Reading Packet 3

CONTENTS

THE BEGINNING OF LIFE

1. The Right to Abortion: Roe v. Wade  — Harry Blackman, Byron White

From U.S. Supreme Court, Roe v. Wade (1973)

2. Fetal Pain: Pro and Contra  — Jean A. Wright and Arthur Caplan

From U.S. House of Representatives, Committee on the Judiciary, subcommittee hearing (2005)

BIOTECHNOLOGY

3 Ageless Bodies — Leon R. Kass and The President's Council on Bioethics

From Beyond Therapy: Biotechnology and the Pursuit of Happiness (2003), Chapter 4.

4. Is Genetic Discrimination a Serious Worry: Pro and Contra  — Karen Rothenberg and Burton J. Fishman

From U.S. House of Representatives, Committee on Education and Labor, subcommittee hearing (2007)

FREE EXPRESSION

5. Preserving Internet Freedom: Guiding Principles for the Industry — Michael K. Powell

From “Preserving Internet Freedom: Guiding Principles for the Industry” (2004)

6. Protecting the Flag — Richard D. Parker

 From U.S. House of Representatives hearing (2003)

SEXUAL FREEDOM

7. Pornography: Harmful yet Legal? — Pamela Paul and Rodney A. Smolla

From U.S. Senate Committee on the Judiciary hearing (2005)

____________

#1.

The Right to Abortion: Roe v. Wade

Harry Blackman and Byron White

The current legal status of abortion in the U.S. was set by the 1973 Supreme Court decision, Roe v. Wade, which held that women have a right to abortion during the first trimester of pregnancy and governments cannot interfere with this. The episode began in Texas, whose state laws prohibit physicians from performing abortions except to protect the life of a woman. While other states at the time held that abortions could also be performed to protect the “health” of the woman, Texas law did not include this. In 1970 an unmarried pregnant woman named Norma L. McCorvey — under the pseudonym “Jane Roe” —  challenged the Texas law on behalf of similar pregnant women in that state. The case made its way to the U.S. Supreme Court where, in a 7-2 vote, the Justices struck down the Texas law. Selections are included below from the majority opinion of the Court, delivered by Justice Harry Blackman, and Justice Byron White’s dissenting opinion.

            The majority opinion is a lengthy document that addresses many issues connected with the abortion controversy: the history of abortion in Western civilization, the legal and moral status of fetuses, and the rights of women. After sketching the history of abortion from ancient Greece to the time of the court case, the majority opinion concluded that strict anti-abortion laws were a recent phenomenon that emerged in the late 19^th century. Prior to that, abortions were readily permitted before “quickening” that is, when the fetus is formed and can move. English common law set this at 40 days for a male and 80 days for a female. Even with abortions after quickening, the stipulated penalties were comparatively light. In the late 19^th century, states dropped the distinction between pre and post quickening, and by late the 1950s, most states banned abortion except when done save the life of the mother.

            Turning to the legal issue, the Court took a middle ground between two more extreme positions on the legality of abortion. The extreme anti-abortion side is that the fetus is a legal person from the moment of conception, and abortion is not permissible unless the mother’s life is in danger. By contrast, the extreme pro-abortion side is that the fetus is not a person throughout pregnancy, and a woman can opt for an abortion as a matter her right to privacy. The court’s middle ground position recognizes the woman’s Constitutional right to privacy and, accordingly, the right to an abortion. However, it also acknowledges that after a “compelling point” in fetal development, States balance the right rights of the woman against the potential life of the fetus and thus regulate abortion. That “compelling point” is viability—the ability of a fetus to survive outside the womb, at around six months. The guidelines for State regulation of abortion are in three tiers. First, states cannot restrict abortion prior to the first trimester of pregnancy, since the risk to the woman’s life is lower at the same level or lower than the rates for normal childbirth. Second, states can regulate abortions during the second trimester only to protect the woman’s safety. Third, states can restrict abortion after the third trimester when the point of viability is reached, in the interest of protecting the potential life of the fetus.

            In his dissenting opinion, Justice Byron White objected that, contrary to the majority opinion, there is no Constitutional justification for a woman’s right to an abortion. Further, he argued, it should be left to the individual States to determine for themselves how to best balance the interests of the mother against those of the fetus.

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

            In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

            Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries. . . .

[HISTORY OF ANTI-ABORTION LAWS]

[From Ancient Greece to the 20^th Century]

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.

Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished. We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, and that “it was resorted to without scruple.” The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome’s prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable. Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father’s right to his offspring. Ancient religion did not bar abortion.

The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460?-377? B.C.), who has been described as the Father of Medicine, the “wisest and the greatest practitioner of his art,” and the “most important and most complete medical personality of antiquity,” who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past? The Oath varies somewhat according to the particular translation, but in any translation the content is clear: “I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,” or “I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.” . . . Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. . . . This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath’s apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics.

The common law. It is undisputed that at common law, abortion performed before “quickening” -- the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy  -- was not an indictable offense. The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became “formed” or recognizably human, or in terms of when a “person” came into being, that is, infused with a “soul” or “animated.” A loose consensus evolved in early English law that these events occurred at some point between conception and live birth. This was “mediate animation.” Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas’ definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country. . . . [It is] doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.

The English statutory law. England’s first criminal abortion statute . . . came in 1803. It made abortion of a quick fetus, (1) a capital crime, but in (2) it provided lesser penalties for the felony of abortion before quickening, and thus preserved the “quickening” distinction. . . . Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967 . . . [which] permits a licensed physician to perform an abortion where two other licensed physicians agree (a) “that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated,” or (b) “that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.” The Act also provides that, in making this determination, “account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.” It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion “is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.”

The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough’s Act that related to a woman “quick with child.” The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860. In 1828, New York enacted legislation 31 that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it “shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.” By 1840, when Texas had received the common law, only eight American States had statutes dealing with abortion. It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother’s life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.

            Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother. The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother’s health. Three States permitted abortions that were not “unlawfully” performed or that were not “without lawful justification,” leaving interpretation of those standards to the courts. In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws . . .

            It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.

The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period. . . . Except for periodic condemnation of the criminal abortionist, no further formal AMA action [since its 1871 report on the subject] took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion, except when there is “documented medical evidence” of a threat to the health or life of the mother, or that the child “may be born with incapacitating physical deformity or mental deficiency,” or that a pregnancy “resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the patient” . . . . In 1970, after the introduction of a variety of proposed resolutions, and of a report from its Board of Trustees, a reference committee noted “polarization of the medical profession on this controversial issue”; division among those who had testified; a difference of opinion among AMA councils and committees; “the remarkable shift in testimony” in six months, felt to be influenced “by the rapid changes in state laws and by the judicial decisions which tend to make abortion more freely available;” and a feeling “that this trend will continue.” . . .

[Reasons for Criminalization of Abortion in the 19^th Century]

Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.

            It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously. The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.

            A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940’s, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State’s real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.

            Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal “abortion mills” strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.

            The third reason is the State’s interest -- some phrase it in terms of duty -- in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.

            Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life. Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose. The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State’s interest in protecting the woman’s health rather than in preserving the embryo and fetus. Proponents of this view point out that in many States, including Texas, by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another. They claim that adoption of the “quickening” distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.

            It is with these interests, and the weight to be attached to them, that this case is concerned.

[CONSTITUTIONAL ISSUES]

[The Right to Privacy]

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as . . . 1891, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . .

            This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

            On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. . . . As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute.

            We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. . . . .

[Legal Personhood and Fetuses]

Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State’s determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.

            The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

            The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators . . .  But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.

            All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn.

            This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.

[DIFFERING VIEWS OF WHEN LIFE BEGINS]

The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. . . . As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

            Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. 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.

            It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes “viable,” that is, potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. The Aristotelian theory of “mediate animation,” that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this “ensoulment” theory from those in the Church who would recognize the existence of life from the moment of conception. The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a “process” over time, rather than an event, and by new medical techniques such as menstrual extraction, the “morning-after” pill, implantation of embryos, artificial insemination, and even artificial wombs.

            In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.

            In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.”

[ALLOWABLE GOVERNMENT RESTRICTIONS OF ABORTION]

[First and Second Trimester Abortions and the Mother’s Health]

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

            This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

[Third Trimester Abortions and Viability]

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

[Conclusion and Summary]

Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.

            This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness. . . .

            To summarize and to repeat:

            A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

. . .

            This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.

[JUSTICE BYRON WHITE: DISSENTING OPINION]

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

            The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

            With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

            The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

            It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women whose pregnancy assertedly implicates their health. . . .

Source: U.S. Supreme Court, Roe v. Wade (1973); notes have been removed.

Questions for Review

1. Describe the English common law view of abortion, which was held in the U.S. until the mid 19^th century.

2. What are the three reasons given for the criminalization of abortion in the 19^th century?

3. What are some of the differing views of when life begins, and what view does the court take?

4. What is the court’s view of abortion regulation during each of the three trimesters of pregnancy?

5. On what grounds does Justice White object to the majority decision?

Questions for Analysis

1. The majority decision places a lot of weight on the fact that strict abortion laws emerged only recently in the late 19^th century. Is this historical argument for abortion rights convincing? Explain.

2. Discuss how the right to privacy might apply to a woman’s right to abortion.

3. The majority opinion states that the potential life of the fetus becomes compelling only at the point of viability (i.e., the third trimester). Discuss the Court’s rationale for this view and whether you agree.

4. Explain Justice White’s reasoning in the second to the last paragraph of his opinion (“The Court apparently values the convenience. . . .”

____________

#2

Fetal Pain: Pro and Contra

Jean A. Wright and Arthur Caplan

Since the ruling of Roe v. Wade, there have been continual efforts of governmental bodies and special interest groups to overturn it or at least minimize its impact. One such effort is reflected in the recent debate over fetal pain. Are fetuses physiologically capable of feeling pain? If so, then shouldn’t pregnant women know about this before having an abortion? On these grounds a bill was proposed before the U.S. Congress that would require health care providers to read an informed consent statement to such women notifying them that fetuses of a specific age can feel pain and that anesthesia for the fetus is available. The ultimate aim of the statement would be to discourage these women from having abortions. The selections below are by two witnesses at a Congressional hearing on the issue. In favor of the informed consent statement is Jean A. Wright, physician and Professor of Pediatrics at Mercer School of Medicine. According to Wright, a growing body of research indicates that fetuses are physiologically capable of experiencing pain after 20 weeks of gestation. Just as physicians now give pain relief medication to premature infants as young as 23 weeks of age, so too should consideration be given to their unborn counterparts. Women, she argues, are entitled to know whether a medical procedure will be painful for their fetuses, and whether there are steps to alleviate the pain; the informed consent statement plays this role. Just as knowledge of fetal pain has changed clinical practice, the legislative issues must change as well. Against the informed consent statement is Arthur L. Caplan, Professor of Bioethics at the University of Pennsylvania. According to Caplan, there is no medical consensus about when the fetus becomes pain-capable, various studies placing it at 28 weeks, 26 weeks, 24 weeks, and even earlier. It would be a bad precedent for governments to “mandate disclosures about ‘facts’ for political or even ethical reasons which have no foundation in science or medicine.” In no other area of health care has government mandated the content of informed consent, and it is hard to justify a fixed script since every patient is different, since all situations are different.

JEAN A. WRIGHT: PRO

Extension to Care in the Neonatal Intensive Care Units

. . . .Today, if you walk with me in our neonatal intensive care unit, you will see the same concern [to relieve pain in newborns also] exhibited for our tiniest of all infants. The concern about how to block pain, how to eliminate stress, how to improve survival, and how to minimize the complications that frequently accompany premature infants is on the forefront of the care-givers mind. Viability for the premature infant has long since passed the 28 week gestational age definition that existed when Roe v. Wade was decided. For some infants, viability has been pushed back to 23–24 weeks. And so many of our neonatal units now have infants of 23 weeks and older gestational ages.

            Because of the work of many researchers in the fields of pediatric anesthesia, their scientific inquiry led to a change in practice. Early in the 1990’s, many neonatal units considered the infants too weak or sick for pain-relieving medications. Our previously held assumptions are replaced with first hand observations of these tiny patients, with monitoring of the hormones released from the neuro-humoral axis (our fight and flight hormones), and with a clearer understanding of the development of pain pathways in the fetus. We invest in expensive beds to eliminate noise and pain, and in a care plan that minimizes painful sticks and pokes. We now regard even the pain of a simple heel stick for a routine blood sample. In the early 1990’s many neonatal intensive care units did not have uniform approaches to minimizing painful events, or pre-treating infants prior to painful and stressful procedures. Today they do. We are so mindful of even the stress of noise and touch, that neonatal intensive care units monitor the sound level, and minimize the number of times an infant is handled, poked or stress, . . . all in the name of decreasing pain and stress, and improving clinical outcomes. We respect the pain and the stress, we do everything we can to avoid it, and we treat it when present. Today, pain relief is an important step to generating a healthy outcome. Today with the survival of 23 and 24 week infants, we no longer speculate as to whether they feel pain. We understand it, try to avoid it, and treat it when appropriate. 

The Disconnect Between Pain in the Neonate and Pain in the Fetus

With the knowledge explosion in the field of pain development in the fetus, the world of pediatric anesthesia and neonatal intensive care changed. Why did this same information not change the world for the unborn? To regard pain in the unborn required that we consider pain during in utero surgical procedures, but also pain to the unborn during an abortion. Furthermore to recognize the unborn’s ability to perceive pain would require that we disclose that information to the mother prior to the procedure as part of the informed consent. Perhaps, with that information at hand, the mother might change her position regarding an abortion for her unborn. Therefore the scientific information regarding pain in the unborn was not integrated with the dialogue around the procedures of abortion.

            In the mid 1990’s the discussion around partial-birth abortion broke the sound barrier around fetal pain. A discourse followed around whether the infant felt pain, whether maternal anesthesia could or would treat the pain, and whether informed consent for the procedure should disclose the possibility of pain to the unborn. Discussions on partial birth abortion brought into focus the developmental realities of the infant in the 3rd trimester, and juxtaposed that stage of human development with its ex-uterine counterpart, the preterm infant. Further scientific discoveries over the past decade have only served to underscore the anatomy and physiology of the pain pathways in the unborn and preterm infants. Now several states have begun to wrestle with the legislative aspects of both protecting their most vulnerable subjects from pain, and from informing their mothers of its presence and its need for treatment. 

The Role of Informed Consent

As a mother myself, every procedure I face with my own child is preceded by her first question, “Mommy, will this hurt?” It is my natural maternal response is to try to avoid all forms of pain and suffering for my child. As a parent I want to know about the possibility of pain, and my child (if old enough) wants to know as well. But for the child unable to speak, or unable to understand the upcoming flu shot or laceration repair, the parent stands in the gap gathering clinically relevant information, and exercising prevention and protection against harmful or painful situations. It is our question to ask, “Will my child feel pain?”

            Parents are entitled to this information for their children. They need it explained in a clear and meaningful way that they as laypeople can understand. This standard exists for children born; now we raise the standard and ask that it exist for those unborn. “Will this surgery or procedure on my premature baby cause pain? What will be done to alleviate the pain and suffering?” We should answer those questions as clearly for procedures concerning the unborn as the born. 

What will we Tell Them?

Beginning as early as 6 weeks of development, tiny pain fibers pepper the face and oral mucosa. The spread of these unique fibers proceeds in a head to toe fashion until by the 20th week, they cover the entire body. Not only do these fibers exist, they do so with greater density per sq inch than in the adult.

            These fibers will connect with the spinal cord, and then connect with fibers that ascend to the thalamus and cortex. By the 10–12th week, the cortex is developing, and by the 15th week, the fibers from below have penetrated into the cortex. Studies at 16 weeks and beyond show hormonal responses to painful stimuli that exactly duplicate the responses that the infant and adult possess. The critical difference is that the unborn lacks the ability to modulate itself in response to this pain. Therefore, the responses of hormones to painful procedures show a 3–5 x surge in response. This ability to down-regulate the response in light of painful stimuli will not exist until the unborn child is nearly full term in its gestational age. Further studies demonstrated that the magnitude of pain response reflected the magnitude of the stimulus and blocking the pain receptors with narcotics, blocked the hormonal surge. By 19–20 weeks, EEG recordings are readily documented, and somatosensory evoked potentials (SSEP) are seen by 24 weeks.

            After 20 weeks of gestation, an unborn child has all the prerequisite anatomy, physiology, hormones, neurotransmitters, and electrical current to “close the loop” and create the conditions needed to perceive pain. In a fashion similar to explaining the electrical wiring to a new house, we would explain that the circuit is complete from skin to brain and back. The hormones and EEGs and ultrasounds record the pain response, and our therapies with narcotics demonstrate our ability to adequately block them. Therefore, any procedure performed on an unborn child after 20 weeks should take this into consideration. “Can the unborn fetus feel pain at this stage of development,” we would be asked. “Is there something that can be given to alleviate the pain?” And we would answer, “Yes,” to both. 

Why Isn’t Treating the Mother Enough for the Child?

Most obstetrical anesthetic care plans use spinal, caudal, epidural or other forms of nerve blocks to interrupt the cause of pain and the perception of pain. We refer to this as regional anesthesia. The sensory nerves that innervate the abdominal wall and the lower pelvic structures are anesthetized in the same manner that a tooth is numbed by a nerve block with Novocain at the dentist. The mother’s specific nerves, or nerves that innervate the perineum, are blocked by these regional anesthetic techniques. While this serves as excellent anesthesia for the mother, it provides no anesthetic relief to the unborn child.

            Advances in intra-uterine surgery have required more detailed thinking about pain management of the unborn during these operations. In essence, two anesthetics are planned. One for the mother and one for the unborn child. If an intravenous anesthetic is used, such as a narcotic, it must go through the mother’s circulation, and then enter the fetus’ circulation, and the reach the fetal brain, in order to achieve pain relief. Dosing via this route must be such to achieve a safe level of anesthetic in the unborn. Similarly, doses of narcotics may be given directly into the amniotic sac, or into the vein of fetus. Experience with premature infants shows us that the dose of narcotic is small, and can be given safely, and is inexpensive, and is effective in blocking pain and improving outcomes. 

Conclusion

The development of the perception of pain begins at the 6th week of life. By 20 weeks, and perhaps even earlier, all the essential components of anatomy, physiology, and neurobiology exist to transmit painful sensations from the skin to the spinal cord and to the brain.

            Infants in the neonatal intensive care unit give us a clear picture into life in the womb for the unborn fetus age 23–40 week gestation. Our understanding of the presence of pain, and the need to clinically treat this pain in the premature infant leads us to understand the presence of pain, and the need to treat pain in the unborn fetus of the same gestational age.

            Our conscience as clinicians requires us to apply the same standards of informed consent that we would to any other patient in a same or similar situation. We no longer can ignore the fact that maternal anesthesia treats the mother’s pain perception during these procedures, but leaves the unborn with no pain protection. Our knowledge of this field has changed our clinical practice and now the legislative issues must change as well.

ARTHUR L. CAPLAN: CONTRA

Thank you Mr. Chair and members of this Committee for the opportunity to testify before you on the proposed legislation which would require that women seeking abortions be informed about the pain to be experienced by their unborn child. My opinion is that this is not legislation that the House should enact. I will present a number of ethical issues that the committee may wish to consider as it examines this legislation.

            I will organize my testimony as follows: first, I will address the presumptions behind the proposed legislation and the comment on what is known or in dispute about those presumptions, second, what informed consent requires in terms of risk and benefit disclosure, third, I will offer my opinion as an expert on the ethics of informed consent on the advisability of enacting legislation which mandates the content of a script to be read to patients by their physicians, and, lastly, I will offer some comments on the advisability of Congress inserting itself into the practice of medicine in the United States and the morality of intruding into the doctor/patient relationship.

Fetal Pain

The proposed legislation before the House contends that unborn “children” have the physical structures necessary to experience pain at the age of twenty weeks of development. There is also a contention that giving anesthesia or analgesics to a pregnant woman does not diminish the pain capacity of an unborn fetus. And it maintains that medical science is capable of reducing fetal pain by delivering anesthesia or pain-reducing drugs directly to the “pain capable unborn child.”

            These are the findings used to then justify an unprecedented requirement in the history of American medicine—the provision by telephone or in person of a required statement by a physician or the physician’s agent to offer the option of the use of anesthesia or pain-reducing drugs “to the pain capable unborn child.”

            The question this committee must carefully consider is whether there is as a matter of empirical fact consensus about when a fetus is capable of feeling pain. If the rationale for mandating disclosure about techniques to minimize fetal pain prior to abortion rests on science and not the whim or presumption (and I use those terms intentionally) of non-scientists and non-physicians then there must be clear consensus on the part of the medical profession that at twenty weeks a fetus is pain capable.

            This is an enormous body of evidence which shows that the presumption of medical consensus does not exist about the question of when a fetus becomes pain-capable.

            A variety of groups and commissions in the United Kingdom and researchers in the United States and other nations have, in recent years, examined the question of when a fetus can feel pain. None of them has reached a consensus that is reflected in the proposed legislation.

            For example, five years ago the Commission of Inquiry into Fetal Sentience in the House of Lords in England looked at the question of when can a fetus feel pain. They found that a fetus may be able to sense some “form of pain sensation or suffering” when the cortex has begun forming connections with the nerves that transmit pain signals.

            This occurs “after 23 weeks of growth.”

            “By 24 weeks after conception the brain is sufficiently developed to process signals received via the thalamus in the cortex.” They noted that, “While the capacity for an experience of pain comparable to that in a newborn baby is certainly present by 24 weeks after conception, there are conflicting views about the sensations experienced in the earlier stages of development.”

            A year later another distinguished group of physicians from the Royal College of Obstetricians and Gynecologists in the United Kingdom examined the same issue. The panel consisted of experts in fetal development, law and bioethics.

            The group determined that a fetus can only feel pain after nerve connections became established between two parts of its brain: the cortex and the thalamus. This happens about 26 weeks from conception. Professor Maria Fitzgerald of University College London, author of the working group’s report, said that “little sensory input” reaches the brain of the developing fetus before 26 weeks. “Therefore reactions to noxious stimuli cannot be interpreted as feeling or perceiving pain.” W.G Derbyshire writing in the Bulletin of the American Pain Society in August, 2003 basically concurred with the view that the fetus becomes pain capable at 26 weeks.

            This year a meta-study—a review of existing medical studies into fetal pain—was published in the Journal of the American Medical Association (JAMA). The paper concluded that in reviewing all recent published studies that a fetus’s neurological pathways that allow for the “conscious perception of pain” do not function until after 28 weeks’ gestation.

            It is possible to criticize each of these studies and reports. And there are many more such reports and studies with different conclusions. But that is precisely the point the Congress must carefully reflect upon before enacting any legislation pertaining to fetal pain.

            There is no consensus among the medical and scientific experts about precisely when a fetus becomes pain-capable. Some put the point at 28 weeks. Others say 26 or 24 and still others younger still. But, without a clear consensus legislation mandating that a health provider or physician represent something as a fact which is not known to be true or agreed upon by the majority of medical and scientific experts as valid would not only be poor public policy it would set a terrible precedent for other topics where Congress might choose to mandate disclosures about “facts” for political or even ethical reasons which have no foundation in science or medicine.

            Mandating the provision of information as factual or as the standard of care or as a matter of consensus among experts when the information is none of these could open the door to an enormous slippery slope regarding what those seeking health care are told. In order to achieve political ends even well-intended ends it is exceedingly dangerous as history shows to try and bend science to serve political goals.

Consent, Risk and Benefit

If Congress decides to mandate the provision of information to women about fetal pain prior to abortion then it will have to carefully consider the content of what is being mandated and whether it adequately reflects the standards of full disclosure of risk and benefit as well as the provision of information about all options and alternatives.

            In creating a standard of disclosure about fetal pain and the use of anesthesia it will be necessary to disclose whether or not existing techniques are known to relieve fetal pain, at what age of fetal development and what evidence exists to support such claims.

            In notifying women that anesthesia administered to them will not provide pain relief to their fetus again it will be necessary to state with more clarity then appears in this legislation why that is held to be so as a matter of medical consensus and what the probability is of the statement being wrong. Informed consent will also require a more careful and precise delineation of the risks of anesthesia to the woman if it is directly administered to the fetus. The risk of fetal anesthesia is usually viewed as trivial since they are usually encountered during efforts to use surgery to repair a life-threatening risk to the fetus. They become far less trivial when placed in the context in which death to the mother becomes a possibility with uncertain benefit to the fetus. And some discussion will have to be had about the risks to the woman’s health of continuing various stages of a pregnancy versus terminating them depending upon her own health and medical condition.

            None of these elements of risk and benefit appear in the mandated information to be disclosed by the proposed legislation. I doubt whether there are many IRBs [i.e., Institutional Review Boards] in the nation which would approve the content of the disclosure as adequate to the standards of informed consent that have come to be expected for new, innovative and untested procedures in medicine.

Mandating the Content of Informed Consent

One of the most troubling aspects of the proposed legislation is the concept of the government requiring a mandated script or formula be used to secure informed consent in a doctor-patient relationship or health care provider-patient relationship. I know of no other area of health care where Congress or a state government has mandated the content of informed consent.

            It is hard to justify a fixed script since every patient is different, not all pregnancies are alike, not all fetuses have the same capacities at the same age of development and not all women face the same set of risks or have the same ability to understand and process information. Informed consent is not a formula—it is an individualized communication between provider and patient. To mandate that one size will fit all when it comes to the issue of fetal pain and what might be done about it is to fly in the face of decades of medical experience about informed consent as well as numerous court cases in which judges have found that simply reading a piece of paper or running through a standard template does not satisfy the requirements of informed consent.

Interference with the Practice of Medicine and the Doctor/Patient Relationship

It is my opinion that mandating the specific nature of what must be communicated to a woman considering an abortion or any other medical procedure is an unwise interference with the practice of medicine by Congress. One may well wish to discourage women from choosing abortions but forcing providers to read claims about fetal pain is showing no respect for the ability of the medical profession to present information about pregnancy, abortion and fetal pain to women. Moreover, since different physicians hold different views about fetal pain and about the ability to control that pain and since different providers will have different skills when it comes to the safe administration of anesthetic agents or anesthesia to women or fetuses it is overreaching for Congress to insist on precisely what each provider must say to each woman prior to an abortion or any other medical procedure.

            In summary there are many issues this committee and Congress must consider before moving forward with the proposed legislation on Pain of the Unborn. There is no consensus among experts about when a fetus becomes pain capable. There is no consensus about the efficacy of existing agents to relief pain in a fetus. There is no single standard that can be set as to what the risks are of attempting to administer pain relief directly to a fetus. This makes it difficult for Congress to claim a sufficient foundation for claims about the pain capabilities of the fetus at various stages of development.

            It is also difficult for Congress to mandate the content of informed consent without reducing consent to the provision of a “boilerplate” set of facts—something which we have been advising doctors not to do in the name of informed consent for many decades.

            And even with the best of motives intruding into the doctor-patient relationship when the facts are unclear and the risk unknown opens the door to slippery slope with enormous ramifications for the future practice of medicine. This is a door that ought be opened with the greatest of care and caution if at all.

Source: U.S. House of Representatives, Committee on the Judiciary, subcommittee hearing on Pain of the Unborn, November 1, 2005.

Questions for Review

1. What does Wright say about current pain-reduction efforts with premature infants?

2. According to Wright, what are some of the physiological processes are in place by week 20 that enable a fetus to feel pain?

3. According to Wright, what is the scientific consensus about when fetuses can feel pain?

4. According to Caplan, what information must an informed consent statement about fetal pain contain?

Questions for Analysis

1. Would fetal pain be a serious moral concern if it wasn’t for its role in the abortion debate? Explain.

2. Assume that the intended goal of an informed consent statement about fetal pain is to have a woman change her mind about getting an abortion. Does this interfere with a woman’s legal right to an abortion? Explain.

3. According to Caplan, “it is exceedingly dangerous as history shows to try and bend science to serve political goals.” Would fetal pain legislation do this? Explain.

#3

Ageless Bodies

Leon Kass and The President's Council on Bioethics

Advances in biotechnology have already extended and improved the quality of people’s lives. With further advances, there is a real likelihood that biotechnology will be able to lengthen the human lifespan by 100 or 200 years, or perhaps even indefinitely. Is this a good thing or a bad thing? In the selection below, the President’s Council on Bioethics, under the chairmanship of physician Leon R. Kass, attempts to answer this question. The authors suggest that extended lives through biotechnology may well be inevitable, and the initial moral argument in its favor is very compelling: more time will allow us to increase our wisdom, which would benefit each of us as individuals as well as society as a whole. There remains, though, a range of effects that this will have on us both individually and as a society. As individuals, if we feel that we have unlimited amounts of time, we might reduce our commitments to various projects and act with less urgency. We might also have less interest in having children or in having lifelong fidelity to our spouses. Longer lives could also disconnect us from the guidance of our biological life cycle. As a society, the young may see their vocational paths blocked by layers of their elders. If the young wait decades for upper management to retire, this could suppress the renewing energy of the youth and slow the pace of innovation. The nation might also commit fewer social resources to initiating the young, and more to accommodating the old.

Try as we might to improve or enhance our performance, we all know that it is bound to degrade over time. As the body ages, its abilities decline: we lose strength and speed, flexibility and reaction time, mental and physical agility, memory and recall, immune response, and overall functioning. We know that in the end, and generally as a result of this accumulation of debilities, our bodies will give out, and our lives will end.

            The inevitability of aging, and with it the specter of dying, has always haunted human life; and the desire to overcome age, and even to defy death, has long been a human dream. The oldest stories of many civilizations include myths of long lives: of ancients who lived for hundreds of years, of faraway places where even now the barriers of age are broken, or of magical formulas, concoctions, or fountains of youth. And for several centuries now the goal of conquering aging has not been confined to magic and myth; it was central to the aspirations of the founders of modern science, who sought through their project the possibility of mastering nature for the relief of the human condition—decay and death emphatically included. But it is only recently that biotechnology has begun to show real progress toward meeting these goals, and bringing us face to face with the possibility of extended youth and substantially prolonged lives. Using rapidly growing new knowledge about how and why we age, scientists have achieved some success in prolonging lifespans in several animal species. To be sure, there is at present no medical intervention that slows, stops, or reverses human aging, and for none of the currently marketed agents said to increase human longevity is there any hard scientific evidence to support the hyped-up claims. Yet the prospect of possible future success along these lines raises high hopes, as well as profound and complicated questions. . . .  But before we can begin to examine such possibilities, we must inquire about the underlying desire. What do we wish for when we yearn for “ageless bodies”?

ETHICAL ISSUES

That this prospect will be welcomed seems almost self-evident. Who among us would not want more healthy years added to his or her life? No one truly relishes the thought of bodily degeneration or decline, and of one’s final years marked, as Shakespeare put it, by “a moist eye, a dry hand, a yellow cheek, a white beard, a decreasing leg, an increasing belly . . . your voice broken, your wind short, your chin double, your wit single, and every part about you blasted with antiquity.” We would probably all want to save ourselves, and even more so our loved ones, from the fate we have seen some of our elders endure.

            The desire to live longer is also clearly echoed in some ethical ideals. It is surely one form of the true love of life and is driven by a deep commitment to the activities and engagements to which our lives are dedicated. Life’s end nearly always finds human beings in the midst of projects still uncompleted, painfully aware that the world is full of wisdom they have yet to gain and experiences they have yet to enjoy. Much that is good about life is the result not of our finitude but of our longevity. Although some of us may live best when we live each day as if it were our last, many of us thrive because we live looking ahead to many days to come—making plans, laying foundations, building our lives with the future in mind. More time to plan, more healthy years in which to build and to enjoy what we have built, and in which to contribute to the lives of others, would surely be a great blessing. Not only individuals but society too might benefit, gaining much from the added experience and wisdom of its older members. The case for living longer is, in part, a moral case, and a strong one. Indeed, it may well be strong enough to overwhelm any possible objections or worries.

            But to know if it would overwhelm such worries, we must identify those worries and examine them with care. Because the case for longer—even greatly longer—life seems so strong, the worries may at first escape our notice. Finding and pondering them leads us to suggest that any major alteration of the human life cycle is likely to have serious consequences beyond the mere extension of life, and to raise difficult ethical and practical questions, both for individuals and especially for society.

            In suggesting some of these questions (and for the sake of discussion), we make several assumptions, both about the availability of age-retarding technology and its likely effects. We assume, first, that technology will be available to significantly retard the process of aging, of both body and mind, and second, that this technology will be widely available and widely used. If the first is correct, the second almost certainly will be. Which consequences of age-retardation are most likely will depend upon the particular techniques that become available and the effect they have on the shape of a life. Different techniques might alter the aging process differently and have different effects on the life cycle. Three general possibilities might be considered: (1) the life cycle would be stretched out like a rubber band, so that aging is slowed more or less equally at all stages of life, and maturation, middle age, and decline extend over a greater period; (2) a holding back of bodily decline, so that both the process of maturation and the process of decline occur roughly in the way they do now, but the period between them—that is, the healthy years of the prime of life—are greatly extended; and (3) a change in the form of decline, so that, for instance, rather than a slow and gradual loss of faculties, bodily degradation comes very quickly, and death comes suddenly following long years of health and vigor. We shall seek to take account of all of these possibilities, pointing to their potentially different ethical implications where they arise.

            In listing the three alternatives, we have taken the optimist’s view, confining our attention to life-extending outcomes that many people might find attractive. We have done this deliberately, for two reasons. First, only such attractive outcomes are likely to be widely embraced. Second, we wish to stipulate that people will get what they wish for, so that we may then examine whether what they get is likely to turn out in fact to be what they wanted (the Midas problem). Yet before proceeding to the ethical discussion, we should insert some notes of caution. It is possible that age-retarding techniques, like many medical interventions, will have uneven effects: they might work well for some, not well for others, and cause serious side effects in yet others. For example, for some recipients of greater longevity, the result might include a much longer period of decline and debility. Indeed, the period of debility could be lengthened not only absolutely (as it would be on the model of a rubber band being stretched) but also relative to the whole lifespan, and, in either case, virtually everyone who survives past eighty or ninety might come to expect ten to fifteen years of severely diminished capacity. All the scenarios for happy life-extension depend on technologies that will keep all the body’s systems going for roughly the same duration, after which time they will shut down more or less simultaneously. But what if it should turn out that many people experience instead partial or uncoordinated increases in vigor (stronger joints but weaker memory, more ardent desire but diminished potency)? Given that age-retardation sets out to alter not just this organ or that tissue but the entire (putative) coordinated biological clock of a most complex organism, caution and modest expectations are proper leavens for zeal, especially as the love of longer life needs little encouragement to embrace false hopes of greater time on earth.

            We divide our discussion of the ethical questions into two sections, dealing with the effects on individuals and the effects on society and its institutions. As will become evident, however, the distinction between them is not always sharp.

EFFECTS ON THE INDIVIDUAL

The question of the effect of age-retardation on our individual lives must begin with a sense of what aging means in those lives. . . .  If we remained at our prime, in full swing, for decade after decade, and perhaps even for a couple of centuries, the character of our attitudes and our activities might well change significantly. These changes could take at least six principal forms:

1. Greater Freedom from Constraints of Time.

First is a potentially positive consequence. A significantly greater lifespan would open up new possibilities and freedoms. Quite simply, longer-lived individuals would have more time in the course of their lives to explore new things and enjoy familiar ones, to gain more and deeper experiences, to complete more projects, to engage in more activities, to start a new course or a new career having gained much valuable experience in earlier ones, to have a second or third or fourth chance at something they deem important. If life is good, more life is in many ways better. Moreover, if the prospect of dying is well out of sight, the fear of death might diminish as well, alleviating many of the distortions this fear can produce in our lives.

2. Commitment and Engagement.

On the other hand, the remoteness of the midnight hour might influence negatively how we spend our days. For although the gift of extra time is a boon, the perception of time ahead as less limited or as indefinite may not be. All our activities are, in one way or another, informed by the knowledge that our time is limited, and ultimately that we have only a certain portion of years to use up. The more keenly we are aware of that fact, the more likely we are to aspire to spend our lives in the ways we deem most important and vital. The notion of spending a life suggests a finite quantity of available devotion, and as economists are fond of telling us, the scarcity of a commodity contributes to its value. The very experience of spending a life, and of becoming spent in doing so—that is, the very experience of aging—contributes to our sense of accomplishment and commitment, and to our sense of the meaningfulness of time’s passage, and of our passage through it. Being “used up” by our activities reinforces our sense of fully living in the world. Our dedication to our activities, our engagement with life’s callings, and our continuing interest in our projects all rely to some degree upon a sense that we are giving of ourselves, in a process destined to result in our complete expenditure. A life lived devoid of that sense, or so thoroughly removed from it as to be in practice devoid of it, might well be a life of lesser engagements and weakened commitments—a life other than the one that we have come to understand as fully human. This is not to say it will be worse—but it will very likely be quite different.

3. Aspiration and Urgency.

Very much related to our sense of being used up in the course of our lives is the sense of urgency given to life by the prospect of foreseeable death. This may be what the Psalmist means in asking God to “teach us to number our days, that we may get a heart of wisdom.” Many of our greatest accomplishments are pushed along, if only subtly and implicitly, by the spur of our finitude and the sense of having only a limited time. A far more distant horizon, a sense of essentially limitless time, might leave us less inclined to act with urgency. Why not leave for tomorrow what you might do today, if there are endless tomorrows before you? Our sense of the size and shape of our future—our “life expectancy”—is a major factor affecting how we act and think in the present.

4. Renewal and Children.

Perhaps most significant, and most intriguing, is the deep connection between death and new birth. The link between longevity and fertility is a nexus of profound and mysterious human significance. The link appears again and again, in different forms and different arenas, both in empirical scientific investigation and in any effort at moral analysis. Most of the age-retardation techniques tested in animals to this point appear to result in very significant decreases in fertility (though, as noted earlier, in some cases the effects can be uncoupled). Various theories have been proffered to explain this link, mostly having to do with a relationship between the mechanisms that enable fertility and those that result in degeneration and death. Some have even suggested that the changes connected to puberty may well be linked to those that trigger decline. Fertility and aging may be biologically linked. Moreover, they seem to be linked in terms of human behavior and experience.

            Throughout the twentieth century, increases in life expectancy have been accompanied by decreases in the birth rate. Of course, increased longevity alone does not explain declining birth rates. Increased income and economic opportunity as well as improved methods of contraception surely play a role. But increased longevity and improved health are surely elements of the broader cultural transformation that does explain declining birth rates. Perhaps for the first time in human history, vast numbers of young adults, blessed with an expectation of a long disease-free and war-free future, are living childlessly through their most fertile years, pursuing their own fulfillment now, but with the (often mistaken) expectation that there will always be time enough later to start a family.

            One important reason for the apparent experiential link between longevity and childbearing seems readily intelligible: without some presentiment of our mortality, there might be less desire for renewal. And so a world of men and women who do not hear the biological clock ticking or do not feel the approach of their own decline might have far less interest in bearing—and, more important, caring for—children. Children are one answer to mortality. But people in search of other more direct and immediate answers, or, more to the point, people whose longer lease on life leaves them relatively heedless of its finitude, might very well be far less welcoming of children, and far less interested in making the sacrifices needed to promote human renewal through the coming of new generations. Whether this would in fact occur is an empirical question, and not all Council Members are convinced of this connection between awareness of finitude and devotion to perpetuation. But we all believe these are possibilities well worth contemplating.

            Related to the subject of the effects of longevity on procreation is the subject of the effects of longevity on marriage and the resulting family connections. These topics are too large—and perhaps too speculative—to explore here. Yet two questions may suffice to point to what may be at stake. Would people in a world affected by age-retardation be more or less inclined to swear lifelong fidelity “until death do us part,” if their life expectancy at the time of marriage were eighty or a hundred more years, rather than, as today, fifty? And would intergenerational family ties be stronger or weaker if there were five or more generations alive at any one time?

5. Attitudes toward Death and Mortality.

How a greatly increased lifespan lived in good health would affect attitudes toward death is another important matter. Certainly, the removal of the numerous causes of premature death has diminished through much of life the fear of untimely death, though its overall effects on our views of mortality are less easy to discern. Yet it is possible that an individual committed to the technological struggle against aging and decline would be less prepared for and less accepting of death, and the least willing to acknowledge its inevitability. Given that these technologies would not in fact achieve immortality, but only lengthen life, they could in effect make death even less bearable, and make their beneficiaries even more terrified of it and obsessed with it. The fact that we might die at any time could sting more if we were less attuned to the fact that we must die at some (more-or-less known) time. In an era of age-retardation, we might in practice therefore live under an even more powerful preoccupation with death, but one that leads us not to commitment, engagement, urgency, and renewal, but rather to anxiety, self-absorption, and preoccupation with any bodily mishap or every new anti-senescence measure.

            Much may depend on how people actually grow old and die in a new world of increased longevity. Should the end come swiftly, with little premonitory illness (the third of the possibilities discussed above), death might always be regarded as untimely, unprepared for, shocking, and anxiety about accidents or other health hazards might rise. But what if, in the “stretched rubber band” sort of life cycle, the period of debility became even more protracted and difficult than it now is? We have already seen how, thanks to antibiotics, techniques of life-support, and medicine’s general success in preventing quick deaths from infectious diseases, heart attacks, and strokes, many more people are now spending prolonged periods in decay, or subject to Alzheimer disease and other age-related degenerative disorders. One of the costs we are already paying for the gift of longevity is the placement of elderly citizens and their families in degrading and difficult situations that simply were not possible in earlier times. Even a cure for Alzheimer disease, welcome as it most surely would be, would very likely leave some other chronic debilitating illness in command of those declining years. Under such circumstances, death might come to seem a blessing. And in the absence of fatal illnesses to end the misery, pressures for euthanasia and assisted suicide might mount.

6. The Meaning of the Life Cycle.

There is also more to the question of aging than the place of death and mortality in our lives. Not just the specter of mortality, but also the process of aging itself affects our lives in profound ways. Aging, after all, is a process that mediates our passage through life, and that gives shape to our sense of the passage of time and our own maturity and relations with others. Age-retardation technologies make aging both more manipulable and more controllable as explicitly a human project, and partially sever age from the moorings of nature, time, and maturity. They put it in our hands, but make it a less intelligible component of our full human life. Having many long, productive years, with the knowledge of many more to come, would surely bring joy to many of us. But in the end, these techniques could also leave the individual somewhat unhinged from the life cycle. Without the guidance of our biological life cycle, we would be hard-pressed to give form to our experiential life cycle, and to make sense of what time, age, and change should mean to us.

            Any of the foregoing effects of course would most likely be subtle, and it would be exceedingly difficult to hold them up against the promise of longer and longer life and to expect any of us simply to reject the offer. But in considering the offer, we must take into account the value inherent in the human life cycle, in the process of aging, and in the knowledge we have of our mortality as we experience it. We should recognize that age-retardation may irreparably distort these and leave us living lives that, whatever else they might become, are in fundamental ways different from—and perhaps less serious or rich than—what we have to this point understood to be truly human.

            Powerful as some of these concerns are, however, from the point of view of the individual considered in isolation, the advantages of age-retardation may well be deemed to outweigh the dangers. But individuals should not be considered in isolation, and the full potential meaning of age-retardation cannot come into view until we take in the possible consequences for society as a whole. When we do so, some of these individual concerns become far more stark and apparent, and new concerns emerge as well.

EFFECTS ON SOCIETY

To begin to grasp the full implications of significant age-retardation, we must imagine what our world would look like if the use of such techniques became the norm. This is both a reasonable expectation and a useful premise for analysis. If effective age-retardation technologies became available and relatively painless and inexpensive, the vast majority of us would surely opt to use them, and they would quickly become popular and widely employed. Moreover, viewing the effects of these technologies in the aggregate both highlights the consequences they would have for individuals by drawing them out and showing what they would mean on a large scale, and allows us to see certain consequences that affect the society and its institutions directly, and that are not just individual effects writ large. Individual changes in attitude and outlook toward children or mortality would have far more profound effects if they were widely shared throughout society. And at the same time, some changes, like age distributions in the population, only become apparent at all when we take in a view of entire communities or societies all at once. . . .

            To paint a fuller picture, we consider the potential social implications of age-retardation in three areas: generations and families; innovation, change, and renewal; and the aging of society.

1. Generations and Families.

Family life and the relations between the generations are, quite obviously, built around the shape of the life cycle. A new generation enters the world when its parents are in their prime. With time, as parents pass the peak of their years and begin to make way and assist their children in taking on new responsibilities and powers, the children begin to enter their own age of maturity, slowly taking over and learning the ropes. In their own season, the children bring yet another generation into the world, and stand between their parents and their children, helped by the former in helping the latter. The cycle of succession proceeds, and the world is made fresh with a new generation, but is kept firmly rooted by the experience and hard-earned wisdom of the old. The neediness of the very young and the very old puts roughly one generation at a time at the helm, and charges it with caring for those who are coming and those who are going. They are given the power to command the institutions of society, but with it the responsibility for the health and continuity of those institutions.

            A society reshaped by age-retardation could certainly benefit from the wisdom and experience of more generations of older people, and from the peace, patience, and crucial encouragement that is often a wonderful gift of those who are no longer forging their identity or caught up in economic or social competition. But at the same time, generation after generation would reach and remain in their prime for many decades. Sons might no longer surpass their fathers in vigor just as they prepared to become fathers themselves. The mature generation would have no obvious reason to make way for the next as the years passed, if its peak became a plateau. The succession of generations could be obstructed by a glut of the able. The old might think less of preparing their replacements, and the young could see before them only layers of their elders blocking the path, and no great reason to hurry in building families or careers—remaining functionally immature “young adults” for decades, neither willing nor able to step into the shoes of their mothers and fathers. Families and generational institutions would surely reshape themselves to suit the new demographic form of society, but would that new shape be good for the young, the old, the familial ties that bind them, the society as a whole, or the cause of well-lived human lives?

2. Innovation, Change, and Renewal.

The same glut might also affect other institutions, private and public. From the small business to the city council, from the military to the Fortune 500 corporation, generational succession might be disrupted, as the rationale for retirement diminished. Again, these institutions would benefit from greater experience at the top, but they might find it far more difficult to adjust to change. With the slowing of the cycles of succession might also come the slowing of the cycles of innovation and adaptation in these institutions.

            Cultural time is not chronological time. Beliefs and attitudes tend to be formed early in life, and few of us can really change our fundamental outlook once we have reached our intellectual maturity. Serious innovation, and even just successful adaptation to change, is therefore often the function of a new generation of leaders, with new ideas to try and a different sense of the institution’s mission and environment. Waiting decades for upper management to retire would surely stifle this renewing energy and slow the pace of innovation—with costs for the institutions in question and society as a whole.

            A society’s openness and freshness might be diminished not only because large layers of elders block paths to youthful advancement. They might also be jeopardized more fundamentally by the psychological and existential changes that the mere passing of time and “learning how things are” bring to many, perhaps most, people. After a while, no matter how healthy we are or how well placed we are socially, most of us cease to look upon the world with fresh eyes. Familiarity and routine blunt awareness. Fewer things shock or surprise. Disappointed hopes and broken dreams, accumulated mistakes and misfortunes, and the struggle to meet the economic and emotional demands of daily life can take their toll in diminished ambition, insensitivity, fatigue, and cynicism—not in everyone, to be sure, but in many people growing older. As a general matter, a society’s aspiration, hope, freshness, boldness, and openness depend for their continual renewal on the spirit of youth, of those to whom the world itself is new and full of promise.

3. The Aging of Society.

Even as the ravages of aging on the lives of individuals were diminished, society as a whole would age. The average age of the population would, of course, increase, and, as we have seen, the birthrate and the inflow of the young would likely decrease. The consequences of these trends are very difficult to forecast, and would depend to a great extent on the character of the technique employed to retard aging. If the delay of senescence made it more acute when it did come, then the costs of caring for the aged would not be reduced but only put off, and perhaps increased. The trend we have already seen in our society, whereby a greater share of private and public resources goes to pay for the needs of the aged and a lesser share for the needs of the young, would continue and grow. But society’s institutions could likely adapt themselves to this new dynamic (though of course the fact that we can adjust to something does not in itself settle the question of whether that something is good or bad). More important is the change in societal attitudes, and in the culture’s view of itself. Even if age-retardation actually decreased the overall cost of caring for the old, which is not unimaginable, it would still increase the age of society, affecting its views and priorities. The nation might commit less of its intellectual energy and social resources to the cause of initiating the young, and more to the cause of accommodating the old.

            A society is greatly strengthened by the constant task of introducing itself to new generations of members, and might perhaps be weakened by the relative attenuation of that mission. A world that truly belonged to the living—who expected to exercise their ownership into an ever-expanding future—would be a very different, and perhaps a much diminished, world, focused too narrowly on maintaining life and not sufficiently broadly on building a good life. If individuals did not age, if their functions did not decline and their horizons did not narrow, it might just be that societies would age far more acutely, and would experience their own sort of senescence—a hardening of the vital social pathways, a stiffening and loss of flexibility, a setting of the ways and views, a corroding of the muscles and the sinews. This sort of decline would be far less amenable to technological solutions.

            A society reshaped in these and related ways would be a very different place to live than any we have known before. It could offer exciting new possibilities for personal fulfillment, and for the edifying accumulation of individual and societal experience and wisdom. But it might also be less accommodating of full human lives, less welcoming of new and uninitiated members, and less focused on the purposes that reach beyond survival. If so, retardation of aging—like sex selection, as discussed in an earlier chapter—might turn out to be a Tragedy of the Commons, in which the sought-for gains to individuals are undone or worse, owing to the social consequences of granting them to everyone. Contemplating these concerns in advance forces us to consider carefully the sort of world we wish to build, or to avert.

CONCLUSION

The prospect of effective and significant retardation of aging—a goal we are all at first strongly inclined to welcome—is rife with barely foreseeable consequences. We have tried to gesture toward some possible effects, both positive and negative, though no one can claim to know what a world remade by unprecedented longevity on a mass scale would really look like. . . .

            Some foreseeable biotechnologies, like those of effective age-retardation, hold out the prospect of perfecting some among our imperfections, and must lead us to ask just what sort of project this is that we have set upon. Is the purpose of medicine and biotechnology, in principle, to let us live endless, painless lives of perfect bliss? Or is their purpose rather to let us live out the humanly full span of life within the edifying limits and constraints of humanity’s grasp and power? As that grasp expands, and that power increases, these fundamental questions of human purposes and ends become more and more important, and finding the proper ways to think about them becomes more vital but more difficult. The techniques themselves will not answer these questions for us, and ignoring the questions will not make them go away, even if we lived forever.

Source: Beyond Therapy: Biotechnology and the Pursuit of Happiness (2003), Chapter 4.

Questions for Review

1. What are the three possible scenarios for how the slowing down of the aging process might take place?

2. Why might longer lives result in lesser engagements and weakened commitments to various life projects?

3. Why might longer lives decrease interest in children?

4. How do our current biological life cycles give our lives meaning?

5. What impact would longer lives have on our conceptions of the family?

6. Why might older generations slow down regarding innovation and adaptation?

Questions for Analysis

1. The authors assume that anti-aging technology will be widely available and widely used. Even if scientists create anti-aging technology, does this mean it will indeed be widely available and widely used? Explain.

2. The authors suggest that longer lives might impact lifelong fidelity to one’s spouse. What options might society have in this regard?

3. The authors suggest that our current biological life cycles give our lives meaning. Describe a few such life cycles, and explain whether longer lives would create a serious loss of meaning regarding those cycles.

4. The authors suggest that longer lives might lead to anxiety, self-absorption, and preoccupation with any bodily mishap that might lead to an accidental death. Might this happen? Explain.

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#4

Is Genetic Discrimination a Serious Worry: Pro and Contra

Karen Rothenberg and Burton J. Fishman

As genetic testing is becoming more widely available, public concerns are being raised about genetic discrimination in the workplace. Could my employer access my genetic profile in my medical records? Can they fire me or change my medical insurance policy based on that information? The central issue concerns whether genetic discrimination is a serious worry, and whether there is a special need for a federal law to address the problem. In the essays below, two authors take opposing sides in the issue. In favor of taking the worry seriously is Karen Rothenberg, Professor of Law at University of Maryland School of Law, who argues that there are widespread public fears about genetic discrimination with their jobs, and this makes people more reluctant to participate in biomedical research. The worry, she argues, is justified in view of the history of programs of genetic discrimination over the past 100 years. There is thus a need for a strong and comprehensive federal law that will prevent employers improperly using the genetic information of their employees. On the other side of the issue is Burton J. Fishman, an attorney for the Genetic Information Nondiscrimination in Employment (GINE) Coalition. According to Fishman, fears about genetic discrimination are fears and based on anecdotal stories that are typically untrue. Any anti-discrimination law needs to be backed by strong evidence that discrimination takes place. While past laws against race and gender discrimination were indeed backed by enormous amounts of solid evidence, there is virtually no evidence of genetic discrimination. Further, he argues, genetic tests right now have little practical use in the work workplace utility: they reveal only the possibility that a particular illness may develop in the future, but not that it will. This is too speculative for use with employment decisions. If the Federal government insists on enacting laws against genetic discrimination, they should be crafted in ways that do not encumber the proper use of genetic records by an employer.

KAREN ROTHENBERG: PRO

. . . I would like to begin by putting in context our concerns about genetic discrimination in the workplace. Almost 20 years ago, Congress committed to investing in the Human Genome Project because it shared the vision of a revolution in medicine that would improve the health of all Americans. Their goal was not to provide health insurers and employers new tools to weed out individuals that might someday generate large health care costs. To date, close to three-and-a-half billion dollars has been appropriated to fund the promise of genomic research for the American people. The return on this investment is substantial and has the potential to transform medicine as we know it. But, unless Congress acts to address the perils associated with unauthorized dissemination of citizen’s genetic information, we may never be able to make the transition from the research laboratory into the doctor’s office.

            Even in the early days of the Human Genome Project, people were concerned about the social risks associated with genetic research and anticipated that strong protections against misuse of genetic information would be established. Yet here we are almost 20 years later, with enormous advances in scientists’ ability to sequence and interpret our DNA, and we have yet to achieve a federal law to safeguard genetic information. The tremendous promise of genomics is hamstrung by fear.

            How extensive is this fear of genetic discrimination, and why does it matter?

            • Fear of genetic discrimination is widespread in the American public. A 2006 survey by Cogent Research showed that 72 percent of respondents agreed the government should establish laws and regulations to protect the privacy of genetic information. Eighty-five percent believed that without a specific law on point, employers will discriminate. Sixty-four percent believed that insurance companies will do everything possible to use genetic information to deny health coverage. Recent polls conducted by the Wall Street Journal Online/Harris Interactive Healthcare and the Genetics and Public Policy Center showed similar results.

            • Fear of genetic discrimination has a negative impact on biomedical research and potentially, healthcare decision making. Genetic research holds tremendous promise to unlock new diagnoses and new treatments, and even to assist in the creation of pharmaceutical therapies tailored to an individual’s genetic makeup. However, scientific research and development cannot progress without clinical trials, and these trials can move forward only if individuals who could benefit are willing to participate. Fear that information will become available to and be misused by health insurers or employers has chilled participation in many studies of genetic conditions. For example, in a 2003 NIH study of families at risk for heredity nonpolyposis colorectal cancer (HNPCC), the number one concern expressed by participants regarding genetic testing was concern about losing health insurance should the knowledge of their genetic test result be divulged or fall into the “wrong hands”. Thirty-nine percent of participants cited this as the most distressing issue relating to genetic testing. Nearly half of family members at 50 percent risk for inheriting a cancer- inducing mutation were not willing to participate in any aspect of the study because of their fear of discrimination.

            Where does this fear of genetic discrimination come from; and is it justified? Perhaps it would be helpful to place these questions in historical context. In the early 1900’s, Congress relied on the use of “genetic science” and the “genetic inferiority” of racial, ethnic, and disadvantaged groups to restrict their immigration into this country. State legislatures promoted sterilization laws based on the same rationale and eugenics was the “scientific justification” for killing millions during the Holocaust. During the early 1970’s, African Americans who were carriers for the gene mutation associated with sickle cell disease were denied insurance coverage, charged higher rates, and lost their jobs. More recently, the Burlington Northern Santa Fe Railway Company paid up to $2.2 million to settle a 2002 lawsuit brought by employees who were secretly tested for a genetic variation purported to be associated with carpal tunnel syndrome.

            Nevertheless, because there is currently little evidence of major problems with widespread discrimination, some might argue that there is no need for legislation. It is true that in recent years we have not been able to quantify the incidence of genetic discrimination. Why? First, we do not have widespread utilization of genetic services. Second, individuals often will not know or understand the underlying basis for an insurance or employment decision. Third, without clear legal remedies, healthy individuals with a genetic predisposition for a medical condition may be averse to risking loss of privacy for themselves and their families by going public with a discrimination claim, a greater risk than if the claim were based on race or sex. Finally, there may in fact be discrimination cases settled or resolved at the trial court levels that are never formally reported.

            This raises an interesting public policy question: is it prudent to pass preventive federal legislation based on a fear of genetic discrimination? I would argue “yes,” if we are to fully benefit from the promise of genetic research.

            Over the last decade, most states have enacted genetic nondiscrimination legislation, although the scope of protection varies widely. Forty-one states have passed laws on discrimination in the individual health insurance market and thirty-four states have passed laws on genetic discrimination in the workplace. There have also been patchwork approaches at the federal level. For example, President Clinton’s Executive Order 13145 protects federal employees from genetic discrimination in the workplace. Federal laws such as HIPPAA [i.e., the Health Insurance Portability and Accountability Act], the ADA [i.e., the Americans with Disabilities Act], and Title VII of the Civil Rights Acts [which prohibits discrimination in employment] may provide some protection, but there remain loopholes and gaps in coverage:

            • HIPAA prohibits raising rates for or denying coverage to an individual based on genetic information within the group coverage setting, but HIPPAA protections are limited to only the group market. It does not cover individual insurance plans. The Federal Privacy Rule, authorized by HIPAA, protects the use and disclosure of individually identifiable health information, including genetic information. The Rule does not prohibit the use of genetic information in underwriting. If a company determines that the individual is likely to make future claims, they could be charged higher premiums or denied coverage.

            • The ADA was designed to protect those individuals who are living with a disability. The ADA defines disability as 1) a physical or mental impairment that substantially limits one or more of the major life activities of an individuals; 2) a record of such impairment; or 3) being regarded as having such an impairment. While the ADA provides protections for people who have current disabling genetic illnesses, it is not at all clear whether the law covers individuals who have a genetic mutation that predisposes them to disease. Although guidance issued by the Equal Employment Opportunity Commission (EEOC) suggested a number of years ago that the ADA could apply in situations where an employer treats or regards an employee as impaired based on their genetic makeup, no court has ruled specifically on this issue. To the contrary, recent court cases have established a general trend of narrowing the ADA’s scope stretching the ADA’s definition of “impairment” to cover genetic predisposition to disease is inconsistent with the current judicial interpretation of the ADA.

             • It is not clear whether Title VII of the 1964 Civil Rights Act would provide protection for those claiming genetic discrimination in most circumstances. Protection under this law is available only where an employer engages in discrimination based on a genetic trait that is substantially related to a particular race or ethnic group.

            Thus, there is no uniform protection against the use of, misuse of, and access to genetic information in the workplace. As a matter of public policy, we still need to achieve a comprehensive approach that includes the following:

            (1) Employers should be prohibited from using genetic information in hiring, firing, and determination of employee benefits.

            (2) Employers should be prohibited from requesting or requiring collection or disclosure of genetic information unless they can show that the disclosure is relevant to the job. This is a very high standard and one that will rarely be met. Written and informed consent should be collected for each request, collection, or disclosure of genetic information.

            (3) Employers should be restricted from access to genetic information contained in medical records released as a condition of employment, in claims filed for health care benefits, or any other sources.

            (4) Employers should be prohibited from releasing genetic information without prior written authorization of the individual for each and every disclosure.

            (5) Employers who violate these provisions should be subject to strong enforcement mechanisms, including a private right of action.

            I understand that there might be concern that new federal legislation may place an undue burden on the business community. This is unlikely for two reasons: First, if we are to assume that employers are complying with applicable state laws then a federal law should not represent a significant new burden. Second, employers and those representing the insurance community have long maintained that they are not currently using genetic information to determine eligibility or employment status. If so, a federal prohibition should not burden their business practices. It would simply prevent the misuse of genetic information and be integrated into their legal compliance efforts. I am not aware of any data that demonstrates increased costs to employers for complying with these state laws.

            In conclusion, the era of genomic medicine is here, but fear continues to paralyze its future. In the words of Dr. Francis Collins, Director of the NIH Human Genome Research Institute:

            Unless Americans are convinced that their genetic information will not be used against them, the era of personalized medicine may never come to pass. The result would be a continuation of the current one-size-fits-all medicine, ignoring the abundant scientific evidence that the genetic differences among people help explain why some patients benefit from a therapy and, while some do not, and why some patients suffer severe adverse effects from a medication, while others do not. . . .

BURTON J. FISHMAN: CONTRA

Background

Members of the GINE Coalition, like the rest of society, are thrilled by and enthusiastically support the scientific research and truly spectacular breakthroughs relating to the sequencing of the human genome. Scientists in academia and industry have identified genes responsible for diseases from deafness to kidney disease to cancer. Through their efforts, we are uncovering hereditary factors in heart disease, diabetes, Parkinson’s disease, bipolar illness, asthma, and other common illnesses of our society. As Dr. Francis Collins predicted a few years ago:

Quite possibly before the end of the first decade of this new millennium, each of us may be able to learn our individual susceptibilities to common disorders, in some cases allowing the design of a program of effective individualized preventive medicine focused on lifestyle changes, diet and medical surveillance to keep us healthy. This will also enable us to focus our precious health care resources on maintaining wellness, instead of relying on expensive and often imperfect treatments for advanced disease.

            These same discoveries about genetics will lead us to predict who will respond most effectively to a particular drug therapy, and who may suffer a side effect and ought to avoid that particular drug. Furthermore, these remarkable advances will lead us to the next generation of designer drugs, focused in a much more precise way on the molecular basis of common illnesses, giving us a much more powerful set of targeted interventions to treat disease. (Testimony of Dr. Francis Collins before the Senate Health, Education, Labor and Pension Committee, July 20, 2000).”

One comes away from such predictions with an exhilarating sense of hope and optimism for the future of medical science. Every human being has one or more defective genes, or genetic “markers,” indicating a predisposition to certain abnormal traits or conditions. Given the rapid pace of genetic discoveries, in the near future, we hope, the hereditary basis for many of the profound diseases which afflict us today will not only be identified, but such knowledge will also be useful for purposes of prevention and cure. At that time, such genetic information will be vital to an individual and his/her physician, and perhaps also to the individual’s employer. The information could be used for purposes of preventing exposure to conditions in the workplace that would accelerate the onset of a particular disease or, as Dr. Collins suggested, for the purpose of fashioning individualized, employer-provided wellness programs to help prevent the disease from occurring.

            However, this exhilaration is compromised by a bill, such as H.R. 493, the Genetic Information Nondiscrimination Act of 2007, which characterizes certain genetic information as “forbidden” and penalizes the flow of information. Our concern is that the very progress in medical science that Dr. Collins envisions will be delayed and deterred by legislation such as has been proposed here.

            We recognize that there is a fear that genetic information may be used by employers not for beneficent purposes, but as the basis for employment discrimination. In the research community, the concern is that such fears will discourage individuals from participating in genetic research and testing. Such fears are fed by anecdotal but apocryphal stories and, of course, on the rare but highly publicized case involving Burlington Northern-Santa Fe Railroad, from nearly a decade ago. The fact that the employees in this case were able to seek and gain redress under current law indicates that no additional legislation is required. As significant, the very fact that we hear from one of the Burlington Northern employees at this hearing underscores that what occurred there was an unusual and unrepeated event, one that should not serve as the basis for sweeping legislation.

            Indeed, there are surveys conducted by neutral bodies such as the American Management Association which show that few employers seek or even understand genetic information. Further, in the more than 30 states which have laws prohibiting genetic discrimination, there have been no reported cases, even though several statutes were enacted decades ago. Thus, there is no empirical evidence of genetic discrimination in employment, unlike the mountains of evidence of discriminatory conduct which preceded passage of other nondiscrimination laws, such as Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.

            Somewhere in the distracting mix of irrational fears, a rational understanding of the benefits of genetic research has been lost. Somewhere, the legitimate concern for worker safety by government and by employers has been overlooked and replaced with notions of the sanctity of the genome. But the product of genetic research is not employment discrimination. The product of genetic research will be to help people—employees and employers—make health-giving choices based on shared knowledge. But viewed through the distorting prism of H.R. 493, the response to advances in genetic research is to prohibit the spread of knowledge. H.R. 493 responds to fear and ignores hope. It limits the spread of knowledge in the name of worker fear rather than finding ways of applying that knowledge in the name of worker safety. That is not how Congress has responded in the past and should not be how Congress responds today. Fear should not be the predicate for federal legislation.

            This is particularly true in the still-nascent field of genetic testing. Currently, the predictive ability of genetic tests and other forms of genetic information has little practical workplace utility since, in the current state of medical and scientific diagnostics, genetic tests reveal only the possibility that a particular trait, condition, or illness may develop in the future. There is no medical certainty that such illnesses will, in fact, ever develop; neither is there any certainty as to how far in the future they would become manifest. Thus, such information is simply too remote and too speculative on which to base current employment decisions, even if an employer were interested in doing so—a conclusion utterly unsupported by actual conduct. Furthermore, because of the awe-inspiring speed at which scientific knowledge is expanding, legislation based on today’s understanding will likely respond to a scientific context that has already fallen into obsolescence. In fact, many of the states which passed legislation early on, have already had to amend laws rendered obsolete by the advance of scientific knowledge.

            Yet, it is the opinion of the sponsors and supporters of pending federal genetic nondiscrimination bills that such legislation is necessary. Although we do not share that view, as a coalition that stands squarely against employment discrimination, we do not oppose the pending legislation. However, we believe the proposed bill can be improved. We hope to work with Congress to craft an effective, efficiently administered, practical law that avoids unintended consequences and baseless lawsuits, and which will not impede progress in science. 

[Appropriate Legislative Principles regarding Genetic Nondiscrimination]

The GINE Coalition has developed a set of core principles by which it measures genetic nondiscrimination legislation. The Genetic Information Non-Discrimination in Employment (GINE) Coalition endorses the following legislative principles:

• The members of the coalition believe that employment decisions should be made based on an individual’s qualifications and ability to perform a job, not on the basis of characteristics that have no bearing on job performance. Therefore, we strongly oppose employment discrimination on the basis of a person’s genetic makeup.

• Possession of genetic information must be differentiated from the use of this information for discriminatory purposes. Any proposed statute should be directed at controlling discriminatory conduct, rather than attempting to regulate the flow of information. As we like to say, genetic discrimination is about discrimination, not genetics.

• We believe that genetic discrimination is wrong, and if a company does intentionally discriminate, remedies should be available. However, the coalition would oppose legislation that would provide unlimited punitive and compensatory damages for victims of genetic discrimination, or that would expose employers to baseless litigation. Furthermore, no employer should be at risk of liability for inadvertently receiving information that is deemed “genetic.”

• Duplicative efforts to guard against genetic discrimination are costly and confusing. Any legislative proposals regarding genetic discrimination should take into account the protections already offered by the HIPAA and its regulations, the ADA, and other federal, state, and local statutes and regulations.

In sum, the GINE Coalition’s Statement of Principles embraces the letter and spirit of nondiscrimination and espouses the idea that discrimination, not information, should be the target of any such legislation. These principles are explained in more detail as follows.

            Let me state again, the GINE Coalition supports the policy of nondiscrimination in employment based on an individual’s genetic makeup or pre-disposition to certain diseases or conditions. Employment decisions should be based on an individual’s qualifications and ability to perform a job, not on the basis of other characteristics or imputed attributes that have no bearing on job performance.

            Further, being mindful of the rapid developments in genetic research and Dr. Collin’s predictions regarding the beneficial use of genetic information in the near future, we believe that genetic non-discrimination legislation must be carefully and narrowly drafted. Possession of genetic information must be differentiated from the use of such information for discriminatory purposes. Legislation should be directed at controlling and punishing discriminatory conduct, rather than regulating and burdening the flow of information. The law should not trigger liability based on an employer’s mere receipt of genetic information, such as through conversations concerning a relative’s illness or derived from such normative behavior as visiting the sick and consoling the bereaved.

            Thus, our hope today is to sound a note of caution . . . . In light of the absence of any evidence of the use of genetic information for discriminatory purposes, there is no urgent need to act speedily.

Source: U.S. House of Representatives, Committee on Education and Labor, subcommittee hearing on Protecting Workers from Genetic Discrimination, 2007. Notes have been removed.

Questions for Review

1. According to Rothenberg, what kinds of fears to people have about genetic discrimination?

2. According to Rothenberg, what is the history of genetic discrimination that feeds such worries?

3. According to Rothenberg, what are the issues that a comprehensive law on genetic discrimination should address?

4. According to Fishman, what does the empirical evidence about genetic discrimination suggest?

5. According to Fishman, why do genetic tests right now have little practical workplace utility?

6. According to Fishman, what four legislative principles are appropriate regarding genetic discrimination?

Questions for Analysis

1. Is there any kind of genetic discrimination in society or the workplace that might be morally justifiable? Explain.

2. Rothenberg argues that public fear of genetic discrimination justifies legislation; Fishman argues that it does not. Who is right?

3. According to Fishman, studies show that few employers seek or even understand genetic information. Is this relevant to public concern and possible laws regarding genetic discrimination?

____________

#5

Preserving Internet Freedom: Guiding Principles for the Industry

Michael K. Powell

The issue of internet neutrality is of growing concern as we become increasingly dependent on broadband and high speed internet for business, education and entertainment. The principle of “internet neutrality” aims to make sure that suppliers of broadband services—such as phone and cable companies—do not impose restrictions on consumers that will limit the internet content, sites or programs that they use or access. One fear is that broadband suppliers might be motivated by financial gain to restrict consumer access. For example, an internet-providing phone company might block access to a rival internet phone site that offers free long distance through the internet. Also, internet providers might get paid from premium websites (such as NBC or Walmart) to give higher priority and thus faster internet access to them. The desire to prevent such restrictions and ensure freedom has motivated some advocates of internet neutrality to seek federal guidelines. Critics, however, maintain that such laws would restrict technological innovation. In a famous speech, Michael K. Powell—former chairman of the Federal Communications Commission—takes a middle ground. On the one hand, he acknowledges the potential for internet providers to restrict access. On the other, he argues that at this stage laws are unnecessary and would even be harmful to an area of technology that depends so much on innovation and experimentation. Short of actual governmental regulation, Powell lists four internet freedoms that consumers have, and which broadband suppliers should be encouraged to accept. They are (1) freedom to access legal content, (2) freedom to use applications (such as java script), (3) freedom to attach personal devices (such as iPODs), and (4) freedom to obtain service plan information.

THE VISION FOR THE BROADBAND INTERNET

Good afternoon. I want to thank Phil Weiser for graciously asking me to speak today at what I hope will be one of many fruitful conferences on the great Digital Broadband Migration.

            “Digital Migration” is a term I coined to describe our movement from a slow conventional analog world to a digital world that promises incredible new opportunities for faster, more reliable and higher-quality communications. The move to this digital world comes with a radical transformation, but its benefits will be felt by every American.

            Those of you who follow the FCC [i.e., the Federal Communications Commission] closely should be very familiar with the agency’s vision for the high-speed, broadband Internet. Our national broadband policy seeks to promote investment in diverse, faster and more sophisticated Internet and related digital technologies. This, in turn, will foster economic growth, innovation and empower American consumers to make more choices in how they live, work and play.

            A recent Pew Internet Study suggests that consumers are already taking advantage of the new opportunities provided by high-speed connections at home. Those with broadband generally do more online than those with dial-up connections. This includes peer-to-peer file sharing, enhanced instant messaging, streaming media and virtual private networks.

            The next generation of broadband will make new applications possible and more established applications more compelling. But we won’t get there by wishful thinking; everyone involved in the broadband Internet – users, network providers, content and applications developers and policymakers – must continue to be missionary in driving infrastructure deployment and compelling applications if our Nation hopes to stand among the leaders of the Information Age.

            The experiments to date have given Americans a growing number of ways to communicate, gather information and entertain themselves. High-speed Internet accelerates that trend. These expanded choices, in turn, result in lower prices and higher value. And the almost infinite flexibility of the Internet Protocol gives users the tools to tailor these valuable innovations to their own individual needs – to make them their own.

            All this activity is precisely what Congress had in mind when it directed the Commission to “encourage the deployment [of broadband] on a reasonable and timely basis.” The Communications Act also mandates that we take “immediate action to accelerate deployment” if it is not reasonable or timely.

            That’s why the Commission has pushed to create incentives and tools to encourage companies to bring consumers additional high-speed Internet technologies. We have taken steps to promote investment in established platforms, such as cable modems and DSL, but we have also led the charge for new, emerging broadband platforms, such as broadband over power lines, WIFI, Ultra-wideband, and satellite.

            A real bright spot has been hot spots. By making licensed and unlicensed spectrum available for wireless broadband uses, we have seen an explosion of wireless access points and have witnessed blossoming wireless technologies (such as EvDO and WiMax) that allow powerful, untethered internet access around the country. As we look forward, our goal is to continue to champion and facilitate higher-speed, more capable platforms that can run the applications of tomorrow.

            These efforts to promote investment and competition among broadband networks follow from a simple truth: No amount of regulation (or wishful thinking, for that matter) will bring consumers the benefits of high-speed Internet if the networks are not in place to serve them. And, importantly, we have a historic opportunity to bring multiple pipes to consumers and, thereby, take a big bite out the “last mile” problems that have plagued competition and invited heavy monopoly regulation.

ACHIEVING THE VISION: POWER TO THE PEOPLE

Promoting competition among high-speed Internet platforms is only half of our task, however. We must ensure that the various capabilities of these technologies are not used in a way that could stunt the growth of the economy, innovation and consumer empowerment. Thus, we must expand our focus beyond broadband networks – the so-called “physical layer” of the Internet’s layered architecture.

            Broadband networks are impressive generators of economic growth, innovation and empowerment. But generators don’t work unless they have fuel to burn. Broadband networks are fueled by consumers’ hunger for an ever-expanding array of high-value content, applications and devices that run over these networks. Easy access to this content and technology is bringing more power to the people.

            Personal computing devices are at the leading edge of this revolution in consumer empowerment. These devices exploit rapid innovation in silicon, software and storage, often combined with speedy Internet connections. This potent combination is putting in the hands of common folks the same computing power that once was reserved for CalTech, the military or the phone company. 

            You’ve no doubt heard the litany of electronic devices that can offer consumers more options and more personalization using the Internet: music players like iPOD; personal video recorders like TiVO; boxes for Internet voice services like Vonage; online game devices like xBOX and Gamecube; smartphones; and WiFi that allows you to surf the Internet from your local coffee shop or your back porch.

            But the possibilities for consumer empowerment extend beyond devices. These possibilities arise from the Internet’s open architecture, which allows consumers to freely interact with anyone around the globe. Musicians and writers, who could never have landed a contract with a major record label or publisher, can find - or create - audiences for their work. Small town radio stations can reach people who have moved to the big city. E-Bay is another good example: gone are the days when each of us had only a small group of potential buyers for what we think is junk in our garages. Somewhere, in the next state or the next continent, there are people who may very well want to buy that “junk” and pay us more than we ever dreamed for it. The open internet has opened markets beyond the traditional geographic limitations.

            Companies are eager to feed consumer hunger for these Internet-related goodies. Many are racing to develop content, applications and devices they hope will entice more and more consumers to abandon dial-up and slower broadband Internet access in favor of faster broadband. But first, these companies must be able to reach broadband consumers.

            Thus, usage and deployment of high-speed Internet depends on access to and use of content, applications and devices. Giving broadband consumers the access they want is not a matter of charity but simply of good business. Network owners, ISPs, equipment makers, content and applications developers all benefit when consumers are empowered to get and do what they want.

MAINTAINING OPENNESS: EMPOWERING CONSUMERS WITHOUT REGULATING THE INTERNET

This is why ensuring that consumers can obtain and use the content, applications and devices they want – is critical to unlocking the vast potential of the broadband Internet.

            Today, broadband consumers generally enjoy such internet freedom. They can access and use the content, applications and devices of their choice. This easy access includes some of the most promising new uses of broadband. For example, the head of the National Cable and Telecommunications Association recently stated that cable modem providers would not block traffic from competing Internet voice providers, such as Vonage. Such commitments are good business, but also essential to nurturing competitive innovation. Consumers also can generally obtain meaningful information regarding their competitive choices for broadband.

            These general conditions suggest that many, if not most, in the industry recognize that providing such access and information is in their own self-interest, particularly as infrastructure providers and developers struggle to discover valuable uses that will enable them to recoup their substantial investments in high-speed Internet technologies.

            Nevertheless, we must keep a sharp eye on market practices that will continue to evolve rapidly. And we must do so while safeguarding Congress’ intent that the Internet remains free of unnecessary regulation that might distort or slow its growth.

STEERING CLEAR OF POTENTIAL OBSTACLES ON THE HORIZON

Despite the wide open seas broadband consumers currently enjoy, we must steer clear of obstacles that could appear on the horizon. The high-speed Internet continues to evolve rapidly and somewhat unpredictably. Some argue that new threats could undermine broadband consumers’ easy use of content, applications and devices.

            Professors Phil Weiser and Joe Farrell, a former FCC Chief Economist, make this point in a 2002 paper published with the Competition Policy Center at the University of California at Berkeley. Weiser and Farrell acknowledge the strong incentives that network owners have to ensure that broadband platforms remain open. Such openness encourages competition among Internet applications and services, which will in turn make broadband platforms more valuable to both consumers and network owners.

            Weiser and Farrell note, however, that there may be exceptions to this general rule. They suggest a network owner might face incentives to begin restricting some uses of their platforms in certain cases: if regulators set prices for using the platform too low, if bargaining among networks owners and other companies breaks down, or if companies are just unable to recognize their own self-interest in maintaining the freedom broadband consumers want and expect.

            This may not be mere academic speculation. A few troubling restrictions have appeared in broadband service plan agreements. Professor Tim Wu of the University of Virginia School of Law catalogued some of these restrictions for a symposium here last year. According to Wu, these restrictions have included things such as cable companies’ early efforts to impose restrictions on use of virtual private networks, WiFi and home networking equipment and on operation of servers in the home. Moreover, press reports allege that at least one cable company has not provided enough guidance to intensive broadband users regarding the bandwidth limits of their service plans.

            The evidence is unclear, however, as to whether and to what degree these restrictions have been enforced against consumers. Nor is there much evidence that consumers have been denied from getting what they want, even if they are willing to change service plans. Further, some providers counter any service plan restrictions have been reasonable attempts to manage their networks to prevent service disruption to other customers. They also claim that the few restrictions that have popped up have been removed when it became clear they were not necessary to ensure service quality.

            Based on what we currently know, the case for government imposed regulations regarding the use or provision of broadband content, applications and devices is unconvincing and speculative. Government regulation of the terms and conditions of private contracts is the most fundamental intrusion on free markets and potentially destructive, particularly where innovation and experimentation are hallmarks of an emerging market. Such interference should be undertaken only where there is weighty and extensive evidence of abuse.

            Nonetheless, the industry should take heed of how critical unfettered access to the Net has been and will continue to be for the success of broadband. Consumers have a high expectation that such access will continue, and that the benefits to them and the nation are significant.

            Consequently, it is time to give the private sector a clear road map by which it can avoid future regulation on this issue by embracing unparalleled openness and consumer choice.

CONSUMER ARE ENTITLED TO “INTERNET FREEDOM”

As we continue to promote competition among high-speed platforms, we must preserve the freedom of use broadband consumers have come to expect. Thus, I challenge the broadband network industry to preserve the following “Internet Freedoms:”

Freedom to Access Content. First, consumers should have access to their choice of legal content.

            Consumers have come to expect to be able to go where they want on high-speed connections, and those who have migrated from dial-up would presumably object to paying a premium for broadband if certain content were blocked. Thus, I challenge all facets of the industry to commit to allowing consumers to reach the content of their choice. I recognize that network operators have a legitimate need to manage their networks and ensure a quality experience, thus reasonable limits sometimes must be placed in service contracts. Such restraints, however, should be clearly spelled out and should be as minimal as necessary.

            Freedom to Use Applications. Second, consumers should be able to run applications of their choice.

            As with access to content, consumers have come to expect that they can generally run whatever applications they want. Again, such applications are critical to continuing the digital broadband migration because they can drive the demand that fuels deployment. Applications developers must remain confident that their products will continue to work without interference from other companies. No one can know for sure which “killer” applications will emerge to drive deployment of the next generation high-speed technologies. Thus, I challenge all facets of the industry to let the market work and allow consumers to run applications unless they exceed service plan limitations or harm the provider’s network.

Freedom to Attach Personal Devices. Third, consumers should be permitted to attach any devices they choose to the connection in their homes.

            Because devices give consumers more choice, value and personalization with respect to how they use their high-speed connections, they are critical to the future of broadband. Thus, I challenge all facets of the industry to permit consumers to attach any devices they choose to their broadband connection, so long as the devices operate within service plan limitations and do not harm the provider’s network or enable theft of service.

            Freedom to Obtain Service Plan Information. Fourth, consumers should receive meaningful information regarding their service plans.  Simply put, such information is necessary to ensure that the market is working. Providers have every right to offer a variety of service tiers with varying bandwidth and feature options. Consumers need to know about these choices as well as whether and how their service plans protect them against spam, spyware and other potential invasions of privacy. 

            Thus, I challenge all facets of the industry to ensure that broadband consumers can easily obtain the information they need to make rational choices among an ever-expanding array of different pricing and service plan.

KEY BENEFITS OF PRESERVING “INTERNET FREEDOM”

Numerous benefits will follow if the industry continues to preserve “Net Freedom.” Preserving “Net Freedom” will preserve consumers’ freedom to access and use whatever content, applications and devices they choose based on the service plan they choose. It will promote comparison shopping among the growing number of providers by making it easier for consumers to obtain access to meaningful information about the services and technical capabilities they rely on to access and use the Internet.

            Internet Freedom also promotes innovation by giving developers and service providers confidence that they can develop broadband applications that reach consumers and run as designed. Internet voice applications are a notable example that has been grabbing headlines recently. Net Freedom will ensure that consumers will continue to be able to choose whatever Internet voice service that will function over their high-speed Internet connection.

            Preserving “Net Freedom” also will serve as an important “insurance policy” against the potential rise of abusive market power by vertically-integrated broadband providers.

            And, if we secure a reasonable balance between the needs of network providers and internet freedom, consumers will reap the benefits of broadband without intrusive regulation, while preserving industry’s incentives to deploy more high-speed broadband platforms.

            In closing, I would emphasize that consumers also have a role in this challenge to preserve “Net Freedom.” I encourage consumers to challenge their broadband providers to live up to these standards and to let the Commission know how the industry is doing. “Net Freedom” is intended to give broadband consumers the choices, value and personalization they have come to expect. Thus, consumers are the ultimate judges of whether the industry is successfully preserving “Net Freedom,” or falling short.

            I look forward to working with consumers, the industry and all of you in taking this important step forward in the Digital Broadband Migration. The journey continues, but we have begun to see the signs of land. Continuing to keep a sharp watch for dangerous shoals will ensure that someday soon we will dock safely on the shore and begin a bright new era in communications.

Thank you.

Source: Michael K. Powell, Federal Communications Commission, “Preserving Internet Freedom: Guiding Principles for the Industry” (2004)

Questions for Review

1. How do might the possibilities of broadband internet empower people?

2. What kind of restrictions might some broadband suppliers place on consumers’ access to the internet?

3. What restrictions of broadband providers might be reasonable?

4. What are the four internet freedoms?

5. What are the benefits of the four freedoms?

Questions for Analysis

1. Powell lists a number of values that are relevant to the issue of internet freedom, such as consumer entertainment, the country’s economic growth, home business, and the U.S. retaining technological lead. Which of these is most relevant to the issue of internet neutrality, and why?

2. Should governments first wait for broadband suppliers to block and restrict internet access, or should they enact internet neutrality laws in advance?

3. Are Powell’s four internet freedoms sufficient for preventing broadband suppliers from blocking or restricting internet access?

4. Why would broadband internet providers be motivated to follow Powell’s four internet freedoms without governmental regulation forcing them to do so?

___________________

#6

Protecting the Flag

Richard D. Parker

Richard D. Parker is Professor of Law at the Harvard Law School. In the following essay he addresses the question of whether there should be a Constitutional amendment to protect the flag from intentional acts of desecration, such as burning it or urinating on it. He believes that such a Constitutional amendment is justifiable insofar as it expresses the will of the vast majority of citizens. The typical arguments against a flag protection amendment offered by political liberals are weak, he argues, and he offers his critique as a political liberal himself. Some of the anti-protection arguments trivialize the need for such laws, while other arguments exaggerate the negative consequences this might have on freedom of expression, particularly with minority views. But the flag, he argues, doesn’t represent a single ideology or party platform: it transcends our differences and doesn’t compete with challenging viewpoints. Further, the flag helps minority views get a hearing, such as when the flag was displayed in civil rights marches during the 1960s. Ultimately, according to Parker, this issue comes down to the value that we as a society place on public expressions of patriotism. The usual liberal view is that patriotism should be kept private, sort of like religious faith; public expression threatens to cause conflict and official oppression. However, Parker argues, public patriotism is essential to the effective enjoyment of freedom and maintenance of the legitimacy of government.

Whether Congress should be permitted, if it chooses, to protect the American flag from physical desecration has been debated for more than a decade. The debate has evolved over time but, by now, a pattern in the argument is clear. Today, I would like to analyze that pattern.

            Consistently, the overwhelming majority of Americans has supported flag protection. Consistently, lopsided majorities in Congress have supported it too. In 1989, the House of Representatives voted 371-43 and the Senate 91-9 in favor of legislation to protect the flag. Since that route was definitively blocked by a narrow vote on the Supreme Court in 1990, over two thirds of the House and nearly two-thirds of the Senate have supported a constitutional amendment to correct the Court’s mistake and, so, permit the majority to rule on this specific question. Up to 80% of the American people have consistently supported the amendment.

            In a democracy, the burden should normally be on those who would block majority rule -- in this case, a minority of the Congress, influential interest groups and most of the media, along with the five Justices who outvoted the other four -- to justify their opposition. They have not been reluctant to do so. Indeed, they have been stunningly aggressive. No less stunning has been their unresponsiveness to (and even their seeming disinterest in) the arguments of the popular and congressional majority. What I am going to do is focus on the pattern of their self-justification.

            I am going to speak frankly, not just as a law professor, but as an active Democrat. For a disproportionate share of the congressional, interest group and media opposition has been aligned with the Democratic Party. What has pained me, in the course of my involvement with this issue, are attitudes toward our democracy revealed in the structure of the argument against the flag amendment by so many of my fellow Democrats -- attitudes that would have seemed odd some years ago, when I worked for Senator Robert Kennedy, but that now seem to be taken for granted.

I. ARGUMENTS ABOUT (SUPPOSED) EFFECTS OF THE CONSTITUTIONAL AMENDMENT: TRIVIALIZATION AND EXAGGERATION

The central focus of argument against the flag amendment involves the (supposedly) likely effects of its ratification. Typically, these effects are -- at one and the same time -- trivialized and exaggerated. Two general features of the argument stand out: its peculiar obtuseness and the puzzling disdain it exudes for the Congress and for the millions of proponents of the amendment.

A. Trivialization

(1) The “What, Me Worry?” Argument. The first trivialization of the amendment’s effects is the repeated claim that there is simply no problem for it to address. There are, it is said, few incidents of flag desecration nowadays; and those few involve marginal malcontents who may simply be ignored. The American people’s love of the flag, the argument continues, cannot be disturbed by such events. It concludes that, in any event, the flag is “just a symbol” and that the amendment’s proponents had better apply their energy to -- and stop diverting the attention of Congress from -- other, “really important” matters.

            What is striking about this argument is not just its condescension to the amendment’s supporters and to the Congress which, it implies, cannot walk and chew gum at the same time. Even more striking is its smug refusal to recognize the point of the amendment. The point is not how often the flag has been burned or urinated on or who has been burning it and urinating on it. Rather, the point has to do with our response -- especially our official response -- to those events. In this case, the key response has been that of the Court and, since 1990, of the Congress. When we are told, officially, that the flag represents just “one point of view” on a par, and in competition, with that of flag desecrators and that flag desecration should not just be tolerated, but protected and even celebrated as free speech, and when we get more and more used to acts of desecration, then, “love” of the flag, our unique symbol of national community, is bound gradually to wither -- along with other norms of community and responsibility whose withering in recent decades is well known.

            To describe what is at stake as “just a symbol” is thus obtuse. The Court’s 5-4 decision was not “just a symbol.” It was an action of a powerful arm of government, and it had concrete effects. To be sure, its broader significance involved values that are themselves invisible. The issue it purported to resolve is, at bottom, an issue of principle. But would any of us talk of it as “just an issue of principle” and so trivialize it? Surely, the vast majority of members of Congress would hesitate to talk that way. They, after all, voted for a statute to protect the flag. Hence, I would have hoped that the “What, Me Worry?” argument is not one we would hear from them.

            (2) The “Wacky Hypotheticals” Argument. The second familiar way of trivializing the amendment’s effects is to imagine all sorts of bizarre applications of a law that (supposedly) might be enacted under the amendment. This line of argument purports to play with the terms “flag” and “physically desecrate.” Often, the imagined application involves damage to an image (a photo or a depiction) of a flag, especially on clothing -- frequently, on a bikini or on underwear. And, often, it involves disrespectful words or gestures directed at an actual flag or the display of flags in certain commercial settings -- a favorite hypothetical setting is a used car lot. This line of argument is regularly offered with a snicker and sometimes gets a laugh.

            Its obtuseness should be clear. The proposed amendment refers to a “flag” not an “image of a flag.” And words or gestures or the flying of a flag can hardly amount to “physical desecration.” In the Flag Protection Act of 1989, Congress explicitly defined a “flag” as taking a form “that is commonly displayed.” And it applied only to one who “knowingly mutilates, defaces, physically defiles, burns, maintains on the ground, or tramples” a flag. Why would anyone presume that, under the proposed constitutional amendment, Congress would be less careful and specific?

            That question uncovers the attitude beneath the “Wacky Hypotheticals” argument. For the mocking spirit of the argument suggests disdain not only for people who advocate protection of the American flag. It also depends on an assumption that Congress itself is as wacky -- as frivolous and as mean-spirited -- as many of the hypotheticals themselves. What’s more, it depends on an assumption that, in America, law enforcement officials, courts and juries are no less wacky. If the Constitution as a whole had been inspired by so extreme a disdain for our institutions and our people, could its provisions granting powers to government have been written, much less ratified?

B. Exaggeration

(1) The “Save the Constitution” Argument. Having trivialized the effects of the proposed amendment, its opponents turn to exaggerating those effects. First, they exaggerate the (supposed) effects of “amending the First Amendment.” This might, they insist, lead to more amendments that, eventually, might unravel the Bill of Rights and constitutional government altogether. The argument concludes with a ringing insistence that the people and their elected representatives must not “tinker” or “tamper” or “fool around” with the Constitution.

            The claim that the debate is about “amending the First Amendment” sows deep confusion. The truth is that the proposed amendment would not alter “the First Amendment” in the slightest. The First Amendment does not itself forbid protection of the flag. Indeed, for almost two centuries, it was understood to permit flag protection. A 5-4 majority of the Court altered this interpretation, only thirteen years ago. That very narrow decision is all that would be altered by the proposed amendment. The debate thus is about a measure that would restore to the First Amendment, its long-standing meaning, preserving the Amendment from recent “tampering.”

            Adding to the confusion is the bizarre claim that one amendment, restoring the historical understanding of freedom of speech, will somehow lead down a slippery slope to a slew of others undermining the Bill of Rights or the whole Constitution. A restorative amendment is not, after all, the same thing as an undermining amendment. What’s more, the process of amendment is no downhill slide. About 11,000 amendments have been proposed. Only 27 -- including the Bill of Rights -- have been ratified. If there is a “slope”, it plainly runs uphill. The scare rhetoric, then, isn’t only obtuse. It also manifests disdain for the Congress to which it is addressed.

            The greatest disdain manifested by this line of argument, however, is for the Constitution and for constitutional democracy -- which it purports to defend. Article V of the Constitution specifically provides for amendment. The use of the amendment process to correct mistaken Court decisions -- as it has been used several times before -- is vital to maintaining the democratic legitimacy of the Constitution and of judicial review itself. To describe the flag amendment as “tinkering with the Bill of Rights” -- when all it does, in fact, is correct a historically aberrant 5-4 decision that turned on the vote of one person appointed to office for life -- is to exalt a small, unelected, tenured elite at the expense of the principle and practice of constitutional democracy.

            (2) The “Censorship” Argument. The second exaggeration of (supposed) effects of the proposed amendment portrays it as inviting censorship. If Congress prohibits individuals from trashing the American flag, opponents say, it will stifle the freedom of speech. In particular, they continue, it will suffocate expression of “unpopular” or “minority” points of view. It will thereby discriminate, they conclude, in favor of a competing point of view. This line of argument is, essentially, the one adopted by a 5-4 majority of the Court.

            It is, however, mistaken. The argument ignores, first of all, the limited scope of laws that the amendment would authorize. Such laws would block no message. They would leave untouched a vast variety of opportunities for self-expression. Indeed, they would even allow expression of contempt for the flag by words -- and by deeds short of the “physical” desecration of a flag. Obviously, there must be some limit on permissible conduct. This is so even when the conduct is, in some way, expressive. What’s important is this: Plenty of leeway would remain, beyond that narrow limit, for the enjoyment of robust freedom of speech by all.

            Secondly, the argument that such laws would impose a limit that discriminates among “competing points of view” misrepresents the nature of the American flag. Our flag does not stand for one “point of view.” Ours is not like the flag of Nazi Germany or the Soviet Union -- although opponents of the proposed amendment typically make just that comparison. The American flag doesn’t stand for one government or one party or one party platform. Instead, it stands for an aspiration to national community despite -- and transcending -- our differences and our diversity. It doesn’t “compete against” contending viewpoints. Rather, it overarches and sponsors their contention. The 5-4 majority on the Court misunderstood the unique nature of our flag. A purpose of the flag amendment is to affirm this uniqueness and, so, correct that mistake.

            Thirdly -- and most importantly -- opponents obtusely ignore the fact that a primary effect of the amendment would be precisely the opposite of the one “predicted” by their scare rhetoric. Far from “censoring” unpopular and minority viewpoints, the amendment would tend to enhance opportunity for effective expression of those viewpoints. A robust system of free speech depends, after all, on maintaining a sense of community. It depends on some agreement that, despite our differences, we are “one,” that the problem of any American is “our” problem. Without this much community, why listen to anyone else? Why not just see who can yell loudest? Or push hardest? It is thus for minority and unpopular viewpoints that the aspiration to -- and respect for the unique symbol of -- national community is thus most important. It helps them get a hearing. The civil rights movement understood this. That is why it displayed the American flag so prominently and so proudly in its great marches of the 1960’s.

            If we become accustomed to cumulative acts of burning, trampling and urinating on the flag, all under cover of the Supreme Court, where will that leave the next Martin Luther King? Indeed, where will it leave the system of free speech as a whole? As the word goes forth that nothing is sacred, that the aspiration to community is just a “point of view” competing with others, and that any hope of being noticed (if not of getting a hearing) depends on behaving more and more outrageously, won’t we tend to trash not just the flag, but the freedom of speech itself? Opponents of the proposed amendment imagine themselves as champions of a theory of free speech -- but their argument is based in a strange disdain for it in practice.

            I am, no doubt, preaching to the choir. The House of Representatives voted 371-43 for a flag protection law. Most Representatives, therefore, rejected the “censorship” argument in 1989. Now -- with the Court absolutely barring such a law on the mistaken ground that any specific protection of the flag discriminates among competing “points of view” -- Representatives who support protection of the American flag simply have no alternative but to support the proposed constitutional amendment.

II. ARGUMENT ABOUT (SUPPOSED) SOURCES OF SUPPORT FOR THE AMENDMENT

Most opponents of the amendment don’t confine themselves to misrepresenting its effects. Repeatedly, they supplement those arguments with ad hominem, disparaging claims about its supporters as well. Again, they combine strategies of trivialization and exaggeration. What’s remarkable is that they seem to assume their generalizations will go unchallenged. They seem to take for granted a denigrating portrayal of others -- as well as their own entitlement to denigrate.

            The denigration is not exactly overt. It often takes the form of descriptive nouns and verbs, adjectives and adverbs, woven into apparently reasonable sentences. By now, we’re so used to these terms of derision that we may not notice them or, worse, take them as signs of “wisdom.”

            The trivializing portrayal of supporters tends to include references to the (supposedly) “simple” or “emotional” nature of their views -- which, in turn, are trivialized as mere “feelings.” It’s often asserted that they are behaving “frivolously.” (Only the opponents, according to themselves, are “thoughtful” people.) Elected officials who back the amendment are said to be “pandering” or “cynical” or taking the “easy” course. (Only opponents, according to themselves, are “courageous” or “honest.”) The patriotism of supporters is dismissed as “flag-waving.”

            The (negatively) exaggerated portrayal tends to include references to the (supposedly) “heated” or “aggressive” or “intolerant” nature of support for the amendment. (Only the opponents, according to themselves, are “deliberative,” “restrained” and “respectful of others.”) The goal, of course, is to suggest (not so subtly) that the supporters are fanatics or bullies -- that they are like a mob that must be stopped before they overwhelm law, order and reason.

            A familiar argument fusing trivialization and exaggeration -- a Washington Post editorial of April 24, 1998 is typical -- lumps the flag amendment’s supporters with supporters of a great variety of other recently proposed amendments. It smears the former by equating them to others who advocate very different measures more readily belittled as silly or feared as dangerous. There is a name for this sort of argument. It is guilt-by-association. (But then the opponents of the flag amendment, according to themselves, would never employ such rhetoric, would they?)

            This is odd. These “thoughtful” people seem to be in the habit of making descriptive generalizations that are not just obtuse but false -- not just disdainful but insulting. Why?

III. IGNORING COUNTER-ARGUMENT

Part of the answer, I believe, is that opponents of the flag amendment are in another habit. It is the habit of not really listening to the other views. Not listening makes it easier to caricature those views. And, in turn, the caricature of those views makes it easier not to listen to them.

            Anyone who’s been involved with this issue -- on either side -- over the years, and who’s had an opportunity to see every reference to it in the media across the country, can describe one repeating pattern. Most of the time, the issue is not mentioned. Then, in the weeks before one or another congressional consideration of it, there comes a cascade of editorials and commentary -- about 90% hostile to and professing alarm about the amendment. Supporters can describe the other aspect of the pattern: most of the media simply will not disseminate disagreement with that point of view. Speaking from my experience, I can tell you that only a few newspapers have been willing to publish brief responses to what they assume is the one “enlightened” view -- their own.

            There is an irony here. Those most alarmed about (supposed) discrimination against the views of people who burn or urinate on the American flag are themselves in the habit of discriminating against the views of others who favor protecting the flag. Warning of a (supposed) dampening of robust debate, they dampen robust debate -- and they do it in good conscience and with no conscious intent to apply a double standard. What explains such puzzling behavior?

IV. THE VALUE OF PUBLIC PATRIOTISM

I’ve characterized the question presented by the flag amendment as involving the value of “community” at the national level. But most opponents seem disinclined to accept that formulation. The question for them seems to involve something they imagine to be narrower than community. For them, the question seems to involve the value of “patriotism.” Beneath much of the opposition is, I think, an uneasiness about patriotism as a public value.

            I know: Every opponent of the flag amendment insists that he or she is a patriot, that he or she “loves the flag” and, personally, would defend one with life and limb. I don’t doubt their sincerity. But I trust I’ll be forgiven if I also try to understand the actual behavior of opponents and the language they use to describe the amendment and its source of support. I trust I’ll be forgiven if I try to understand all this in terms of a distinction that I think they make between “personal” and “public” patriotism.

            I believe that many opponents of the amendment have come to see patriotism as a strictly personal matter -- much like religious faith. As such, they affirm its value. But they are, I believe, uneasy about public patriotism. If the uneasiness were focused only on government coercion of patriotism (a coerced flag salute, for example) few would differ. But it is focused, also, on its protection by government (that’s what the flag amendment is about), and to some degree it may extend to governmental subsidization and facilitation of public patriotism as well.

            For the implicit comparison made by opponents of the flag amendment between patriotism and religious faith carries consequences with it. Two main assumptions lead them to oppose even minor sorts of government assistance to religion. First, there is the assumption that religion is not just deeply personal, but deeply emotional and potentially explosive as well, and that any entanglement of government with religion may therefore produce dangerous conflict and official oppression of freedom and diversity. Second, there is the assumption that, in an increasingly secular age, religious faith is not really terribly relevant to good “governance” anyway -- that is, unless “religion” is defined to encompass a wide range of currently accepted secular values.

            The same kinds of assumptions underlie both the “exaggeration” and the “trivialization” arguments made by opponents of the flag amendment. First, they imagine that public patriotism taps into raw emotions that threaten to cause conflict and official oppression. Thus they insist that the proposed amendment endangers constitutionalism and freedom. Second, they imagine public patriotism as narrowly militaristic and old-fashioned. In an age of “multiculturalism,” on one hand, and of “globalism,” on the other, what need is there for it in government and in public life? When the amendment’s opponents do affirm the public value of the flag, moreover, they tend to do so by defining “the flag” to stand simply for “the freedom to burn it.”

            These assumptions and these arguments are perverse. So, too, is the underlying equation of patriotism to religion. For public patriotism is surely basic to motivating broad participation in, and commitment to, our democracy. Far from endangering freedom and political order, it is essential to the effective enjoyment of freedom and maintenance of the legitimacy of government. If national projects, civilian or military, are to be undertaken -- if our inherited ideals of liberty and equality are to be realized through concentrated national effort -- public patriotism simply has to be valued; its unique symbol should, therefore, be protected.

            Let me speak, finally, as a Democrat: When I was growing up, Democrats knew all this. My own hero, Senator Robert Kennedy, would never have doubted the value of public patriotism. He would never have dismissed it as trivial, dangerous or “right wing.” I believe that he would have voted -- as his son did in 1995 and 1997 -- to restore to the First Amendment the meaning it had, in effect, for two centuries of our history. That belief encourages me to see this as a truly nonpartisan effort, deserving fully bipartisan support. And, so, it encourages me to urge the United States House of Representatives to permit consideration of the proposed amendment by representatives of the people in the states, submitting this matter to the great democratic process established by Article V of the Constitution.

Source: U.S. House of Representatives Judiciary subcommittee hearing, Flag Protection Amendment  (2003).

Questions for Review

1. What are the trivialization arguments against flag protection?

2. What are the exaggeration arguments against flag protection?

3. How does Parker respond to the censorship argument against flag protection?

4. In what ways do liberals commonly ignore counter-arguments that favor flag protection?

5. What are Parker’s views about the value of public patriotism?

Questions for Analysis

1. Parker believes that the flag overarches all social and political views in our society, including those of minority opinions. Explain whether or not you agree.

2. Consider the following argument against flag protection: It is bad to elevate any political symbol to a sacred status, since this creates unnecessary partisanship and intolerance. How might Parker respond to this, and would you agree with such a response?

3. Consider the following argument against flag protection: bad governments often hijack the flag for their own agendas, such as to support an unjust war or an oppressive foreign policy; the flag then becomes synonymous with those unjust policies. Flag desecration is a graphic way to oppose such politicization of a national symbol. How might Parker respond to this, and would you agree with such a response?

4. Parker believes that public patriotism is an important value in society. Explain whether or not you agree.

____________

#7

Pornography: Harmful yet Legal?

Pamela Paul and Rodney A. Smolla

Since the creation of the Internet, use of pornography has skyrocketed, and even the most extreme forms of pornographic material are now readily available. Along with this increased use of porn is an increase in the harm that pornography brings to society. Has this increase in harm from pornography reached a tipping point where new laws are needed to prosecute disseminators of pornography? Below are two essays dealing with the connection between pornography, harm and legality. The first is by journalist Pamela Paul, author of Pornified: How Pornography Is Damaging Our Lives, Our Relationships, and Our Families (2006). Drawing on extensive interviews and surveys, Paul argues that pornography is now at a crisis level and she describes the serious negative effects it has on men, women, relationships, and children. For men it wastes valuable time, interrupts work days, displaces hobbies, and results in lost jobs and divorces. The process by which men become addicted to porn is gradual. The first step is usually an increase in frequency and quantity of viewing of pornography, and from there it moves to more extreme types of material that previously might have disgusted them. It affects men’s expectations of how women should look and act. In spite of this, women are viewing more porn and are becoming more tolerant of it. Most troubling, she argues, is the easy access that the majority of children today have to hard core pornography on the internet. The second essay, by Rodney A. Smolla, Dean of the University of Richmond School of Law, discusses whether pornography can be made illegal on the basis of the harm it is causing. He argues that harm alone is not sufficient grounds for making pornography illegal; rather, for it to be illegal, it must meet the definition of obscenity established by the Supreme Court in its landmark case Miller v. California. That definition involves a three-part test; a work is obscene if (1) it appeals to the prurient interest according to community standards, (2) depicts sexual conduct in a patently offensive way, and (3) lacks serious literary, artistic, political, or scientific value. According to Smolla, vast quantities of pornography already meet the Miller standard and can be prosecuted; thus, one solution to the problem is to put more resources into such prosecution . However, pornography that doesn’t count as “obscene” under the Miller standard is protected by the Constitution, regardless of how harmful it may be. The reason for this is that there is a natural temptation for us to move against offensive speech of all kind; strict standards like Miller prevent us from yielding to that temptation.

PAMELA PAUL: THE HARMFUL EFFECTS OF PORNOGRAPHY

[Introduction]

. . . . [O]n assignment to write about pornography for Time magazine, my eyes were blown wide open. During the weeks spent researching my article, I spoke with dozens of men and women about how profoundly pornography had affected their lives. I talked to male pornography users, female pornography fans and girlfriends of pornography fans, sex addicts and their wives, child psychologists and couples therapists.

            Much of what I heard during these interviews was not just news; it was revelatory. There was a story about pornography that had not yet been told, a story many Americans, male and female, don’t realize is unfolding – in front of their eyes, inside their minds, on their family computer – at this very moment. In researching my book [Pornified], I sought answers to some simple questions: Who uses pornography and why? What do men see in it? Are more women indulging? How does pornography affect people? Will looking at online pornography at age nine affect boys and girls when they reach sexual maturity? What is the impact of a pornified culture on relationships and on society as a whole?

            To find out the private stories that people suspect but never hear; experience, but never talk about, I interviewed more than 100 people (approximately 80 percent male), all heterosexual, about the role pornography plays in their lives. While the scope of such qualitative research can never claim to be fully representative of all Americans, the people interviewed were expressly chosen to provide a broad spectrum. They ranged in age from 21 to 59; most were in their 20s and 30s. The men and women interviewed were diverse – ethnically, geographically, socio-economically. They were from a variety of backgrounds and religions, educations and occupations. No “profile” of the pornography user emerged because pornography cuts across all swathes of society. . . .

            We can lament what’s happened to our pornified culture – in which the values, aesthetics and standards of pornography have trickled down into mainstream music, television and movies – but what’s truly worrisome is how pornography has affected the lives of individuals. Despite the claim that porn is harmless entertainment, the use of pornography has serious, negative effects.

            Countless men described how, while using porn, they have lost the ability to relate or be close to women. They have trouble being turned on by “real” women, and their sex lives with their girlfriends or wives collapse. These are men who seem like regular guys, but spend hours each week with porn – usually online. And many of them admit they have trouble cutting down their use. They also find themselves seeking out harder and harder pornography.

            Many women try to write porn off as “a guy thing,” but are profoundly disturbed when they are forced to come to terms with the way porn plays into their lives – and the lives of their boyfriends or husbands – today. They find themselves constantly trying to measure up to the bodies and sexual performance of the women their men watch online and onscreen. They fear that they’ve lost the ability to turn their men on anymore – and quite often, they have.

            One 24-year-old woman from Baltimore confided, “I find that porn’s prevalence is a serious hindrance to my comfort level in relationships. Whether it’s porn DVDs and magazines lying around the house, countless porn files downloaded on their computers, or even trips to strip clubs, almost every guy I have dated (as well as my male friends) is very open about his interest in porn. As a result, my body image suffers tremendously. . . I wonder if I am insecure or if the images I see guys ogle every day has done this to me. . .” She later confessed that she felt unable to air her concerns to anyone. “A guy doesn’t think you’re cool if you complain about it,” she explained. “Ever since the Internet made it so easy to access, there’s no longer any stigma to porn.”

            A 38-year-old woman from a Chicago suburb described her husband’s addiction to pornography: “He would come home from work, slide food around his plate during dinner, play for maybe half an hour with the kids, and then go into his home office, shut the door and surf Internet porn for hours. I knew – and he knew that I knew. I put a filter on his browser that would email me every time a pornographic image was captured. . . . I continually confronted him on this. There were times I would be so angry I would cry and cry and tell him how much it hurt. . . . It got to the point where he stopped even making excuses. It was more or less: “I know you know and I don’t really care. What are you going to do about it?”

            Of course, many mothers – and fathers (even those who use porn themselves) – are particularly disturbed by the idea that their children will look at pornography. Make no mistake: Experts today say there is no way parents can prevent their children from looking at pornography at a young age – as young as two- to six-years-old, according to Nielsen/NetRatings. Even if a parent uses a filtering program, children can likely outmaneuver the software, or see porn at their local library or a friend’s house. And early exposure to pornography seems to be influencing the dating antics of pre-teens and teenagers, as well as in more serious and disturbing behavior.

            In researching my book, I focused on four areas in which pornography has major repercussions on peoples’ lives. First of all, and perhaps most obvious, pornography has a negative impact on the men who use it. But it also has a major impact on women, and on relationships between men and women. And perhaps most frightening of all, especially moving forward, pornography is having a serious impact on children – and at younger ages than ever before.

Pornography’s Effects on Men

When opponents of pornography talk about the ways in which pornography affects people, they often talk about how pornography hurts women. But this leaves out an important point: Pornography is also harmful to the men who use it. Men told me they found themselves wasting countless hours looking at pornography – on their televisions and DVD players, and especially online. They looked at things they would have once considered appalling – bestiality, group sex, hardcore S&M, genital torture, child pornography. They found the way they looked at women in real life warping to fit the pornography fantasies they consumed on screen. Their daily interactions with women became pornified. Their relationships soured. They had trouble relating to women as individual human beings. They worried about the way they saw their daughters, and girls their daughters’ age. It wasn’t only their sex lives that suffered – pornography’s effects rippled out, touching all aspects of their existence. Their work days became interrupted, their hobbies tossed aside, their family lives disrupted. Some men even lost their jobs, their wives and their children. The sacrifice is enormous.

            Nor is it only the most violent hardcore pornography that wreaks damage. According to a large-scale 1994 report summarizing 81 peer-reviewed research studies, most studies (70 percent) on non-aggressive pornography find that exposure to pornography has clear negative effects. Gary Brooks, a psychologist who studies pornography at Texas A&M University, explains that “soft-core pornography has a very negative effect on men as well. The problem with soft-core pornography is that it’s voyeurism – it teaches men to view women as objects rather than to be in relationships with women as human beings.”

            Because pornography involves looking at women but not interacting with them, it elevates the physical while ignoring or trivializing all other aspects of the woman. A woman is literally reduced to her body parts and sexual behavior. Not surprisingly, half of Americans say pornography is demeaning towards women, according to the Pornified/Harris poll. Women are far more likely to believe this – 58 percent compared with 37 percent of men. Only 20 percent of women – and 34 percent of men – think pornography isn’t demeaning. Of course, with increased viewing, pornography becomes acceptable and what once disturbed fails to upset with habituation. While 60 percent of adults age 59 and older believe pornography is demeaning towards women, only 35 percent of Gen Xers – the most tolerant and often heaviest users – agree.

            But pornography doesn’t just change how men view women – it changes how men see themselves and how their own lives play out. Advocates aren’t shy about extolling pornography’s enticing effects. The first step is usually an increase in frequency and quantity of viewing. More times logging online or clicking the remote control, prolonged visits to certain Web sites, a tendency to fall into a routine. In a 2004 Elle/MSBNC.com poll, nearly one in four men admitted they were afraid they were “overstimulating” themselves with online sex. In fact, that routine is an essential ingredient in the financial success of high-tech porn. Wendy Seltzer, an advocate for online civil liberties, argues that pornographers should not even be concerned over piracy of their free material. According to Seltzer, “People always want this stuff. Seeing some of it just whets their appetite for more. Once they get through what’s available for free, they’ll move into the paid services.” And once they’ve indulged in more quantity, they want more quality – meaning more action, more intensity, more extreme situations. The impetus to find harder core fare affects the entire industry.

            Particularly on the Internet, men find themselves veering off into pornographic arenas they never thought they could find appealing. Those who start off with soft-core develop a taste for harder core pornography. Men who view a lot of pornography talk about their disgust the first time they chanced upon an unpleasant image or unsolicited child porn. But with experience, it doesn’t bother them as much – shock wears thin quickly, especially given the frequent image assault they encounter on the Internet. They learn to ignore or navigate around unwanted imagery, and the third time they see an unpleasant image, it’s merely an annoyance and a delay. At the same time that such upsetting imagery becomes less unpleasant, arousing imagery becomes less interesting, leading the online user to ratchet up the kind of pornography he seeks, seeking more shocking material than he started out with.

            Most women have no idea how often their boyfriends and husbands look at pornography. Usually, the deception is deliberate, though many men also deny how often they look at it. Most simply don’t think about quantifying the amount they view. And while men consider trust crucial for a healthy relationship, they seem willing to flout that trust when it comes to pornography – deceiving their significant others into thinking they’re either not looking at it at all or are looking at it less frequently. Fitting pornography into one’s life isn’t always easy.

Pornography’s Effects on Women

Having won over men, the pornography industry is eager to tap into the other potential 50% of the market: women. A number of companies are increasing production of pornography made by and for women, and the industry is keen to promote women’s burgeoning pornography predilection. Playgirl TV announced its launch in 2004 with programming to include an “erotic soap opera” from a woman’s point of view, a 1940s style romantic comedy with “a sexual twist,” and roundtable discussions of “newsworthy women’s topics.”

            In recent years, women’s magazines have regularly featured a discussion of pornography from a new perspective: how women can introduce it into their own lives. While many women continue to have mixed or negative feelings towards pornography, they are told to be realistic, to be “open-minded.” Porn, they are told, is sexy, and if you want to be a sexually attractive and forward-thinking woman, you’ve got to catch on. Today, the pornography industry has convinced women that wearing a thong is a form of emancipation, learning to pole dance means embracing your sexuality and taking your boyfriend for a lap dance is what every sexy and supportive girlfriend should do. According to a 2004 Internet poll conducted by Cosmopolitan magazine, 43 percent of women have been to a strip club. In an Elle magazine poll, than half the respondents described themselves as “pro-stripping” (56 percent) and said they weren’t bothered if their partner went to strip clubs (52 percent).

            Some attribute the rise in female consumption to an increased supply in pornography for women. That may be part of the reason, but there’s more at play than a simple supply-and-demand equation. Broader societal shifts in men’s and women’s roles in relationships and a corresponding swing in women’s expectations and attitudes towards their sexuality are driving women to pornography too. Sociologist Michael Kimmel, who studies pornography and teaches sexuality classes at the State University of New York at Stony Brook, says, “Twenty years ago, my female students would say, ‘Ugh, that’s disgusting,’ when I brought up pornography in class. The men would guiltily say, ‘Yeah, I’ve used it.’ Today, men are much more open about saying they use pornography all the time and they don’t feel any guilt. The women now resemble the old male attitude: They’ll sheepishly admit to using it themselves.” Women’s attitudes have merged even more closely with men’s.

            The Internet measurement firm comScore tracked close to 32 million women visiting at least one adult Web site in January 2004. Seven million of them were ages 35 to 44, while women over the age of 65 totaled only 800,000. Nielsen NetRatings has found the figures to be somewhat lower, with 10 million women visiting adult content Web sites in December 2003. In a 2004 Elle/MSNBC.com poll, 41% of women said they have intentionally viewed or downloaded erotic films or photos and 13% watched or sexually interacted with someone on a live Webcam.

            As much as women are touted as the new pornography consumer, they still lag far behind men. The spitfire headlines do little to reflect the reality of most women’s experiences. Statistics belie the assertions of the pro-porn movement and the go-go girl mentality espoused by female pornography purveyors. While some polls show that up to half of all women go online for sexual reasons, the percentage of women who say they do are likely exaggerated by the inclusion of erotica, dating, and informational sites in the definition of “adult” Internet content, areas to which women are disproportionately drawn compared with men. Many women who are tracked through filtering sites are linked to pornography by accident, visit out of curiosity, or are tracking down their male partner’s usage. Others feel like admitting they don’t look at pornography at all is akin to affixing a “frigid” sticker to their chastity belts; better not to come off as uptight.

Pornography’s Effects on Relationships

For many wives and girlfriends, it becomes immediately clear that the kind of pornography their men are into is all about the men – about their needs, about what they want, not about their women or their relationships or their families. Men aren’t completely in denial either; they often recognize their kind of pornography doesn’t exactly reflect well on themselves or on their partners. It’s not surprising to either party when a woman ends up feeling second rate. Not only does pornography dictate how women are supposed to look; it skews expectations of how they should act. Men absorb those ideals, but women internalize them as well. According to the Pornified/Harris poll, most women (six out of ten) believe pornography affects how men expect them to look and behave. In fact, only 15 percent of women believe pornography doesn’t raise men’s expectations of women.

            Men tell women their consumption of pornography is natural and normal, and if a woman doesn’t like it, she is controlling, insecure, uptight, petty, or a combination thereof. The woman demands. She is unreasonable. He has to give up something he’s cherished since boyhood. She’s not supportive. She blows everything out of proportion. If it weren’t for this attitude of hers, the relationship would be fine. For a woman to judge pornography as anything but positive is read as a condemnation of her man or at the very least, of his sexual life. Discomfort with pornography also becomes a woman’s discomfort with her own sexuality. Still, the Pornified/Harris poll found that only 22 percent of Americans believe pornography improves the sex life of those who look at it. Indeed one-third of respondents to this book’s nationwide poll believe looking at pornography won’t harm a couple’s relationship.

            Despite appearances, pornography isn’t precisely a solo activity. As interviews with men and women attest, it plays into how people approach and function in relationships. Whether a couple watches together, or one or both partners uses it alone, pornography plays a significant role not only in sex but in a couple’s sense of trust, security, and fidelity. As Mark Schwartz, clinical director of the Masters and Johnson Clinic in St. Louis, Missouri, says, “Pornography is having a dramatic effect on relationships at many different levels and in many different ways – and nobody outside the sexual behavior field and the psychiatric community is talking about it.” . . .

            Mary Jo McCurley, an attorney who has practiced family law in Dallas since 1979, agrees. In the past five years, more and more cases are brought forth in which a husband’s pornography habit is a factor. “We see cases in which the husband becomes so immersed in online porn it destroys the marriage,” she explains. “Not only is it unsettling for the wife that he’s using other women to get off, but it takes away from the time they could spend together as a couple.” In divorce cases these days, enormous amounts of time and money are spent recovering pornography off computers. “You can hire experts who specialize in digging through hard drives,” McCurley says. “There are people who have made a profession out of it. It’s become quite common in Texas divorce.”

Pornography’s Effects on Children

It does seem like pornography’s infiltration into our lives has become inevitable. Learning to like pornography online is fast becoming the new norm in this country. According to the Pornified/Harris poll, 71 percent of 18-to-24-year-olds agreed with the statement, “I have seen more pornography online than I have seen offline (in magazines, movie theatres, TV)” – twice the number of Baby Boomers. More than half admit it’s hard for them to go online without seeing pornography.

            This moment of contact takes place at an increasingly young age. According to a 2001 study by the Kaiser Family Foundation, seven in ten 15-to17-year-olds admitted to “accidentally” stumbling across pornography online. Girls were more likely than boys to say they were “very upset” by the experience (35 percent versus 6 percent). While a majority of 15-to 24-year-olds (65 percent) said they thought viewing such pornography could have a serious impact on people under 18, younger kids were more likely to take it in stride: 41 percent of 15-to17-year-olds said it wasn’t a big deal.

            Statistics show that about half – if not all – teenagers are exposed to pornography one way or another. A 2004 study by Columbia University found that 11.5 million teenagers (45 percent) have friends who regularly view Internet pornography and download it. The prevalence of teens with friends who view and download Internet pornography increases with age, from nearly one-third of 12-year olds to nearly two-thirds of 17-year olds saying they have friends who use online porn. Boys are significantly more likely than girls to have friends who view online pornography: 46 percent of 16- and 17-year old girls say they have friends who regularly view and download Internet pornography, compared with 65 percent of boys the same age; the comparable percentage for 12- and 13-year old girls and boys are 25 percent and 37 percent respectively.

            Psychotherapists and family counselors across the country attest to the popularity of pornography among pre-adolescents. “I’ve had my own therapy practice for over 25 years,” says Judith Coché, a clinical psychologist who runs The Coché Center in Philadelphia and teaches psychiatry at the University of Pennsylvania. “I feel like I’ve seen everything.” She pauses and says almost apologetically, “I’m going to say something really strong. I’ve been walking around my practice saying, ‘We have an epidemic on our hands.’ The growth of pornography and its impact on young people is really, really dangerous. And the most dangerous part is that we don’t even realize what’s happening.”

            Coché describes one case in which an 11-year-old girl was found creating her own pornographic Web site. When her parents confronted her, she said that pornography was considered ‘cool’ among her friends. Perhaps it wasn’t a very good idea, the girl admitted, but all her friends were doing it. Her parents were horrified.” More boys – often pre-adolescents – are being treated for pornography addiction, Coché says. “Before the Internet, I never encountered this.” . . .

            Pornography is wildly popular with teenage boys in a way that makes yesteryear’s sneaked glimpses at Penthouse seem monastic. The prevalence of the Internet among teenagers has made pornography just another online activity; there is little barrier to entry and almost no sense of taboo. Instead, pornography seems to be a natural rite and an acceptable pastime. One teenage boy in Boston explained recently to The New York Times, “Who needs the hassle of dating when I’ve got online porn?” Pornography is integrated into teenage pop culture; videogame culture, for example, exalts the pornographic. One 2004 video, “The Guy Game,” features women exposing their breasts when they answer questions wrong in a trivia contest; the game, available on Xbox and PlayStation 2, didn’t even get an “Adults-Only” rating. (The game manufacturer is being sued because one woman included in the footage was only 17 and didn’t give her consent to be filmed.) . . .

            Touring around this country to promote my book, I heard again and again from concerned parents. “I know my 14-year-old son is looking at extremely hard-core pornography, but what can I do about it? He tells me he needs the computer for schoolwork.” “I have a 10-year-old daughter. I don’t want to even think about what boys her age are learning about the opposite sex online.” “My daughter found pornography that my husband downloaded on the family computer.” A pediatric nurse told me there was an incident in her practice in which toddlers acted out moves from a pornographic movie. A day’s worth of nationwide headlines inevitably brings up stories of children encountering pornography at the local library, child pornography arrests, and school incidents in which teachers are caught looking at pornography on school computers during school hours. It is terrible enough that adults are suffering the consequences of a pornified culture. But we must think about the kind of world we are introducing to our children. Certainly everyone – liberals and conservatives, Democrats and Republicans – can agree with the statement, “It wasn’t like this when we were kids.” And I can’t imagine anyone would have that thought without simultaneously experiencing a profound sense of fear and loss.

RODNEY A. SMOLLA: HARMFUL PORNOGRAPHY AND LEGAL OBSCENITY

I know the focus of this hearing is not on constitutional law as such, but on the nature of the harms associated with sexually explicit material. What I want to do is focus on the extent to which, as you think about possible legislation, you are permitted under existing constitutional doctrine to take that harm, which is undisputed, and use it as the predicate for justifying legislation, and the extent to which you are not, the extent to which existing First Amendment doctrine says while that harm may exist, you cannot make use of that to justify this particular type of legislation.

[The Miller Standard of Legal Obscenity]

The first thing I want to do is just talk about a habit that all of us have, I have and most of us have, in referring to this area. We will use a word like, a phrase like “sexually explicit,” or we will talk about pornography or porn, or as I often do, pornography and obscenity. And I think all three Senators probably use those types of phrases as a compound, and it is natural, we all do.

            But First Amendment doctrine is more precise, and First Amendment doctrine takes the vast array of sexually explicit material that we know exists ubiquitously on the Internet. It exists on satellite television, cable television and so on. And it draws a sharp distinction under existing doctrine. Between that sexually explicit material that is legally obscene, which is really the only true First Amendment term of art, and that which is lewd or pornographic or sexually explicit, but does it make the three-part test of Miller v. California? [That is, does it (1) appeal to the prurient interest according to community standards, (2) depict sexual conduct in a patently offensive way, (3) lack serious literary, artistic, political, or scientific value.]

            The first important thing for you to think about is that the probability is that vast quantities of what is now on satellite, cable and the Internet, already meet the Miller standard. That is to say, someplace in some locality under community standards it can already be prosecuted, because it would already satisfy the Miller standard.

            So one sort of common sense thing to keep in mind is this may not be a matter of needing new legislation, it may simply be a matter of making the decision at the local level, the State level or the Federal level, to put more resources into prosecution under the Miller standard, which you are always free to do.

            More importantly, I think, what I would like to do is address this question: to what extent can you go beyond Miller? Are there pockets of this issue that you can address that allow you to pass legislation to get at material that is protected under the Miller standard? And the answer is, that if you want to go after this material there is some good news and bad news. The good news--and this is conjured up by Senator Feingold’s remarks--is that the Supreme Court has already said that children are a special case, really in two senses.

            First of all, you can use filtering and filtering technology as a way of contending with this problem. That comes preapproved from the Supreme Court of the United States. It means if you put all of the various decisions of the last 7 or 8 years together, that some combination of what parents do in the home and what libraries can do, which the Supreme Court said is permissible in the American Libraries case, that is one way of contending with it. And of course, there is no protection for trafficking in true child pornography. That is to say, when children are actors that are part of the presentation, that is a heinous exploitation of children and there is nothing whatsoever in the Constitution standing between efforts by Congress to bolster that effort.

            My last point, however, is the sort of bad news, if you will, if you want to aggressively go after this material under First Amendment doctrine. I would characterize it as having two important points. First of all, you cannot simply listen to evidence, as credible and convincing as I am sure it will be, that there are harms associated with the sexually explicit material, and then label those harms compelling governmental interest, and use that device to say, we can outlaw material protected under Miller, but nevertheless causing trouble in our society because we can meet the strict scrutiny test under the First Amendment and justify it by compelling governmental interest. That is not existing First Amendment doctrine.

            Rather, existing First Amendment doctrine says when you have a specific issue that you are dealing with, incitement to riot, threats to violence, libel, prior restraint, obscenity-- and there is a specific First Amendment test that sets forth existing, clear doctrines for dealing with that, that displaces the strict scrutiny test. The reason for that, the reason that is not a bad constitutional principle, is that there is a tremendous temptation for us to move against offensive speech of all kind, flag burning, speech that seems to promote terrorist ideals that we do not agree with, sexually explicit speech. The whole history of this country is wrapped up in the natural tendency that all of us have to know evil speech and to want to legislate against it. And the reason we have these very specific doctrines with these very demanding standards like Miller, is to prevent us from yielding to that temptation, and then attempting to justify it by saying, “Well, there is a compelling interest to do it.” The Supreme Court said that is not the way you are allowed to go. You should not feel bad about that as a constitutional constraint because as I said at the beginning, you have the tools already to deal with the problem addressing children, and to deal with material that is already obscene under Miller v. California, which is probably a large amount of material if there was the willpower and the social resources to go after it.

[Prosecuting Hard Core Pornography]

[Question from the committee:]  Are we getting to the point of evidence that a court would be willing to say this [degree of pornography] is enormously harmful; it has met the standard of the society of legislators being able to legislate and address this because of the documentation of its harm in society?

            [Answer from Smolla:] And I think that that is the heart of the matter, and my simple answer is no. So that you will not think that is the shrill, strident, free-speech answer, remember that the constitutional doctrine today, to put it very simply, divides the world between hard-core porn and soft-core. I mean if you just wanted to put it in simple language in terms of what Miller v. California means, that is the division.

            And so if we have a kind of public health epidemic, if we have a new behavioral problem in the way that men and women relate, if there is an addictive quality to this because of the Internet that did not exist before, that does not change the constitutional standard. It may merely mean that we need more public health resources, more prosecutorial resources, more efforts under existing law.

            The heart of my testimony is, most of what is causing the kinds of behavioral dysfunction that these witnesses are talking about, which I think is strong evidence, most of what is causing that could be prosecuted almost certainly under the Miller standard. We are not talking about episodes of “Sex and the City.” We are not talking about the HBO series “Rome,” where there is an explicit sexual scene, but it is obviously a portrayal of history. We are talking for the most part about pretty crude, straightforward hard-core material, that depending on the jurisdiction--and this is the federalism issue, the law is you have to go community by community-- depending on the jurisdiction, almost certainly you could reach it if there was the willpower to put the energy into it.

            I think, Senator, what I am saying is, if this is a public health problem of the nature that we are maybe beginning to perceive, then treat it as one and put the resources into that. Put the resources into counseling, into education and into existing criminal laws, and do not try to stretch the envelope of the First Amendment, where almost certainly, you just know almost certainly, you are going to get tremendous pushback from the courts.

Source: U.S. Senate Committee on the Judiciary, hearing on Why the Government Should Care about Pornography (2005); notes have been removed.

Questions for Review

1. According to Paul, what are some of the negative effects of pornography on men?

2. According to Paul, what are some of the negative effects of pornography on relationships?

3. According to Paul, what are some of the negative effects of pornography on children?

4. According to Smolla, what are two limited ways of attacking soft core pornography that is Constitutionally protected under the Miller standard?

5. According to Smolla, what is the rationale behind the Constitutional protection of soft core pornography that does not meet the Miller standard of obscenity?

Questions for Analysis

1. Does Paul exaggerate the harmful effects of pornography? Explain.

2. According to Paul, women are viewing more pornography and are becoming more tolerant of it. If widespread male use of pornography is unavoidable, is this change of attitude among women particularly bad?

3. Smolla argues that Constitutional protection of soft-core pornography (i.e., that which does not meet the Miller standard) is a good thing for society. Discuss his rationale and whether you agree.