Amba regretting an abortion: "if an embryo or fetus is regarded as disposable, then you are, too."

I wanted to break out this beautifully written comment that Annie Gottlieb wrote in the comments to yesterday's abortion post (the one that linked to a Bloggingheads episode featuring 2 diavloggers trying to grapple with the realization that the unborn entity isn't "a blob"):

The nonreligious conclusion I came to as the result of lasting (lifelong) regret of an abortion is that if an embryo or fetus is regarded as disposable, then you are, too. I guess it's a version of what Mother Theresa was saying. An individual either is unique and uniquely valuable or isn't. All are or none are. If your existence had happened at the wrong time (I won't use the demeaning word "inconvenient" because sometimes it's little more than that, but sometimes it's a lot worse), you could have been disposed of. Your existence is accidental and contingent.

(Of course if you believe human beings are nothing special, even a plague on the planet, then by all means let's declare open season on 'em and hasten their extinction. Oh, uh, "us" is "them.")

To consider abortion acceptable is to make a philosophical decision about the world without even knowing it.

It's a tricky thing to write into law. Nearly all traditions have recognized the primacy of the mother's life and circumstances (including economic) in the early stages of pregnancy. The irony is that they knew a lot less than we do about what's involved. They really did believe it was a "blob." We know better.

But they also believed pregnancy was something like an act of God. That's why sex was so severely policed. I can understand why Catholics believe that there's a connection between the casual attitude made possible by birth control and a casual attitude toward life itself.

But is that inevitable? If people choose, for a time or for all time, to use sex to "make self" -- to make their own lives and relationships richer, which I do believe is one of its lifegiving uses -- then they should use birth control religiously. One of the big pro-choice arguments is that "birth control fails." Certainly some percentage of that failure rate is due to wrong or careless use of it. The rest -- the true failures -- might be seen as successes of someone who is just hellbent on being here. And the unwitting invitation of such a person should be viewed at all times as one of the ineradicable risks of sex.

Annie has another comment, that links to an important post of hers from 2005:

You know there are pro-life people who would make it mandatory that a woman be shown an ultrasound of her fetus before she can have an abortion.

I was once at the hospital with a woman who was beginning to miscarry, and I watched the live ultrasound. She was, I forget, maybe 8 or 10 weeks pregnant. The embryo/fetus didn't look like a baby yet, but you could see its heart beating.

I wonder if I would have been able to go through with an abortion if I'd seen that.

Thanks for writing all that over here, Amba.

I'm very interested in this idea that sex has become, as you put it, a way to "make self." It reminds me of the way people used to talk about taking drugs — especially LSD — back in the 1960s. It was supposed to be a profound journey of self-actualization. I remember being surprised to see kids only a few years younger than me taking drugs just to have fun or because they had nothing else to do. When you first break from the old traditions, maybe you have to make up a big, weighty story about how you are proceeding onto some higher ground. I'm sure you can use sex for profound self-actualization. In fact, you can still use drugs that way if you set your mind to it. But how many people do?

Australian Judge Aborts Drug Trial Because Jurors Were Playing Sudoku

A judge aborted a drug conspiracy trial Tuesday after some jurors were found to have been playing the puzzle game Sudoku while evidence was being given.

Sydney District Court Judge Peter Zahra ended the trial Tuesday for two men facing a possible life sentence for drug conspiracy charges. The trial had been running for 66 days and had cost taxpayers an estimated 1 million Australian dollars (US$950,000).

The judge was alerted after it was observed the jurors were writing vertically, rather than horizontally. It had been assumed they were taking notes.

"Yes, it helps me keep my mind busy paying more attention," the jury foreman told the judge Tuesday. "Some of the evidence is rather drawn out and I find it difficult to maintain my attention the whole time, and that doesn't distract me too much from proceedings."

Jurors in the trial are anonymous and no action can be taken against them for the puzzle playing.

The foreman admitted to the judge four to five jurors were playing puzzle games for up to half the time the trial had been going.

"Jurors are sort of the judges of the facts and it's very disappointing they weren't giving our clients a fair trial," said Robyn Hakelis, a lawyer for one of the defendants.

A new trial is expected to begin in a few weeks.

Dicks: "This immoral self expression goes beyond freedom of expression."

Flint Police Chief David Dicks "announced that his officers would start arresting people wearing saggy pants that expose skivvies, boxer shorts or bare bottoms."

"Some people call it a fad," Dicks told the Free Press this week while patrolling the streets of Flint. "But I believe it's a national nuisance. It is indecent and thus it is indecent exposure, which has been on the books for years."

It's a misdemeanor that could put you in jail for up to a year!

A lot of people think Dicks is going too far:

"If I pay for my pants, I should be able to wear them how I want to," said 16-year-old Montez Phifer, taking a break from playing hoops in the city Monday. "Everyone thinks it's gangster, but it's a fashion. Nothing more."

His friend, Lorenzo Johnson, 14, said his mother warned him about the chief's stance on sagging.

"I pulled them up to respect her," he said. "When she left I pulled them back down."

Another friend, Senita Abrams, 18, said: "I think it's cute when boys sag."....

Greg Gibbs, a lawyer and chair of the ACLU Flint chapter, said the crackdown sounds like a "vast waste of resources."

Ha ha. Crackdown. You know which side the newspaper is on.

Silvio Berlusconi's 'iron fist' laws approved

All across Europe attitudes are stiffening toward immigration, nowhere more so than in Italy.

Soldiers could be sent into Italy's cities, illegal immigrants will be imprisoned for four years and all non-serious court cases will be frozen for a year under new measures approved by Italy's senate.

The senate voted 166 to 123 to approve a wide-ranging package of measures which will allow Silvio Berlusconi to govern Italy with an iron fist.

Mr Berlusconi, 71, will now be able to use as many as 3,000 soldiers for up to six months in order to fight crime. Previously, the use of the army had to be agreed by the parliament beforehand. The first destination for the troops is likely to be Naples, where Mr Berlusconi faces violent opposition to his plans for dealing with the city's rubbish crisis.

The perma-tanned billionaire will also no longer have to worry about his ongoing court case for allegedly corrupting David Mills, the husband of Tessa Jowell, the Olympic minister. Mr Berlusconi is accused of giving Mr Mills £350,000 in order to stand favourable witness in a separate trial. Both men deny wrong-doing.

The trial could be suspended under a measure designed to free up Italy's judiciary to concentrate on murder and Mafia cases. More than 100,000 "non-serious" trials, including trials for fraud, manslaughter, theft and kidnapping, will shut down for a year to give the courts a chance to catch up on their backlog.

The National Association of Magistrates said the move would cause "unprecedented chaos" and offered Mr Berlusconi the chance to cut a deal: personal immunity from prosecution if he would let the trials continue.

Mr Berlusconi said he was "outraged" by suggestions that he would pass a law in order to have his own trial suspended. He vowed that the Mills case would continue, despite the new decree.

Another controversial measure in the package will see illegal immigrants imprisoned for up to four years. Landlords who rent homes to illegal immigrants will have their properties seized. Mr Berlusconi has pinned much of the blame for Italy's crime problem on immigrants nad has vowed to "wash the piazzas clean of uncertainty". Immigrants who claim to have family in Italy will be given DNA tests.

Quite surprising for someone who said "Personally, I don't think you can prosecute someone for their illegal presence in our country" , quoted by Euronews some days before.

Anna Finocchiaro, a spokesman for the opposition Democratic Party, said there had been no consultation by the government over the new measures. "We have to have a dialogue over our shared principles and rules," she said.

"We will vote no. The text has two mistaken measures, which are dangerous and against the Constitution. First there is the criminalisation of immigration, and the second is the suspension of trials".

However, Mr Berlusconi's enormous majority in the Senate easily overwhelmed the opposition. The measure will now be ratified by the Lower House of parliament. No date has been set, but the parliament has 30 days in which to carry out a vote.

So can "a bisexual woman who works for a university with spousal benefits" marry her gay male roommate, in order to provide him with health insurance?

The NYT ethicist Randy Cohen says yes:

People have married for many reasons -- to gain a fortune, accumulate land, forge an international alliance, secure a dynasty, raise children -- and even on account of affection, a marital motive that became widespread rather late in human history with the rise of bourgeois society. ... Marrying to obtain health insurance does not seem, historically at least, the most ignoble reason, particularly where same-sex folks are forbidden to marry for love....

We live in a country where more than 40 million people lack health insurance and thus reliable access to medical care. ... If marriage is his best means to decent medical care, I see no ethical objections to you two kids' tying the knot. Nor would you be deceiving the university if you did.

It requires only marriage, not love. ...

I'm not sure why it matters that these two persons are gay, or why it matters that it is hard to get health insurance and good health care. We wouldn't justify shoplifting based on the discriminatory practices of the store or because the thing stolen was very expensive and necessary. Cohen's point must be that marrying to share spousal benefits is perfectly legitimate whenever two persons go through the legally required steps needed to get married.

If that's okay, unmarried persons with good benefits could charitably find an uninsured cancer patient or other seriously needy person--of the opposite sex, of course--and marry them as a good deed. Or, if economic benefit is acceptable, offer to marry the highest opposite-sex bidder. On Ebay!

If that sounds terrible, consider Shari Motro's op-ed, also in today's Times:

Amid all the heated discussion on both sides of the gay marriage debate, a broader point has somehow gotten lost: why should formally committed couples, straight or gay, enjoy special privileges in the first place?

Married couples can receive thousands of dollars in benefits and discounts unavailable to single Americans, including extra tax breaks, bankruptcy protections and better insurance rates. ...

Research consistently shows that unmarried Americans are on average poorer, sicker and sadder than their married counterparts. Yet they are denied perks given to married couples who, in many cases, neither need nor deserve them. Though gay couples certainly lose out as well, singles of any preference pay a triple price for not finding love: they don't enjoy the solace and support of a life partner; they don't profit from the economies of scale that come from pooling resources with a mate; and they effectively subsidize spousal benefits that they themselves can't take advantage of.

Ending discrimination based on marital status is one way to resolve the current quandry over gay marriage, and it has the added benefit of extricating government (and employers) from a matter many people see as fundamentally religious.

"[A]ll one needs to do is separate politics from law. Emotion from precedent."

"[A]ll one needs to do is separate politics from law. Emotion from precedent."

As Steve Martin would say, "First, get a million dollars..."

May I recommend this book: "Descartes's Error: Emotion, Reason, and the Human Brain."

Oh, am I perseverating? Sorry, it was the first critic of my blog! I'll go read the New York Times now.

"Capturing the Friedmans"

Here's an article in the NYT about the DVD for "Capturing the Friedmans":

We heard from theater managers that there was a problem," [the director] Jarecki said. "People weren't leaving after the film. They were sitting in their seats, arguing about things, so they couldn't clean the theater."

Mr. Jarecki and his fellow filmmakers began interviewing those who lingered. "People had strong reactions, they wanted to know more, talk more, and we realized this could be a starting point for the DVD," he said. One segment on the second disc answers frequently asked questions about the case and the members of the Friedman family. What are their relationships today? Why did they record their lives and troubles in such detail on videotape, an extraordinary part of the movie?

This film should be added to those lists of movies about law.

The person I saw this movie with and I left the theater, both sure we knew the truth about the events represented in the film. But we had opposite positions. I've ordered the DVD--so I'm going to need to plunge back into the argument.

Three Martha Stewart things

Three Martha Stewart things:

1. The Martha Stewart trial: sketchbook version.

2. Challenging Juror #1, the dithering housewife, former corporate lawyer, whom the defense loves.

3. A sober analysis of the jury ("Working Women Dominate the Jury For Stewart's Trial"). Leslie Eaton writes in the NYT:

[S]ome trial watchers said the jury's composition could tilt in favor of Ms. Stewart, whose lawyers, according to experts, hoped to seat a jury that would not be put off by Ms. Stewart's business success, stock market experience, or by the exacting Stewart persona itself.

While the jury members may not be as successful as Ms. Stewart, said Robert B. Hirschhorn, a jury consultant based in Dallas, "they may feel they have kind of walked in Martha Stewart's shoes."

Usually, he said, women jurors tend to be more judgmental of women defendants than men are, which suggests that the jury might favor the prosecution. But, he added, "an educated jury, virtually all employed, a lot in positions where they are required to make quick and important decisions — that all bodes well for Martha Stewart." ...

How much such details matter is always guesswork in court cases, where juries are supposed to base their decisions on the evidence and the law. But everyone involved in this case has paid careful attention to the atmospherics, and to the sexual politics of putting a powerful woman on trial for a corporate crime.

I see we're still saying "sexual politics." The female contestants on "The Apprentice" use their sexuality as much as possible, and the Times calls it "us[ing] their gender," but the way people think about a powerful, exacting woman is "sexual politics."

Jack Paar again

Did you know that Jack Paar came up with the idea of the sofa and desk furniture arrangement for a TV talk show? Here are a few more things about Jack, who seems to have had a talk show that was much more about great talk than today’s talk shows, from the NYT obituary:

• [U]nknowns who [got] national exposure on his show[:] ... Bill Cosby, Mike Nichols and Elaine May, Carol Burnett, Woody Allen, the Smothers Brothers and Godfrey Cambridge.

• "Everyone thinks Ed Sullivan discovered the Beatles," [Paar] once complained. "That's not true. I had them on before he did. I did it because I thought they were funny, not because I liked the music. I'm a Muzak kind of guy — my home's like living in an elevator."

• There always seemed to be a neurotic edge to Mr. Paar and his pals. [NYT critic John J.] O'Connor once said people watched to see if anyone would have a nervous breakdown on camera. Mr. Downs once explained affectionately, "Jack's not mentally ill; he's a carrier of mental illness." [Regular guest Oscar] Levant, asked what he did for exercise, mumbled, "I stumble and then I fall into a coma."

• "I hate my emotion," Mr. Paar said of all his tearful controversies. "Knock it off, I tell myself, but I just can't help it."

He had a catchphrase, “I kid you not.” I can remember my parents saying that and understanding that it was amusing in a way I couldn’t understand because I was too young to stay up and watch late night TV.

Guy Coq has an op-ed in today’s NYT,

defending the proposed French law banning Muslim schoolgirls from wearing head scarves in class. He cites the long French history of religious strife to justify the ban, as if the historical problem of religious strife did not underlie American ideas about religious freedom.

By separating church and state — instituting a republic that was neutral toward all religions, and without a national religion — France finally realized the aims of the Revolution. This is laïcité, and it has worked well.

But the laïcité of schools has been eroded by the intrusion of religious symbols, prompted by an excess of individualism, that philosophy so revered by Americans. … More than ever, in this time of political-religious tensions, school secularism is for us the foundation for civil peace, and for the integration of people of all beliefs into the Republic. If the French hold laïcité so dearly, it is because that principle, as much as the republic and democracy, is essential for a cohesive society. ... They no longer have a base of common religious tradition. Instead, they are constructing social guidelines built around ethical, universal values like justice and liberty of conscience.

The question that France is posing to the world is this: Can one progress toward true respect of these universal values without relying on some sort of "laicity"? To disarm fundamentalism, notably Islamic fundamentalism, can we give up laïcité, which builds a neutral space for all of us?

It isn't a lack of understanding of history that makes the French head scarf ban seem wrong to Americans, it is respect for individual freedom. Coq's "neutral space for all" benefits those whose religion imposes no clothing requirements, just as enforced silence benefits those with nothing to say. Bans on articles of clothing might still be justifiable, but this attempt to convince us by insulting our knowledge of history and invoking superficial neutrality is quite feeble.

"And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank,"

by Steve Oney is reviewed by Marshall Frady in the New York Review of Books. Federal courts professors like me often talk about the United States Supreme Court opinion about the scope of habeas corpus that arose out of Frank’s case, but here are the stark details of Frank’s horrific ordeal. In 1913, Frank, the Jewish superintendent of an Atlanta pencil factory, was accused of murdering a thirteen-year-old girl, Mary Phagan, who worked in the factory and had gone in to pick up her $1.20 paycheck. You’ll have to find the paper copy of the NYRB to see the heart-wrenching photographs of Frank—“a slight, bespectacled figure, … endowed with an unremittingly shy and self-contained reserve”— at his trial and Frank, lynched, hanging from a tree.

... Mary Phagan ... had been strangled to death, the twine still wound around her neck, her face battered, and her underdrawers ripped and bloody. Soon discovered in the debris beside her were two curious notes, scrawled on company paper, that seemed a crude, barely intelligible effort at pretending to have been written by the victim herself:

he said he wood love me land down play like the night witch did it.... he push me down that hole ...i wright this while play with me.

...[P]olice suspicions quickly settled on Leo Frank, principally owing to his behavior when they arrived at his house early Sunday morning to notify him of Mary Phagan's murder. It was a time when much melodramatic import was placed on particulars of manner, and police would later testify that Frank paced about his front parlor "nervous" and "excited," blurting questions as he twisted his hands, his voice "hoarse and trembling."…

The murder notes, though, remained something of a puzzle until the factory's twenty-nine-year-old black sweeper, James Conley, was also arrested when seen at the factory's water cooler trying to wash out red stains from a work shirt. ... Conley ... finally professed that Frank, after killing the girl on the factory's second floor in a ravishment attempt gone awry, had enlisted his aid in transporting her body in the elevator down to the basement, and then dictated to him the murder notes, with the rather improbable remark to him, Conley claimed, "Why should I hang, I have wealthy people in Brooklyn."

Read of the trial and the press hysteria. The case became "a tournament of competing racisms":

... Conley was characterized by the defense, "a plain, beastly, drunken, filthy, lying [epithet] ...fired with lust...." In fact, the racial derision of Conley was heartily participated in by all parties, including the press, one reporter pointing out, "Conley isn't a cornfield negro. He's more of the present-day type of city darkey," and even The New York Times would eventually describe him as a "drunken, lowlived, utterly worthless...black human animal." But the prosecution as well concurred in the racist caricaturing of its central witness, Dorsey declaring, about Frank's reluctance to directly confront Conley before the trial, "never in the history of the Anglo-Saxon race...did an ignorant, filthy negro accuse a white man of a crime and that man decline to face him."

The telling difference in that formulation, of course, was that Frank didn't happen to be of the Anglo-Saxon race. And as if in acknowledgment of that liability, a defense lawyer insisted, "Frank's race don't kill. They are not a violent race," and later, the defense felt it had to stipulate that one of its witnesses was, "it's true, a Jew, but she was telling the truth." The defense finally risked arousing exactly what it was protesting by claiming that Frank had only invited prosecution because he "comes from a race of people that have made money." To counter that suggestion, Dorsey intoned that while "this great people rise to heights sublime...they sink to the depths of degradation, too," mentioning among a list of Jewish malefactors Judas Iscariot, "a good character and one of the Twelve" who nevertheless "took the thirty pieces of silver and betrayed our Lord Jesus Christ."

Here is Frady's description of the lynching:

[Frank] sat between two men in the back seat of a car, his nightshirt "luminous among the galluses and wool hats," mutely resigned now to his doom, as the caravan took back roads through moonlit cottonfields, coming into the outskirts of the town just at dawn, where it stopped at a stand of woods by a cotton gin. Frank was hauled out, blindfolded, tied at his hands and feet, lifted up on a table; the rope was slung over the limb of an oak tree and the noose dropped around his neck. The circuit judge then kicked the table from under Frank's feet. It was not from a snapped neck, though, that Frank died, but a slow strangulation, as he twisted about desperately.

There is much more here to read. Read of William Smith, the lawyer, "driven by an idealism to protect [Conley,] the 'penniless and friendless' black man caught up in the coils of the case." Smith eventually realized that Conley must have written the notes alone. In an oxygen tent, dying of "Lou Gehrig's disease, on his last day of life he slipped a note to his son through the plastic sheeting: 'IN ARTICLES OF DEATH, I BELIEVE IN THE INNOCENCE AND GOOD CHARACTER OF LEO M. FRANK. W.M. SMITH.'"

We really should scrutinize John Edwards’ great success as a trial lawyer in medical malpractice cases,

while the decision whether he will be the nominee is being made. As Adam Liptak and Michael Moss describe in today's NYT, Edwards was especially successful suing obstetricians; he faulted them for failing to perform Caesareans when the fetal heart monitor showed signs of distress. His lawsuits, and the lawsuits they inspired, have led doctors to respond to signs of distress more quickly, and there is a debate now about whether this change is good, whether lawyers like Edwards rely on “questionable science,” and whether there should be new laws to make it harder for plaintiffs’ lawyers to win these cases.

Based on this article, it appears that Edwards will do quite well standing up to criticisms about his past. First, he attributes his high level of success to his skill and effort selecting the cases that deserved to win:

"I took very seriously our responsibility to determine if our cases were merited," Mr. Edwards said. "Before I ever accepted a brain-injured child case, we would spend months investigating it."

This is the negative side of the same point:

"He took only those cases that were catastrophic, that would really capture a jury's imagination," Mr. Wells, a defense lawyer, said. "He paints himself as a person who was serving the interests of the downtrodden, the widows and the little children. Actually, he was after the cases with the highest verdict potential. John would probably admit that on cross-examination." ….

"For the one or two who got a substantial jury verdict," said George W. Miller Jr., a former state representative in North Carolina who practices law in Durham, "there were 99 that did not get anything, either because they were not able to finance litigation or their claim was questionable."

Second, he easily makes the charge of unnecessary Caesareans seem weak:

"The question is, would you rather have cases where that happens instead of having cases where you don't intervene and a child either becomes disabled for life or dies in utero?"

What odds would you accept for your child before you would decline the Caesarean? Would you have the Caesarean if there was one chance in 100 that the baby would be brain damaged without it? There are people on the other side of the debate:

Dr. Karin B. Nelson, a child neurologist with the National Institutes of Health, says the notion that paying greater heed to electronic monitoring will prevent brain injuries remains just that, a notion. "Evidence of high medical quality contradicts the assumption that the use of electronic fetal monitoring during labor can prevent brain damage," Dr. Nelson said.

The medical debate ought to take place, but I can’t see how doubts about Caesareans will play well served up as an attack on Edwards in the political arena:

Mr. Edwards's colleagues in the plaintiffs' bar do not accept that analysis. "You find me a low C-section rate," said Daniel B. Cullan, a doctor, lawyer and co-chairman of the trial lawyer association's birth trauma group, "and I'll show you children in wheelchairs."

What does seem to have some power as a political weapon is the charge that “[h]is campaign is disproportionately financed by lawyers and people associated with them.” This article about Edwards runs on the front page of today’s NYT, right under an article headlined “Democrats Assail, and Tap, ‘Special Interests.’” (That sounds like an Onion headline!) Here’s the key paragraph about Edwards in that article (written by Glenn Justice and John Tierney):

Mr. Edwards tells audiences, "I've never taken a dime from a Washington lobbyist and I never will." That might be literally true — not many lobbyists give dimes these days — but Mr. Edwards has accepted at least a few contributions from current and former lobbyists, and his campaign manager was a registered Washington lobbyist in 2002. Mr. Edwards has also accepted millions of dollars from lawyers, including members of the Association of Trial Lawyers of America, a trade group that wields enormous influence on tort reform. An ex-president of the group, Fred Baron, is a financial co-chairman for Mr. Edwards's campaign. The new president of the group and all four executive officers, have each given $2,000.

So look for generalized carping about personal injury lawyers. But I think Edwards will brilliantly and elegantly come back with vivid details about real cases that will make him look good and his critics uncaring.