenatal care, and the change in code directly pointing to already established pregnancy benefits rather than adding restrictions it will be difficult to argue this is an antiabortion measure. Will abortions drop as a side effect of this proposed change? Probably. Is that the purpose of the bill? No. As such, the rational relationship test rather than strict scrutiny applies. To further engrain the point, the bill can direct the attorney general’s office to move to remove any action filed in federal court to state court as the purpose of the legislation is health and safety related and therefore not appropriate for federal jurisdiction.

It’s worth noting, that a similar reasoning pattern and legislative action could be initiated to make the requirement for child support attach for the purposes of prenatal care as of the unborn child’s heartbeat.

Take away paragraph:

HB2 being struck down was a stinging defeat that establishes the need to try and protect life in the womb in other ways rather than abortion regulation. Abortion is big business, and one way to protect unborn life is to change the business underpinnings of the abortion business. The state penal code and family code already establish that life begins before birth and that a beating heart is evidence of life. To this end, a change in the insurance code to require paternal insurance as well as maternal insurance to cover prenatal care alters the financial picture so that doctors are more likely to recommend treatment rather than abortion. This will likely survive judicial review since it is a measure to expand insurance coverage rather than assail abortion. As such, it’s likely to be evaluated under a rational relationship test rather than the strict scrutiny test.

Our Health Care Dilemma

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Ed Hubbard

In today’s Wall Street Journal, columnist Holman W. Jenkins, Jr., provides this interesting analysis (Conservatives and the Mandate)  of the root problem with our health care system.  Distilled to its essence, the problem with Obamacare (and Romneycare, and Schwarzeneggercare), it that they perpetuate and worsen an already existing distortion of the market for health care.  Ladies and Gentlemen, I hate to tell you this, but there has been no free market for health care in a very long time, and we will have to accept a lot more personal responsibility in our lives if we want to re-establish a free market in that industry.

Since the end of World War II, when unions negotiated for insurance coverage in lieu of wage increases, the provision of health care in this country increasingly has come to be managed by middlemen:  private for-profit insurance companies; private non-profit insurance companies; federal and state government agencies; and local public hospital systems.  Moreover, most privately-employed full time workers have another middleman, their employer, involved in the process of selecting the insurance coverage, negotiating its price, and collecting and paying the premiums.  Most doctor-patient relationships, including the cost and scope of care, are initiated and managed, directly or indirectly, by one of these middlemen.  Relatively few individuals (if any) today “choose” their doctors and can negotiate the cost and scope of their care.

In the meantime, the premiums paid by employers and employees are no longer dictated by the actuarial pricing of the risk of illness, disease or injury, because coverage is so broad that it covers basic medical services for which there is no fortuitous risk involved.  This means that increasingly the cost we pay for coverage has little or no relation to the individual needs of each person, but rather is based on the cost of sustaining the insurance coverage for everyone enrolled in a specific plan, or for everyone covered by a carrier or government program.

In turn, the decisions of the middlemen dictate how much health care is provided, to whom it is provided, when it is provided and where it is provided.  These decisions affect the decisions of doctors in the treatment of patients, and distort the allocation of medical resources in every community.

The only major benefit of the private insurance market to the overall free-market economy is that the premium funds are re-invested in the private economy.  But, if you think you are paying premiums to buy a free-market relationship with your doctor, you’re simply wrong.

What Obamacare and its state counterparts do is not a fix to these problems, so that the same quality and amount of medical care is accessible to everyone, and that you regain control of your doctor-patient relationship.  Instead, these programs further institutionalize the role and power of middlemen, and raise their decisions from contractual dictates to legal mandates.  Meanwhile, the program is designed, over time, to reduce the incentive to purchase private insurance, which eventually will reduce the primary economic benefit of such a product—the re-investment of premiums into the private economy.  Eventually, Obamacare will lead to a pure transfer payment entitlement funded with tax dollars and public debt.

The only way to fix this mess in the long term is to restructure the health care industry into a free-market system where most of the economic and medical decisions are kept at the level of the doctor-patient relationship, and the middlemen’s role is greatly reduced.  This can be done by creating three delivery systems:

  • A private insurance system that only provides coverage for major medical issues—major illnesses, diseases or injuries—and that requires high deductibles or health savings accounts, and personal responsibility, for the payment of all other health care;
  • Local hospital and clinic systems paid for with local tax dollars, and administered by local governments, for the indigent (and the continuation of a similar federal program for veterans); and
  • A means-tested voucher system to fund the payment of private insurance premiums for insurance coverage for the elderly, paid for from the Medicare tax.

Although these changes sound like common-sense, conservative approaches to fixing the system, I have been amazed by the reaction of many conservatives to these ideas when you discuss them privately.  Over the years, as I’ve tried to discuss our current predicament and these types of policy changes with people around the dinner table or in relaxed conversations, their eyes glaze over.  More importantly, I have discovered another phenomenon during such discussions:  many spouses and single parents, who control family finances and handle the doctor appointments (and, in my anecdotal experience from these conversations, these spouses and single parents are women, regardless of whether both spouses in a marriage work outside the home), hate the idea of losing the simplicity derived from the involvement of middlemen, and they especially hate the idea of losing the convenience of co-pays.  They may complain about a specific bad experience with an insurance company over a coverage issue; but the idea of a return of more control over medical decisions and payments to families, and the resulting increase in personal responsibility over such transactions, is simply an anathema to many of these spouses.

Now add to this pre-disposition against assuming more responsibility over the doctor-patient relationship, the recent flap over Obama’s mandate for church-related hospital and charities to provide services and prescriptions, or insurance coverage for such services and prescriptions, which violate the tenets of the religious institutions that manage such hospitals and charities, and you see that this issue is more politically volatile and complex than we conservatives often think.  Yes, conservatives and many independents viscerally recoil at the notion of government having and exercising the power to mandate us to do anything, and especially when such power is used to interfere with the decisions and doctrines of a church (and most believe that such government action is unconstitutional).  On the other hand, even many conservatives are much more ambivalent about middlemen in their medical decisions, including government, when they are forced to consider the alternative.  So, when these people hear that access to contraceptives could be denied to some women, and that the alternative to mandates that are designed to require such access is responsibility they don’t want, their reaction to the issue is not predictably supportive of the religious liberty of the church.

Where does all of this lead to?  As I’ve said so often that I’m beginning to feel like a broken record, it leads to the hardest question we Americans have to face this fall, and for many years to come:  are we willing to take back the personal responsibilities that the maintenance of liberty and a society of free people requires?  If not, then electing Republicans to Washington this fall will not matter in the long-run, because the trajectory of public policy will continue in a leftward direction toward a European system with the trade-offs between social programs and national defense that Europeans have made, and with the acceptance of increasing public and private debts to finance such a system—until it inevitably collapses, internally or externally.

If electing Republicans this fall is to mean real change, we will have to look in the mirror and accept the personal responsibilities such changes will demand of us.