Total Drek

Or, the thoughts of several frustrated intellectuals on Sociology, Gaming, Science, Politics, Science Fiction, Religion, and whatever the hell else strikes their fancy. There is absolutely no reason why you should read this blog. None. Seriously. Go hit your back button. It's up in the upper left-hand corner of your browser... it says "Back." Don't say we didn't warn you.

Tuesday, August 09, 2005

The rhetoric of convenience

Those who know me realize that I am obsessive about rhetoric. I like to blame this on my debate experience but, realistically, I think it primarily stems from my being an asshole. Regardless of its source, I often find myself annoyed when people try to get what they want while using mutually contradictory arguments. I said as much previously when I took the left wing to task for using arguments they previously rejected when it happened to be convenient. Much as I agree with the reason for doing so, I simply cannot stomach the loss of dignity it entails.

And this is me talking. When I start complaining about a loss of dignity, you know we've got a problem.

Today, I'm not grappling with my fellow liberals anymore. Rather, today, we're going to chat for a few minutes about the conservatives. It recently came to my attention that several state and national lawsuits have been initiated against the California Stem Cell Institute. What are these suits about, you ask? Well, I'll let the article speak for itself:

The suit was filed on behalf of Mary Scott Doe, a fictitious embryo produced by in vitro fertilization and then frozen and put into storage. Some of these embryos, which people have decided not to use in attempts to have children, have been donated for use in stem cell research, which involves destroying them.

The lawsuit claims the embryo is a person who should be given equal protection under the Constitution, and her destruction violates her right to freedom from slavery.


So, in other words, they're suing on behalf of a frozen ball of cells that is non-viable on its own (as in, "it requires a womb for quite a few months before it could lead a separate life") and has been legally donated to the stem cell institute. Now, I'll grant, that the litigants may actually have a legal point here. The Roe vs. Wade decision that legalized abortion in the United States is based in a Constitutional right to privacy. As such, the mother's constitutional rights have been judged by the court to outweigh any potential rights the fetus may have- which is a thorny issue since weighing those rights would, technically, require deciding whether or not an unborn is a citizen with rights of its own. I'll grant to any hypothetical conservative readers that no right to privacy is specifically ennumerated in the constitution, but in my view the third, fourth, fifth, ninth, and tenth amendments to the constitution provide a strong case that one exists. In any case, in this instance, since the embryos are not contained within the mother an argument can be made that Roe vs. Wade no longer applies. Or, more exactly:

In decisions that have upheld the right of women to receive abortions, the Supreme Court has ruled that a woman's right to control her body outweighs the early-stage fetus's rights.

In his appeal of the initial federal case, lawyer R. Martin Palmer argues that Roe v. Wade does not apply in this case because the embryo is in deep freeze and not a mother's womb.


So, like I said, these folks may have a legal point, even if logically it's a little weird. Hell, the irony here is that the embryo is non-viable without a womb but the instant it enters a womb it could be legally terminated. I don't much like the potential inherent in that for a backdoor overturning of Roe vs. Wade, but that's a topic for another time.

My reason for bringing all this up, though, is the peculiar logic of this lawsuit. There is every reason to think, as we enter this case, that it doesn't have a chance in hell of being heard. Indeed:

The lawsuit appears to be identical to one filed against the National Institutes of Health and dismissed after the 4th Circuit court determined it had no legal standing. The court said federal funding restrictions placed on embryonic stem cell research by President Bush in 2002 made the case against the NIH moot

[...]

The people who filed the federal lawsuit likely know it is still a moot case, said Joan Samuelson, a member of the committee overseeing the stem cell institute.

"It is just a maneuver to continue to delay our work, which 7 million Californians voted to try to get cures to people" said Samuelson, who has multiple sclerosis.


So, this is just a legal delaying tactic to prevent a measure that has been voted into existence. This is the specific problem.

As a reader of the "lovely," and strangely masculine conservative pundit, Ms. Ann Coulter, I have been exposed to some interesting arguments that are relevant here. Now, whatever your opinion of Coulter, she has been rather influential on the right wing, so her comments may be relevant.

In her column of July 20th she remarks that:

Conservatism is sweeping the nation, we have a fully functioning alternative media, we're ticked off and ready to avenge Robert Bork ... and Bush nominates [for the Supreme court] a Rorschach blot.

[...]

As I've said before, if a majority of Americans agreed with liberals on abortion, gay marriage, pornography, criminals' rights and property rights — liberals wouldn't need the Supreme Court to give them everything they want through invented "constitutional" rights invisible to everyone but People for the American Way. It's always good to remind voters that Democrats are the party of abortion, sodomy and atheism, and nothing presents an opportunity to do so like a Supreme Court nomination.


So, if I understand this right, Democrats are evil because they "manipulate" the courts to get their way even against the wishes of an electoral majority. If that's the conservative position, though, then how is it that the lawsuit in California is going through? The money for that institute wasn't allocated by a few wascally Democrats in the state legislature, is was allocated via a popular vote:

Proposition 71, the California bond initiative that created the stem cell institute, was designed to bypass the federal funding restrictions by allocating state funds for the research.


Or, as Joan Samuelson said, "...7 million Californians voted to try to get cures to people." Hell, this isn't even just a voter issue, but a state's rights issue. And here I thought the Republicans were the party for state's rights. It appears that when it suits them, when things don't go their way, when the people don't agree with their radical views, conservatives are quite willing to abuse the court system to force the country to bend to their will. That's some real moral authority you've got there, guys.

I've never been more grateful to not be a Republican.




Special thanks to the folks at Something Awful for the spoof Coulter cover. What would I do without y'all?

3 Comments:

Anonymous Anonymous said...

While I would love to agree with Drek that this is a states rights issue, I unfortunately have to disagree. It would be a states rights issue if California could enforce a provision limiting the use of the findings of the stem cell research to California or Californian citizens. However, as we all know scientists have big mouths and when we find out something we think is interesting we like to share with everybody (and I think that’s how it ought to be). However, this means that the information and hopefully cures coming from this research will diffuse across state boarders, thus making is a federal issue. Sorry Drek. You fail con law 101. Though you get a high fail for pointing out the case is without merit.

So I do agree that the case is without merit. The problem is a viable case must have an enforceable solution. In this situation what would a solution be? To keep the ball of cells frozen until such time as a foster or adoptive womb could be found. This unfortunately seems like the most likely route a logic loving conservative judge would be forced to take. In reality, because the ball of cells is unviable without somewhere to grow into a self sustaining ball of cells, it essentially has no rights. There is no solution to its problem except destruction, and since it will be destroyed anyway, shouldn’t it be put to good use. Arguing that it should be kept frozen relies on arguments similar to those used by those that think organ donation is wrong because it may allow some corrupt doctors to judge people dead simply to take their organs.

In the current case we simply have a collection of cells collected from a woman with rights. In fact, (and I know conservatives will weep at this notion) if people can donate sperm and eggs to other individuals, donating the unviable combination of these two structures should be treated no differently.

As soon as a fetus becomes viable (and I mean on its own people, not hooked up to so many machines you cannot tell where the baby starts and the machines stop) I’m perfectly willing to consider its rights. That’s why I actually support the ban on late term abortions with the exception being to save the life of the already viable mother.

Oh, and by the way. The “Right to Life” isn’t in the Constitution either. Go ahead look it up. It’s in the preamble to the Declaration of Independence, which isn’t really used when considering constitutionality if you are for a strict reading of the Constitution. Doing something like looking to the Declaration of Independence is something those whiley liberal judges would do in searching for support of their positions, you know as per the ninth amendment.

That’s my five cents (you know with inflation and all).

TFHRM

Tuesday, August 09, 2005 4:14:00 PM  
Blogger Drek said...

While I would love to agree with Drek that this is a states rights issue, I unfortunately have to disagree. It would be a states rights issue if California could enforce a provision limiting the use of the findings of the stem cell research to California or Californian citizens. However, as we all know scientists have big mouths and when we find out something we think is interesting we like to share with everybody (and I think that’s how it ought to be). However, this means that the information and hopefully cures coming from this research will diffuse across state boarders, thus making is a federal issue. Sorry Drek. You fail con law 101. Though you get a high fail for pointing out the case is without merit.

Do you know of a case that sets this as precedent? (I'm honestly curious.) Because this standard of "diffusion" as determining whether or not this is a state's rights issue seems a bit weird to me. Such logic would imply that any artifice produced in any state (for example fireworks, which are not legal in all states) would be under federal jurisdiction because it could, hypothetically, be transported across state lines. I doubt any particular state can guarantee that devices sold legally within its borders would not move outside of those borders. Granted, ideas are easier to transport, but many physical artifacts would be approximately as difficult to transport across state lines as the technical information needed to utilize the findings of stem cell research. There is the internet, but who wants to make a heart-cloning device using blueprints you found on www.stemcellhackers.com?

And that gets to the real heart of the matter: nobody is worried about the movement of information but rather the methods used to obtain it, and the technologies used to utilize it. I suspect the conservatives would be more than happy to have the information we need stem cell research to get- they just don't want anyone to do that research. The movement of information would probably be partly limited by intellectual property issues, since the accumulation of scientific knowledge and its use in products are quite different. Further, why is it California's responsibility to hold the information in when other states can simply make the use of technologies derived from that research illegal? (Again, seriously curious.) As a general rule, it seems to be necessary to make a rule FOR the restriction of most sorts of information, rather than FOR free access- as is implied by the continued availability of the Turner Diaries and the Anarchist's Cookbook.

And come on I would at least pass ConLaw for providing decent citations supporting the implied right to privacy!

Tuesday, August 09, 2005 4:51:00 PM  
Anonymous Anonymous said...

You make an interesting point and one I hadn't considered. While a simple search of Lexis-Nexis' law section using the terms "states' rights" AND "interstate commerce" brings back over 900 cases from the Supreme Court alone, I was thinking of the recent case concerning medical marijuana and the Great State of California. In that case the Court found that the interstate commerce clause (used when the feds want to trump the states and the "necessary and proper" clause doesn't work) gave the fed priority in determining drug regulation because the states couldn't keep "medical" marijuana from being used by people in neighboring states, thus making it an interstae commerce issue. I figured the same logic would follow in the stem cell case.

However, you bring up an interesting and potentially crucial point. The California Institute is simply generating knowledge. When that knowledge is transmitted it's speech, and as we know from the Hand Doctrine it takes a whole lot of risk and immediacy to ban speech. So the research would propably be ok.

A problem may arise if the only cure for some diseases would be the implanting of actual fetal stem cells into a living person. This is more problemmatic because 1) its implementation would have to be approved by the FDA as per the marijuana case mentioned above and 2) while such a cure has not been forbidden it certainly would cause just as much "moral" outrage as using the same type of cells for research.

So, I've changed my mind. You get an A for making the current problem into a free speech issue. Good work. I got stuck on the whole interstate commerce thing and forgot to differentiate knowledge from commerce.

TFHRM

Wednesday, August 10, 2005 2:31:00 PM  

Post a Comment

<< Home

Site Meter