Is the FDA a Case in Point?

The Covid news keeps coming, and I wanted to understand it better, especially as Omicron makes its way across the Atlantic, and as vaccine effectiveness declines. Who better to talk to than David Wallace-Wells, New York Magazine’s Covid specialist and environmental correspondent? He was on the Dishcast early this year, before the vaccines arrived, and he’s about as honest a broker on the pandemic as anyone. I also asked him to debrief Dishheads on the upshot of COP26, the recent Climate Change conference in Glasgow. I learned a lot — about the waste of solar panels and the potential of nuclear power to help us get past carbon more quickly.

You can listen to the episode right away in the audio player embedded above, or right below it you can click “Listen in podcast app,” which will connect you to the Dishcast feed. For two clips my conversation with David — on his sobering assessment of the vaccines against Delta, and on Biden’s bumbling on Covid pills and testing — head over to our YouTube page.

A reader looks back to last week’s episode:

I just listened to your podcast with Christina Sommers and Danielle Crittenden, and was pretty struck by your conversation with David Frum regarding President Biden. I’m a strong Biden supporter and am quite sanguine on his chances in 2024 (yes, I believe he will run if his health permits), so you can imagine I was more partial to Frum’s argument. But I’m wondering about your diagnosis of the prospects of his presidency. Do you think his situation is irreversible?

You can point to any number of two-term presidents in recent memory and find a moment in time where, if the election were held on a given day, the president would badly lose re-election. I wasn’t around for Reagan’s presidency, but didn’t things look pretty terrible for him in early 1983? A Harris poll taken in early January of ‘83 had Mondale trouncing Reagan. FiveThirtyEight has Reagan hitting the mid-30s around that time, quite a bit lower than where Biden is now. Before that, by mid-1982, he was where Biden is now, polling-wise.

You could say the same of Bill Clinton’s first two years. It strikes me that few mention his inglorious dip into the mid-30s only a few months into his term, again per 538. Then there were Clinton’s low-40s averages heading into the 1994 elections, the collapse of one of his signature legislative pushes, and his infamous drubbing at the hands of Newt Gingrich. Was it considered likely at the time that he would skate to re-election just two years later?

I feel like citing H.W. Bush’s soaring public approvals in his first three years and his incredible collapse in 1992 is a cliché at this point. And of course Obama had his highs and lows, and spent much of 2011 treading water roughly where Biden is now in terms of his poll numbers — to say nothing of his total collapse after his first debate with Romney and rapid climb back to the lead just in time to clinch re-election (yes, I was around for your reaction to that!).

I guess my question is, knowing that ultimately successful presidents can recover from political lows and have, why do I get the sense that you think Biden’s condition is terminal?

Because of his age and declining abilities. This is no reflection on him: he’s pretty remarkable for a 79 year old. But his speeches lack fire and focus; he’s background noise in our politics; he keeps making gaffes, including a rather dangerous one on declaring support for Ukraine; he has allowed himself to be defined, fairly or not, by the far left. Cognitive ability declines sharply around 60. In 2028, which would be Biden’s final year in office if re-elected, he’d be 86, my mother’s age. Yes, Trump would be 82. But Trump has the energy and passion of the mentally ill — and I just can’t see Biden matching that even now, let alone in nearly a decade’s time.

Another reader sounds the alarm for Biden and his party when it comes to America’s schools:

The NYT posted this today (“Schools Are Closing Classrooms on Fridays. Parents Are Furious.), and I suspect it’s going to be the main theme in the midterm elections: parents and schools. We saw this play out in Virginia and NJ last month and it seems to be intensifying.

Here in Portland, there is a serious battle going on with the Teachers Association and the school district. The teachers have proposed making Fridays a self-learning day for the remainder of the year. The school district is pushing back, particularly based on parent backlash. And the Oregonian newspaper has come out against the proposal as well.

I think everyone sympathizes that teachers are undergoing an extremely difficult time, particularly with all the behavioral issues kids are having. But I can tell you that every parent I know is gobsmacked at the thought of returning back to online learning. There have to be other solutions. We can’t go back to having kids at home. 

I don’t think this has fully resonated with Democratic politicians, even after the backlash last month. While there’s been a lot of focus on CRT, just the fact of what parents have been dealing with the past 18 months of schools closings has been such a nightmare. I think this NYMag article was spot on about how blind the Democrats were to this issue, especially in New Jersey. This February article in The Nation about the situation on the West Coast was haunting and I haven’t been able to get it out of my head.

I don’t want to compare myself to other people, but as a parent, the past 18 months have been the hardest of my life. Every day is just holding things together and the impacts to kids are going to be felt for many years. What I’m just stunned about is how absent the Democratic leaders are on this issue. There’s a rage amongst parents right now that we feel unheard and are desperate. I feel like we’re headed towards a blowout midterm election that’s going to exceed what happened to the Democrats in 1994. And you can’t say they weren’t warned.

Tyler Cowen predicts that even a mild wave of Omicron will cause chaos in the schools. I remain unimpressed by the cheering-up we’ve been exposed to recently about Biden’s future. Inflation is at a 40-year high; the Southern border is chaotic; we are still losing around 400,000 Americans a year to Covid and 100,000 to fentanyl and other opioids. Murder rates are through the roof — and are exacerbated by Democratic DAs refusing to prosecute violent criminals and keep them off the streets. Trump, meanwhile, has cemented his hold on an increasingly deranged GOP. Yes, there’s a long way to go. Yes, things can turn around. Yes, some strong aspects of the economy will become clearer over time, if we’re lucky.

But if you think this administration isn’t in serious trouble, you’re dreaming.

Next up, a collection of reader comments on last week’s column, “Why Roe Will Fall And Obergefell Won’t,” continued from our main page this week. First a dissent:

I hope you’re right that Obergefell won’t fall, but I have my doubts. Three of the Justices who voted against Obergefell — a narrow 5-4 decision, compared to Roe’s 7-2 — are still on the Court: Roberts, Alito and Thomas (and Roberts wrote a pretty scathing dissent). Do you really think that there aren’t two of the new Justices (good Catholics all) who wouldn’t join the three still there to overturn the Obergefell decision? And you really believe that public opinion will change their long-held beliefs that not only is gay marriage wrong but probably that gay relationships are too?

I have no reason to think that John Roberts believes that gay marriage and gay relationships are wrong. I scoured Google but didn’t come up with anything. Alito seems quite hostile on religious grounds, but it seems important to me to distinguish constitutional arguments with moral ones. Another dissent:

As you know, the modern consensus on substantive due process posits that people have unenumerated fundamental rights in the Constitution that courts are obligated to protect. It’s the principle that undergirds everything from Griswold v. Connecticut to Roe to Lawrence v. Texas to Obergefell.

Right now there are six legal originalists on the Court who simply believe this consensus to be based on a flawed premise. If the Constitution is silent on the issue, be it abortion or same-sex marriage, they believe it’s a political question that must be handled by legislatures. To them, it doesn’t matter if the political issue at hand is popular (like gay marriage). If a majority on the Court feels the whole root of Roe is rotten, why wouldn’t they want to cut down the whole tree? Alito and Thomas have already indicated they want to revisit Obergefell, after all.

That’s why I find your position so naive. The conservative movement has been candid that once Roe goes, and the legal concept of substantive due process with it, they intend to do away with the rest of those domestic political issues we consider settled. A few months ago, for example, the Texas solicitor general submitted an amicus brief suggesting that the Court leave Lawrence and Obergefell “hanging by a thread,” adding that those two rulings, “while far less hazardous to human life, are as lawless as Roe.”

Furthermore, the pro-life movement openly espouses that certain forms of popular contraception (namely the birth control pill and IUDs) constitute abortifacients and should be banned. When the Court overturns Roe, red-state legislatures will redefine fetal personhood to begin at conception, which could functionally ban those forms of contraception.

So the issue is not just abortion, which may or may not be morally unique. It is the entire platform of “social ills” that the religious right believes are morally indistinguishable from abortion.

A big question with marriage equality, unlike abortion, is that hundreds of thousands of couples are now legally married. That’s a lot of facts on the ground that cannot be abolished overnight. Undoing those civil marriages would be a nightmare; and simply drawing a line under them, and banning all future marriages seems downright bizarre. It’s not impossible. And maybe I’m too complacent. But I think it’s a log shot.

This next reader gets more personal:

I agree with you that abortion is an incredibly complex ethical issue, and the tendency of some on the far left to treat it as no different from a trip to the dentist is facile and off-putting.

However. I’m a woman who has willingly had three children, and it’s hard to put into words the visceral horror inspired by the thought of being forced to go through pregnancy and birth against your will. Opponents of abortion tend to gloss over that bit with the “just adopt” argument. Pregnancy — and particularly the birth itself — can damage your body in ways that last the rest of your life. Incontinence, prolapse, and serious perineal tears are all routine.

In fact, for most healthy women, pregnancy and birth will be the most risky medical event in their lives. Some women do still die in childbirth in America — especially poor and black women, who will be overwhelmingly the most affected if Roe is overturned. We all know that if abortion rights become state by state, rich women will have no trouble traveling to procure an abortion; it will be poor women who pay the price.

Forcing a woman to bring a pregnancy to term is inhumane and unacceptable — even if it is the will of the majority of people in conservative states.

Another reader points to “one missed nuance in your good Roe/Obergefell piece”:

When you write, “when it does not concern an easily-outvoted minority,” and when you explain why abortion isn’t strictly a “women’s issue,” you elide something that needs confronting. Abortion does in fact concern an easily-outvoted minority: women currently of childbearing age at any given time. And an even smaller minority: women actually pregnant and affected by the question in a way no one else is.

I do believe that abortion is a taking of human life, and it’s a moral question that concerns us all. (I would say the same of warfare.) However, I’m reluctant for majorities to have unfettered say over a contested moral choice that affects the one person making it (or barred from making it) in such a fundamentally different way from the others who may vote on it without consequence to themselves.

I don’t assert that the Constitution confers the right of the pregnant woman to be the complete arbiter of her own choice, or the complete arbiter of her unborn child’s right to life. But I do feel her ethical claim on that position is the strongest one. I would limit the voice of the community to defining limits — for instance, the tradition-supported idea of “quickening,” or the Roe-imposed idea of “viability,” or the right-supported idea of waiting periods for enforced reflection on the choice. 

I think the Roe court used some particularly unfortunate and contrived reasoning, and I agree that it contributed to a grievous period of political polarization over an institution that historically helped us avoid that very ill. But the court’s conclusion was correct.

That’s pretty close to my own position. Another reader worries about the Court going much further than overturning Roe:

I’m pro-choice. If all the Supreme Court does is overturn Roe, I’d call it an extremely good day for the pro-choice movement.

What’s the point of being anti-abortion and learning that the Court overturned Roe, only to find that some states decide to make it cheap and easy to have abortions —either because it’s truly the will of the people, or because they cynically found a way to get huge revenues out of a “come-one, come-all” policy? Do you think anyone on the anti-choice side would be happy if “states rights” and the “will of the people” prevailed and the number of overall abortions remained steady?

So I don’t think that Roe will be overturned, or even very limited, if the Court cannot find a way to ban all abortions everywhere.

The bad news is I think there is a way. The conservative justices could use the logic of the so-called Human Life Amendments, one of which failed an initiative vote in Mississippi. The justices could find a 14th Amendment personhood right in the fetus and issue a total ban on abortions. If the fetus is a person, and especially if a viable fetus is a person, then well, you can’t kill people. And if you can’t figure out when viability begins, then you have to say that viability begins at procreation.  Goodbye Roe. Goodbye Griswold. Hello using the entire police power to prevent abortions.

Another reader backs my argument that Roe is very vulnerable when compared to Obergefell:

The parallels between laws regulating abortion and sexuality restrictions were drawn by Yale Law Professor John Hart Ely rather shortly after Roe was decided (emphasis mine):

[O]rdinarily the Court claims no mandate to second-guess legislative balances, at least not when the Constitution has designated neither of the values in conflict as entitled to special protection. But even assuming it would be a good idea for the Court to assume this function, Roe seems a curious place to have begun. Laws prohibiting the use of “soft” drugs or, even more obviously, homosexual acts between consenting adults can stunt “the preferred life styles” of those against whom enforcement is threatened in very serious ways. It is clear such acts harm no one besides the participants, and indeed the case that the participants are harmed is a rather shaky one.

Yet such laws survive, on the theory that there exists a societal consensus that the behavior involved is revolting or at any rate immoral. Of course the consensus is not universal but it is sufficient, and this is what is counted crucial, to get the laws passed and keep them on the books. Whether anti-abortion legislation cramps the life style of an unwilling mother more significantly than anti-homosexuality legislation cramps the life style of a homosexual is a close question. But even granting that it does, the other side of the balance looks very different. For there is more than simple societal revulsion to support legislation restricting abortion: Abortion ends (or if it makes a difference, prevents) the life of a human being other than the one making the choice.

I recommend the entire piece.

Another recommendation:

I wonder if you’ve come across Ronald Dworkin’s piece “Slow and Steady,” where he compares and contrasts the issue of abortion to that of gay marriage. Dworkin suggests that because opinions on gay marriage were allowed to evolve largely through the political process (a state-by-state basis), it allowed social change to be achieved in a manner where a new consensus was established and the broader institution of marriage for gays was secured, by and large, through POLITICAL consensus and legislation, as opposed to judicial fiat. He contrasts this with abortion, arguing that with Roe,

a universal right to abortion was speculated into existence and applied to the whole country. A theory imagined out of thin air, or at least from a novel interpretation of the Constitution, replaced the slow but steady process of acclimatization that goes hand in hand with accepted social change. For many conservatives the move seemed tyrannical; more important, it infuriated millions of religious Protestants, who adopted the new “family values” motto. The country has been fighting over abortion ever since.

He goes on to suggest that the issue has become so polarising precisely because opinions were not able to evolve through the legislative process but was short-circuited by SCOTUS, thereby radicalising the Christian Right.

I think you’re right: Roe is probably gone in all but name (and possibly completely overturned), which won’t bring us back to the days of the backstreet abortionists or abortions via coat-hangers, but will evolve on a state-by-state basis. Yes, that means it will disproportionately impact poor people and people of colour. At the same time, it’s worth noting that the American abortion laws today are more liberal than almost every other country in Europe. As Gerry Baker notes in the Times of London:

The Mississippi act before the court would do no more, in fact, than bring that state’s law into line with the prevailing legal conditions for abortion in 39 of 42 European countries, including such notorious abusers of women as Germany and Denmark. So the idea that the present legal framework in the US is the only way to protect a woman’s right to a safe and legal abortion … is palpable nonsense, and demonstrated to be so by the practice of at least 191 other countries that don’t resemble the Republic of Gilead.

So, yes, it will be a messy process and it may well be the case that the Supreme Court takes a huge hit. But even Ruth Bader Ginsburg recognised that the legal reasoning behind Roe was highly flawed, so perhaps this will be a case of reculer pour mieux sauter.

This next reader is confident that abortion will remain legal because of the huge cultural shift toward premarital sex:

I think that both Roe and Obergefell reflect changes in attitudes about sexual morality. As of 1960, premarital sex was still widely viewed as wrong. For a young unmarried woman to get pregnant was getting “caught” doing this wrong thing, and abortion was a cover-up. Laws against abortion were consistent with reinforcing the norm against premarital sex. 

Very rapidly during the 1960s, premarital sex became widely accepted. To the extent that laws outlawing abortion are punishment for premarital sex, they punish something that is no longer considered a crime. I think that tolerance for premarital sex is what made Roe possible, and I don’t see that changing.  

Today, I would speculate that the minority who are adamantly anti-abortion are comparable in numbers to the minority who are adamantly against gay sex. The anti-abortion forces are better organized and more relentless, and of course they understand that they cannot base their case on hostility to premarital sex. But they are very much outside of the mainstream. If Roe falls, I predict that the political fallout will be bad for anti-abortion politicians. They are better off seen as unsuccessfully flailing against the courts than seen as taking us back to the infanticide of  “Ode to Billie Joe.”

Another reader challenges the “choice” rhetoric of those supporting abortion:

One aspect of the “pro-life” vs “pro-choice” debate I never really see considered is what “choice” exactly are we talking about as being relevant to the discussion. The vast majority of abortions occur following a “choice” to have consensual sex, whereby getting pregnant is a real outcome no matter what sort of contraception you use. This study indicates something in the order of 1% of abortions are due to nonconsensual sex/rape. I’m not trying to belittle all the other reasons for having an abortion, but the fact is the vast majority are due to consensual sex.

Inherent in the choice two people make to have consensual sex is the real possibility that pregnancy may be a result. Surely this is (or should be) understood and receive a greater emphasis in public dialogue, regardless of how inconvenient the consequence is. I guess I would argue that if you aren’t willing to accept the outcomes of “rolling the dice,” perhaps you shouldn’t be rolling the dice in the first place. To me, this is part of a wider issue in society where people could benefit from taking more responsibility for their actions rather than trying to offload consequences or look for quick fixes.

Well, yes. Point well taken. I do think that the serious pro-life position would be super enthusiastic about making birth control far more accessible to avoid unplanned pregnancies. And yet, my own church takes the polar opposite approach. Another socially conservative view:

Another reason why the abortion debate is messy is that it strikes at the heart of familial responsibility. To many people, asking a mother to endure nine months of pregnancy isn’t that different from forcing a father to endure say 18 years of blood and sweat working in a factory so that he can pay child support. All child-support laws, essentially, make the parental body an indirect resource for the familial child. 

“Pro-choice” is tantamount to saying absent fathers should have the ability, during pregnancy, to opt-out of child support laws if they choose, all without the women’s say. If that sounds disgusting, you are now closer to the instinctive reaction many have to pro-choice abortion laws in general. Abortion fundamentally destroys family obligation.

Another reader on the role of men:

My reasons for agreeing that abortion is not strictly a women’s issue is that the decision to bring a baby into the world affects an entire family: the father of the child that may be born, of course, but also what would be the siblings (at least half of women having abortions are already mothers), and any relatives who may need to support the woman, which may be a male relative. It is for this reason I think it has been a huge mistake for pro-choice activists to tell men they can sit this one out.

While I could find no statistics about the number of men who are grateful that their unplanned pregnancies were able to be terminated, I’m confident that most men are very happy they were not forced into fatherhood (or into being grandfathers or uncles, for that matter). My husband definitely feels this way about the abortion his ex-girlfriend had. 

A final reader digs into some interesting history behind the word “person”:

Your column contained a throwaway statement that it’s “unknowable” when the fetus becomes a person. When I am talking about abortion with non-believers, I always use the term “human being” rather than “person” because words carry their origins and baggage around with them, and the word “person” was invented or recast by the Catholic Church to define relations among the Three Persons of the Trinity.  

You may know all this already, but under Roman law, a “person” was a Roman citizen. The word “person” derived from a word meaning “mask” or (by extension) “public role.” You were a person when the state recognized you as such. Because slaves were not legal persons, “personhood” was part of a caste system in which legal status became confused with humanity. Slaves were not legal citizens, and so it was easy to think of them as also less than human.

In the controversy over Christ’s nature that occasioned the Council of Nicaea, the Roman term “persona” was recast to mean something more like what we call “personhood.” This was to help explain that God was Three Persons but One God. It was much richer philosophically and theologically than the Roman term. 

Thus the Christian concept of “person” entered Western culture and Western law. Christianity teaches that every human “person” is an image of God — and furthermore, that all human beings are, in fact, human persons. This second statement is not automatically derived from the first according to human reasons alone, since pagan cultures did in fact consider some human beings “sub-human” and/or not legally “persons.”

So that’s why I don’t use the term when talking about abortion to non-believers. I prefer to anchor the right to life in the rights of all “human beings,” which is more of a Greek philosophical term without as much theological baggage. I believe human rights accrue to all human beings from the moment of conception, period. So whether or not we know “when” a human being “becomes a person,” we DO know (because science has told us without equivocation) when an individual human life begins. You’re probably familiar with some of the quotes by embryologists at this link, regarding when human life begins.

Those who get hung up on “personhood” often confuse it with sentience or consciousness, which opens some ugly doors regarding whether people in a coma, with brain damage, or genetic conditions such as Down syndrome are “persons.” Just look at what Justice Sotomayor said recently comparing fetuses to brain-dead people.

In short, for persuasion purposes I would rather locate the universal right to life in being human rather than in “personhood,” even though I agree that human persons are images of God and thus sacred. I would rather make others argue why some human beings are less than human or don’t deserve human rights, than make them argue that they are human but aren’t legal “persons.”

I take the point. I use the word “person” in the modern Catholic sense: an inviolable, unique soul in a unique body. That’s also why I was so struck when the Catholic hierarchy applied the term to homosexuals.

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