Sufficient Scruples

Bioethics, healthcare policy, and related issues.

April 9, 2011

Demographic Trends are Choices on the Large Scale

by @ 11:55 PM. Filed under Access to Healthcare, Autonomy, Child-Rearing, General, Global/Community Health, Healthcare Politics, Reproductive Ethics, Sex, Women's Issues

Interesting comparison from the US Census Bureau:

Gravida Status - US Women, 1976 & 2004

The percentage of women who reach the end of their fertility with zero or one live-born child almost doubled over a recent 28-year period. The fraction who had 3 or more has been cut in half. These are remarkable trends. The fact that nulligravidity has almost doubled, to nearly 20% of women, is especially striking. Forty years ago, childlessness was almost always a product of circumstances; now, for at least about 10% of women and probably far more, it is a choice (i.e., childlessness has grown by 9% in that time; the maximum rate of biological infertility in 1976 – two years before the first “test tube baby” – was 10.2%, but surely at least some of that childlessness even then was chosen; today’s rate of actual biological infertility is likely lower still, thus, most likely, well under half the current nulligravidity rate of over 19% is due to true infertility, with the rest the product of women’s active decisions not to bear children although they could).

In fact, the shift in total lifetime fertility over this period is markedly toward lower numbers at every level: the category of 4 or more children has declined by the greatest percentage, followed by the category of 3; the fraction of women with exactly 2 children has expanded markedly, but the fraction with just 1 has expanded more, and the fraction with 0 has increased most of all. Comparing the categories shows how pervasive the shift to smaller families has become: not only are more women not having children, but few are having very large families (the percentage of women with 4 or more children has plummeted, almost to the fraction of women who had none at all 40 years ago), and with 2 now being the most common choice, but 1 or 0 (combined) even more popular; essentially, most women who might have had 4 or 5 kids are now having 3 or 2, and those who might have had 3 or 2 are in many cases now having 1 or none. As has been widely reported, the overall fertility rate in the US now is about 2.0 – 2.1, which is just below the replacement rate; it has fluctuated at that level for over a decade and shows no signs of changing. (Hispanic women are the only ethnic group with higher fertility, and that is concentrated largely among recent immigrants.) This also is a choice – one that represents a remarkable shift from 100 years ago, when lifetime fertility was about 4 children per woman.

It’s interesting how sensitive to conditions the total fertility number is as well: within less than a generation, it dropped to about 2 during the Great Depression and through WWII, rose sharply to 3.7 during the Baby Boom, dropped to an all-time low well below 2 in the mid-70s, and has slowly risen to its current stable level just below replacement. Thus, average total fertility is capable of shifting, either up or down, by a factor of 2 in as little as 10 years, and has done so several times in the recent past. Women have always made choices about their fertility, but increasing economic security and more-reliable access to birth control has likely made those choices easier and more authentic. From this perspective, then, the currently stable average total fertility rate of 2 can be regarded as what economists would term a “revealed preference” – a choice women have made when they were free to make their own choices. (Another revealed preference: the percentage of women who remain in the workforce after having children has grown by a factor of almost 2 compared to 1976, and more since before then.)

This has many implications for the United States and the world, in terms of population levels, economic activity, demographic shifts affecting distributions by race, class, and age, and so on. But aside from those often-remarked consequences, what this shift, and its historical roots, tell us, is how far voluntary choices about fertility are part of people’s lives and their strategies for dealing with both reproductive and social opportunities. This shift – which parallels that in other developed countries – demonstrates that fewer children, greater control of reproduction, and greater participation in the external economy and other activities, are the life patterns that women (and their male partners) choose when circumstances allow it. (The only major upsurge in fertility in America in the last century was immediately after WWII, when young men who had been displaced by the war returned and began the reproductive lives that had been delayed for a period of years; the long-term trend has been downwards, and temporary upswings have generally been small.) And this in turn emphasizes how important that freedom is to people’s lives and the goals they hold for them.

The most obvious, and currently salient, lesson to be drawn from this, of course, has to do with the importance of effective and available family planning. Just a day after having narrowly avoided a shutdown of the entire US government over a dispute centered largely on continued funding of Title X – the nation’s only dedicated family-planning healthcare program – and the right-wing attack on reproductive healthcare in general, the recklessness of such policies, and their cost to people’s independence and well-being, can’t be overstated. But there are broader lessons as well: people care about and make active choices about their health and reproductive strategies, in huge numbers, and with surprising subtlety. The economy, demographics, and availability of equitable access to social opportunities such as jobs, education, and employment, have powerful consequences for how people live their lives and use their bodies – and the choices they make in response to circumstances demonstrate that the choices others make under other circumstances are not always free or welcome.

Map of countries by fertility rate

Average Fertility by Country

Given a chance, most women in developed countries around the world will choose to have 3 or fewer – often 2 or fewer – children in their lifetimes, and the rate drops predictably with improving conditions. Most women in non-developed countries, and even in affluent ones before the development of effective and available birth control, had many more (in most of central Africa today, it is an average of 5 – 8 liveborn children per woman, and even more total pregnancies including stillbirths; in Afghanistan it is 7). Clearly those choices were not voluntary for most of those women. They were not voluntary for most women in America less than 100 years – just a few generations – ago. Increased economic affluence and urbanization made having fewer children more desirable, but it was the development and availability of modern birth control that made it possible. To remove that access for some of the population now is not merely to endorse certain lifestyle choices or even to make them possible (women have always been perfectly free to have 4 or more children if they choose); it is to eliminate the choices others might make if they could, and constrain them by economic force to a life most of the country, and most of the world, has chosen to flee. It is to return some of the women of America to the conditions of life of 100 years ago, while the affluent continue the path to greater opportunity that was made possible by the economic and medical advances over that time.

April 7, 2011

Burdensome Enforcement, Equal Protection: Is a Woman’s Freedom as Valuable as a Gun?

by @ 7:02 PM. Filed under Autonomy, General, Healthcare Politics, Reproductive Ethics, Theory, Women's Issues

Interesting tactic in the New York City gun-control fight:

A gun-rights-advocacy group sued Mayor Michael R. Bloomberg on Tuesday, claiming that the city fee for obtaining a home-handgun permit was so excessive that it impinged on the Second Amendment.

The group, the Second Amendment Foundation, based in Bellevue, Wash., is focusing on New York’s fees because, according to the group, the city is one of the few places in the country that requires people to obtain permits to keep guns in their homes.

The city’s fee is $340, plus a $94.25 charge for a fingerprint check. The fee in most other places in the state is $10, according to the foundation. Mr. Bloomberg has long been a staunch supporter of gun control and has made efforts to reduce the traffic in guns into the city through sting operations, lawsuits against gun dealers and other antigun measures.

The city’s fee for obtaining a home gun permit has long been in place.

The suit, filed in federal court, claims that the city’s fee is so exorbitant that it “impermissibly burdens the Second Amendment right to keep and bear arms,” and the suit argues that because city residents are forced to pay more than others, the fee also violates the 14th Amendment’s equal-protection clause.

(Just to be clear: New York City, separate from New York State, requires a permit just to have a gun in one’s own home; the process of obtaining one is deliberately made as burdensome as possible, including high fees and an extensive application and testing process designed to make you fail, as a form of indirect gun control. A completely different and vastly more difficult process is required to obtain a concealed carry license, which is rare in NYC.)

What’s interesting to me about this is not the gun-control issue itself, but the legal approach in this suit: they are claiming that the fact that the state (or the city, acting under authority from the state) has erected restrictive procedures that make it significantly difficult to exercise a right that in fact exists under law should constitutionally invalidate those restrictive procedures. And presumably they’re going to argue that the rationalizations the state offers – that they must review applications for reasons of public safety, that this incurs administrative expenses that must be covered, that the city has the authority to act on its official perception of the public interest against the wishes of the people actually affected, etc. – are obviously disingenuous or at any rate insignificant in view of the basic right of people to exercise freedoms that otherwise exist under law.

This reflects is a seemingly simple principle – people have a right to exercise their rights – that actually has considerable legal repercussions. For the most part, the Supreme Court has not recognized that the government has a positive obligation to ensure that people can act on their legal negative rights (i.e., a right that merely specifies freedoms that other people may not ban), but has not usually gotten into the question whether regulatory procedures that constrain but do not entirely vacate a given legal right are for that reason illegal. It’s a difficult problem; obviously, some regulatory restrictions are necessary in many cases, and equally obviously, that regulatory authority can be used to create insuperable practical barriers in cases where the law does not allow outright bans. But, to my knowledge, the Supreme Court has not held that the mere existence of a barrier is the equivalent of an unconstitutional ban. In fact, the Court has often gone out of its way to give deference to government regulations even when their burden on citizens’ rights is grave: the standard test for Constitutionality of a law is that it must show a “rational basis” for its existence, which the Court interprets to mean literally any rationale – however stupid or obviously dishonest – that is not literally logically impossible; the Court also usually rejects “substantive due process” and “equity” arguments, which ask for the application of general principles of law or morality outside the strict “black letter law” of statutes and case precedents. Thus, laws and regulations are typically upheld as written, on the presumption that legislations have wide latitude to act as they choose, and the laws they write are therefore prima facie in keeping with the principles of representative democracy regardless of how burdensome, unfair, or duplicitous they may be.

There are few exceptions to the “rational basis” doctrine, all having to do with Constitutional-level civil rights. The Supreme Court has held that laws directly impinging “fundamental” Constitutional rights, or imposing ethnicity-based restrictions on freedoms guaranteed by the Constitution, must meet the test of “strict scrutiny” – that is, they must not merely have a nominal “rational basis”, but must “advance a compelling state interest”, be “narrowly tailored” to that interest alone, and use the “least restrictive means” to achieve it. Arbitrary distinctions between groups also come in for strict scrutiny, under the 14th Amendment’s “privileges and immunities”/”due process”/”equal protection” clauses. In other civil rights cases, the Court has imposed a doctrine of “intermediate” or “heightened” scrutiny, under which the laws must demonstrate a weaker but still compelling rationale for their restrictions. (Almost all sex- and gender-related discrimination receives only heightened scrutiny, because, you know . . . teh uterus . . . .) In the case of abortion, the Supreme Court has struck down some, but not all, anti-choice laws and regulations that were clearly intended to impose, in its words, an “undue burden” on women’s exercise of their rights; however, others were permitted under heightened scrutiny if the anti-choice state could articulate even a moderately plausible-sounding (as opposed to barely “rational”) reason for the law, even when those laws were obviously intended only as burdens on women, and even when they arose as part and parcel of laws that were otherwise rejected for that reason. So, in general, the Court has not taken the step of saying “this law is obviously intended to void a legal right, and you can’t do that”; it merely subjects burdensome laws to various levels of analysis as to how well they disguise that intention.

What’s interesting about this gun-control case is that the legal theory it relies on (as reported in this short article – hard to tell if this is true) attempts to raise burdensome but otherwise normal administrative regulations to the level of Constitutional infringement – that is, it appears to claim that having to pay ordinary but high fees, and jump through ordinary but complicated procedural hoops, is as much an infringement on Constitutional rights as are poll taxes or racial segregation, or at least as gender-based restrictions on employment. “Unduly burdensome” regulations may be unconstitutional, it’s true, but in this case the regulations are not unusual, even if the fees are high: every jurisdiction (other than a couple of whacko states that have no gun permit laws at all) processes paperwork, assesses fees, and in general requires some kind of procedural rigmarole for getting a gun permit. New York City is an outlier, in that their licensing process is unusually difficult (they make you take a test that includes trick questions), lengthy (it commonly takes months), and expensive (as much as 40 times what other jurisdictions – even in New York State itself – charge). But that is only a matter of degree, which it seems can easily be explained given the City’s political determination that they want to make the process stringent. (The fees, I suspect, are an estimate of the fully-loaded cost of staff time and expenses to process the fingerprints, application, and background check, and are probably slightly, but not hugely, inflated. That’s a bullshit way to calculate fees for a job the government actually exists to perform in the first place, but that’s a different matter.) So the issue here is whether a normal and appropriate government function – processing applications and assessing fees – which nobody suggests is unconstitutional in its typical form, becomes unconstitutional when that function gets so out of hand that it essentially becomes a tool for prohibition of what is otherwise a legal right.

This has obvious implications for the constant barrage of dishonest and hostile regulatory encroachments on fundamental Constitutional rights that have become the favorite tactic of the anti-choice brigades. Unnecessary waiting times, intrusive and unnecessary medical procedures, explicit ideological harassment deliberately intended to discourage people from the decisions they have made, technical regulations intended only to delicense or bankrupt clinics – all these and much more have been commonplace tactics in the anti-woman crusade for years, and they are getting more brazen and more offensive almost literally day by day.

These attacks on abortion rights go much further than New York City’s procedural hurdles for a gun permit. In New York, if you pass the test and pay the fee, they will give you a license (for home possession, at least). The administrative procedures are clearly intended as a bottleneck, and the fee is unfair, but the procedure is straightforward and involves nothing that is not common in the administration of similar governmental functions across the country. Anti-choice regulations, in contrast, commonly apply only to abortion procedures, impose burdens that serve no reasonable purpose or are inflated absurdly beyond what is necessary for their ostensible purpose, or distort ordinary procedures in ways that are intended solely to make abortion unobtainable, unaffordable, or discouragingly unpleasant. Examples include requiring multiple trips on different days to a clinic that is often a vast distance from a woman’s home; applying hospital licensing standards to outpatient clinics for abortion only; requiring medically unnecessary ultrasounds at a cost of hundreds of dollars; requiring scripted and false speeches to deliberately upset patients before a procedure – all of them extraordinary burdens that have nothing to do with the ordinary process of licensing and regulating medical clinics, or ensuring informed consent (which, in every other medical discipline, is intended to help patients get what they want and need).

The gun-rights people do have a point about New York City’s regulations: although those regs are not that unusual on their face, the details of their implementation make the legal right of gun ownership essentially unexercisable by many citizens who lack the money, time, or persistence to overcome a burden that is not actually required by the legitimate government function it purports to arise from. But if that difficulty rises to the level of a Constitutional infringement in the case of gun permits, how can the GOP’s outright and unashamed assault on women’s rights to legal and vital healthcare not be seen in the same light?

This puts the right wing, of society and the Supreme Court, in a pickle. If they agree that burdensome and hostile regulations intended to discourage the exercise of a Constitutional right are impermissible even when those regulations are normal and proper other than in the degree of the burden they impose, then they would have to agree that far more invasive regulations serving no ordinary purpose and deliberately intended to actually void a Constitutional right entirely, and even in cases of life-threatening consequences, are that much more obviously impermissible. On the other hand, if they want to continue their assault on women with any degree of logical consistency, it would seem they would have to throw gun lovers under the bus along with them. It will be interesting to see this play out.

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