In previous posts, I’ve discussed the analysis of red families v. blue families I’m writing with Professor June Carbone. Reproductive issues – specifically abortion – retain their ability to rally the red paradigm base. Conservatives can’t stop talking about abortion; abortion is, in the words of one political [...]]]> The juxtaposition of the controversy over President Obama speaking at Notre Dame, a newly released Gallup poll finding that a majority of Americans are anti-choice, and a governmental report on the increasing rate of nonmarital childbearing highlights the challenges of reproductive rights in American life and politics. Abortion is an intrinsically divisive issue, and it has become a focal point for values conflict. What we really need to do is to change the subject, from abortion to contraception.

In previous posts, I’ve discussed the analysis of red families v. blue families I’m writing with Professor June Carbone. Reproductive issues – specifically abortion – retain their ability to rally the red paradigm base. Conservatives can’t stop talking about abortion; abortion is, in the words of one political commentator, “their meal ticket.” It remains the family values issues least amenable to compromise. Indeed, the Gallup poll measuring abortion views found little change in the views of Democrats. Instead, the increase in pro-life attitudes comes from those who identify as conservatives and moderates.
In contrast, attitudes toward contraception are on a continuum — over ninety-five percent of sexually active women will use contraception at some point in their lives. More critically, the intensity of the abortion conflict obscures the real tragedy: the United States has the highest rates of unplanned teen pregnancies in the developed world. Thirty percent of American girls will become pregnant before they turn twenty, and eighty percent of the pregnancies are unplanned. The only way to genuinely address family values is to reconsider the terms of family formation. The dramatic story of the nineties was a national decline in teen births, a decline most dramatic for the poorest and most vulnerable Americans, and one concentrated much more heavily in the urban northeast and the successful middle class. That decline in births occurred at the same time teen pregnancy and abortion rates fell, and it depended on both greater abstinence and more effective contraceptive use. In the last few years, teen births have crept back up, with the largest rise for African-Americans. This has been attributed to some combination of  increasing amounts of abstinence-only education and lesser access to contraception based, in part, on the economy.  At the same time, the morning after pill and non-surgical abortion (RU-486) have blurred the line between contraception and abortion for the middle class, increasing ease of access for those with medical care, and worsening the plight of women with the least resources as abortion later during pregnancy becomes harder to secure.

If there is middle ground in the cultural fight, it should be on the importance of moving family formation out of the teen years. Early marriage derails education and increases the likelihood of divorce. As the National Campaign to Prevent Teen and Unplanned Pregnancy points out, young teen mothers are less likely to complete high school, and their children do not perform as well in school as do children of older parents. While abstinence reinforcement can play a useful role, few modern couples will forego contraceptive use altogether – whether within marriage or without. Comprehensive approaches to deterring improvident childbirth, with special attention to the needs of poorer, minority and evangelical teens, should command greater support. After all, those who succeed in avoiding unplanned births become more to like to marry, stay married, and bear children who replicate more stable family patterns.

So change the subject. To keep abortion legal, talk about contraception instead.

Depending on where you live, today or tomorrow is “Bike to Work” Day.  Bicycles have been around the US since at least 1866, when Pierre Lallement received patent no. 59,915 for a velocipede.  I’ve been an avid year-round bike commuter for 8 years now (aside from my 2 years in Kinshasa, Congo, when I couldn’t walk around the block without an escort), and, like most zealots, I like to proselytize. Now that I’ve converted to a bike commuter, I extol the economic [...]]]> One of the benefits of being at GW is that I get to talk to Dan Solove in person. When I saw him on Wednesday, he reminded me that blogging doesn’t always have to be about my past books or future projects. Thanks, Dan!

Depending on where you live, today or tomorrow is “Bike to Work” Day.  Bicycles have been around the US since at least 1866, when Pierre Lallement received patent no. 59,915 for a velocipede.  I’ve been an avid year-round bike commuter for 8 years now (aside from my 2 years in Kinshasa, Congo, when I couldn’t walk around the block without an escort), and, like most zealots, I like to proselytize. Now that I’ve converted to a bike commuter, I extol the economic and environmental benefits of riding:  bicycles don’t use any fossil fuels to get you from one place to another; an 8-mile bicycle trip keeps out about 15 pounds of pollutants from the air we are breathing; and somewhere between 6-20 bikes can be parked in one car parking space (mine is parked as a piece of art in my office).  Just as importantly, however, bike commuting is really fun. It is fast: even at my pace on the bike of 10-15 mph, I breeze right past people in cars. And it’s wonderful for my mental health. One of my friends interviewed me for a story she wrote for Good Housekeeping magazine (!) about how people find serenity. I told her I find serenity through writing articles and blog posts, but she wasn’t convinced; not until I told her about my bike commuting did she put pen to paper. So, as one corporate sports giant might say, Just do it!

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the [...]]]> Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.

The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.

Shane starts by distinguishing between “presidentialism” and “pluralism.” “Presidentialism” embraces the idea of a unitary executive with vast powers to operate unchecked by other branches of government, often acting in secrecy, and free of the need to consult with other branches. “Pluralism,” on the other hand, understands the notion of interacting branches checking and consulting each other in setting policy, doing so as not only a constitutional command but also as a prerequisite to setting sound policy. It is Shane’s position that each of these attitudes is supported by a matching culture and that government lawyers have a critical role to play in sustaining or contesting those cultures.

Shane is no fan of presidentialism, which he sees as depending upon a culture of isolation and arrogance that promotes bad policy and, by subsituting executive preferences for legal mandates (because anything the executive does is almost always seen as within its power, therefore ”legal,” ending any real rule-like limits on executive power), presidentialism makes a joke out of the “rule of law.” Bad policy results in part because “[f]acts and opinions are always filtered through officials’ ideological prisms, prisms that shape how facts are weighed and options comprehended.” Without a counterweight to ideology, important flaws in information-gathering and reasoning are missed. Pluralism, by contrast, helps to minimize ideological distortion by compelling executive decisionmakers seriously to consider opposing views, while engaging in dialogue with other institutional actors.

Lawyers are essential to standing in the way of a creeping culture of presidentialism. That culture, argues Shane, “bends the light of the law so that nothing is seen other than the prerogatives of the sitting chief executive.” This light-bending distorts the lawyer’s vision not only of the law’s scope but of the process by which quality lawyers determine legal “meaning.” Moreover, most executive decisions are too low-level or visible to capture the attention of congressional oversight committees or of the courts, even though cumulatively these decisions may do much damage. The government lawyer is thus often the only voice of conscience available to give sound legal advice and check foolishness and overreaching.

Shane traces the process of legal decisionmaking and the outcomes of it concerning two major issues: warrantless electronic surveillance and the treatment of enemy combatants. In a convincing display, Shane condemns the lawyering involved as steeped in presidentialism. He concludes that two factors explain this poor lawyering by otherwise talented individuals. First, the legal and broader culture of the executive must have sent the message to the lawyers that they had no real choice but to approve what their client sought. Second, they worked in an atmosphere in which they would face scorn for reluctance to express any argument, no matter how minimally plausible, supporting their client’s preferred conclusion. That might be acceptable conduct for an advocate, says Shane, but it is reprehensible for an advisor.

To avoid such “ethically blinkered” results, insists Shane, government lawyers “must remember that their ‘client’ is the American people, and not the emphemeral roster of incumbent federal office holders.” Lawyer-advisors must give conscientious opinions not only about outcomes but about the proper procedures clients must follow before making policy choices. The lawyer is neither a potted plant nor a lackey. And a lawyer without a spine is really no lawyer at all.

The overall message from the website is that [...]]]> I wasn’t going to say anything about Bristol Palin’s new job, but then a friend sent me a column in today’s New York Timesabout Ms. Palin. In case you missed this news item, Ms. Palin (18 and nonmarital mother of baby Tripp) has become a teen ambassador for the Candie’s Foundation, which is supposed to educate us about how we can fight teen pregnancy. To market its message, the Foundation is selling tank tops for $15 with the slogan, “I’m Sexy enough . . . to keep you waiting.” (Disclosure: I should note that I tottered around in my 3-inch Candie’s high heel shoes several decades ago, but have given them up for shoes from The Walking Company.)

The overall message from the website is that teens should wait. On its webpage, “Tips for Teens,” the Foundation asks, “What should you know?” and then replies:

Did you know that over 90% of teens believe that it’s important that they get a strong message about waiting to have sex? In fact, 60% of teens who have had sex wish they had waited longer and 75% don’t see anything embarrassing about admitting that they’re virgins. Clearly, teens in the 21st century are recognizing merit in putting off sex and the consequences – both physical and emotional – that are attached to sex.

I think encouraging teen abstinence is incredibly important, even more so now that my younger daughter has just joined the ranks of teen-agers. But I think it is even more important not to let encouraging abstinence get in the way of discouraging pregnancy. The U.S. has the highest rates of teen pregnancy in the developed work — three in ten women will experience pregnancy before the age of 20, a very scary statistic. And those rates are almost certainly higher than they need be because of the energy we devote to encouraging abstinence. As Ms. Palin so clearly, vividly, and painfully shows, abstinence is not realistic.

June Carbone and I have observed that there is no evidence that abstinence-only education in fact makes abstinence until marriage more likely, or produces a decline in either teen or non-marital births.

Some studies show that abstinence-only education leaves teens less prepared for the sexual relations they later develop, with a corresponding increase in unplanned pregnancies and sexually transmitted diseases; and that teens who participate in abstinence-only education appear to begin sexual activity at roughly the same ages as teen who do not participate in the programs and to be just as likely to have sexual encounters before marriage.

In April 2007, a comprehensive, congressionally authorized review of federally funded programs found that youth who participated in abstinence education programs were no more nor less likely to have abstained from sex than those in a control group who had not received the abstinence education programs. While religion can make a difference — religiously devout teens do begin sexual activity a year later on average than their less devout religious counterparts who profess the same religious beliefs – even the most devout overwhelmingly do not abstain until marriage.

The dramatic story of the nineties was a national decline in teen births, a decline most dramatic for the poorest and most vulnerable Americans. That decline in births occurred at the same time teen pregnancy and abortion rates fell, and while it involved greater abstinence during the early teen year years, the greater declines came from more effective contraceptive use among older teens. In the last few years, teen births have crept back up. Commentators attribute the increase to some combination of the worsening economy (a bright future is the best contraceptive), increasing amounts of abstinence-only education (the poorer the woman, the more likely she is to receive no information about contraception before her initial sexual encounter), and lesser access to contraception (the most effective methods require a prescription).
“Do as I say, not as I do” has never been an effective message.