The Briefing 10-20-17

Part I

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Who are the real extremists on the issue of abortion?

The issue of abortion and the sanctity of human life has torn American society asunder now for several decades, especially ever since the 1973 Roe V Wade decision handed down by the US Supreme Court. And in his column yesterday in the Washington Post, columnist George F. Will points back to the Roe V Wade decision in 1973 and the fact that the author of that majority opinion, Justice Harry Blackmun invented the idea of a nine-month pregnancy divided into three trimesters out of whole cloth. And what we now know, and the late justice has admitted, is that he made up the so-called scientific argument even as he had already come to the determination that he wanted abortion to be made legal upon demand in all 50 states. But what’s really important in the timing of Will’s column in the Washington Post yesterday is that just a matter of days ago the United States House of Representatives passed legislation that would outlaw and limit abortion after the 20th week of gestation of the unborn child, and the rationale behind that legislation was not just drawing a line halfway through the pregnancy of a normal 40 weeks, but indicating that at that point the unborn child is feeling pain and thus has a life and an experience that demands our legal protection. And what George F. Will is arguing in yesterday’s edition of the Post is that even as the mainstream media describes those who hold to a pro-life position as holding to a radical and extreme position, it’s actually those opposed to the legislation adopted just days ago in the House who reveal themselves to be the real extremists.

That bill adopted by Congress is known as the Pain-Capable Unborn Child Protection Act, it passed in the House by a vote of 237 to 189. Similar legislation has now been initiated in the United States Senate, but given the filibuster rule, it is unlikely that the bill is going to survive the test of a super majority in the Senate, and that points to one of the problems of the filibuster. But the other thing we need to note here is that George Will is zeroing in on one particular issue, and that is this, again, according to the mainstream media it’s those who would speak on behalf of the unborn life, against destroying the unborn life, who are the extremists when what Will points out is that when you have opposition to this bill, the Pain-Capable Unborn Child Protection Act, what’s really revealed is the radicalism and the extremism of those who decry the bill.

Will’s point is that the pro-abortion movement and their political enablers are absolutely opposed to any restriction on abortion of any form at any time, and that has been proved now over and over again. But what George Will zeroes in on in this column yesterday is the question raised by the very name of the legislation, again, listen carefully: The bill is the Pain-Capable Unborn Child Protection Act. It is based upon the claim that it 20 weeks of gestation, halfway through the normal process of human gestation in the womb, the unborn child can clearly already experience pain, and the argument is that if the child can experience pain then it must be recognized as a person whose life is worthy of support and of protection and indeed an individual whose life must be protected, to whom society owes that protection.

But then George Will throws a curve in the discussion I quote his column,

“Whether a 20-week fetus has neurological pathways sufficient for feeling pain is surely a question that science can answer, if it has not already. Already,”

he says,

“there are myriad intrauterine medical procedures, some involving anesthesia.”

In other words, his point here is that medical doctors are now performing surgery on unborn babies and they are using anesthesia, they must be using it for some reason. He goes on to say,

“Only seven nations allow unrestricted abortion after 20 weeks. Most European nations restrict abortions by at least week 13. France and Germany [considered to be very liberal societies are very restrictive after 12 [weeks], Sweden after 18 [weeks].”

It’s only in America, along with just a handful of other nations, that what you find are the

“extremely permissive abortion laws”

that say that life, unborn life, can be terminated with impunity — that’s the language of George Will.

So what’s the big curveball the George Will has thrown into this public debate? It is his use of the word science because over and over again those opposed to the legislation adopted just days ago in the House claim they have science on their side and they want to apply that argument to just about every contemporary political issue. But when it comes to the question as to whether or not an unborn child can feel pain, well at that point they’re not very interested in anything that science has to say. George Will’s point is simply this: If doctors are performing surgery on these unborn children, and if they are enjoying anesthesia, then it must be because medical science knows that there are those neurological pathways that could lead to the experience of pain by the unborn child. And George Will goes on to explain,

“Getting a scientific answer to the pain question, even if it is “yes,” should gratify the Party of Science.”

That’s put in capital P, capital S, as something of an official title.

“If the answer is “yes,” those who think fetal suffering is irrelevant can explain why they do.”

That’s a very important turn in this argument, and it’s one that many of us have been making but it’s different when this argument shows up on the opinion page of the Washington Post.

Looking back to the Roe V Wade decision of 1973, Will says that in that decision

“the court bizarrely called the fetus “potential life”; it is, of course, undeniably alive and biologically human. A large American majority is undogmatic, because uncertain, about — and the House bill does not address — the question of when the living thing that begins at conception should be held to acquire personhood protectable by law.”

But here I’d have to interject that common sense, the very common sense to which George Will points here, would suggest that the question of personhood is the question of life and that the two cannot be separated. Will goes on to observe

“New medical technologies and techniques are lowering the age of viability. And increasingly vivid sonograms, showing beating hearts and moving fingers, make it increasingly difficult to argue that the [so called] “fetal material” is at no point, in any way, a baby. Science is presenting inconvenient truths to the Party of Science,”

again, capital P, capital S,

“truths that are the reasons the percentage of pregnancies aborted is the smallest since 1973.”

By pointing to the fact that the bill that passed the House is now going to the Senate, Will concludes, and I quote,

“When — the sooner the better — the House bill comes to the Senate floor, Democrats will prevent a vote on it. This will be a tutorial,”

and he means for the entire nation,

“on the actual extremists in our cultural conflicts.”

Part II

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Should the Supreme Court hire a team of official social scientists?

Next, we turn to a different editorial article, this one in yesterday’s edition of the New York Times. This one with the headline,

“The Justices Need Fact-Checkers.”

And this one also a tutorial of sorts. The author of this editorial piece is John Pfaff, he’s identified as a professor at the Fordham Law School there in New York, and he argues that the Supreme Court, the highest court in the land, is now routinely dealing with huge policy questions. Huge policy questions that actually require the Supreme Court to make decisions of what fact and what is non-fact, and, furthermore, to go through all kinds of analysis making its own analytical judgments. And at this point, the professor is very straightforward and saying that our nation’s highest court, the nation’s highest court of law, is incompetent to deal with these issues. Why? Because the justices are lawyers and they don’t know enough social science.

Here is where someone committed to constitutional government wants to break the glass and sound the alarm and say, ‘here’s the entire problem.’ It was never intended that the nation’s courts in general, or the Supreme Court specifically, should become a policymaking enterprise. That’s a part of what is known as the judicial usurpation of politics. These are issues that have been usurped by the courts. But in this case you have a law professor who says the courts aren’t actually taking this far enough because the courts aren’t competent. His suggestion is that the Supreme Court needs to establish a group of sociologists and social scientists to help them to understand the facts and make their analysis in order that they could make the right judgment. It’s actually constitutionally an astounding argument, but what’s equally astounding, if not more so, is the fact that this is being made by a reputable professor at a respected law school and its appearing in the pages of the New York Times. Why? Because those who were pushing for massive change morally, culturally, and politically in this country understand that that will never come from the legislature and so ever since the 1960s they have looked to the courts in order to force that change because they can’t get it through the political process.

Specifically in his column, this law professor is complaining about a statement made by the Chief Justice of the United States John G. Roberts, who actually remarked from the bench about a case,

“it may be simply my educational background”

before he described the material of the case as

“sociological gobbledygook.”

And so here you have someone who says the answer to the problem is not to reduce the sociology but, rather, for the Supreme Court to establish an official group of sociological and social science advisors.

Here’s the key paragraph. The professor writes

“Policy is a major part of the court’s docket now, whether it likes it or not. The justices cannot avoid adapting to this, and they cannot simply dismiss evidence they don’t understand as ‘gobbledygook.’”

But here we simply have to note we’re talking about the most highly educated, highly prepared jurists in the entire country, and what’s being argued here straightforwardly is that they need to be advised by an official group of sociologists so they can understand how to frame the issues and determine what is factual and then make policy. That’s the big problem here. The Supreme Court was never intended by the framers of the Constitution to make policy. But the straightforward argument of his law professor is that like it or not the court is now in the position routinely of making policy. The key issue there is where he says that is the case. He says,

“Policy is a major part of the court’s docket now.”

The word ‘now’ there is actually very revealing. He cites an argument made by legal expert Kenneth Culp Davis, he calls him. Back in the 1980s proposing that the Supreme Court

“create an outside research organization, akin to the Congressional Research Service, to do research on its behalf. However worthwhile, the idea went nowhere.”

He says,

“Perhaps a more viable idea is one that [that law expert] rejected: establish a group of technical advisors to the courts. A small team of social scientists and statisticians could help justices sift through empirical evidence. There is no shortage of scholars with Ph.D.s who would be eager to do that work for the court.”

Now that is one of the most significant understatements I have ever read in the New York Times. Yes, no doubt, there is no shortage of Ph.D.s who would be very glad to tell the Supreme Court how it is supposed to rule because the issue here would not be the law whatsoever, but rather the interpretation of sociology and social science. Just in case we missed the point, later in the article we read this,

“The president of the American Sociological Association offered to have a team of sociologists sit down with Chief Justice Roberts after his “gobbledygook” comment.”

But what that brought to my mind is the fact that recent research rather well-publicized has indicated that of all the academic disciplines the social sciences tend to be the most liberal, and, furthermore, sociology perhaps the most liberal of all. Here you have the president of the American Sociological Association offering to advise the Supreme Court and how it is to interpret reality. Meanwhile research indicates that if you’re looking at the ratio of liberals to conservatives in any academic discipline, perhaps the worst is sociology; the ratio according to one major study recently is 44 to 1. That is to say for all the sociologists considered in the study for every 1 who would identify as conservative 44 identified as liberal. If that’s not interesting enough, John Shields recently produced a report indicating that there are about 6,000 sociologist recognized in the United States, and he says that after looking for months in his study, he found 12 conservative sociologists. That is 12 out of 6,000. You just might be recognizing a pattern here.

The big pattern of concern to recognize here is that the Supreme Court of the United States is intended to be a court of law. In recent decades political pressures have been brought on the court and the court has shifted itself and its own understanding of its role increasingly to being a court of economics and morality and politics, and, yes, sociology. Here you have the straightforward accusation that in doing so the court isn’t very competent and so they need to hire sociologists to actually define reality before they turn to the law. It is interesting that the Chief Justice of the United States of America John Roberts was unembarrassed to describe much of the sociological argumentation that is presented to his court as ‘gobbledygook.’ But of course it’s actually worse than that; it’s not just gobbledygook, it is very politically biased gobbledygook.

Part III

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What the most recent Nobel Prize in Economics tells us about how sin affects our thinking

Finally, there are some really interesting theological observations we can make about the announcement by the Nobel committee that yet another American, yet another American economist at the University of Chicago had been awarded the Nobel Prize. In this case, the Academy made the announcement that the price would go to University of Chicago economist Richard Thaler, and in making its announcement, the Academy said that it was because of Thaler’s particular expertise in the field of behavioral economics. Now one of the things that makes that interesting is that behavioral economics has basically not been a part of the economic theory associated with the classic school of economics at the University of Chicago. A factory, you might say by the way, for producing Nobel Prize winners from the United States in economics. But Richard Thaler has made some very interesting observations. He has changed the field of discussion in economics and has made so-called behavioral economics actually something that every economist has to consider. Behavioral economics comes down to this that is that economics must take into account the fact the human beings behave in a certain way economically, and Richard Thaler’s point is: They often behave in irrational ways.

The classical model of economics at the University of Chicago has assumed rational choice theory, the fact that human beings are economic agents who operate on the basis of rational choice. But Richard Thaler came along to say, you better actually observe how human beings act because in economics, as well as in other areas of life, they don’t always act in such rational ways. He points illustrations such as this: He had a friend who did not want to pay the kid next door $10 to mow his lawn, but he said that his time was so important he wouldn’t accept $50 to mow the lawn of someone else. Now you just look at that in terms of rational economics and this academic just said that his time isn’t worth mowing the lawn, it’s worth more than that, but he’s not going to pay the kid next door to mow the lawn because that’s too expensive — it’s not rational. He just did the equation proving it wasn’t rational, and yet he’s holding to it. But Richard Thaler points to the fact that all of us, actually, well we think and act rather irrationally when it comes to economics. What’s so helpful in that? It’s actually interesting affirmation of a major point of biblical theology, which is that the fall has had effects, sin has effects, on every part of what it means to be human including our intelligence, our thinking, and, yes, our reason. It turns out we are not so rational as we would like to think ourselves to be.

Thaler makes the argument that the human brain can be divided between a doing part and a planning part, and often the doing part simply overtakes the planning part, that’s the reason why human beings are not so good at saving or investing in retirement accounts and why the urgent issue often far overrides the long-term issue. And even people who will know that that’s wrong, they find themselves making economic decisions over and over again that they know to be wrong, but at the time something’s overriding that moral judgment.

Several years ago I wrote a major book chapter on the noetic effects of the fall — noetic means how we know the effects of the fall on our knowing — and there I indicated at least 14 different kinds of noetic effects that are found in each of us and in our thinking after the fall, after the impact of sin. They would include ignorance, distractedness, forgetfulness, prejudice, faulty perspective, intellectual fatigue, inconsistency, failure to draw the right conclusions, intellectual apathy, dogmatism, and closemindedness, intellectual pride, vain imagination, miscommunication, and partial knowledge. That’s 14 in the list I wrote about then. But thanks to Richard Thaler with attention drawn to this new Nobel Prize in economics, maybe we need to think about a 15: economic irrationality, irrational economic behavior. It’s just further affirmation of the fact that we are indeed made in God’s image and thus rational creatures, but given the impact of sin, we are not nearly so rational as we would like to think that we are. By the way, after the announcement, which he said, surprised him, the Chicago Economists told of the money that will be coming to him by the Nobel Prize, and asked what he would do with it, he said he intended to spend it irrationally.