Reproductive Freedom: Autonomy or Privacy?

I've been thinking about the abortion issue a great deal lately, since the Texas legislature passed a new law effectively banning abortion after 6 weeks - a time when many women don't even know yet that they're pregnant - and the United States Supreme Court declined to intervene, instead opting to wait until a case is brought challenging the law that eventually works its way up to the Supreme Court.  That, of course, could take many months, and during that time the Texas law stands, quite possibly emboldening other state legislatures to enact legislation plainly contrary to the Court's 1973 opinion in Roe v. Wade.  The Court's decision not to intervene immediately clearly signals a willingness to reconsider Roe - and potentially reverse that decision rather than relying on the principle of stare decisis ("decision stands," i.e. honoring precedent).

Over the years since Roe my own thinking on the majority opinion and the underlying rationale has gone from finding it interesting, to questioning its premises and principles, to thinking that the case was wrongly decided - meaning not that the conclusion was wrong but that the reasoning was deeply flawed.

There are, I believe, two principles that can be used to arrive at the conclusion one finds in Roe: autonomy and privacy.  I favor the former; the Court chose the latter, using its earlier decision in Griswold v. Connecticut as something of a foundation.

Justice William Douglas wrote the majority opinion in Griswold (1965), finding that the State's restrictions on access to contraception violated a right to privacy, notwithstanding that the word privacy appears nowhere in the Constitution.

As a physician who has devoted much attention to biomedical ethics over the past few decades, I naturally frame this question as an ethical dilemma.  This means there are competing interests that must be weighed and valued against each other.  One is the pregnant woman's autonomy, or right of self-determination, which means, in this instance, the right to control what happens to her body.  The other is the interest of the State in protecting the life of the unborn child. 

Individual autonomy is the ordering principle in the hierarchy of biomedical ethics in Western societies.  This means that there must be a powerful State interest to override it.  The State does, indeed, have a powerful interest in protecting a human life, and so a significant consideration - arguably the most important consideration - is when the developing fetus qualifies as a human life.  In other words, when is it a person entitled to protection under the law?  In Roe the Court did consider that question and opted to answer it in terms of fetal viability outside the uterus - a bit of a moving target, now somewhere in the range of 22-24 weeks as opposed to the end of the second trimester (26 weeks) that most people associated with Roe back in the '70s.

I like the ethical framework of competing interests, pitting against each other two ideas - a woman's autonomy and a State interest in protecting human life - that most people have no trouble understanding.  Essential to resolving the ethical dilemma is a "national conversation" in which people discuss the competing interests, find the points of contention that cause them to differ, and try to forge consensus. 

But the Court did not rely on the principle of autonomy, which certainly exists in both philosophy and common law, choosing instead to rely on privacy rights.

Where is that right in the Constitution?  The flippant answer is "Nowhere," but of course that was not the answer posited by Justice Douglas.  He argued that the guarantee in the Third Amendment against the quartering of soldiers in private homes in peacetime was a guarantee of a privacy right.  He said the same about the Fourth Amendment's guarantee against unreasonable searches and seizures - the constitutional provision that means law enforcement officers need a search warrant under most circumstances.

Justice Douglas then relied on the notion that from specific guarantees in the Constitution can be said to "emanate" "penumbras," in which additional important and related rights can be discovered.  Thus, from the Third and Fourth Amendments one can say that there emanate penumbras in which can be found a right to privacy, which can then be used to declare that a State may not unduly restrict access to contraception (Griswold) or abortion (Roe).

A penumbra can be thought of as an area between what is brightly illuminated and what remains in darkness near it - in a twilight zone, so to speak.  In that dim ether one may find additional rights that emanate from the ones clearly stated in the bright light of the plain language of the document.

This idea is the basis for the other side of my reasoning in favor of autonomy as opposed to privacy.  Far too many Americans think the idea of a constitutional right to privacy is nonsense: it just isn't there, and penumbral reasoning strikes them as a transparent fiction.

If we are going to achieve any sort of resolution of the ethical dilemma posed by abortion, we need a framework for the discussion that relies on principles on the existence of which we can agree.  I see personal autonomy as such a principle.  A constitutional right to privacy?  An idea that relies on emanations and penumbras starts out in trouble and rapidly loses ground.

You may say we are a nation of neither ethicists nor constitutional scholars.  I'm far more comfortable relying on the average American's ability to understand and navigate a discussion based on principles of ethics than I am hoping for understanding of, and agreement with, the premise used by Justice Douglas.  Many Americans will be more drawn to the common sense declaration by Justice Hugo Black: "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."  

Who Was That Masked Man?

Flashback: Autumn 1980

I was a medical student at the University of Pittsburgh, on a clinical rotation in head & neck surgery.  I was in the operating room with a nationally admired surgical specialist named Eugene Myers, the editor of a major textbook in this discipline.

Many of the patients had cancers of the mouth or throat.  Surgery for them typically involved removal of cancerous tissue and reconstruction to make it possible to retain essential functions, such as speech and swallowing.

It was also common to explore the neck to identify and remove lymph nodes to which cancer may have spread.  This is called a radical neck dissection.

Such surgery requires great skill and precision.  It is very laborious, tedious, and time-consuming.  I recall one operation that took 16 hours.  For a medical student the experience might be torture, except that Dr. Myers was an engaging teacher, and he played recordings of classical music in the operating room.

For the entire 16 hours I was wearing surgical scrubs, over which was a surgical gown.  I wore sterile surgical gloves.

And guess what else?  Yes!  A surgical mask.

These days I am working in a medical facility in which protocol calls for me to wear an N95 mask from the beginning of my workday to the end.  In this setting I get to take the mask off to eat or drink during my breaks.  This means that each day I am wearing an N95 for at least 7 hours.

If you know me, you know that I can be a complainer.  I complain about policies I don't like, rules with which I disagree, directives that seem nonsensical or misguided.

Guess what has never made the list of things I complain about?

That's right: wearing a mask.

What's the big deal?  I have found it no more difficult to get used to wearing a mask than it was to get used to wearing a seatbelt in an automobile more than half a century ago.

If you think wearing a mask is a burden, a nuisance, an imposition, wait until you see what it's like being sick enough with COVID-19 to be a patient in the hospital, or to be in the ICU, or to have a plastic tube in your trachea, connected to a mechanical ventilator.  Or maybe these things won't happen to you, but to someone you care about.  Chances are you won't be able to visit that person in the hospital.  You won't get to hold your loved one's hand.  If you get to say goodbye, it will be because some young doctor or nurse has a smartphone or tablet to connect you with your mother, your sister, your grandfather, or your best friend for a virtual farewell.

I assure you, that's just not the same.

Please think about all this when you want to grouse about wearing a mask.  Life is full of inconveniences.  Some of them are really a bother.  Others are trivial.  This one is trivial, and it serves the purpose of controlling the spread of a disease that kills.  If you are looking at benefit versus burden, this is an easy one to calculate.

Be smart.  Be a good person.  Do the right thing.  Wear a mask.

Juneteenth Appropriated?

President Trump will hold a campaign rally in Tulsa, Oklahoma next Friday, June 19th.  The choice of date and location has drawn harsh criticism of a president whose words have done so much to validate the endemic racism that has afflicted this nation for over four centuries.

The date is the one on which the long-delayed implementation of the Emancipation of enslaved Africans was initiated in Texas in 1865, commemorated by celebrations of "Juneteenth."

The location - Tulsa - was the site of a massacre of Black residents of the city's Greenwood district.  Hundreds of Black Americans were killed, and the district - home to a thriving business community - was largely destroyed, beginning over Memorial Day weekend in 1921.

While racial killings - including massacres - have been many in US history, the destruction of Greenwood and the number of murders committed there hold an especially ignominious place.

It is impossible to know whether Mr. Trump had any idea, when this rally was planned, that either the date or the location was of any special significance.  After all, this is the same fellow who said, during Black History Month in 2017, that "Frederick Douglass is an example of somebody who’s done an amazing job and is getting recognized more and more" - as though Douglass is alive today and doing important things in the service of his country.  [One can imagine that Trump was really talking about the legacy of Douglass, but it is difficult to credit that notion.]

A solution to this quandary immediately leaps to mind.

President Trump could select the occasion of this campaign rally to tell the American people he is working on a comprehensive plan of reparations to African Americans for more than four centuries of slavery and brutal oppression, details to be made public over the next several months.  He could mention a dollar figure: there is quite a range possible, as estimates of the total amount required in the cause of racial justice range from $1.4 trillion to $17 trillion.  Anything remotely approaching the latter number would have to be spread out over a decade.

The president could thereby transform his public image - from that of a leader of a cult of personality, lacking any admirers outside of his loyal following, and devoid of any but the dimmest perceptions of our nation's annals - to a transformative and heroic torchbearer of freedom, establishing a legacy in US history to be esteemed for many generations to come.

Yes, I know.  Given Trump's denial, in the aftermath of the killing of George Floyd, that there is systemic racism in America, emphasized this week by his sending messengers from his Administration - including Attorney General William Barr and Director of the National Economic Council Lawrence Kudlow - to reinforce that claim, it seems most improbable.

But to quote one of my heroes:

Defund the Police: What's in a Word?

Many Americans who are not decidedly left of center politically are criticizing the choice of "defund" to capture what should be done about police departments that have strayed so far from "To Protect and to Serve."

Of course it is an obvious case of the turning of tables.

It has long been a favorite tactic of conservatives, combining their social conservatism with their professed fiscal conservatism (that never applies to their pets, such as defense contractors and the military budget) to withhold or withdraw funding from anything they don't like.  So they want to defund Planned Parenthood, public broadcasting (PBS and NPR), the National Endowments for the Arts and the Humanities, public health research on gun violence, and "failing" public schools.

Indeed, this is the way they approach government agencies they dislike.  They want to defund the Department of Education to the point of abolishing it.  Likewise for the EPA.

This is their overall approach to government.  Steadfastly denying the role of government as a proper agent of the people, doing our bidding for the benefit of American society (recall the phrase "promote the general Welfare" from the preamble to the Constitution), they want to shrink it.

How?  "Starve the beast."

Nothing, perhaps, captures the sentiment underlying "defund the police" better than "starve the beast" - because so many of us are currently seeing that American policing is a great beast, or at the very least employs far too many officers whose behavior is beastly, working in departments that do little or nothing to prevent or restrain such behavior.

Defund the police.  Starve the beast.

Don't like the word?  Does it conjure up a lawless America?  How can we be a nation of laws if there is no one to enforce those laws?

Do you prefer "reform?"  Fine.  Maybe that is correct in concept, but what about in execution?  Reformers - in this nation so much given to holding tightly to the status quo - are consistently frustrated in their efforts, forced to settle for the most modest incremental changes.

This simple fact leads to "defund" and even "abolish."

So let us return to the question: how can we be a nation of laws if there is no one to enforce them?

But before we ponder the answer to that question, we must examine the premise.  Should this be a nation of laws?  Or must this be a nation of justice?

We must focus on becoming a nation of justice.  And then we can decide what laws promote justice, and how the enforcement of laws must be conducted so that it, too promotes justice.

We are so very far away from that.  Incremental reforms of policing in America are not the answer.  When you are wrestling with a beast, you cannot settle for trimming its whiskers to make it look less threatening and think you have accomplished something.

Petrochemicals and the Pandemic

An article published by Reuters yesterday on the effects of the pandemic on petrochemicals took me back half a century.

From the 1967 film "The Graduate" --

Mr. Maguire: I want to say one word to you, Benjamin. Just one word.

Benjamin Braddock: Yes, sir.

Mr. Maguire: Are you listening?

Benjamin Braddock: Yes, I am.

Mr. Maguire: Plastics.

**********

The processing of petroleum into plastics via polymer technology has fascinated me for decades, since I first learned of it as a college student in organic chemistry.

The environmental impact of our use of plastics - especially when they are disposable and not recycled or recyclable - was unknown to me then.

I was, however, keenly aware of the environmental consequences of petroleum combustion for energy.  And so, far more times than I can count, I expressed the opinion that future generations would take a very dim view of our burning up all the petroleum as fuel instead of saving it to make synthetic polymers.

Occasionally the subject came up in the context of my stitching up a patient.  "Is that catgut?" the patient might ask.  "It's nylon," would be my reply.  And then, if I thought the patient would like being distracted from what I was doing by some conversation, I would offer a brief overview of the origins of nylon in the pioneering polymer technology research done at DuPont, beginning in 1927, sometimes mentioning other familiar substances produced in the early years, including rayon and neoprene.

These days my thinking has been transformed by an awareness that we are dumping single-use plastics into our oceans and landfills far more than we are recycling them.

As our reliance on petroleum for energy declines, while the supply of oil and natural gas remains relatively abundant, the cost of producing virgin plastics will continue to compare favorably to that of recycled plastic.  Only a substantial increase in the monetary cost of extracting petroleum via offshore drilling and fracking will change this calculus.  We have shown that we care far too little about the effects of drilling and fracking on our oceans, the air quality near refineries, power plants, and petrochemical installations, or contamination of ground water.

This unfortunate tendency to focus on monetary rather than environmental cost will slow the replacement of plastics with biodegradable polymers, such as those made from hemp.

If you live in a region like mine, where fracking and the petrochemical industry are major economic players, discussion of these issues is viewed by policymakers and elected officials as unwelcome at best.  Expect to be branded a job-killing environmental extremist.

This kind of thinking is an unending source of frustration for me.  In recent years I have had some unsuccessful forays into politics, and in the occasional candidate forum I was asked my views on fracking.  Sometimes the question was extremely pointed: would I support a moratorium on fracking pending additional regulations requiring more transparency from the industry - related to their extraction processes, the danger to groundwater, and monitoring of the air and water quality near drilling sites and petrochemical plants?  Would I support more taxes on all this activity?  Would I support a permanent ban on fracking?

In southwestern Pennsylvania such questions are as challenging to a political candidate as any related to gun control or abortion.  Any answer risks alienating a sizable segment of the electorate.  A response that is non-committal or evasive, on the other hand, instantly labels one as a "typical politician" who won't reply to a direct question with a straight answer.

I do not expect to be seeking public office again, but my answers to these questions now are unchanged from what they were on the campaign trail: I support many proposals to reduce the environmental impact of our use of petroleum, including strict regulation of fracking and petrochemical plants, and I would not stop short of bans if the data tell us the environmental impact cannot be reduced to the point of no longer representing a significant threat to the planet and the living creatures inhabiting it.

To accompany such statements, I have also explained that we are often presented with a false choice between jobs and the environment, explaining how many ways there are to pursue economic growth and environmental protection simultaneously.

Today I would be dismissed by the right as a "green new-dealer."

It is exactly this kind of dismissive attitude that stands in the way of moving the nation and the planet in the right direction to protect the environment.

Oh, and one more thing: climate change is not a hoax. 

Thinking of John Quincy Adams and Abolition

Recently I wrote a post for a Facebook group of doctors in my specialty relating some of my thoughts on racism as a public health problem in the US, and more broadly on the subject of racial justice.

The reaction by - well, the reactionaries in the group - was predictable. My post was denounced as political. It was declared that half of emergency physicians hold views diametrically opposed to mine. I was taken to task for crafting an argument in terms that made it seem morally wrong to disagree with me. (I'm still trying to figure out how that is a legitimate point of criticism, when it is actually evidence of rhetorical cogency.) I was advised that I am much in need of psychiatric help. And, of course, I was spewing "liberal bullshit."

One participant in the thread suggested it is the thinking of people like me that is the real reason for the sorry state of race relations in this country.

This last point brought to mind John Quincy Adams (our sixth president, 1825-1829). The younger Adams served in the United States House of Representatives for many years after his presidency: from 1831 until his death in 1848 at the age of 80. In that phase of his political career he was one of the leaders of the Northern abolitionists.

Abolition of slavery would require amending the Constitution, and a Civil War en route to that. Congress by itself did not have the power to put an end to America's "original sin." But Congress did have jurisdiction over the District of Columbia, for which it served as governing authority. Resolutions to end slavery in the District were introduced in the House of Representatives, repeatedly, by Adams and others.

The First Amendment - that familiar repository of guarantees against infringement by Congress of the rights of free expression, free exercise of religion, and peaceable assembly - also guarantees the right "to petition the government for a redress of grievances."

During the few decades preceding the Civil War, petitions, from the people, demanding an end to slavery were brought before Congress by Adams and other northerners.

Such petitions provoked the ire of southerners in Congress, as did the resolutions to end slavery in the District of Columbia. Every resolution and every petition resulted in the parliamentary maneuver to table, meaning there would be no debate.

Southerners denounced these resolutions and petitions as divisive and declared that it was these, and not the institution of slavery, that constituted the real threat to the Union.

So, when I read the comments denouncing my post - and especially the one saying people who think the way I do are the real cause of America's troubles with racism - I could not help thinking of Congressman Adams.

[For those who love to read history, I recommend the scholarly and beautifully written biography of John Quincy Adams by Samuel Flagg Bemis.]

Racism as a Public Health Issue

Coronavirus-induced anxiety, fear, and frustration; unemployment rising to levels not seen since the Great Depression; and the boiling over of outrage at police officers who are brutal thugs with badges and blue uniforms have given us quite the incendiary concoction.

Mayors and governors must act swiftly, decisively, and meaningfully if we are to keep our cities from erupting in wildfires again and again in the coming weeks and months.

There will be no leadership from the top. We have a president whose delusions have risen to heights that are stunning, even for him: telling a reporter yesterday, on camera, that MAGA loves African Americans. While uttering this astounding lie, Trump simultaneously pours gasoline on every fire in sight, tweeting: "When the looting starts, the shooting starts.”

No, Mr. President, the shooting has been going on for quite some time. A decade ago Amnesty International reported that police in the US were killing people in numbers approaching one thousand per year. The British newspaper The Guardian is tracking the numbers and reported 1,136 in 2015. The statistics-monitoring website Statista reported that 1,004 people were shot to death by police in the US last year: 37% white, 23% black, 16% Hispanic, 24% other or unknown. The sheer numbers of us being shot and killed by police each year are horrifying. The disproportionate killing of people of color is unmistakable.

There are millions of people in the US who think they are not racists, who say they don't discriminate, that they are "color blind," but whose lack of depth of understanding of the history of the problem makes them comfortable sitting on the sidelines and shaking their heads at the overt racists but never doing anything to be part of the solution.  They think we have anti-discrimination laws, and that's all we need.  They think those laws are enough to allow blacks to pull themselves up by their own bootstraps and solve their own socioeconomic problems.  They think the obstacles to that have been removed, and nothing more needs to be done - and both of those notions are false.  They also think the police officers who have been involved in the murders of men like George Floyd are just a few bad apples.  They have no idea how many white police officers have deeply ingrained racism when they join the force, how many have pathologically authoritarian personalities, or how pervasive is the practice of "over-policing" of communities of color.

We are told that "blue lives matter." Of course they do. Yet we cannot ignore the grim statistics. The lives of Americans killed by police matter, too. We must pay attention to these - and ask how many of these killings were genuinely justified, truly unavoidable.

I have long thought this nation could erupt in bloody revolution over economic inequality. I still think that is so, and I am starting to believe that our stubborn refusal to seek racial justice earnestly, with determination and seriousness of purpose, could be the match that sets America aflame.

What do Vladimir Putin, Kim Jon-un, Recep Tayyip Erdoğan, and Xi Jinping have in common?

All are admired by Trump - for their authoritarian style.  He describes this as being "a strong leader.”

Trump's idea of being a strong leader is becoming clearer lately.  He encourages law enforcement to treat subjects roughly.  He is inclined toward having the Secret Service use "vicious dogs" and "ominous weapons" in dealing with protestors.  He calls governors weak who search for ways to replace violence and looting with conciliation.  And he appears eager to use the US military to quell civil unrest, using the Insurrection Act of 1807 - which has most recently been invoked in response to the Los Angeles riots after the acquittal of police officers who had participated in the videotaped beating of Rodney King, and before that during rioting that occurred in 1968 following the assassination of the Reverend Dr. Martin Luther King, Jr.

Unlike the governors he scorns, Trump has no interest in conciliation, or in addressing the institutionalized racism of American society, or in making the fundamental changes we need in the way police interact with communities of color.

This is not the presidential leadership America needs.  No, instead Donald Trump offers a response to a nation gripped by racial violence - that predictably erupts when an oppressed minority is brutalized yet again as it has been in this country for four centuries - that is authoritarian in character and fascist in ideology.

We need mayors, county officials, and governors throughout the USA to reject Trump's dark vision and find positive ways to meet the demands being made in these protests.  The refrain we hear echoing throughout the land is "No justice, no peace."  We must not allow the president to respond to that cri de cœur with yet more brutal force.

We must press the cause of justice so that genuine peace is attainable.

Thomas Jefferson's "fire bell in the night" is ringing.