Abortion and the Law’s Control of Bodies

In yesterday’s confirmation hearings for Supreme Court nominee Brett Kavanaugh, Senator Kamala Harris of California, a likely presidential candidate in 2020, asked a perplexing question, and Kavanaugh provided an even more perplexing answer.

Kamala Harris: “Can you think of any laws that give the government the power to make decisions about the male body?”

Brett Kavanaugh: “I’m not… I’m not thinking of any right now, Senator.”

I say “perplexing” because every law, with the exception of thought crimes, makes decisions about bodies, because every law, with the exception of thought crimes, is about telling us what actions we can, can’t, or must take.

Take speed limits. The law says I can’t drive faster than 65 miles per hour on this stretch of freeway. In practice, what this means is that the lawmakers have decided that I cannot use my body to accelerate a car above 65 miles per hour. If I fail to follow the law — if I do use my body to press the gas pedal such that the car goes above 65 — I will be punished, assuming I’m caught.

We can tell the same story for any other law you might think of. The simple fact is that law is always and only about setting up a system of rules that “make decisions” about permissible actions. Thus Harris’s question is perplexing and so is Kavanaugh’s stumbling for an answer, because the answer is obvious. Are there laws that make decisions about the male body? Yes, basically all of them. Except for laws that can only possibly ever apply to women’s bodies. (There are, obviously, laws that are just as biologically limited in their reach, but on the male side. The law requiring all men to register for the military draft is one.)

Of course, Harris isn’t interested in laws generally. She’s interested in Kavanaugh’s views on abortion. She, like many other Democrats is worried that Kavanaugh will some day, if confirmed, vote to overturn Roe v. Wade. And, like many pro-choice Americans, she’s framed the issue of abortion as one of “controlling women’s bodies.” That why she asked Kavanaugh if he could think of any laws restricting the male body in such a way. But her question is confused, as we can see by seeking to clarify it in two possible ways.

The first would be rephrase it as “Can you think of any laws that give the government the power to make decisions about the male body [in precisely the way ani-abortion laws make decisions about the female body]?” Answering the question interpreted this way, however, exposes it as terribly uninteresting, so uninteresting it wasn’t worth asking in the first place: “No, I can’t think of a law that gives the government power to make decisions about the male body in the way an anti-abortion law would regarding the female body because, by simple biology, only women can have abortions.” (We needn’t get into the application of this to trans men here.)

Alternatively, we can interpret the question as asking, “Can you think of any laws that give the government the power to make decisions about the male body [analogous to an anti-abortion law saying a woman cannot act in such a way as to cause the death of a fetus]?” This is a much more interesting take on the question, but it is also one that exposes what strikes me as an obvious mistake in the way the pro-choice side articulates their dispute with the pro-life side. Namely, pro-lifers frequently act as if the question of the moral status of the fetus is obvious and settled, and then assume — or act as if they assume — that pro-choicers must be building their case on some other grounds.

To unpack this, look at it not from Harris’s perspective but from the perspective of someone who believes abortion is wrong and ought to be illegal. For them, outlawing abortion is no more motivated only or chiefly by a desire to control women’s bodies as the military draft is about controlling men’s bodies. That country is an outcome of the law, yes, but it’s not the motivating aim of the law. In the mind of a pro-lifer, a fetus is a person, people have rights, and one of those is the right not to be killed. Pro-choicers accept parts two and three of this without objection, or otherwise they’d be against murder laws. The difference is only with part one. Pro-lifers believe a fetus is the kind of thing we call a person with rights, and that the right against being killed while innocent is absolute. (The “while innocent” part is important, because otherwise it would be impermissible to kill in war, or as part of a death penalty. We might have reasons to think both of those are wrong, of course, but that’s a distinct matter from the particular question at hand here.) Pro-choicers, on the other hand, believe either that the fetus is not the kind of thing we call a human with a right to life or that it is, but its right to life is not as absolute as that of other types of humans, and so can be overridden by the mother’s wishes or desires.

Thus if we take a charitable view of the pro-life position — and we should, because charity is a virtue, and strawmanning is wrong — an anti-abortion law is no more and no less about controlling women’s bodies as the law that say I can’t kill my children is about controlling my body.

By assuming this not to be the case, by believe that pro-lifers want to control women as opposed to wanting to prevent the deaths of what they see to be humans with absolute rights, Harris and others sharing her position end up in confused positions like the one on display in her questioning of Kavanaugh, and so accomplish little in resolving — politically, ethically, morally — this supremely important question in American law.


Techies, Regulations, and Magic Spells

Laws aren’t code.

Techies are generally pretty smart people. It’s difficult to make a living designing and writing software if you’re a dummy. They’re also often self-motivated learners, because that’s how you become a programmer.

That said, much of the tech community possess a pretty huge blind spot when it comes to regulations. They have unrealistic expectations of the efficiency of government, the well-meaning-ness and knowledge level of regulators, and the clarity and precision with which regulations can be written and enforced. And they seem utterly uninterested in ameliorating that ignorance.

Case in point: Maciej Cegłowski has a really terrific essay called “The Internet With a Human Face.” In it, he argues that the incentives driving online businesses, specifically businesses dependent on adverstising, lead to too much data collection, which brings terrible social costs. If you launch a new social network, for example, in order to get investors to give you large checks, you need to tell them a story about how you’ll eventually be able to use the data you’re gathering to sell super effective ads. Cegłowski calls this “investor storytime.” The really troubling thing is that it has “a vastly higher ROI than [actual] advertising. Startups are rational, and so that’s where they put their energy.” He goes on to outline lots of ways this is very bad. It’s a powerful argument and an important one.

But then we get to Cegłowski’s solution. It’s not education, nor is it greater reliance on techological opt-outs like Do Not Track. Nope, it’s—you guessed it—regulation. “It should be illegal to collect and permanently store most kinds of behavioral data,” he tells us. And he’s got a bunch of ideas about what those regulations should look like.

The trouble is, Cegłowski, like so many in the tech community, thinks regulations are magic spells. Write the incantation, have the state utter it, and—presto!—the world will conform to your desires.

Blackstone’s insight rings true. The tech community by-and-large thinks the world is easy, because the computers they work with every day are easy. Not easy in the sense of being simple to understand or possessing a gradual learning curve, because computer programming is hard. But “easy” in the sense of “working as expected, doing what you tell it to, and quickly upgraded or fixed if bugs appear.”

While that’s how computers work, it’s not how government works. When you invite government into problems, you bring interest groups, ignorance, and inertia. You create perverse incentives and turn important and ever-changing questions over to insitutions structually unable to handle them well. You bind tomorrow’s advances to today’s shortsightness, hobbling the pace of progress and entrenching incumbants, who will use your well-meaning rules to bludgeon more agile competitors.

With that in mind, here’s two of Cegłowski’s regulatory ideas.

1. Limit what kind of behavioral data websites can store. When I say behavioral data, I mean the kinds of things computers notice about you in passing—your search history, what you click on, what cell tower you’re using.

2. Limit how long they can keep it. Maybe three months, six months, three years. I don’t really care, as long as it’s not fifty years, or forever. Make the time scale for deleting behavioral data similar to the half-life of a typical Internet business.

The thing about technology is it changes faster than most of us can keep up with, and heads off in directions few of us can imagine. What mobile, connected computing will look like in ten years is a huge unknown. What kind of data it will need to do amazing things and what kind of data we’ll want it to have remains equally hazy. What are the chances that highly specific limits on data gathering written in 2014 will make any sense at all in 2024?

Do we want an arbitrary time limit baked into the law? Who knows what kind of realy cool and possibly life enhancing applications will emerge 20 or 30 years from now that will depend on deep troves of data?

Technological fixes to these concerns exist today. Don’t pass session data to websites. Then they can’t keep tabs on your clicks. Anonymize web traffic and location information via things like Tor. That not many people actually do this doesn’t mean “There Oughta Be a Law!” Instead it means either people don’t care about big data as much as Cegłowski does, or the technology isn’t easy enough to use. Addressing those issues directly makes a lot more sense then adding pages to the Federal Register and turning their enforcement over to men with guns and the politically connected interest groups and corporations who have their ear.

It’s not like techies are totally clueless when it comes to regulations in the real world, of course. We need only look at their disdain for the rules cities and powerful business interests use against Airbnb and Uber to see that.

But this makes it even more confusing why so many techies seem to forget these lessons when it comes to regulations hitting even closer to home.


The Frightening Permissiveness of Rosenkranz’s “The Subjects of the Constitution”

Professor Nicholas Quinn Rosenkranz’s “The Subjects of the Constitution” is a hot, new law review article making the rounds and garnering some well-deserved attention. For those who haven’t read it, and who have even a passing interest in the United States Constitution and judicial review, I heartedly recommend it. Rosenkranz’s article is long, but, as these things go, it’s an easy read. His theory is intriguing and clear and powerful — but it’s also troubling in its permissiveness of broad government action, especially into areas we all agree the government should play no role. Most troubling, his proposed doctrine appears to grant the state the ability to eviscerate the First Amendment, provided Congress is crafty when drafting laws to do so.

Who violates the Constitution?

Rosenkranz’s argument is actually rather simple — and, he claims, simplifying. He sets it out in the paper’s abstract.

Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?

The First Amendment begins with “Congress shall make no law…” For Rosenkranz, this means that any First Amendment violation must happen when Congress makes a law. And, given that Congress makes laws before they are enforced, the constitutional violation must occur at the moment of enactment. The First Amendment does not prohibit the President from abridging speech. It is only a prohibition on lawmaking behavior by Congress (hence the active voice construction).

What this means (and Rosenkranz is happy to admit it means) is that the only laws that can violate the First Amendment are those that do so facially. In other words, they are laws that, when the text of them is placed next to the text of the Constitution, a clear violation is apparent. A law that does not abridge freedom of speech on its face, but later does when applied by the President, is not in violation of the First Amendment.

The end of the First Amendment?

This ought to be immediately concerning for those of us to think the courts have done too little to limit the powers of the state within the framework of the Constitution. Under the Rosenkranz doctrine, if Congress enacted a law saying, “Citizens are prohibited from engaging in the act of Holy Communion,” that law would be facially invalid as the text of the law at the time of enactment clearly abridges the free exercise of (the Catholic) religion.

But what if Congress were more subtle? What if it wrote a law that instead read, “Citizens are prohibited from ingesting wine on Sunday mornings, when gathered in groups of more than five and when the wine is ingested in one ounce or smaller amounts as provided by a leader within the group?” Because the law does not facially violate the constitution — it doesn’t mention free exercise of religion, or religion at all — a Catholic could not succeed in a challenge. If the court asking him Rosenkranz’s “who” question, he couldn’t say Congress (the law didn’t violate the constitution at the moment of enactment) and he couldn’t say the President (the First Amendment only prohibits Congress from acting).

Congress employs a lot of smart lawyers to draft its legislation. Should the Supreme Court adopt Rosenkranz’s new doctrine for judicial review, I see no reason why those smart lawyers couldn’t intentionally structure the language of bills to always make them immune to First Amendment challenge. And the problem doesn’t stop with the First Amendment. It cascades through the rest of the Constitution.

Who has rights?

In his refactoring of judicial review, Rosenkranz risks doing away with the very rights the Constitution was created to protect. If it is true that, by nature of being human, we have a right to free expression, then it shouldn’t matter how the government violates that right. Rather, what matters is that a violation occurred and that the violation was at the hands of the government. It seems absurd to think that religious freedom could be trampled and the state could respond with, “Well, sorry, but your right to free exercise only protects you from Congress, not the President’s goon squads.”

These problems exist for the current judicial review doctrine, true. But Rosenkranz’s theory, while potentially clarifying, makes these problems worse. What he has done is grant Congress philosophical grounding for making the type of argument a thug might make when charged with killing a rival. “Don’t look at me,” the thug says. “I didn’t kill that guy — the bullet did.”