Abortion considered objectively*

In the discussion on abortion, when we ask what contextual issues orbit (or rather, center) the differing positions, we can identify them as:

Pro-abortion rights: Arguments from this position concern the following:

1. The fundamental right to govern one’s own body is implicit in constitutional guarantees to the pursuit of life, liberty, etc. The denial of these rights is blatantly unconstitutional, so much being stated in the 1973 decision Roe v Wade.

2.  Women have historically been denied rights and to this day face scrutiny unique to them as a gender distinct from Men. That males and females enjoy equal rights of self-governance is compromised by an enforced ban on abortions; that men face no equitable cost should women lose the right to govern their bodies arguably constitutes a fundamental injustice and unfair treatment, i.e. discrimination.

Anti-abortion rights: Arguments from this position concern the following:

1. That the right of the unborn child is being infringed upon. Namely, the right to life which has not been explicitly sanctioned by law to the unborn child. The right to “life” has by precedent been interpreted as a right to persist or continue a life already in motion. 

2. That abortion is an unlawful form of homicide. The legitimacy of this claim hinges on whether an unborn child (necessitating definitions of extents of unborn-ness, e.g. “after 4 weeks; upon successful conception,” et al.) may qualify as a citizen protected by the constitution. Proponents of this claim aspire to either a court decision interpreting an unborn child as such or a congressional amendment to the constitution including language to that extent.

Were either an interpretation or amendment to be enacted to the aforementioned extent – thus legitimizing the claim of unborn-child-citizenship – the banning of elected abortion would protect the rights of one class of citizen at the expense of the rights of a different class of citizen. Anti-abortion activists prefer this outcome because of the benefit that fewer lawful homicides against unborn children could occur. As historical survey has shown, however, unlawful homicides against unborn children would very likely persist since the primary determining factors of most elected abortions, e.g. lack of access to birth control, sex-education, rape; would continue if not addressed by further legislative efforts.

With regard to the conflict of measuring one class’ rights against a different class’ rights, i.e. unborn child’s right to life versus woman’s right to life/self-governance, the contexts surrounding one class’ right to life and another class’ right to life are distinct: Right to life in the context of perpetuity implies significantly different circumstances from the right to life in the context of an unborn child’s -- the right to attain a life from the point of, not un-life but not yet born – which cannot be easily defined as a singular point.

The question of how to settle the priority of one class’ right above a different class’ right necessitates a legal discussion that has never before taken place. The unborn-child, if granted legal standing, does not possess a characteristic defined within the special protections of the 14^th amendment. A discussion that would follow in such a case would hypothetically ask the representation of Woman to argue the superiority of its class over the class of unborn child. What details of such an argument could the judges lawfully consider in determining their decision? Have details of such nature been granted legal sway in prior cases?

One is forced to ask if the alleged homicide of unborn child is equal, more, or less grave than the imposition of society’s will on a woman to experience child-birth against her own right to self-determination. Especially relevant is the inherent risk of death in childbirth which, to this day prevails only in lesser frequency than in the past. To simplify the question: What is the ratio of forced homicide of unborn child to forced torture with possibility of homicide of woman? If the court considered the question in these terms alone, it might likely conclude that the combination of homicide and torture is graver than homicide by itself. It follows, then, that many who are pro-abortion rights see the issue in these terms, also; that the cold facts present a clear inequality, and that one class must sacrifice for the other. 

This sits well with nobody, but nobody could mount an argument disproving the above-termed inequality. The implication – which would be hard for anyone to accept – is that one inequality is less unfavorable than the other; that is, the difference of gravity between a homicide and a non-crime is less than the difference between a non-crime and a homicide/torture combination.

For many in the anti-abortion rights camp, the merit of this logical reduction does not outstand the emotional significance attached to homicide of unborn child. People attach qualitative traits to an unborn child such as absolute innocence; the implicit assumption in this, however, is that the pregnant woman must inevitably be less innocent – and more culpable – than the unborn child. This assumption is de facto unfair. One reason why many hold it nonetheless – either knowingly or unknowingly – is that in the most prominently represented religion of the American anti-abortion rights demographic – Christianity – sex is an inherent sin, thus influencing an adherent’s view of who is culpable and who is innocent. Contrary to this perception, it has been recognized through law, science, and common understanding that the basic exercise of sexuality is a guaranteed right to all humans, interpreted through court decisions to be protected under the law in the United States.

In the context of one class sacrificing for another, the perception from the anti-abortion rights position claims that sacrificing the right to elected abortion on the part of the woman is a sacrifice for the greater good -- i.e. the unborn child and its associated qualities: potential, beauty, innocence, etc. Prioritizing human values and defining what "greater good" really means in the context of humanity is not a conversation easily circumscribed by plain logic. Understanding how the law applies to daily life depends on reason as facilitator, and thus, if we choose to live in a country where law rules supreme, we choose to accede to logic where it yields a clearer course toward justice as defined by our legal documents and precedents.

Sugar: Slow Death or Little Death? Part 1

Mayor Bloomberg of New York was recently stunned to find out that his signature health initiative had been blocked by a New York Supreme Court judge. The judge cited inequities specific to what businesses a 16-ounce limit on sugary beverages would apply. Restaurants, for example, would have to comply in reducing the size of their glasses but not in the number of refills; convenience stores that do not prepare food on the premises were exempted entirely from the ban. Prior to the anticipation of the ban actually being enacted, Mayor Bloomberg had taken his case to the media, both locally and nationally. His administration even went so far as to suggest that other governing bodies follow their example by enacting similar bans. Although other municipalities elsewhere are presently considering such measures, New York City would have been the first to pilot this kind of regulation at the legal level.

Critics of the ban, predictably the American Beverage Association but also notably the NAACP as well as a significant portion of New Yorkers, breathed a sigh of relief after the decision. In an amicus brief the coalition noted as primary grievances an infringement on individual liberty as well as an unfair regulation of local businesses in light of exemptions for state and nation-wide chains such as 7-11 and McDonalds.

Mayor Bloomberg has already succeeded in limiting the salt content of food prepared and served in the city so his proposal was nothing new to residents. That a group whose constituents disproportionately suffer from obesity teamed up with a corporate proxy was a stark reminder that awareness of the link between obesity and sugary drinks still has a very long way to go.

That awareness has perhaps an even steeper hill to climb if you ask Dr. Robert Lustig, Pediatric Endocrinologist and Professor of pediatrics at UCSF. His vocal advocation of such additives as High-Fructose corn syrup in beverages as a “poison” have earned him a notable position in media interviews around the country. Even Dr. Lustig, however, conceded that Mayor Bloomberg’s proposal won’t “solve obesity” but that it was a “baby step,” in an interview with CBS News.

In his 2009 lecture, “Sugar: The Bitter Truth” at UCSF, Dr. Lustig remarks that in its wide-spread processed form, the sugar Americans ingest has not only become disastrous to our health in a multitude of regards, but has become the most overlooked factor in trying to solve the national obesity epidemic, now estimated to affect 35% of the population within an overall 68% estimated to be overweight.

Although the Youtube video of his lecture now has well over 3 million views, a 1-hour and 29-minute watch can be daunting for many who do not already have an interest in the details of the issue.

Is sugar a poison? Among the many points of his argument is a comparison of processed high-sugar content beverages to alcoholic beverages. In the same way that the metabolism of a beer gets displaced to the liver thus causing debilitating effects to one’s health through chronic use, beverages with high sucrose content like soda  also resist the naturally designated organs for breaking down sugars: the stomach and intestinal tract. When sugar winds up in the liver, it catalyzes a process called denovo lipogenesis, i.e. the transformation of sugar directly into fat. Sugars found in nature, Dr. Lustig points out, get burned as energy before ever reaching the liver because they are paired with fiber. Sugar in the liver begins to look a lot like alcohol in the liver and, shockingly, carries with it 8 out of the 12 most common health defects associated with alcoholism – not to mention a direct link to type 2 diabetes.

But what about moderation? Isn’t it common knowledge that alcohol in moderate doses causes minimal harm to longevity and may even produce health benefits? Not so for the likes of HFC’s; such refined sugars actually cause an addiction even more potent than that of alcohol wherein the body is tricked into thinking it is hungrier than it should be long after the ingestion has taken place. The key element, Dr. Lustig explains, is the hormone, Leptin, which becomes inhibited by the speedy transport of fructose into the liver.

The case against sugar on the grounds of fitness is an easy one. First Lady Michelle Obama has elevated youth fitness to a national priority; the revamped labeling of nutrition facts was in large part due to her work and is set to be expanded this year by the FDA. Binding regulation of fitness, however, has no precedent in U.S. law; at most, organizations like the American Heart Association or even the Surgeon General (currently absent) issue guidelines about eating healthy and regimenting exercise.

Dr. Lustig comments at one point in the lecture that “You wouldn’t think twice about not giving your kid a Budweiser but you don’t think twice about giving your kid a can of Coke – but they’re the same.” The regulation of alcohol is well established as within the purview of government. The case against unlimited alcohol content, however, has less to do with overall fitness concerns than its potential to intoxicate and thereby cause great harm. If intoxication is what justifies a ban, finding an example of a “sugar rampage” might be a major roadblock in the effort to ban sweeteners.

Another obstacle not only facing a ban but other regulatory measures as well is political donations. In the 2012 election cycle, the Coca-Cola Corporation donated $20,700 to New York state legislators via its New York Political Action Committee (PAC) and an additional $13,500 to at-large New York congressman and one senator via its Federal Pac (source: http://assets.coca-colacompany.com). The Purchase, NY-based Pepsi Co. gave $46,500 to New York Congressmen and one senator via its own PAC (source: http://www.opensecrets.org). These donations were not without reason; New York Governor Andrew Cuomo remarked last summer of the proposed soda ban, “I don’t think you can do a lot of harm in the interim, as I said, I think you can only do good.” Despite sentiments from the governor and others, Mayor Bloomberg’s appeal is unlikely to reverse the outcome of Monday’s decision.

Will this be the last word on sugary drinks and the obesity epidemic? Highly unlikely. The idea of taxing sugar instead of banning it will be the topic for part 2 of this article.

Same-Sex Marriage in the Supreme Court, a Brief

For most Americans who filed joint taxes as a married couple in 1996, the Defense of Marriage Act (DOMA) was little more than a reiteration of what they already knew: that marriage happened between a man and a woman. For many others – who would turn out to be an increasing and vocal minority – it was a reminder that a line had been drawn in the sand between them and their heterosexual counterparts. Gay marriage, now formally known as same-sex marriage, would continue to be an “other,” relegated from simply non-legal to officially illegal. 

Along with four other cases challenging the constitutionality of DOMA’s section 3, US v. Windsor (formerly Windsor v. US) may soon be oft-studied in law schools ‘round the country. But before the law in question meets its fate in the Supreme Court this June, assuming that it fails to meet constitutional muster, one has to ask: what will happen afterwards should it get struck down? Indeed, even more complex does the tale grow as the SCOTUS has decided to hear both the aforementioned case in addition to the challenge to California’s ban on same-sex marriage, Prop 8, now known as Hollingsworth v. Perry. Presuming that the court in US will be persuaded by the defendant’s arguments along with the lower court opinions, they will then hear the Prop 8 case to decide how to implement the ruling.

Currently, same-sex marriage is legally recognized and performed in nine states and the District of Columbia. It is officially banned in thirty-one states. Originally, there was no formal definition of marriage in the constitution or federal law; only the effects of marriage were described in the form of tax withholdings and federal benefits. Even so, marriage has been a practice relied upon by the State to fight lawlessness, encourage fiscal and familial responsibility, and as an efficient means to distribute economic stimulus. For those reasons and many others has the practice become recognized as an institution on the federal level as on the state level.

What’s going to happen should DOMA get struck down?
The SCOTUS only needs US to strike down DOMA since the law’s section three is in such glaring disagreement with the 14^th amendment. Taking on Hollingsworth (all of whose lower court decisions – like US’s – were also in concurrence) strongly suggests that there will be a second movement in addressing the question of same-sex marriage legality. In striking down DOMA, whether the SCOTUS would immediately strike down state marriage bans as well remains the primary question at hand. In the meantime, post-DOMA, the federal government would defer to the states on the legality of same-sex marriage. Effectively, all persons married in states where same-sex marriage is legally recognized would automatically (possibly retroactively, though that is another discussion entirely) receive federal benefits etc.

So, again, what’s going to happen after US v. Windsor? After DOMA is struck down the court will hear Hollingsworth. In the 9^th U.S. circuit court of appeals, the ruling specified that once the right to marry had been extended to same-sex couples, it could not be taken away. In the majority opinion on a three-member court, Justice Reinhardt wrote that Prop 8 serves no purpose but “to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships.” In the text, Justice Reinhardt used the phrase “right to marry” which many in the sphere of marriage-equality advocacy have adopted as a slogan. Indeed, language itself will be at the heart of the matter when the SCOTUS hears arguments for Hollingsworth. In 1967’s Loving v. Virginia, Chief Justice Earl Warren reaffirmed the protections of the 14^th amendment specifically concerning the subject of marriage:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

One of the main questions up for debate will be whether Chief Justice Warren’s opinion in the decision from Loving can serve as a precedent for Hollingsworth and to what extent the court will be compelled to act. Even if the court’s decision parts according to multiple interpretations, many suspect that the 1967 opinion remains substantially relevant enough to sway Justice Kennedy, the known swing-vote, as one could easily replace each reference to race with gender or sexuality.

In today’s Supreme Court, a majority of cases have been decided unanimously since 2009 but some of the more controversial cases have resulted in 5-4 splits, outnumbering any other split (3-6, 2-7, etc.). With such a characteristic, many have­ portrayed the court as “divided along ideological lines.” As it concerns Hollingsworth v. Perry, the likelihood of a split appears higher than that of unanimity. In 2008’s Kennedy v. Louisiana, the court in a 5-4 decision overruled the capital punishment of a man convicted of raping his daughter. In the minority opinion, Justice Alito implicitly voiced support for the state to regulate morality, as he writes, “…is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist?” Justices Thomas, Roberts, and Scalia joined him in the dissent. The greater part of the Supreme Court’s audience have kept their eyes fixed on Justice Kennedy, however. In 2003’s Lawrence v. Texas, the court set new precedent in overturning Bowers v. Hardwick, a 1986 Supreme Court decision upholding a Georgia statute that criminalized “homosexual sodomy.” Justice Kennedy wrote in that decision,

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward… The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

    This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons… The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Will Justice Kennedy frame the issue as one of individual liberty as he did in Lawrence and as Chief Justice Warren did in Loving? Or will he decide in favor of the democratic process that enacted such marriage-bans? Some on the conservative side of the political spectrum have pointed to his assent to the majority opinion in the 2000 case, Boy Scouts of America et al. v. Dale in which Chief Justice Rehnquist wrote “public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message.” The significance of Justice Kennedy’s opinion, however, may be misunderstood by those who use it to predict Hollingsworth; Boy Scouts of America was and is a private organization whereas marriage as an institution is certified by public office and is therefore scrutinized more by anti-discrimination laws than it is protected by freedom of speech laws.

If Prop 8 gets struck down in the Supreme Court by the reasoning of Loving then the decision is all but assured to invalidate same-sex marriage bans throughout the country mirroring the outcome of the 1967 decision.

A Loving-inspired rationalization for Hollingsworth has been cited widely by civil-rights groups such as Human Rights Campaign, the NAACP, the Cato Institute, the ACLU, as well as by President Obama himself whose administration recently filed a brief in support of overturning Prop 8. With a majority of Americans in favor of same-sex marriage according to an ABC News poll, even prominent republicans have filed a brief echoing the “right to marry” phrase.

“The times they are ‘a-changin.”