Good post, Seth.

Nice analysis. In addition to these specific cases, there's also the twin elephants of federal and state health care regulation (e.g. banning silicone breast implants, blocking patient access to experimental drugs) and medical malpractice litigation. Both of these greatly affect the practice of medicine--and the actors involved aren't democratically elected like the Congress.

Seth,

I think your general argument is sound, but I would point out all but one of your bullets focus on the, if you will, information science of medical practice, not the practice itself. Even Helling, which from your description has the potential to encroach heavily into the medical profession, only reaches to the standard of care.

I think you're right that the government has long been interested in being the third party behind the closed doors of a doctor's examining room, but none of your bullet points actually refer to a non-technical body (the courts or legislature) determining what established medical procedures a doctor and patient can or cannot perform/have performed on them.

The restriction on medical marijuana (not to mention cocaine and other opioids) is a better example.

Thanks, Mike. As always, clear and refreshing. You are right about Helling in that, compared to a specified procedure, its holding may not mean everything I would like it to mean in that it addresses only the standard of care. However, in thinking of the court articulating a standard of care in Helling, I would suggest that such a holding easily has the power to determine the propriety of a medical procedure as the court determines it.

Indeed, the issue in Helling was not giving an annual glaucoma test to younger woman. The DO and the medical community deemed that such a procedure was not necessary (read: necessary to save the mother's life) but the WA Sup Ct said that such a standard of care was impermissible (read: as a legislative matter of fact the procedure is never needed to save the life of the mother).

While I agree that my points should have addressed a specific procedure, off the top of my head I would suggest Cruzan (specific act of mandating support) and Schaivo (specific act of terminating support.

Well stated.

You should have done HCLPS, you missed a good convo with Reps Cheatham and Noe yesterday.

good post huney!

I don't doubt that precedent exists, I just don't think it's terribly robust. Even Schaivo and Helling seem to be examples of post-hoc interference (I suspect the same is true of Cruzan, but I don't know the case well enough to comment).

I think this post misses the point a bit. Of course the government can and has exercised considerable control over the practice of medicine, this should come as news to exactly no one (rhetoric in the media aside). That's not interesting.

What's interesting to me is a debate about whether or not the government should exercise considerable control over the practice of medicine. This would make each of the cases you mention worthy of an individual post, I'd think, and it's much more thought provoking than point out that the government has guns and can enforce laws of its choosing. Meh.

(Sorry -- it's been a very busy week at work, and I haven't had a chance to respond again in our discussion below. Since that thread is about to slide off the bottom of the page, I am posting my response up here instead, so that Seth will have a fair chance to reply to it before it disappears into the archives.)

I have to start with unfortunately correcting the impression that some have had that some sort of ad hominem argumentation has been committed here. This is not true. If one argues from the premises "So-and-so is a nitwit, and so-and-so has made argument X" to the conclusion "argument X is a very bad argument", then that indeed would be an instance of ad hominem argumentation. But what I have offered, rather, is something with the premises "So-and-so has made argument X, and argument X is a very bad argument" and whose conclusion is "so-and-so is a nitwit". This is not an ad hominem at all, but a coherent argument. If it's just the one bad argument, then we should perhaps not yet endorse that conclusion, in favor of other, more charitable explanations (e.g., so-and-so is having an off day, as we all do on occasion). But when there have been many such, and so-and-so is incapable of even recognizing the egregious badness of the argument, then we do indeed have the appropriate means for an argument for a claim of nitwittitude.

Even granting all that, it might be objected that there's no reason to offer such an argument, if a claim of nitwittitude could only serve a further role as a premise in an argument that is an ad hominem, or as a merely rude (if true) assertion. But this objection would not hold, since there are other, and very important, reasons to document nitwittitude in fora like this one. Namely, one must discern in any such debating forum whose claims are deserving of our further attention and consideration, and who has basically waived their right to be taken seriously by repeatedly abusing the basic norms of intellectual responsibility. In many arguments, there are points where one is being asked to take on certain of the author's points as a matter of basic trust -- in particular for readers who may lack the time, training, or resources to evaluate the claims for themselves -- and it is to this basic trustworthiness that the claim of nitwittitude speaks. And it is my contention here that, outside of matters pertaining to the history & doctrine of the Catholic Church, no one should extend such trust to Seth any further than they can check his claims for themselves.

For example, in the exchange in question, Seth brought in the following formulation of a rather preposterous view of fetal rights: "a human being becoming a legal person - someone who carries her own rights - is contingent upon her mother's desire to act in a particular way". His initial introduction of this view implied that it was somehow relevant to Rev. Veazey; but inspecting Veazey's writings reveals that it is not at all relevant. And, when challenged to produce some evidence that anyone of any note whatsoever has held such a view, Seth responded with an ink-cloud of references of individuals to whom, he claims, such a view would be "legitimately attributable": "Jed Rubenfeld, "On the Legal Status of the Proposition that "Life Begins at Conception," 43 Stan. L. Rev. 599 (1991). Also "Legislating Morality: Should Life be Defined?" in _Defending Human Life: Medical, Legal, and Ethical Implications_ (1983) at 339, where Daniel Callahan discusses the issue with respect to a distinction between "personhood" and "human being." Also Dawn Johnson, "The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection, 95 Yale L.J. 599, n. 1 (1986)." I could not get a hold of the Callahan piece, but both the Rubenfeld and Johnson pieces were available through JSTOR. And, upon reading them, it seems to me that Seth's claims are rather wide of the mark. Rubenfeld never makes any claim in that neighborhood, and indeed doesn't offer any positive line on when personhood starts, trying only (as the title suggests) to argue against conception as the time of the commencement of personhood. And Johnson is at pains to deny any claim that the fetus is a bearer of any particular rights at all, e.g., by arguing that laws invoking harsher penalties for causing the death of a fetus be construed as additional harms to the would-be parents only. I don't know whether Seth just can't tell the difference between the claims of the authors cited and the oddball view he was looking to attribute to them, or if his memory is just faulty about them & he couldn't be bothered to check his claims before making them -- but either way, he has revealed himself here to be an untrustworthy arguer. Even if the Callahan is as he claims, his significant errors about the Rubenfeld and Johnson would still stand; and they are enough to make me unwilling to take his word on the Callahan. So what we have is a case of Seth compounding one error (attributing the view to Veazey) with still further errors (attributing the view to Rubenfeld and Johnson). Errors compounded with errors is, I would think, a pretty good sign of the sort of nitwittitude under discussion here.

(Now, I must add a caveat here: I gave those two articles a tolerably attentive read, but I didn't generally attend too closely to the footnotes, so if I was missing something relevant happening down at the bottom of the page, then it should be easy for Seth to demonstrate that this is so, and I will happily (if sheepishly) issue a correction at that time.)

This is all in addition to the most egregious error that Seth committed in the main post, which he still has not acknowledged: his claim that Rev. Veazey's view is one that _late-term_ abortion should be available as a matter of convenience. Even a casual read of the RCRC's site will reveal how completely, appallingly wrong this is -- they are _Very_ concerned with the moral status of the abortion decision, and their discussion of late-term abortion makes frequent reference to fatal anomalies of the fetus and/or the health and life of the mother. That was the question at hand in the main post -- that of late-term abortion (I would note that JC's comment on this thread indicates that that was his impression as well) If the RCRC does support ease & availability of earlier-term, especially pre-quickening abortion, then, again, that is completely within the mainstream of much Christian thought. Changing the topic to a general debate about abortion is just more of the irresposible slipperiness that typifies Seth's writing. (And why Seth thinks that citing Catholic authorities at a Baptist minister makes any sort of good argumentative sense is beyond me.)

This issue of trustworthiness is relevant to this more recent post. Seth picks some bits to quotes from the websites in question, in order to set up a target for his arguments. But are those sites really making the error that he is suggesting? Reading further down on the relevant NARAL page, we see what the folks there have in mind in terms of their concern about further political interference: "Since the Supreme Court has upheld the Federal Abortion Ban in its entirety, anti-choice politicians throughout the country will view this decision as a "green light" to interfere further in personal, private medical decisions. Currently, in 14 states anti-choice politicians control the governor's office and both chambers of the state legislature. This decision gives anti-choice advocates in these and other states hope that a new Court will uphold additional restrictions on a woman's right to choose." So, when we interpret their claim that Carhart "opens the door for further political interference in our personal, private medical decisions", a bad, lazy interpretation of that claim would be that they somehow have the strange view that the government is never involved in regulating the practice of medicine; whereas a better interpretation, that actually attends to the full scope of what they say, would be that they think (correctly, I believe) that the decision will lead to further attempts to restrict abortion rights. This interpretation is further substantiated by their claim, currently on their front page, that "Today's decision shows Bush's appointees have moved the Court in a direction that could further undermine Roe v. Wade and protections for women's health. The Court has given anti-choice state lawmakers the green light to open the flood gates and launch additional attacks on safe, legal abortion, without any regard for women's health.")

The careful reader will surely note that Seth's quote in this post from Harrison and Poppema has an excision ellipsis in it -- always a good place to look to see whether the person doing to quoting is being fair or not. Here's the quote with the excised material restored (I have put it in asterisks for emphasis, since I can never get html tags to work right): "The decision to enforce the ban sets a dangerous precedent for political intrusion into our most private decisions about medical care, and it undermines the autonomy of every American. **With this ruling, the court has declared, any time there is debate within the medical community, Congress has the right to cast the deciding vote.** In essence, the door is open to let Big Brother dictate the type of health care you can (or cannot) receive. Medical decisions should be made by patients in consultation with their physicians, not politicians with an ax to grind or a constituency to impress." With that material restored, it is clear that Seth's interpretation is a bad, lazy one (or maybe even dishonest, given that he likely saw that material that he cut out). Again, we see that the authors aren't at all claiming what Seth is saying that they are, i.e., that the state has never gotten into the business of regulating medical practice. Rather, they are committed to the vastly more plausible claim that the state has overwhelmingly deferred to keeping medical options open in situations where there is any significant defense of such options extant in the medical community.

It would be bad enough blogging if Seth had just set up a straw man to attack in this post. But that's not what he did. He misrepresented (willingly or not) two websites, to try to make it look like it wasn't a straw man. Straw men are boring; but distortions reveal an underlying untrustworthiness. Now, maybe there are others out there making the confusion that he is attacking in the post. But everyone needs to avoid ever taking his word as to whether this is so for any particular person. Seth's track-record here makes clear that only one policy is appropriate to any unargued claims he makes: distrust, but verify.

With the exception of Humanae vitae, every "Catholic authority" I mentioned is of the patristic era that many, indeed most, Protestant churches accept as orthodox and binding on the normative expression of the Faith (I don't know of one Baptist body that does not).

As you disagree with my reading of Callahan and the others I disagree with yours regarding the omitted sentence in the SF Gate and NARAL's generally. I suppose the only difference is that I will not attribute to you the nitwittitude you attribute to me. So far am I concerned your reading is every bit as tendentious as mine and I have no interest in debating the rectitude of my reading vs. a moniker's. Then again, I'm prone to compound error upon error.

At least we have moved beyond exposing me for the intellectual hack I am by now also calling into question my integrity. I should expect nothing less from ITA's very own philosopher.

But what I have offered, rather, is something with the premises "So-and-so has made argument X, and argument X is a very bad argument" and whose conclusion is "so-and-so is a nitwit".

A bit of advice, phil. If you'd just leave off your "nitwit" comments entirely, your criticisms would be much better received. No matter how poor you think someone's argument is, or how thoroughly you think you've fisked them, throwing in personal invective does not strengthen your case, it distracts from it and lowers the level of the debate.

"throwing in personal invective does not strengthen your case, it distracts from it and lowers the level of the debate."

Agreed, as do the petty, juvenile remarks about philosopher 'hiding' behind a moniker, as if that has anything to do with anything. On the thread that dropped off, there was an implication that there's no need to deal with his criticism and arguments because he doesn't post with his real name, a true ad hominem. Sure phil didn't need to call Seth out and maybe you guys were just responding to like with like, but I thought the discourse was a little beneath both phil and the ITA hosts.

What this place needs is more puppy pictures! (cute one Josh)

Absolutely--a good argument is a good argument whether it's made by someone who signs his real name or someone who remains anonymous. That being said, it is galling to receive personal criticism from someone who chooses not to put their own reputation on the line. (Correspondingly, it is a lot easier to hurl insulting words from behind a pseudonym--thus the phenomenon of the anonymous online troll.)