Ben Toll: August 2016

Let’s go ahead and get this out of the way. This will be the most time consuming post for me to write as well as being the one I am the least excited about writing. My plan is to write this post primarily about what I will define as social issues with the next post focusing on economic issues, the fourth on foreign policy, and the fifth is more of a grab bag and my final determination in how to vote.

How will we proceed?

- My goal is to continue providing you with as many sources as possible so that you can test whether what I am saying makes sense or not.

- I will begin each topic by talking about current policy as it stands related to the issue.

- Second, I will discuss what the candidates say about the issues.

- I will then delve into my own view on the issue. Here is where I think we can have healthy and robust conversation. Feel free to message, reply on Facebook, or email me regarding comments/questions you have about my views. Once again, these are my own personal views only. Do not presume that anyone else thinks the same way that I do.

- I will remind you, once again, that my big goal in this project is to make the case that the world is much more complex than we give it credit for. It is easy to have a moral position on political issues, but it becomes very different when we map that to policy issues. Even more, good, smart, and faithful people can disagree on policy even if they agree on morality.

What are social issues?

We could lump a whole consortium of issues under the social issue umbrella. Because I know this post will already be long I will do my best to limit the issues discussed. So, here they are: Life issues (intentionally broad) and religious freedom issues will be discussed in the final post. I will not be discussing the issues of same-sex marriage and gun control. The reason I am not discussing same-sex marriage is that I see it as largely settled law and find it very unlikely that anything will change on this issue as a result of the election. Second, I will not discuss gun control because I frankly don’t care that much about this issue. Personally, I have no problem with people having guns, but I do have a problem with how easy it is to get them.

The Issue of Life

I am taking an intentionally broad view here for a number of reasons. First, it lumps together a set of issues that are connected: abortion, death penalty, war/drone strikes without due process (which will be more heavily discussed in post 4), and our general view toward life. Second, this broader interpretation of the issue is also more in line with how I think about these issues together. I don’t want to declare that I entirely agree with this ethos, but I am strongly sympathetic to the concept of Consistent Life. The general argument is that we should be consistent in our views regarding life. We should not claim to be pro-life if it is only abortion we want to stop. We should not claim to be about life if we only want to ensure babies are born and not care about helping families succeed. We should not claim we are pro-life and then want to bomb other countries into oblivion. See the website for a detailed discussion on the consistent life mantra.[1]

So, what is the current law on life?

The current law on abortion really stems from two major Supreme Court cases: Roe v. Wade (1972/1973)[2] and Webster v. Reproductive Health Services (1989)[3]. There is also a recurrent law known as the Hyde Amendment[4], and when we have a Republican president there is often something known as the Mexico City Policy[5] (which is an Executive Order).

Life before Roe v. Wade is not as idyllic as many pro-life individuals would want to argue.[6] The history of abortion is long and complicated. But, briefly, the first modern laws indicated that a human life began when the baby/fetus “quickened” which usually took place in the 16^th or 17^th week of gestation, and other definitions of when life began have not been accepted entirely by many policy makers, for instance: conception, when the parents’ genes combine, when the fetus/baby can be distinguished as human, when there is a heartbeat, when the nervous system becomes functional, or when the baby can survive outside of the womb.

So, policy was very complex before Roe v. Wade in the United States. For many years, there were no laws against abortion. In England, it was legal to get an abortion until quickening occurred, and it was a misdemeanor afterward. Canon Law (Catholic Church) held that a fetus was not a human until the 40^th day until 1869. It was in the 1820s that states began to pass laws saying that a baby who had quickened could not be aborted and a doctor who did so would serve life in prison. (I cannot find any consistent evidence on what would happen to the mother.)

From the 1870s through the late 1960s, abortion was illegal throughout the United States except when it was necessary to save the life of the mother.[7] Because it was illegal, we do not have great evidence about the rate of abortion in the United States from this time period. But, the American Medical Association estimated that 1 in 5 pregnancies was aborted. Starting in 1967 (with Colorado), 16 states had liberalized abortion law before Roe v. Wade (including California under Governor Reagan). One estimate is that nearly 100,000 women traveled to New York every year to have an abortion because it did not have a residency requirement.[8]

Roe v. Wade expanded on a decision that was made in the 1965 Griswold v. Connecticut case (which stated that women have the right to privacy and use birth control without the approval of their husbands).[9] What this privacy means as it relates to abortion is that states cannot restrict access to abortion in the first trimester because this is a private decision between a medical practitioner and the woman. After the first trimester, states can make decisions about law with regard to the health of the mother, and after the age of viability states are able to prohibit abortion. The age of viability is an important term here.

This gave states the right to make laws as they saw fit. As a result, there was a wide variance in abortion law depending on the type of state one lives in. The next case, Webster, sought to challenge whether or not states could really restrict abortion rights. Missouri had placed numerous restrictions on abortion in 1986 and a clause in its own Constitution that life begins at conception. The state law also argued that no public facility can be used for abortions and that a doctor needed to perform a viability test on women more than 20 weeks pregnant to determine if an abortion could take place. The laws were upheld, and this was a big win for pro-life groups. A second major case on this topic, Planned Parenthood v. Casey[10], ruled that states could not place an “undue burden” on women who had the right to an abortion (first trimester and generally before viability). Where this leaves us is that states and not the federal government are often the battleground for abortion policy. We also see that the Supreme Court plays a major role on abortion policy but has consistently upheld Roe v. Wade, even if they are personally opposed to abortion.[11] Thus, each state has different rules regarding abortion.[12]

While most policy on abortion is done at the state level, there are some federal level policies. For instance, the Hyde Amendment, which has been passed annually since 1976, prohibits federal funds from being used for abortions except in the case of rape, incest, or endangerment to the mother’s life.[13] This law disproportionately affects women who are poor because federal funds only really apply to women on Medicaid. It is important to note that states can choose to use their own money to fund abortions for women on Medicaid, but no federal money can be spent on abortion. This is true even as Medicaid has expanded due to Obamacare. This is how one can argue that Planned Parenthood does not use federal money for abortions, because it is illegal for them to do so.

Finally, there is something known as the Mexico City policy[14] which states that the U.S. federal government cannot give any money to clinics, charities, or groups that offer abortions overseas because it is impossible to determine how the money will be spent. When Republicans are in office, dating back to Reagan in 1984, this policy is in place through executive order. But, because it is an executive order, Democrats rescind this policy.[15]

I apologize about writing so much regarding the issue of abortion. However, I believe it is important to include all of this backstory considering we have two very polarized political parties regarding the issue of abortion. Neither side has an interest in mentioning the fact that abortion rates do not correlate strongly with abortion policy because they want you to vote on this issue. Take the United States, for instance. When abortion was illegal in every state, the AMA placed abortion at 1 in 5 pregnancies. The CDC places (in 2012) the abortion rate at 210 per 1000 births (or 210 out of 1210 which is lower than when abortion was illegal).[16] The Guttmacher Institute states that 21% of all pregnancies end in abortion in 2011 (once again, not a large difference from when it was illegal).[17] Abortion rates were highest in the United States in the early 1980s, but 90% or more of abortions are consistently performed before the end of the 1^st trimester (or 13 weeks). Around the world, we see the rates in the U.S. are lower than average and there is no correlation between abortion policy and abortion rates.[18] So, I think it is important we understand the facts as they stand before we move onto discussion of where the candidates stand.

Okay, moving onto other forms of life. The death penalty is widely popular in public opinion. It is another issue that is largely left up to the states to decide.[19] The Supreme Court rarely agrees to hear cases connected to capital punishment and the 8^th amendment. Looking at a global scale, we are one of the few advanced nations and one of 20 total nations that allow the death penalty.[20]

The issue of war will be covered in the foreign policy post. Suffice it to say, we like our military in the U.S.

So, where do the candidates stand on life?[21]

Hillary Clinton:

The famous phrase (at least to me) from Hillary Clinton on abortion has always been that it should be “safe, legal, and rare.”[22] It is quite clear that Hillary Clinton is pro-choice in that she believes it is not the government’s right to decide whether a woman can get an abortion. But, the complexity of policy is also important to understand. So:

- Hillary Clinton has started to say that she is against the Hyde Amendment which has been the longstanding compromise between Democrats and Republicans whereby abortion would be legal but not paid for by government. The 2016 cycle is the first time Democrats have argued for a repeal of the Hyde Amendment.[23]

- Clinton continues to fight for Planned Parenthood (which is now a political issue unlike ever before). She has received the endorsement of this organization. Note, in the footnoted article, that the word rare is taken out of the quote about the legality of abortion.[24]

- But, Clinton has also gone on record saying that restrictions on late-term abortions are okay as long as they have proper exceptions for the health of the mother.[25]

On the issue of the death penalty, Clinton uses much of the same rhetoric. She believes that the death penalty should be safe, legal and rare. Well, she doesn’t use those words exactly. But, she does favor its legality. She also believes it should be rare.[26] Clinton has a long record of favoring the death penalty.[27] But, this is one issue where she disagrees with her party. The Democratic Party platform calls for the removal of the death penalty.[28]

Gary Johnson on life:

The website for his 2016 campaign states:

“Gary Johnson has the utmost respect for the deeply-held convictions of those on both sides of the abortion issue. It is an intensely personal question, and one that government is ill-equipped to answer. On a personal level, Gary Johnson believes in the sanctity of the life of the unborn. As Governor, he supported efforts to ban late term abortions. However, Gov. Johnson recognizes that the right of a woman to choose is the law of the land, and has been for several decades. That right must be respected and despite his personal aversion to abortion, he believes that such a very personal and individual decision is best left to women and families, not the government. He feels that each woman must be allowed to make decisions about her own health and well-being and that the government should not be in the business of second guessing these difficult decisions.Gov. Johnson feels strongly that women seeking to exercise their legal right must not be subjected to prosecution or denied access to health services by politicians in Washington, or anywhere else.”[29]

So, what this says to me is that Johnson, as governor fought late-term abortions. In 2012, he supported a woman’s right to choose up until the age of viability, and there is no clear answer regarding his views after the age of viability.[30]

But, as president he would have little interest in appointing judges that are pro-life. Because, this is not a decision that government should be making.[31]

Gary Johnson has changed his position on the death penalty. As the governor of New Mexico he was heavily in favor of the death penalty, even pushing to allow children as young as 13 stand for a capital case.[32] But, over time, he has come to believe that capital punishment is not good public policy.[33]

Donald Trump on life:

I am not sure where exactly to start with Donald Trump. But, let’s go ahead and do what we can to provide a coherent set of views regarding abortion for Trump.

So, let’s do a timeline here…

In 1989, Trump co-hosted a fundraiser for Planned Parenthood but did not attend.[34] Yes, I am not sure what to make of that either.

In 1999, Donald Trump (video in the link) stated that he is very pro-choice, even though he did not like the concept of abortion.[35] He reiterated in the same interview that if he were to be president (yes, he was talking about it then too)[36] he would not ban abortion because he is very much in favor of choice.

By 2011, Trump had switched to being pro-life. Now, it is important to note that 2008 was the first presidential election that both major party candidates had been consistent on the issue of abortion throughout their career. So, it is common for a politician to have switched on this issue.[37]

But, he did answer, the first time it was asked in 2015, that he was pro-choice before remembering that he had changed his position.[38]

The issue of abortion is something that Trump’s Republican challengers took issue with. Many, including Ted Cruz[39] and Marco Rubio[40] did not believe that Trump’s change of heart was truthful. Donald Trump has been saying for several years that he would appoint pro-life judges to the Supreme Court as president.[41] He bends over backwards to say that he is pro-life except for the caveats that “many Republicans have” such as in the case of rape, incest, and danger to the life of the mother.[42]

So, if you take him at his word (right now), Trump would be the most pro-life candidate when it comes to abortion among the three. But, there are also some concerns regarding his specifics as it relates to abortion policy.

First, Trump is unclear as to whether he would support defunding Planned Parenthood (not saying I am in favor of it, but many conservative Christians are). He has routinely said that Planned Parenthood does great things, but he has also said he wants to defund the organization.[43]

Second, you may remember that Trump changed his mind several times in the span of a few days regarding abortion (or he was consistent if you interpret very very oddly). First, he said that women who receive abortions should be punished (which is more stringent than many in the pro-life movement would have it. Then, an hour later he released a statement saying that abortion should be put back in the state’s hands. Now, this would basically be saying before the age of viability (because after viability states have control). Two hours after the original statement, Trump said the doctor should be punished rather than the woman getting the abortion (which is more consistent with pro-life views). Then, a few days later, Trump stated that the current laws on abortion are set. And, we should leave them as is…which implies that he is fine with pro-choice policies.[44] I am not sure which of those is his real position, if any of them are.

Further, before Trump said he would appoint pro-life judges, he also stated that someone like his sister would be phenomenal for the Supreme Court. The problem with this (if you are pro-life) is that she wrote against partial birth abortion bans as being restrictive of the woman.[45] So, before he was the candidate he wanted to appoint someone like her, but now he wants to appoint a pro-life candidate. Once again, this makes it hard to know where he truly stands on the issue.

One thing that is clear is that Donald Trump is in favor of the death penalty. In the 1980s, Trump took out a full-page ad in the New York Times asking that we bring back the death penalty. He has also stated there should be a mandatory death penalty for killing a police officer (even if this is unconstitutional).[46]

So, where do I stand on the issue of life?

You may remember that I made the argument that having a moral position and a policy position can be different. So, let’s get the moral part out of the way first.

I believe that abortion is the wrong choice. I believe the Bible makes it clear that life is to be valued. The passages that Christians routinely point to in the Bible are: Psalm 139: 13-16, Job 10:8-12, and the simple fact that mankind is created in God’s image (Genesis 1:27). Certainly, there are people who would argue that the Bible has no problem with abortion,[47] but I would argue they are proof-texting. As a result, I am personally against abortion from a moral perspective.

Also, I am morally opposed to the death penalty. I know that many Christians favor the death penalty because the individual has been convicted of crimes and is not innocent in the way that a baby is in the womb.[48] My personal view against the death penalty is in the minority among Evangelicals. But, there are some good resources (linked) for justifying my views[49] and Evangelical views against mine.[50] But, it is important to note that many leading Evangelicals who are in favor of the death penalty struggle with the fact that the state has not always made good decisions about capital punishment.[51]

So, why am I opposed to the death penalty? Some argue that it is because human life is so precious that God detests death. I can see that, but it is not deciding factor for me. Others argue that we should be pro-life entirely for consistency sake.[52] Much of my own reasoning stems from a book I read at Baylor written by Jean Bethke Elshtain. Her work, Sovereignty: God, State, and Self,[53] helped lead me from someone who was uncomfortable with a policy of retribution in the death penalty to one that made me opposed. The premise of the argument is that for most of Christian history, we believed that God was sovereign and determined who was worthy of life. It was God who granted life. It is God who is sovereign. Then, when we started forming nation-states (we can generally point to the Treaty of Westphalia in 1548), it became the state that was sovereign. We transferred the power of life from God to state. Now, in modern society, we have transferred power of life from state to individuals. In other words, we replaced God with the state, and the state with the self. Her argument, that independence and worship of the state takes us away from a right view of God, really pushed me to think critically about whether we want the state to determine who is worthy of life. I have come to conclude for this reason, as well as clear evidence that innocent people have been put to death[54] to view the death penalty as something I am morally opposed to.

Growing up in Indiana, we had abstinence based sex ed. Now, as a sophomore in high school it was weird enough that someone who went to my church was in my class talking about the details of sex. But, I also found it odd that many of my friends who were not Christians were also being told that abstinence was the only way to approach sex. I knew many of my friends were not listening to that advice. I have trouble expecting people who have a different worldview than me to behave the same way as me. What does this mean in practice?

I would not feel comfortable participating in capital punishment, but I recognize that the state sees it as a right. If I were in a jury, I would never vote in favor of the death penalty. If I were a legislator, I would vote against the death penalty. But, I would also work to find ways around the death penalty.

What does this say about the issue of abortion? I would never feel comfortable encouraging someone to get an abortion. I have friends who have gotten abortions, and I wish they had not done so. But, I have never been pregnant and scared. I have never been in poverty (well, Jenny and I don’t have any money right now because I haven’t been paid in 3 months…but I have a contract that will pay me consistently).

As a legislator, I would vote in favor of any policy that makes abortion less likely. But, I am not sure that I would vote to outlaw it, even if the Supreme Court said that it could be done. I say this because (as discussed above) the rates of abortion are not tied to the laws regarding abortion.

So, how would I fight abortion without outlawing it? We have evidence that access to birth control lowers rates of abortion.[55] So, even though Evangelicals believe in abstinence until marriage, it leads to fewer abortions if we make access to birth control easier. Second, we know that the vast majority (75%) of those who get abortions are in poverty or in danger of going into poverty.[56] What this says is that economic policy is also related to life. We live in a world where economic inequality is real and growing.[57] If we want to really say we are pro-life and want to cultivate life, we should understand that economic inequality is a concern. Third, more than half of women who get abortions are already mothers.[58] What this says is the way we discuss abortion (in the Evangelical circle) is probably not accurate.[59] Most importantly, what this tells me is that if we spent half the time trying to create a culture of life as we do discussing how it is important to vote pro-life, our society would be better off.[60]

What does this mean for the candidates?

None of them are in total agreement with me. If it were up to just this set of issues, I guess…Gary Johnson would be the closest to me. Let’s wait until post 3 and see if that is still the case.

[1] http://www.consistentlifenetwork.org/

[2] For a brief synopsis see: https://www.oyez.org/cases/1971/70-18

For the full opinion: https://www.law.cornell.edu/supremecourt/text/410/113

[3] For a brief synopsis see: https://www.oyez.org/cases/1988/88-605

For the full opinion: https://www.law.cornell.edu/supremecourt/text/492/490

[4] For some background reading on the Hyde Amendment, check out these links: https://www.aclu.org/access-denied-origins-hyde-amendment-and-other-restrictions-public-funding-abortion, https://www.plannedparenthoodaction.org/issues/abortion/hyde-amendment, and this one on a brief history of the Hyde Amendment: http://billmoyers.com/content/five-facts-you-should-know-about-the-hyde-amendment/

[5] http://abcnews.go.com/Politics/International/story?id=6716958&page=1

[6] I am taking a lot of this material from an article published in 1980. The citation for this is: Margolis, Michael, and Kevin Neary. “Pressure Politics Revisited: The Anti-Abortion Campaign” Policy Studies Journal 8, no. 5 (March, 1980): 698-716. If you are interested in a pdf, let me know and I can send it to you.

[7] Once again, that Margolis and Neary article is where I am getting a lot of this. They provide citations for all of the statements I am making.

[8] For another good source on the law before Roe see: http://projects.oyez.org/body-politic/ch1#ch1-2

[9] I love this topic. The right to privacy is found nowhere in the Constitution. It is implied from the Due Process clause of the 14^th Amendment. But, if you are really a literal reader of the Constitution you will not find a right to privacy. I like to talk about Federalist #84 as it relates to this discussion. This concept of the right to privacy was also what ultimately sank Robert Bork’s nomination in 1986. He argued that for us to use a right to privacy as a justification for birth control, abortion, engaging in same-sex relations, we need to amend the Constitution and give us the right to privacy. This is where Conservatives can actually be in favor of government control if they want to argue that government does have the right to limit your private decisions.

[10] http://projects.oyez.org/body-politic/ch2#ch2-1

[11] http://projects.oyez.org/body-politic/ch2#ch2-1

[12] For a clear delineation of what the laws are like in each state, see: https://www.guttmacher.org/state-policy/explore/overview-abortion-laws

[13] http://billmoyers.com/content/five-facts-you-should-know-about-the-hyde-amendment/

[14] Coincidentally, it was my knowledge of this and the Hyde Amendment that almost got me kicked out of a church because a pastor spoke incorrectly. The pastor then proceeded to explain to me for an hour how little I knew…

[15] http://abcnews.go.com/Politics/International/story?id=6716958&page=1

[16] http://www.cdc.gov/reproductivehealth/data_stats/

[17] https://www.guttmacher.org/fact-sheet/induced-abortion-united-states?gclid=CjwKEAjwrIa9BRD5_dvqqazMrFESJACdv27G5wPKdVChbLvJ8T7g-s2JqiYRbhlr1_l0qoq9IWO-bRoCTxjw_wcB

[18] http://www.vox.com/2016/5/11/11657174/abortion-rates-falling

[19] http://www.deathpenaltyinfo.org/states-and-without-death-penalty

[20] https://www.theguardian.com/news/datablog/2011/mar/29/death-penalty-countries-world

[21] I will be discussing the candidates in alphabetical order.

[22] http://www.latimes.com/opinion/opinion-la/la-ol-hillaryclinton-abortion-campaign-20160209-story.html

[23] http://www.theatlantic.com/politics/archive/2016/08/abortion-tim-kaine-hillary-clinton/493913/

[24] http://www.huffingtonpost.com/entry/hillary-clinton-gender-card-planned-parenthood_us_56941267e4b0cad15e65cabe, and http://www.politico.com/story/2015/08/hillary-clinton-video-ad-support-planned-parenthood-2016-120949

[25] http://www.huffingtonpost.com/entry/democratic-debate-abortion_us_56de11c8e4b03a405679a43d, and http://www.nbcnews.com/politics/2016-election/rubio-said-clinton-supports-abortion-baby-s-due-date-true-n513131

[26] https://theintercept.com/2016/03/17/hillary-clintons-indefensible-stance-on-the-death-penalty/