Friday, March 3, 2017


        Steve Pearce, Congressional representative for District 2, was on my mind last week.  I read reports of his sneaking out the back door of his Las Cruces office to avoid loud but non-violent protestors at his front door.  I commented tartly about a man who touts his combat record without the courage to confront his constituents and asked how he can represent them without knowing in some depth what their views are.

A few days later, I visited his office to get more detail on two issues—healthcare and immigration—than his website provides.  I received a warm welcome from Joe Martinez, who tells me that he is a Democrat serving in Pearce’s office to help veterans as Veterans Service Director.  He invited me to discuss my issues with him, and we had an extended discussion on those issues and two others.  Joe is an excellent listener and, I believe, gave honest responses, especially when I surprised him on one big issue new to him.

I made one common argument for healthcare reform—do not replace what is not really broken; repair what needs tweaking—and immigration.  I noted that until about 35 years ago, illegal immigration from Mexico was regarded as a misdemeanor, like a parking ticket.  I added that it made no sense to severely punish people for what had been a minor infraction of the law until politicized, especially since most were contributing members of society and have a lower crime rate than the rest of the population.

I then went on to mention the need for veterans to have an ID card identifying them as such.  I cannot get one from the Veterans Administration because it issues cards only to those who qualify for VA (health) benefits.  Like millions of others, I am lucky enough not to qualify, and I am glad that any distribution which might otherwise to me (as an entitlement?) goes to those who need it.  But it is awkward to carry a folded copy of my discharge paper (DD 214), unknown or unfamiliar to most people.  Joe told me that both houses of Congress have approved such an ID but that a lack of several million dollars to implement the law holds it up.  I suggested that Congressman Pearce push to earmark a few million dollars from Trump’s proposed $55 billion increase in defense spending for that purpose.

Finally, since Joe was such a receptive listener, I added a forth issue, one part of which I knew was near and dear to Congressman Pearce’s heart, religious freedom, and one part of which I knew was important to him but not, in his mind, connected to the other part, abortion.  I asked Joe if he had read Justice Blackmun’s majority opinion in the Roe v. Wade case; he said that he had not (despite all the fuss and bother about it, most people have not).  I told him that the Justice surveyed the positions of different philosophies and religions before dismissing them as offering answers to a question about when life begins, which he did not feel the Court had to answer.  My comment was that the moment Blackmun placed abortion in this context of a multiplicity of different religious answers to that question, he should have realized that any stipulation of law curtailed someone’s freedom of religion and constituted an establishment of religion—both prohibited by the First Amendment.  He should have put on the judicial brakes and declared that no abortion law can avoid such violations of the Constitution.

I supplied some relevant background information on abortion.  I noted not only religious differences about the beginning of life, but also shifting views even within a religion.  For example, the Catholic Church used to accept the view of Saint Thomas Aquinas that life begins at quickening, or ensoulment; then changed its position in the nineteenth century; but only became politically active in opposing abortion around and after mid twentieth century.  The reason: advances in medical science which increasingly made the unborn prematurely birthed or delivered viable.  Science cannot and should not decide religious questions; indeed, many Christian fundamentalists who appeal to science in the case of abortion reject science when it comes to evolution or cosmology.

I give Joe a lot credit; he recognized the conflict between a belief in religious freedom and opposition to abortion.  I said that Pearce, if he addressed the issue honestly, had to decide whether he was an elected representative sworn to uphold the Constitution or a religious partisan seeking legislation giving federal and state governments the authority to impose his religious beliefs and practices on all others—many Christians, most Muslims, all Jews—, to violate their consciences, and to deny them rights guaranteed by the First Amendment.

Whether Pearce can or will address, much less answer, this question honestly, is doubtful.  An elected representative who flees his constituents is not someone who holds himself accountable—that is, reports, and takes responsibility for, his views—, who has and can articulate defensible positions, or who has the courage of his convictions.  As a member of the GOP’s Freedom Caucus in the House of Representatives, Pearce is likely a rabid ideologue on this issue (as on so many others).  So I expect little, cannot be greatly disappointed, but could be greatly surprised.

Saturday, February 4, 2017


Almost exactly four years ago, I wrote about New Mexico as a failing state with a third-world economy  Little has changed.

The state has few resources, which it squanders on piecemeal legislation.  State budgets and other legislation address local short-term interests like construction projects or infrastructure repairs to serve their re-election, invest in “silver-bullet” boondoggles, or offer various incentives to lure companies to the state for the sake of employment in no- or low-skilled jobs.

This pro-business strategy does not ameliorate, but aggravates, the state’s continuing problems: employment, education, health, poverty, and more.  The net of lower or deferred taxes—forget relaxed regulations and other benefits—for corporations, and of increased personal income taxes from additional low-wage employees is probably about zero.  As part of a five-year deal for corporate benefits, Intel agreed to make fifty percent of its new annual hires New Mexicans.  It failed in three of those five years (as I quip, it could hire only so many janitors and dieticians); I doubt that the costs of its incentives were offset by the taxes paid by these additional employees.  Rumor has it that Intel, after reducing its workforce, is soon to leave altogether—a signal to high-tech, high-wage-paying companies that New Mexico lacks the workforce to support them.  More of the same strategy will do no better.

Republican Susana Martinez has done a good job of delivering more of the same and much which is worse, like disrupted or diminished health care services.  However, she differs from her predecessors of both parties, like Democrat Bill Richardson, only in degree.  They operated no differently and changed nothing for the better; so it has been for decades.  To be fair to the governors, the longer serving the legislators, the greater their share of responsibility for the state’s continuing failure during their tenures.

With its services continuing to deteriorate both absolutely and relatively, New Mexico do not need more stop-gap funding or legislation, ideological purity, partisan warfare, or political posturing—probably an impossibility in the state’s predominant culture.  What it needs, more than anything else, is what does not exist in the state: an independent, “bi-partisan” group to do long-range planning which would identify and prioritize long-range goals and which can secure long-term commitments based on probable results.

The strategic plan would begin with the acknowledgement that the state’s workforce supports a third-world economy of no- and low-skilled workers in agriculture, mining, construction, tourism, and, for modest-income retirees, low-cost housing and sub-par health-care facilities and services—not the wave of the future economy.  If the state is to be anything better than a ward of the federal government, from which it gets about $7000 per capita more coming in than going out, it must have a workforce to attract high-tech businesses doing more than locating their low-tech, low-wage call centers here.

The implication of these facts is clear: The first priority—a very long-range one of no fewer than 20 years—is education.  That education must stress academic excellence in all fields, not just an emphasis on STEMH subjects (which still remain sub-par).  To this end, the state must do four things: (1) Develop curriculums which are inclusive and properly structured and sequenced.  The state does not have them; I suspect that it does not want them because they would provide standards of teacher competence.  (2) Require Schools of Education (SOE) to ensure that graduates are competent to teach the subjects required by the curriculums.  At present, by stressing methods, they scant subject-matter mastery, with the result that elementary school teachers in particular are not competent to teach the subject which they introduce.  The decades-long record of poor educational results after just the first five years in school (K-4) should have prompted reforms long ago.  (3) Require all prospective teachers, including non-graduates of SOEs like veterans or career-changers, to get their license from passing independently developed, administered, and graded tests.  And (4) consolidate school districts and reduce the number of post-secondary educational institutions.  I have heard that New Mexico has more educational institutions (K-16) per capita than any other state in the union, yet it achieves very poor results.  These facts confirm my belief that educational institutions are numerous and ineffective because their fundamental purpose is employment, not education.  So long as educational institutions staff themselves to provide jobs, many for the marginally qualified, neither employment nor economy will ever be any better than they are now, and the gap between New Mexico and the rest of the states will widen, aggravating its deplorable situation.

The state needs a long-range, comprehensive plan to improve its lot.  Otherwise, it might as well revert either to its original status as a territory or to today’s status as a dependent or protectorate of the federal government.

Wednesday, January 11, 2017


[Note: This blog (version 16-12-25) substantially revises an earlier one on this topic.]

The prospects for Constitutional protection of a woman’s right to choose (understood hereafter: or not choose) to have an abortion are promising for opponents and perilous for supporters of Roe v. Wade.  Justice Henry Blackmun’s 1973 majority opinion has failed to persuade many in the legal community that it is solidly grounded and soundly reasoned.  Its inadequacies have provided the means to complicate the issue and make it conflict-prone ever since.  Its history has been a tangle of medical, administrative, or financial laws or regulations restricting the right or its exercise at the state level, and requiring judicial affirmations, revisions, or reversals at all levels of state or federal judicial systems.  Intensified efforts to erode the decision and increased odds of judicial nominations picked to reverse it put Roe v. Wade and abortion rights at great risk.

One understandable response by advocates to this growing threat has been to rally in support of Roe v. Wade.  For over 40 years, it has been the guardian of abortion rights and a symbol of women’s liberation.  As such, it is not easily abandoned.  However, the current situation argues that the time has come to re-think the basis of abortion rights, first by critiquing the deficiencies and defects of Blackmun’s opinion, then by identifying a strategy to counter the arguments of its judicial, political, and religious opponents.

The abortion conflict has been a struggle on many battlefields between those arguing and acting on political convictions and those arguing and acting on religious convictions.  But this political-versus-religious divide is a false dichotomy.  Abortion is a religious matter of belief and practice, inherently a matter of conscience.  Advocates of abortion rights could attract support and disarm anti-abortion opposition by arguing that the right to religious freedom protects abortion rights.  They would force opponents to argue the supremacy of their religious convictions and, by court decision or state legislation, the right to impose their convictions on others.  Accordingly, this paper urges that advocates shift their reliance from the privacy argument of Roe v. Wade to an argument based on freedom of religion and from an establishment of religion under the First Amendment.


Blackmun’s majority opinion summarizes the legal, medical, and religious histories of abortion, with accounts of historical practices worldwide, English and American legal and medical traditions, and philosophical and religious beliefs, but makes little use of them.  On the one hand, his opinion, noting decisions discovering a right to privacy in various Constitutional amendments—First, Fourth, Fifth, Ninth, and Fourteenth—regards the Ninth and Fourteenth sufficient to ensure a woman’s right to choose an abortion.  On the other hand, his opinion limits a woman’s privacy-based right by a state’s right to protect the increasing “potential for life.”  Blackmun defines this “potential” by a trimester division of pregnancy (weeks 0-12, 13-28, 29-40) reflecting the then-existing knowledge of unborns’ development and their ability to survive outside the uterus at various stages of gestation, or their viability.  His opinion thus asserts both a woman’s right and a state’s right—with the result being unending attacks on or defense of Roe v. Wade and inflamed conflicts between women and many state governments.

Blackman’s opinion has major defects.  One, it disregards the acknowledged diversity of philosophical and religious beliefs defining life and its beginning.  Blackmun writes:

We need not resolve the difficult question of when life begins.  When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer....[All Jews and many Protestants have given] strong support for the view that life does not begun until live birth.

Obviously, the judiciary should not speculate about the answer; equally obviously, it should not stipulate one.  But it does, by commingling two distinct issues.  The first is a matter of religion: when does life begin—at conception, at quickening, at breach; the second is a matter of medical science: when is life ex-utero possible, and is the possibility independent of medical support or dependent on medical intervention.  Without offering an explicit rationale, Blackmun prefers the answer of science to the answers of religion.  His preference apparently reflects an assumption that the definition of medical science can provide a reasonable response to irreconcilable religious differences about abortion.  This assumption is wrong.  Scientific definitions of the beginning of life are stipulations serving scientific methodology, not setting standards for deciding non-scientific issues.  And his preference, far from being reasonable, implies coercion.  Since any scientific answer to this religious question corresponds to the religious convictions of only some, not all, women, invoking science as the standard presumes to tell other women that it properly dictates how their religion should define the beginning of life.  Blackmun’s preference thus agrees with one Christian definition of the beginning of life, disregards definitions held by other Christians and all Jews, and imposes one sectarian Christian standard on those Christians who believe that life begins at other stages of gestation and on all Jews, who believe that life begins at breach.

Two, Blackmun’s opinion is flawed by his resort to viability, a medical condition with little history in law or medicine.  Until the advent of modern medicine in the early 20th century, viability did not concern theologians and lawyers, not to mention politicians, because unborns removed from the uterus or delivered before full term rarely survived.  However, once modern medicine enhanced their chances of survival, everyone assumed that what science made possible, society should accept as an answer to a contentious religious question or at least as common ground for dismissing it.  So most theologians, lawyers, and politicians, knowingly or not, made viability part of traditional Christian discussions determining at what point, conception or quickening, unborns attain the status of life, acquire religious endowments, and require or deserve legal consideration.  The resulting enactments or decisions may accord with majority views, but they ignore the religious beliefs and practices of others and thereby establish a necessarily religious standard of some which violates the religious convictions of others.

Yet viability is an unreliable and dubious standard.  Blackmun’s trimester division of pregnancy was a rough approximation of the conditions of viability.  However, advances in medical science extend the conditions and thus move the boundaries of his division.  Wherever the boundaries are, this shifting standard assumes that medical science, not philosophical or religious belief, should be the basis of abortion rights.  Thus, this medically based trimester entails controversy and conflict, and enables legal challenges based on any claim, scientific or not, sectarian in motivation or not, which raises medical issues.  Ironically, for the religiously motivated, the earlier the viability, the greater the reliance on artificially assisted as opposed to naturally assured survival ex utero, with science in the role of life-giver, a role which they would otherwise assign to God. 

Three, Blackmun’s opinion assumes that the viability of the unborn gives the state an interest “in protecting the potentiality of human life” or the “potential for life.”  This phrase has several deficiencies, not the least of which is a contradiction.  On the one hand, it implies that the unborn is a life, not in utero, but only after delivery, when the “potential” becomes actual.  On the other hand, it treats the potential life in utero as if it were actual life.   It assigns the unborn the status, not recognized in Constitutional law, of a person entitled to the protection of the state.  Although he assumes and repeatedly asserts this potential-is-actual-life equation, Blackman neither specifies the sources, nature, or magnitude of that interest, nor justifies it by balancing state and individual rights over the period of the pregnancy.  He assumes that the state’s right increases during the pregnancy as the “potential for life” increases and thereby allows increasing restrictions on abortions.  He does not assess the woman’s interests or concerns during her pregnancy, especially under changing circumstances or conditions.  Moreover, since most women, whether of faith or not, increasingly desire to protect their unborn over time, and since most religions specify increasingly stringent guidelines or standards for abortions, the legal concern for the “potential for life” is superfluous—one more reason to question the justification of a state interest or the necessity for state intervention.  Ironically, his opinion, so far from protecting a woman’s right provides the means for negating it.

The effect of Blackmun’s majority opinion has been to pit the state’s power to regulate abortion against the woman’s conscience to choose an abortion.  It has enabled a growing number of states to regulate the right of women almost out of existence.  Many are attempting to regulate any aspect of abortion—medical procedure, clinical setting, administrative arrangements, or financial requirements—which impede or eliminate the ability of women to have an abortion if they choose to have one.  The cynical fiction to justify medically or clinically unnecessary and sometimes dangerous, administratively cumbersome, or financially onerous regulations is women’s health.  Although abortions are safer for women’s lives and health than induced or even natural deliveries of the unborn are, these facts count for little in the enactment of religiously or politically motivated restrictions on abortion. 


Any thoughtful discussion of abortion addresses the relative weights of individual rights and government responsibilities in the context of federal and state laws, case law, and the amended Constitution as interpreted by the Supreme Court in light of changes in social circumstances, political conditions, and legal thinking.  Underlying many state and federal cases are two fundamental questions:  One, does a pregnant woman have the sole right to choose whether to have an abortion at a time of her choosing.  Two, if not, what grounds give the government a role in that choice?  For, in virtually all other matters of personal health and medical care, the individual has the sole right to choose or refuse treatment or specific treatments, or to delegate those decisions to another person.

Admittedly, government has a right to deny individual choice in some circumstances to protect the public.  It can require health procedures like vaccination or quarantine to protect the public because carriers of transmittable diseases jeopardize the health or life of others.  But abortion is not “catching”; one woman’s abortion cannot induce abortions in other pregnant women.  By ordinary standards applicable to medical decisions, no public health interest justifies government regulation of abortion.

Government can also prescribe or proscribe medical procedures or medications to protect patients from unreasonable risks to health or life.  Because abortions are safer than natural or induced births, they require no regulations essentially different from those of other approved and comparable medical procedures to protect patients.  Special regulations curtailing abortions address no unreasonable medical risks to women.  Again, by ordinary standards, no abortion-specific medical reason justifies a government limit on or denial of a woman’s choice to have an abortion.

Blackmun’s claim of a government interest in the “potential for life” is a novel one.  It bears no relationship to the conventional government interests in public health and patient protection.  Indeed, it shifts the focus of legal consideration from the woman to the unborn, with all of the problems which that new consideration involves, as noted above, and others.  For one, if laws to prevent abortions departed from precedent by defining the unborn as persons entitled to the protection of law, they would not likely apply in all cases.  For instance, if the unborn threatened the mother with death or great physical or emotional harm during gestation, the mother would presumably have the right of self-defense by having an abortion.  This novel claim seems more a judicial juggling act and a political sop to the states—and, we now know, a failed one—than a sensible legal decision.  Blackmun might have meant to offer a compromise, but it effected a legal muddle and perpetuated a political and religious controversy.  The lesson should be that halfway Constitutional decisions settle no issues and satisfy no one.


America’s religious pluralism means that its religions have different definitions of the beginning of life.  State and federal courts should have recognized that controversies over abortion were religions controversies, however opponents couched their arguments.  Advocates of a woman’s right to choose to have an abortion have inclined to talk of political rights; opponents have inclined to talk about religious values.  Both meet in one and the same place: the First Amendment.

Blackmun’s opinion is perverse in its response to religious issues.  First it recognizes, then it rejects, different religious definitions of the beginning of life, as the quotation above shows.  It is puzzling in its amnesia about or avoidance of the First Amendment to issues relevant to freedom of religion and freedom from an establishment of religion.  His opinion should have realized that these religious definitions could serve as a solid basis for finding that a woman’s right to choose to have an abortion is a right guaranteed directly by the First Amendment.

What is wanted is a replacement of Blackmun’s opinion in Roe v. Wade, in any decision on a woman’s right to choose an abortion, with an opinion which refers directly to, is not inferred from, the Constitution.  Roe v. Wade moves from “penumbras” in several Constitutional amendments to a right of privacy to a woman’s right to choose to have an abortion.  The replacement opinion should be clear and clean in moving from the First Amendment to a woman’s right.  Such a clear statement denies federal and state governments from imposing any restrictions on abortions different from comparable medical operations.  The result might be reduced, if not eliminated, clutter of irrelevant arguments about real or bogus medical science and congestion of partisan cases in federal and state courts.

Again, the fundamental question about abortion is a political one; who decides—the woman or the government?  The struggle over the answer to this question is one skirmish in the larger conflict between those who prefer theocratic government to a Constitutional democratic in matters of faith and morals.  To the degree that government decides any aspect of a woman’s choice about abortion, it tips toward theocracy; to the degree that the woman decides, it tips toward democracy.  These are the ultimate stakes in the debate about abortion.

 In American democracy, with a religiously pluralistic society and First Amendment guarantees against an establishment of religion and for freedom of religion, no level of government has a legitimate role in a woman’s decision about abortion.  Since her decision is a matter of moral or religious conscience, no democratic government has a right to restrict an abortion at any stage in her pregnancy, to compel medical tests or procedures, to mandate medical information, or to require doctors to take into account anything other than her particular needs.  The fundamental questions are simple ones; an analysis of the main considerations leads to equally simple answers.

Saturday, October 22, 2016


Although I loathe Donald and love Hillary, I kidded that I wanted to vote for Jed Bartlet, but the ballot did not provide for a presidential write-in.  Words fail this English Ph.D. to describe the moral abyss, psychological morass, and political maelstrom which Trump is.  The combination of ignorance, arrogance, and sociopathy has never appeared before on the national stage as the candidate of a major political party.  For this unique ascension of this man to his nomination as candidate for the presidency of the United States, all Americans are indebted to the Republican Party.

Donald Trump—racist, misogynist, homophobe, xenophobe, anti-immigrant, anti-Muslim, anti-Semite (what have I missed?)—is the clearest embodiment and expression of what Republicanism has insinuated itself to be and what Republicans have supported at least since the “Southern Strategy” almost 50 years ago.  By accepting, appealing to, and exploiting its Base, Republicans have mounted a beast from which it cannot dismount.  The National Republican Party remains steadfast in Trump’s support.  Republican leaders in Congress—notably, the Republican leaders of the House and Senate Paul Ryan and Mitch McConnell—and out—Rudy Giuliani and Newt Gingrich—have surrendered their claim to responsible conduct in the service of their country’s interest.  Ryan and Mitchell retreat into waffle; Giuliani and Gingrich rally to the cause.  Depending on the risks to their re-election, Republican candidates try bob-and-weave or rope-a-dope to avoid the defilement of association with Trump.  On the national stage, Republicans are implying that taking personal responsibility is something which they recommend for others.

Republicans should be punished for foisting Trump on this country and allowing him to poison American democracy.  Up-ballot, of course, and down-ballot, for sure—they should all be held accountable for enabling this man’s candidacy.  They should be punished by straight-party voting for Democratic candidates for every office in the land, from the presidency to dogcatcher.  They should never be forgiven until they, as party and as individual party leaders and federal officeholders, apologize for their politically heinous behavior.  Any exceptions to their party’s and their leaders’ irresponsibility are tainted by the company which they keep.

Their last resort—encouraging votes for their Senate and House candidates to obstruct Clinton—shows them as unrepentant about their intent, and as resolved, to wreck American democracy.  As Trump has made clear his intent to rewrite the Constitution according to his impulses, so Ryan, Mitchell, and others have made clear their intent to prevent Constitutional government under Democrat leadership by obstructing all presidential appointments (thank you, John McCain, for spilling the beans).  If the Democrats win the Senate, Chuck Schumer must be willing at the outset to redefine the rules on filibusters and “holds” so that they do not apply to presidential appointments.  Republican Senators can argue and vote against any nominee, but they should not be able to block appointment of qualified individuals to serve government.

Re-building confidence in America’s political system is not something which the Republicans can do, so great is their hostility to democracy, so great is their support for “small government,” and so consistent are their efforts to impair democracy by voter suppression, and government by shutdowns and filibusters.  It is something which only Democrats and Independents can do.  The need for recovery from Republican-sponsored sabotage of the country’s Constitutional commitment to “We the People” is the reason for voting a straight Democrat ticket in all contested elections.