Topic: Law and Civil Liberties

South Carolina Makes a Mockery of Informed Consent

Yesterday the South Carolina House passed a bill mandating that women seeking abortions sign a sworn statement that they have seen an ultrasound of their fetus before having the abortion. Rep. Greg Delleney, the sponsor of the bill and a Republican from Chester, said, “I’m just trying to save lives and protect people from regret and inform women with the most accurate non-judgmental information that can be provided.” This is an amendment to the existing South Carolina informed consent law that requires doctors to give women information about fetal development and alternatives to abortion.

Informed consent is probably the most important principle of modern medicine. Its purpose is to enable autonomous decisionmaking. The South Carolina ultrasound law does everything but empower the patient. Offering a woman the option of an ultrasound as part of the informed consent process or doing one that is medically necessary is understandable, but forcing her to watch one as a prerequisite to having an abortion is an abuse of the informed consent process. The scene in A Clockwork Orange where Alex’s eyes are forcefully held open as he is shown images intended to recondition his social behavior comes to mind.

I believe abortion is morally wrong, but I also believe that current U.S. law correctly recognizes that, in a conflict between mother and fetus, the woman’s rights take precedence over those of her fetus. A human being’s rights under the law increase with maturity. That has been the tradition under Anglo-American law as well as worldwide for most of history.

The suggestion that a fetus should have the same legal standing as an adult is not only unprecedented, but unacceptable. In balancing the rights of fetuses with those of their mothers, women’s rights must always take priority; otherwise the law is treating women as second to, or of lesser value than, the fetuses they are carrying – the law would be treating women first and foremost as communally owned vessels for bringing forth life and only second as autonomous individuals.

For those, like myself, who believe abortion is fraught with moral difficulties, the correct course of action is to teach, communicate, and discuss our views with our daughters, our female neighbors, and our friends. We must use the strength of our convictions and good clear reasoning to help them come to the right conclusions. To force someone to carry a pregnancy to term and give birth unwillingly is not far from slavery, no matter what the rationale. Pregnancy and birth are the most dangerous things most women will ever do in their lives. Not to give them the choice to escape those dangers, let alone plan their lives, is to treat them with the greatest disrespect.

There is no question that decisions about abortion are horrendously difficult, but the mere fact that such decisions are difficult doesn’t mean women aren’t fit to make them, or as is required by the South Carolina law, that women must be forced “for their own good” or “for the good of their fetuses” to undergo an unnecessary procedure and view images, as Alex was in A Clockwork Orange, that they don’t wish to see. Life is fraught with difficult decisions, many of them involving life and death. Men make decisions about how to protect their families and their way of life – unfortunately sometimes those decisions involve going to war and killing innocents. Women, like men, make decisions about what is best for their families and their way of life — unfortunately sometimes such decisions involve abortions.

It is a perversion of the concept of informed consent, let alone an unconscionable intrusion into the doctor-patient relationship, to impose a medically unnecessary procedure on women seeking abortions. Fetuses are potential children, not full grown adults, and women are full grown adults, not children. It is time we start treating both with the respect and dignity they deserve.

Chemerinsky on Parker v. District of Columbia

On March 14, The Washington Post ran an op-ed by Duke law professor Erwin Chemerinsky. I sent the following letter to the editor in response:

Prof. Erwin Chemerinsky claims [“A Well-Regulated Right to Bear Arms,” March 14] that the federal court of appeals for the D.C. Circuit “interpreted the Second Amendment as bestowing on individuals a right to have guns,” and as “creating a right for individuals to have firearms.” Yet the court took great pains to explain that the amendment neither creates nor bestows the right to keep and bear arms. According to the court, “The wording of the [amendment] indicates that the right to keep and bear arms was not created by government, but rather preserved by it,” and that it is “a right that pre-existed the Constitution like ‘the freedom of speech’” [emphasis in original].

The fact that both Prof. Chemerinsky and the Post’s editorial page (which had previously criticized the court’s opinion) missed that laboriously made distinction suggests that they might have read the opinion more closely before criticizing it.

Prof. Chemerinsky also claims that even if courts conclude that the Second Amendment protects an individual right to keep and bear arms, the D.C. gun ban should nevertheless stand. He argues that the Supreme Court should not apply “strict scrutiny” to laws that curtail the right to keep and bear arms because he sees no reason to distrust legislatures in this area. Instead, he argues that the courts should apply the less rigorous rational basis test to such laws, which they have applied to laws restricting the constitutionally protected right to property. Chemerinsky concludes that the D.C. gun ban should be upheld as being “rationally related to achieving [the] legitimate government purpose” of reducing gun violence.

I see serious problems with Chemerinsky’s case. First, the Constitution gives no indication that some of the rights it secures should receive less protection than others. Second, even if one were to accept that premise, the right to self-defense is leaps and bounds more important than the right to property or the right not to be discriminated against by the government on the basis of race. Even if we accept that some constitutional rights are more equal than others, then by Chemerinsky’s rationale the courts should apply strict scrutiny because there is ample reason to doubt any legislative act that infringes on so important a right. Third, as my colleague Bob Levy points out, “In Carolene Products, economic and property rights are relegated to second-tier status, but the rights expressly secured by the Bill of Rights – like the right to keep and bear arms – get top billing. So Chemerinsky’s suggestion that rational basis applies is at odds with Carolene.”

Finally, the D.C. gun ban should not survive even the rational basis test. To do so, it would have to be shown that an effective prohibition on the use of firearms for self-defense is a reasonable restriction on the right to keep and bear arms. Such a severe law is not reasonable, because it leaves peaceful citizens defenseless against violent criminals. And neither is it a mere restriction of the right to keep and bear arms; it is outright repeal. If the rational basis test can be used to uphold the repeal of a constitutionally protected right, then neither that test nor the Bill of Rights have any meaning. Chemerinsky’s logic would allow the District to abolish private property so long as it had a “rational basis” for doing so.

Is Hillary 2008 like IBM 1984?

The Washington Post has a big story on a “viral attack ad” about Hillary Clinton that’s been viewed more than a million times on YouTube. Jose Antonio Vargas and Howard Kurtz report:

It’s a “mash-up” of Ridley Scott’s 1984 Super Bowl commercial that portrayed IBM as an Orwellian Big Brother and introduced Apple’s Macintosh as the bright new vanguard of computing. But now it’s Big Sister, Clinton, vs. the upstart, Sen. Barack Obama.

The ad shows the oppressed masses staring in unison at a huge screen featuring Hillary Clinton as phrases from her deadly “conversations” lull the viewer into a stupor. As she drones on, a young blond woman in athletic gear twirls with a sledgehammer, then hurls it into Clinton’s giant image.

The ad concludes with the tagline “On January 14, the Democratic primary will begin. And you’ll see why 2008 won’t be like 1984.”

The most interesting point in the Post story is that Vargas and Kurtz were unable to find out who created and posted the ad. It ends with a plug for Barack Obama, but the Obama campaign denies any knowledge of it. On YouTube, the creator claims to be 59 years old and gives the user name ParkRidge47. He or she didn’t answer emails from the Post. But Vargas and Kurtz note that Hillary Rodham was born in Park Ridge, Illinois, in 1947, which makes her 59 years old.

Did she post the video herself? It hardly seems likely. But then – just last night, on FX’s “Dirt,” an actress gained great notoriety, then sympathy, then career advancement after a graphic sex tape featuring her was posted on the internet. And after much investigation, it was discovered that she posted it herself.

Still, it surely wasn’t Clinton or her supporters. It was created by someone who prefers Obama. And it’s a great example of anonymous pamphleteering for the internet age. As Jonathan Wallace pointed out in a Cato study, that’s a tradition that goes back to Cato’s Letters and the Federalist Papers. But our modern election laws have tried to stamp out anonymity. All expressions of political support are supposed to be disclosed, reported, and regulated. But why do we need to know who created this great ad? If you take offense at it, create a better one in response.

America Ranks Only 14th in Property Rights Index

In an interesting new report, the Property Rights Alliance has published the first index measuring property rights. Not surprisingly, the report finds that nations with stronger protections of property rights also have more prosperous economies. It was discouraging to read, though, that America is tied for 14th place, behind welfare states such as Denmark, Sweden, and Germany (though the U.S. beat France):

…countries in the higher rankings of the IPRI are primarily advanced industrialized economies, particularly Western Europe (Scandinavia) and North America. Countries that show a weak performance with respect to property rights protection are African and Latin American nations, in addition to the Central European nations. … better performing countries (1st Quartile in ranking) enjoy, on average, a GDP per capita income of more than eight times their counterparts at the lower quartile of the Index. … citizens of countries in the top quartile in the IPRI ranking enjoy a per capita income that is more than seven times that of their counterparts in the bottom quartile. … the correlation between the IPRI rating and GDP per capita amounts to a value of eighty-nine percent.

DHS Privacy Committee Meeting Tomorrow

The DHS Data Privacy and Integrity Advisory Committee meets tomorrow (Mar. 21) at the Crowne Plaza Washington National Airport in Arlington. 

The morning agenda is heavy on REAL ID, and we’ll hear from Jonathan Frenkel, a Senior Policy Advisor at DHS who was one of the key officials responsible for writing the recently issued regulations.

REAL ID News and Views

An interesting report says that at least one member of the Carter-Baker Commission would not have signed on to its recommendation to use REAL ID as a voter ID card had she known more about it.

Meanwhile, the Boston Globe editorializes against REAL ID, calling it “unrealistic.”

Greater safety is imperative. But given its flaws, the Real ID law should be scrapped. The country needs to invest more thought, time, debate, and money into how best to upgrade driver’s licenses.

The State Department’s Misguided Money-Laundering Wish List

A couple of decades ago, there were no laws against money laundering. Instead, governments fought crime by…well…fighting crime. Then politicians came up with the idea of making it illegal to use the proceeds of crime. This was not necessarily a bad idea. After all, crime theoretically will be reduced by polices that either increase the expected punishment or lower the expected rewards. Unfortunately, anti-money laundering laws have been an expensive failure. They costs billions of dollars yet there is no peer-reviewed literature showing that they have any impact on crime. Heck, they don’t even stop crooks from laundering funds. Yet the myopic bureaucrats at the State Department publish an annual report hectoring other nations to make their anti-money laundering laws more intrusive and burdensome. Richard Rahn’s Washington Times op-ed reviews some of the sillier suggestions:

This month, the State Department has set a new record by managing to insult the citizens of 123 different lands at one time in the “International Narcotics Control Strategy Report: Volume II, Money Laundering and Financial Crimes.” The 450-page report discusses what other countries are doing to reduce money laundering and financial crimes, which is fine. But then the authors go on gratuitously lecturing each of the countries by name about how they could do things “better.” To understand the total hypocrisy of the State Department nags, it is important to remember that more money laundering goes on in the United States than anywhere else, and that the U.S. is the world’s biggest market for illegal drugs. The Report…is filled with endless demands that other countries do a better job enforcing their laws, pass more laws, sign more international treaties and engage in some practices that would be illegal and unconstitutional in the U.S. Many of the demands would not meet a reasonable cost-benefit test… Some examples: The Belgians “should strengthen the adherence to reporting requirements by some nonfinancial entities, such as lawyers and notaries,” so says State, while completely ignoring the importance of lawyer client confidentiality. …To the Germans they say, “Amend legislation to waive the asset-freezing restrictions in the EU Clearinghouse for financial crime and terrorism financing, so that the freezing process does not require a criminal investigation.” Perhaps, the folks at State Department forgot there are certain historical reasons why the Germans now insist on strong legal protections against a potentially abusive state. The Greeks (and others) are told, “Abolish company-issued bearer shares, so that all bearer shares are legally prohibited.” Maybe the State Department gurus were unaware that bearer shares are perfectly legal in some states in the U.S., such as Nevada, and can serve a sound economic and personal privacy purpose. The authors say the government of Dominica “should eliminate its program of economic citizenship.” But then again, maybe they were unaware that many, if not most, countries allow permanent residency and/or citizenship (including the U.S.) to noncitizens who invest a certain amount in their adopted homeland. …Singapore is told that it “should add tax and fiscal offenses to its schedule of serious offenses.” Perhaps again, it did not occur to the folks in State that the highly educated and prosperous citizens of Singapore are quite capable of figuring out for themselves which laws ought to be “serious offenses.”