Let’s Expand the Texas Abortion Law

The recently enacted Texas Abortion Law forbids abortion after a fetal heartbeat is detected, but it forbids state officials from enforcing the law. Instead, any person can sue anyone who performs such a procedure and sue anyone who aids or abets the proscribed medical care. Liability for those who aid or abet is far reaching because the Fetal Heartbeat Act makes people liable “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation” of the law.

Everyone who works in an abortion clinic potentially faces damages, from the receptionist to the janitor, even if they do not know that illegal abortions are performed. And that potential will no doubt close facilities. Would you work in such a clinic with the possibility of being subject to at least $10,000 damages for every performed procedure? (News reports have stated that each abortion after a fetal heartbeat is subject to damages of $10,000, but the act sets that amount as a minimum. The law states that successful claimants shall be awarded “statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced” after a fetal heartbeat or for each such abortion that a defendant aided or abetted. The statute gives no maximum or provide any method for determining damages beyond $10,000.) The law places no limitation on the number of defendants who can be sued for each abortion other than stating that an action cannot be brought against the woman who got the abortion. Claimants have every incentive to cast a broad net for defendants. Doesn’t the landlord who leases space to a clinic aid or abet the abortion? Doesn’t the person who maintains the elevators in the building aid or abet? And so on. Until such situations are clarified in authoritative court decisions, the risk of liability exists for many, and the safest course for the landlord and the elevator people and the Uber drivers are to avoid any interaction with an abortion clinic.

Defendants are potentially on the hook for even more money than just the damages. The statute provides that successful claimants will be awarded court costs and attorneys’ fees. On the other hand, the statute expressly denies successful defendants attorneys’ fees. Even if a defendant wins, he or she may still have to shell out thousands to their attorneys.

The statute even finds a way to drive up the defendant’s cost of defending an action. The law provides that the action can be brought where the abortion was performed but also in the county of a Texas claimant’s residence. The most convenient place for the litigation from an objective perspective may be Houston if that is where the clinic was, but the claimant can bring it in El Paso, 750 miles away, if that is where the claimant lives, and the law strips a court from transferring the location of the suit to the more convenient location because the claim’s location “may not be transferred to a different venue without the written consent of all parties.”

For people who oppose abortion, the Fetal Heartbeat Act is a stroke of genius. First of all, it empowers millions of vigilantes to bring suits under it, a striking feature in and of itself. More remarkably, however, it’s a law that requires no enforcement in order to shut down clinics. Its vagueness as to who might be subject to it puts many people at risk. The person who has delivered medical instruments to a clinic or processed medical tests might be aiding or abetting. Remember liability is imposed even if people do not know illegal abortions are performed. Will the legions of potential aiders or abettors take the risk?

Even doctors cannot always know now whether they are violating the statute. The law provides an exception for liability if a “physician believes that a medical emergency exists that prevents compliance with this subchapter,” but it is silent as to what might constitute such an emergency or how it is to be determined. A doctor, apparently, can now only guess. (The law is also vague about a particular class of claimant. The law provides that an action “may not be brought by a person who impregnated the abortion patient through an act of rape, sexual assault, incest or other act” in violation of Texas penal laws. However, the Texas Fetal Heartbeat Act states nothing about how the criminal violation is to be determined. Can this be claimed in response to the civil action, or does it require a criminal conviction?)

A doctor has said recently that he has performed an abortion in violation of the law, and claimants seeking at least $10,000 have rushed to sue. This should give a forum for challenges to the law, and the law should then– someday–be found unconstitutional. The vigilante enforcement mechanism of the Fetal Heartbeat Act turns out to both its strength and its weakness. The abortion opponents would be happier if there were no actual enforcement as long as suits look possible, for the mere chance of enforcement against so many people is enough to shut down all Texas abortion providers. But dangle money and attention in front of the world and people will grab at it, and suits, which allow legal challenges, will be brought.

Behavior can be controlled by risk even if the risk never comes to fruition. I doubt that many, if any, of the Texas officials were thinking of Jeremy Bentham and Michel Foucault when they adopted the Fetal Heartbeat Act, but the social control effected by the law has had me thinking of the panopticon.

(concluded September 24)

Let’s Expand the Texas Abortion Law

 I admire the Texas abortion law. The admiration does not extend to its substance, which bans abortions once a fetal heartbeat is detected, about six weeks after conception. Its substance is blatantly unconstitutional. Instead, I admire the law for its ingenious enforcement mechanism and wonder how that mechanism could be extended to other new laws. But first, what do we know about the new abortion law in Texas?

Texas Senate Bill 8 (SB 8), the Texas Heartbeat Act, states that “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” In short, the doctor must test for a fetal heartbeat and keep records of those tests.

While this provision effectively outlaws almost all abortions, SB 8’s real innovation is its enforcement mechanism. Other abortion restrictions criminalize the procedure and put enforcement in state hands. Those seeking to prevent the application of such laws have sued to prevent the government officials from enforcing the statutes. In Roe v. Wade, for example, Wade was the Dallas District Attorney, and the plaintiff asked the court to enjoin or stop him from enforcing the abortion laws.

The Texas Heartbeat Act, however, expressly forbids all state and local government entities or officials from enforcing the law. Instead, the law “shall be enforced exclusively through the private civil actions described” in the law. The law states that “any person, other than an officer or employee of a state or local governmental entity in this state [Emphasis added], may bring a civil action against any person who: performs or induces an abortion” after a fetal heartbeat or “knowingly engages in conduct that aids or abets” such an abortion “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation” of the law. A person successfully bringing such a suit shall be awarded “statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced” after a fetal heartbeat or for each such abortion that a defendant aided or abetted.

 “Any person” can bring an action under SB 8. The law does not restrict claimants to Texans. Californians and New Yorkers can seek the money. That may be surprising, but even more surprising is the conservatives who enacted this law allow even undocumented migrants to be claimants. Indeed, the law on its face allows Russians and Chinese to bring the civil actions. Its breadth is breathtaking, [deleted because it seems to refer to an aborted fetal heart] but the expansiveness goes beyond the pool of people who can enforce the law; it includes a remarkable number of people who are liable under the law.

The statute authorizes an action not only against the doctor performing an abortion after detection of a fetal heartbeat, but also against anyone who aids or abets such a procedure. However, it makes a radical change to the legal concept of aiding and abetting. Liability is not limited to those who know or suspect that a prospective procedure will be illegal. Instead, the law provides for liability “regardless of whether the person knew or should have known that the abortion” would be performed after a fetal heartbeat. The aider or abettor can escape liability only if he or she “reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion had complied” or would comply with SB 8. The law, however, does not give a clue as to what constitutes a reasonable investigation. Is asking the physician sufficient? Or must a person see and be able to interpret the heartbeat test result? Or perhaps an opinion from a second physician who is not otherwise connected with the proposed abortion will be necessary. Only when, if ever, courts authoritatively define a “reasonable investigation” can abortion aiders or abettors know how to avoid liability, and until then they will have the risk of liability for violating the statute.

The risk of liability is expanded by the law’s provisions that there is no defense for reliance on a court decision overruled on appeal, “even if that court decision had not been overruled when the defendant engaged in conduct that violates” the law. For example, assume that a court has ruled that a defendant had conducted a reasonable investigation by getting a signed assurance from the physician that no heartbeat has been detected. The nurse or anyone else assisting in other abortions may wish to rely on this court ruling. But wait. The nurse can still be liable if a higher court, perhaps years later, rules that a reasonable investigation now requires more than the signed assurance. The nurse will have years of risk of liability, and there will be nothing that person can do to mitigate the risk, except, of course, stop participating in abortions altogether, which seems to be one of the purposes behind the law.

The Fetal Heartbeat Act does not define what actions fall within aiding or abetting, and no one can now know what is covered, for this is a new concept. SB 8 unmoors the terms from their accepted meanings in criminal law. A person does not aid or abet a crime unless he at least knows that a crime is being or will be committed. Donald asks you to drive him to the bank because, he says, his car is at the mechanics. You do the favor, but once inside, Donald robs the bank. Since you did not know he was going to do that, you are not guilty of aiding or abetting the robber.

The Fetal Heartbeat Act, however, makes someone liable if he “knowingly engages in conduct that aid or abets” an abortion after a fetal heartbeat “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation”[Emphasis added] of the law. The driver, who knowingly drove the car, is only liable for the bank robbery if he also knew about the intended theft, but the abortion aider is liable without any knowledge of the forbidden procedure or perhaps without any knowledge of an abortion at all.

Uber dispatches a car to pick up a passenger. A woman, not visibly pregnant, gets in and the driver transports her to 123 Abbott Drive. The driver may not know that that destination contains an abortion clinic; he may not be aware of it even when he arrives since the clinic may keep a low street profile. An abortion in violation of the statute is performed. The Uber driver has no way of knowing about that procedure. Is the Uber driver civilly liable as an aider or abettor? I aid and abet a robbery only when I consciously transport the robber to the location knowing his plans. That action, with the guilty state of mind, makes me criminally liable. No guilty state of mind, however, is required for liability under the Fetal Heartbeat Act, but only the conscious act that aids. The Uber driver has knowingly transported the woman to the location and therefore should be liable.

Perhaps it seems farfetched to make the driver and Uber pay $10,000, but the literal words of the statute apply, and until the highest court in Texas rules otherwise, Uber and the driver are both at risk for at least $10,000 in damages. The claimant who seeks damages from the physician alleging a violation of the statute has every reason to include the driver and the company in the suit since it will take the claimant and the attorney little more time and effort to name them as defendants in addition to the doctor. With this risk hanging over such businesses, soon the drivers and companies will know that 123 Abbott Drive houses an abortion clinic and will refuse to take passengers there.        

But the risk for “third parties” extends to many more than Uber drivers.

(continued Sept. 22)

Snippets

 The pop-up ad asked, “What happens when you take a testosterone supplement?” The answer according to the ad: a young blonde appears. She has melon-sized breasts and hard nipples and is clothed in a dress so tight that it gives a lasting impression of the melon-sized breasts and hard nipples.

Don Everly died recently. His younger brother Phil died even earlier, seven years ago. Many, including me, loved much of their music, but I am willing to bet that I am one of the few who bought the Everly Brothers album “Both Sides of an Evening” because it had their version of “Mention My Name in Sheboygan.”

There is little to admire in China’s criminal justice system. On the other hand, I recently read that a mainland Chinese person was convicted of “picking quarrels and provoking trouble.” If this crime were not used in China to prosecute journalists and if it could be confined to politicians and some of my neighbors, I might like it.

America has become increasingly “divided between those who think with their head and those who know with their heart.” Stephen Colbert.

Each tennis player had won a point. The umpire intoned the score: “Fifteen all.” Would it be more grammatically correct or more accurate if she had said, “Fifteen both”?

A columnist excoriated Biden for imposing the vaccine mandates because as a candidate he said that would not require the injections. I thought of the words of Bernard Berenson: “Consistency requires you to be as ignorant today as you were a year ago.”

A woman at a protest against covid vaccine mandates was wearing a tee shirt reading “My Body My Choice.” I wondered, but doubted, that the woman was also pro-choice because I have seen similar tee shirts at rallies promoting abortion rights.

The Senator said that our withdrawal of military forces from Afghanistan was “clearly and fatally flawed.” I wondered what he meant. A fatal flaw, I thought, means that such-and-such an event cannot happen because of the inherent flaw. And yet, the withdrawal occurred. Perhaps he meant that the withdrawal was clearly and fundamentally flawed.

It seemed odd that he was putting together a jigsaw puzzle on a picnic table in a neighborhood park. As I got closer, I saw that the pieces were too small for a puzzle and thought he was doing some sort of work with beads, but there was also an Exacto knife and a pair of scissors. I passed him and then looked over his shoulder. Intent on his project, he did not notice me, but I asked, “Is that leather?” He looked up and said that he was cutting up Air Jordans. I could now see that he had almost finished creating a portrait of Michael Jordan from intricately-cut pieces of the man’s shoes. He told me that the picture would also have a basketball, which he was going to create by cutting up pieces of a real basketball. I asked if he sold his art, and if so, where. He said that he did sell his creations and was going to do so on an app that was not yet functioning. I asked if he was often in this park. He said, gesturing at the building to the north, “Yes. My son goes to school there.”  I looked again at the work in progress and said, “That’s cool,” but embarrassed myself a bit by adding, “man.” He, however, just smiled, looking pleased when I said that I would see him again.

First Sentences

“To my surprise some years back, I began to hear people outside of my home state, Texas, talk about, and actually celebrate the holiday ‘Juneteenth.’” Annette Gordon-Reed, On Juneteenth.

“When we were new, Rosa and I were mid-store, on the magazines table side, and could see through more than half of the windows.” Kazuo Ishiguro, Klara and the Sun.

“There are silences in American history.” Peter S. Canellos, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero.

“An entire day had passed since George Walker had spoken to his wife.” Nathan Harris, The Sweetness of Water.

“By any traditional measure, James Buchanan was one of the best qualified men ever to hold the presidency.” Fergus M. Bordewich, Congress at War: How Republican Reformers Fought the Civil War, Defied Lincoln, Ended Slavery, and Remade America (2020).

“Wanda Batton-Smythe, head of the Women’s Institute of Nether Monkslip, liked to say she was not one to mince words.” G.M. Malliet, Wicked Autumn.

“I’ve referred to America as Fantasyland, but it was always also Tomorrowland.” Kurt Andersen, Evil Geniuses: The Unmaking of America, A Recent History.

“In the wings, behind a metal rack crowded with bundles of cable and silk flower garlands and the stringless lutes from Act 1, two black dachshunds lie in a basket.” Maggie Shipstead, Astonish Me.

“There had seemingly never been a better night for baseball in Cleveland than on August 20, 1948.” Luke Epplin, Our Team: The Epic Story of Four Men and the World Series that Changed Baseball.

“Something was wrong.” Jo Nesbo, The Bat.

“It was the middle of the night.” Lynne Olson, Madame Fourcade’s Secret War: The Daring Young Woman Who Led France’s Largest Spy Network Against Hitler.

“Penelope Kite stood at the door of her dream home and wiped her brow with the back of her hand.” Serena Kent, Death in Provence.

“Toward the end, as at the beginning, he lived only on milk.” Edmund Morris, Edison.

“’If there’s one thing wrong with people,’ Paul always said, ‘it’s that no one remembers the shit that they should, and everyone remembers the shit that doesn’t matter for shit.’” Gabriel Bump, Everywhere You Don’t Belong.

“I am a copy editor.” Benjamin Dreyer, Dreyer’s English: An Utterly Correct Guide to Clarity and Style.

The Future of America–Tennis Edition

          President Trump imposed tariffs on specialty steel products. A recent news story indicated that this action had benefited a Pennsylvania mill, which had added thirty or so workers and raised the question of whether President Biden would continue the tariffs. Meanwhile, the protection measures had increased the price of the steel and made it harder to get for American manufacturers, and this may decrease employment at some companies. I have no more than an Economics 101 understanding of macroeconomics, but all this made me think back to lectures on free trade that indicated such trade was good and that it increased wealth across the globe.

Assume you and I both raise cotton and make farm implements, but I am not in a good cotton-growing region and you are. You will grow more cotton than I will for the same effort. If you give up the tool business and devote yourself to the bolls, you could produce more cotton than you and I could together. I can devote myself to the hoe business, and we can both trade the fruits of our labor. The world is richer. It has both more cotton and at least the same number of hoes than without the trade.

That, of course, is the basic idea behind free trade. If each country does what it does best, and we can freely trade our outputs, then total productivity increases. Moreover, if the supply of cotton increases, then cotton should cost less, and those who purchase cotton have money left over to buy other things, increasing demand for more goods, benefiting the makers of other products as well.

          Cotton can be grown in some places more efficiently than in others because of natural conditions, but different factors are at work for the efficient production of cotton fabric, if by efficient we mean cost per unit of cloth. Manmade factors now become crucial. Local wages, the costs of safety measures and pollution controls, local electricity costs and so on can determine efficiency. Although other factors will come into play, whoever pays workers the lowest wage will most efficiently produce cotton cloth. Since the wages in Bangladesh are less than at North Carolina mills, the cost of products from Bangladesh will be less than products from North Carolina. We consumers benefit. I may pay a half dollar less when I buy, in a somewhat ludicrous attempt to be cool, those patterned socks made in Bangladesh compared to those made down South. With fewer people buying their product, North Carolina workers will lose their jobs. Even so, if we add up all those fifty-cent consumer savings, it may be a greater amount than the monetary losses suffered by the workers. Seen as a whole, American society is better off. But, then again, I don’t want to be the one to tell those who lost their jobs, “Buck up. Your loss was worth it for the rest of us.” With free trade, we often get small winners, the consumers, and big losers, the laid-off workers.

          Our free trade conversations now seem to center on those who have been harmed with little discussion of the benefits. To save the North Carolina cotton mills, we could put a tariff on those Bangladeshi socks, but while the tariff may be imposed on the foreign company, it really means that consumers will be charged more for the socks. If the tariff is high enough, the North Carolina mill will be competitive and will not have to shut down. Jobs are saved. But, of course, now consumers pay more for the product and have less disposable income for other stuff. If the country overall was better off economically when the foreign socks came in without a tariff, keeping them out with a tariff must mean overall the country is now worse off. 

          Besides a tariff or its equivalent, we should be discussing other ways to ameliorate the problems of those who have been the big losers to free trade. We should be thinking of a social net—health care, training, relocation assistance, infrastructure jobs, education incentives–if not generally, at least for those whose jobs have moved abroad. But this discussion is generally off the table. Such a social net is “Big Government,” and, goodness knows, we can’t have that. Meanwhile, a tariff–for reasons that have a mystifying logic–is somehow not considered to be Big Government even though it, in effect, is a widespread tax on consumers, a tax, like most consumer taxes, that is regressive leading to more income inequality.

          A discussion of how to help workers who lose their jobs because of systemic societal changes would be valuable since it would apply to more than just those workers who have lost out to free trade. So, for example, coal miners face unemployment not because of NAFTA or other such trade agreements. President Trump had suggested that declining mining jobs would come back once those Big Government regulations were rescinded. Perhaps some work would, but, of course, just as tariffs impose costs on the larger society, the deregulatory approach also imposes widespread costs. Many of those “regulations” are protections against industrial accidents and water and air pollution that impose costs not only on hurt individuals but on society in general. However, the removal of such protections is not going to bring back many of the mining jobs. Better technology has made competitors to coal more efficient, and better technology has led to the more efficient extraction of coal. Fewer miners are needed to mine the same amount of coal as were needed a generation ago, and natural gas competes better against coal than it did in the past. No matter what, all the coal mining jobs are not coming back.

          The coal industry is in illustration of an important fact: many jobs are not lost because of free trade or government over-regulation, but because of new technologies. Most of us do not see the dramatic effects of technology on employment, but in a minor way it was on display for millions in the recently completed U.S. Open tennis tournament. This sport has employed many officials for each match. In addition to the chair umpire, four officials make calls on the sidelines, one or two for the center lines, two for the baselines, two for the service lines, and one for calling lets when a serve clips the net…or, at least, it did. Through the years, an electronic device has replaced the human for let calls, and electronics were used when a player challenged a human’s line call. The Open, however, went further and dispensed with all human officials except for the chair umpire. All the in and out calls were determined not by people but by an electronic sensor and an electronic voice that sounded more human than Siri’s. This won’t make a huge difference in our employment statistics; the tournament lasts only two weeks. But a great many line callers lost their jobs.

          I may not have thought of technology changing employment in tennis tournaments until recently, but the fact that technology affects jobs in all parts of our economy has been apparent for quite some time. Another minor example, this time as-seen-on-TV: In a segment of the show This Old House, plans were shown for a house with intricate, curved, intersecting roof beams. The viewers were taken not to an old-fashioned woodworking shop, but to a modern factory that had Computer Numeric Control machines. The CNC devices, after some programming, quickly cut the beams and fabricated the complex joints. Norm, a carpenter on This Old House, was duly impressed and noted that it would have taken him days to produce one such beam, while one person operating a CNC machine for a few hours could make all of them. This technology may have had the benefit of making the costs lower for spectacular building designs, but, of course, fewer people with old-fashioned skills will be employed in the fashioning of some roof beams.

          Jobs are lost for many reasons, including international trade deals and technological advances. At least some of the time, I benefit because of lower costs. I have done nothing to deserve the benefit of free trade’s lower sock prices or roof beams made cheaper by technology. (On the other hand, the elimination of all those tennis lines people did not seem to translate into lower ticket prices. If the costs of the tournament were less, where did that money go?) And, of course, the mill worker, the carpenter, and the tennis line callers have done nothing to deserve a job loss. And this should lead to the societal question we don’t much discuss: Should I surrender at least part of my undeserved benefit to help those who got the punch in the gut?

What We Didn’t Learn from 9/11 (concluded)

The political and policy discussions after 9/11 immediately centered on security. We needed a larger military, more intelligence, more monitoring of potentially dangerous people, stricter border controls. We needed to kill bin Laden. We need to wipe out al Qaeda. These thoughts were understandable even if many of the actual responses were not justified or wasteful or simply wrong. We had little discussion, however, of what should have been evident from 9/11—the importance of a strong, efficient, creative government in non-militaristic area

On September 11, 2001, my office was eight blocks from the Twin Towers. I had come to work at eight to prepare to teach a law school class later in the morning. I took a break to go to the bank and heard the first plane go over my head and crash. I saw the hole on the upper floors of the Tower. Mesmerized, I realized that I was watching people dying. I decided that I wanted to see what the Tower looked like from the other side. As I got two blocks from the World Trade Center, the second plane hit the far side of the other Tower and flames shot out in my direction. I walked back to my office amidst crying and wailing people. I called the spouse to tell her I was ok, but the call got cut off when the first Tower fell. I decided it was time to get out of lower Manhattan.

I had driven to work. My usual routes home to Brooklyn were over the Brooklyn or Manhattan Bridges, both a few blocks from my office, but I knew they were closed. Picking up and dropping off people along the way, I drove to the next bridge over the East River. I was in line to cross the Williamsburg Bridge, with but two cars in front of me to get on the span, when traffic officials signaled that the structure was now closed. I went to the next crossing; got in line; and had it close just in front of me. And the next. There was no way to drive to Brooklyn. I turned around and headed south. I parked my car on a Chinatown street and walked with hordes of others over the Manhattan Bridge roadway to Brooklyn. (The mind operates on curious levels. Although I had driven over that span many times, I found myself thinking in the midst of the horror and shock of that day about the only other time I had crossed it on foot. In those days, no walkway on the Manhattan Bridge was open to pedestrians, but I once ran in a “Courthouse to Courthouse” race. It started by the Manhattan federal courts, went over the Manhattan Bridge, which had been closed to vehicles for the event, wound on local streets to a Brooklyn courthouse, and then reversed course to Manhattan. It was not a long race, but a tough one, all uphill or downhill. Now, on 9/11, it was not an organized run of a few hundred, but a solemn trudge by the tens of thousands, as if we were extras in a Biblical epic, except this was all too real.)

 In mid-afternoon, a news report stated that some East River bridges were again open. I walked a mile from home to the Manhattan Bridge where one bus stood to ferry passengers over the river. I got to my car and quickly doubted the accuracy of the news report since I kept finding bridges closed. About to give up again, I found I could cross the Tri-Borough Bridge into Queens, which, of course, abuts Brooklyn, but then I found my usual way home from that Bridge was closed. Normally I would merge off the Bridge on to the Brooklyn-Queens Expressway, but traffic officials were blocking the entrance to the expressway. An officer told me that I would have to take local streets. I prided myself on knowing my way around much of New York City, but Queens was always mysterious. I literally drove in circles, seeing one particular building at least three times. Finally, I came upon a familiar intersection because it was one I sometimes passed when I took the NBP to tennis on Roosevelt Island. I finally knew a route home. In my wanderings, which were less than twelve hours after the first attack, I passed many entrances to elevated roadways. Every one of them was blocked, I presume out of security concerns, by government officials.  I can’t imagine how many such entrances there are in New York City, but I thought what an amazing logistical feat it was to have closed every one of them in such short order. It took a good government, a strong government, a large government (which in New York City was largely a unionized government) to accomplish this. We pay a lot of taxes in New York, but it seemed more than worth it on the night of 9/11 for the response that I saw.

Of course, this was one of the many feats, and one of the more minor ones, that New York City quickly accomplished in response to the terror. When I had gone to my car, I could see that Manhattan south of Canal Street had been effectively cordoned off—once again, a remarkable logistical feat. And in the coming days, I would learn about the efforts and coordination of emergency medical personnel and school guards and sanitation workers and firefighters and housing officials and welfare workers and much more. Volunteers stepped forward as New Yorkers pulled together, but New York would not have recovered as well as it did without the effective performance at all levels of government. And this was not the work of bureaucratic drudges. The situation required new coordination among different government branches. It required creativity. It required dedicated service.

Mayor Rudy Giuliani got lots of praise because New York performed so well after 9/11, but a salient fact was overlooked. The City government as a whole performed marvelously. Plans had been drawn for emergencies, and they went into effect. And what put them into effect was Big Government. Liberals and conservatives both praised Rudy, but the importance of all levels of governments should also have been stressed. Would other cities where the mantra is against government have performed as well? We, luckily, do not know, but a story that should have come out of that tragedy was not just the performance of an individual, but how important a strong, dedicated, and creative government can be. If that strong, dedicated, and creative government had not been there, Giuliani would not have been effective and not have been a hero. In those unusual times when New York City was generally admired (Do you remember that accurate Onion headline: “Rest of Country Temporarily Feels Deep Affection for New York”?), besides the discussions about national security, lessons should have been given about the worth of the kind of government conservatives rail against. Reagan’s anti-government rhetoric was not heard in those days. It had been proved false.

What We Didn’t Learn from 9/11

Conservatives contend that the “mainstream media” is liberal, but even if true, liberals are exceptionally bad at selling their message in any media. Quick: give me a liberal aphorism or quote that helps set the political agenda today. Compare whatever you remember with these: “Government is not the solution to our problem; government is the problem.” “Government’s first duty is to protect the people, not run their lives.” “Government’s view of the economy could be summed up in a few short phrases: If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it.” “The best minds are not in government. If any were, business would steal them away.” “The problem is not that people are taxed too little; the problem is that government spends too much.” “The nine most terrifying words in the English language are, ‘I’m from the government and I’m here to help.’”

These are all the words of Ronald Reagan, and this still-resonating rhetoric starts many political policy discussions today. Such debates are seldom founded on the thought that government does good things or that taxation can lead to a better society. Instead, the basic premises are that government is dangerous; government is too big; government is inept; government is incompetent; taxes are bad; taxation is too high; regulations destroy jobs. Reagan remains influential because he re-shaped the political dialog even though his actual policies often undercut conservative ideology. Thus, conservatives continue to maintain that economic growth spurred by tax cuts will cut the federal deficit and reduce unemployment. Reagan engineered a major tax cut, but the federal deficit and debt ballooned. Reagan then went on to support specific tax increases–on gasoline, for instance–in a failed attempt to lower the debt. Part of the deficit problem, in spite of his aphorisms, was that Reagan did not cut government spending; instead, the size of the federal government increased significantly under his watch.

The liberals have lost out on the political starting point for what should be an essential discussion: What is the role of government? Government should address a wide range of problems that markets alone are ill-equipped to tackle. Liberals and anti-conservatives, however, have not been good at producing a debate about the basic roles of government and, instead, seem able only to respond to conservative claims.

Al Franken in his book Giant of the Senate, gives an explanation: “Democrats always have a disadvantage in messaging—not because we’re idiots, but because we have complex ideas and, sometimes, a hard time explaining them succinctly. Our bumper stickers always end with ‘continued on next bumper sticker.’” For example, it is easier to proclaim simply that immigrants take jobs than it is to discuss with more nuance that our economy is not a zero-sum game where a job for one is not simply the loss of work for another; how immigrants help grow the economy by buying goods and services; how immigrants pay payroll and incomes taxes; how, as our birthrate declines, immigration is a force for necessary workforce expansion. Yes, no bumper sticker can do that. Democrats are not sparkling sloganeers.

However, there are many opportunities to examine the role of government and the fatuousness of conservative shibboleths. For example, weather tragedies—hurricanes, tornados, floods, and fires—provide an opportunity for such analyses. In the aftermath of natural devastations, someone will complain about price-gouging. That should lead to a discussion of market economics because price-gouging is simply the normal result of free market economics. The extraordinary, sudden demand for goods with a limited supply gives the seller the opportunity to make high profits. Conservatives who believe in unrestrained markets should accept such price-gouging. Interestingly, however, I have never heard any leading conservative who, in other circumstances mouths platitudes about the importance of free markets, defend this high pricing. Instead, what price-gouging could teach is that almost all of us have concerns about our free-market system and believe that it should be–oh, that fearful word–regulated at least some of the time.

The fight for FEMA funds could also be an opportunity for an examination of conservative platitudes. In accordance with their call for a smaller government, conservatives should be opposed to FEMA, and some conservative congressmen and think tanks have indeed proposed a more limited federal role in responding to natural disasters. But those in the affected areas–including conservatives–speak as if getting the Washington money is a right. Although it is never called this, the flood- or hurricane-affected regions see federal disaster assistance as an entitlement. In other circumstances conservatives would rail against such aid as wealth redistribution. Natural disasters and other emergencies do not occur at the same rate throughout the country; some states–Texas, Louisiana, and Florida, for example–are more prone to them than others. Yet Texas takes more funds out of FEMA than it puts in while many other states put more in than they get out. FEMA redistributes wealth by geography.

Another way to look at FEMA, however, is that it is part of a social safety net. People are in need because of a disaster, and we as Americans–and that includes our government–help people in need. As with any aspect of our social safety net, we should seek to lessen the demand for it in the future and seek to make those asking or demanding assistance more responsible for lessening their present and future need. However, as long as we are one country, even though fortune and misfortune do not fall equally upon us, we should aid the unfortunate. Let’s start talking about FEMA as welfare, as wealth redistributor, as part of our social safety net, and tie them into a broader discussion of Americans who might need help from, yes, the government.

More than natural disasters trigger thoughts about effective conservative messaging and its absence from anti-conservatives. With the two-score anniversary of 9/11, I am having many flashbacks to that day and its aftermath. For years my heart raced whenever a plane flew low overhead. I still cannot watch footage from that day or even see on old movie that has the Towers in the background. I remember that when I could return to work after the attacks I would always get a headache as I emerged from the subway facing the wreckage; that the burning plastic smells emitted from the lit ruins made me feel sick at the end of each work day; that I was separated from my family and wanted to see them; that I saw stuff come out of the burning Towers that I hoped were not bodies; that I saw people right after the attacks huddled in doorways a few blocks from the Towers hysterically crying; that I cried on 9/11 and every day for weeks, perhaps months, afterwards; that the sky was a beautiful late summer blue; and that people helped each other. But in all these memories and more, I also think that 9/11 was a lost opportunity for resetting the domestic political dialog.

(concluded September 10)

Put the Labor Back into Labor Day (concluded)

          My grandfather was a member of a union. So were my fellow factory workers during my college vacations. (As a summer worker, I was not asked to join.) Since I barely spoke with my grandfather, I never heard from him what he thought of his union, but that he joined the strike and stayed out for its duration indicates a good deal of loyalty. Mostly I heard about the union from my grandfather’s son, and this talk was not so much about the union and wages, but about the union and working conditions. My father told me stories about how management would order workers to do unnecessarily dangerous things that the union would prevent and that the union forced the company to reduce the risks of silicosis, measures that would not have occurred without union bargaining and pressures.

          I did hear the union workers at the factory talk about their union. This came up frequently at the lunch break and before and after work (I carpooled with workers to get to the factory a few miles out of town) because bargaining was going on with a strike date looming in the middle of summer. (The potential strike presented an existential dilemma for me. My family supported union causes, and I did know Solidarity Forever. On the other hand, I was dating one of the management’s daughters. I was saved from resolving the conflict between principles and sex when at the last minute the company and the union signed a new contract. Years later, I was represented by a union when I was an attorney for the New York City Legal Aid Society, and strikes again posed dilemmas for me, but that is a story for another time.)

          The factory workers were not dissatisfied with their working conditions, but they saw the union as essential for getting fair wages. Without the collective action of a union, they knew that they would get paid less and simply have no alternative but to accept whatever the company offered to pay them. They knew that if the company were to make the choice of more money for the owners and higher wages for the worker, the result would not be more money in their paychecks. Individual workers had no leverage, no bargaining power.

          Those days, however, are now distant. Unions have much less authority than they did back then and in other countries now. Unions have been denigrated since the beginning of the organized labor movement, but that denigration took especial hold over the last forty or fifty years. How often have you heard something positive about unions? On the other hand, you probably did hear about featherbedding and union corruption. Of course, many unions have had a corruption problem, but if you pay the least little attention, you know that many corporations have had and continue to have corruption issues and the equivalent of management featherbedding in the form of lavish pay and perks. Corporate corruption, however, does not mean we think that all corporations are bad for the country. In contrast, a corrupt union bleeds over to other unions. A corrupt union tends to make us think that unionization is generally a bad thing.

          Ofttimes unions have been a scapegoat for various economic woes. At the time that Japanese car companies were first making major inroads into the American market and American automobile makers started to decline, I was at a party where I met Tina who worked for a major investment house. She railed against the auto unions and blamed them for the problems of General Motors and their brethren. I found this strange. The Japanese car companies were then known to take much better care of their workers than their American counterparts. That didn’t seem to indicate that the unions were the real cause of the problems. On the other hand, Japan car companies had devised a superior just-in-time system of assembly line production that the Americans did not have. The Japanese were simply more efficient. The foreign companies were better managed, but for Tina, and many others, it was easier to blame unions than to criticize the American corporate structure.

          It is not just narratives like Tina’s that has made the American corporate war on unions successful. It has been aided by laws passed by conservative states and legal decisions by conservative courts. It has also been furthered by our immigration laws and enforcement. Periodically, ICE raids a plant and arrests hundreds of undocumented aliens working there. Gee, how does it happen that those large numbers were at the same workplace? Did management not know they were there? Perhaps such a raid seems to harm the companies because they lose a workforce, but instead the raids aid the owners. The workers are soon replaced, and a message is sent out to them and to others in different companies: Don’t draw attention to yourselves by unionizing or complaining about wages or unsafe and other working conditions. Such attention can lead to your deportation. Until such raids have serious consequences for the companies and management, the raids just nurture low wages and dangerous work environments.

The number of unionized private sector jobs is about one-fifth of what it once was, well under ten percent. The consequences for the country have been immense. Studies have concluded that a major cause of our rising income inequality has been the decline of unions. It is not just that the wages in what were unionized jobs have not kept pace, but also that when unions were strong, companies often increased wages to stave off unionization efforts. (For an informative discussion of the causes of this inequality, see Kurt Andersen, Evil Geniuses: The Unmaking of America, A Recent History.)

          There has also been a political fallout. Who you hang out with affects your views. Politicians no longer seek out union support as they once did. They hang out with corporate and other business leaders. That is where the money is, and money increasingly controls our political process. In a recent election cycle, business outspent labor by sixteen to one, with businesses spending $3 billion on lobbying and unions spending $48 million.

          Unions in the past worked for laws that helped all working people, but now they have little effect. This is part of the reason that, unlike in other developed countries, we do not have guaranteed paid parental leave, paid vacations or sick days, and the minimum wage as a percentage of the overall median wage is lower than in other developed countries. Instead, we have seen the rise of unpaid interns in the work force and workers forced into arbitration systems that favor corporations. We have also seen a major shift to temporary and contract workers.

            This is not to suggest that everything unions might advocate for is necessarily a good thing, but as the union voice is increasingly drowned out by the big money coming from a relative handful of rich people something important has been lost in our country. (If you want to be depressed, read Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right by Jane Mayer.)Unions may still be in the dining room, but they are at the kids table and seldom heard.

On Labor Day we can have picnics and hit the back-to-school sales, but the day was meant to be a commemoration of organized labor. We have politicians who proclaim a concern for blue collar workers, but our present political system is rigged so that labor can be largely ignored, and corporations can be served. Without a strong labor movement, the country is not as well off as it ought to be. Let’s put Labor back into Labor Day.

And I will think of my Grandfather.

Put the Labor Back into Labor Day

Labor Day is not a lonely and forgotten holiday. It is celebrated as the end of summer and the beginning of autumn. The schoolyear begins as does the football season. But how often do we commemorate the original purpose of the holiday, the labor movement? At least on most Labor Days, however, I think about a laboring man, my grandfather.

 I was raised in a working-class family. My parents, sister, brother, and I lived on the ground floor of a two-story house. My father’s parents lived upstairs. While I talked with my grandmother some, I spent almost no time with my grandfather, who just seemed silent around us. I have no idea how he ended up in Wisconsin. He was born in Pennsylvania to an immigrant family, most of whom emigrated back to Germany. I felt like I knew only two things about him: He played skat, a card game, at a local tavern on some weekends and evenings, and he worked at the Kohler Company, the firm that makes toilets and sinks and bathtubs. Other than that he was some sort of laborer in the factory, I didn’t know what he did.

I do know that he started at Kohler in 1917. I am confident of this fact because I now have my grandfather’s Hamilton pocket watch, which was awarded him by his employer on his twenty-fifth anniversary of working for the company. His initials are inscribed on the back. A cover opens revealing his name and further inscriptions: “1917 SERVICE 1942” and “KOHLER OF KOHLER”.  A goldish chain is attached to the watch and to a medallion, which is inscribed on the back with my grandfather’s name. The obverse has a relief of a factory worker, “Kohler” boldly written across the medallion, with a slogan on one side: “He Who Toils Here Hath Set His Mark.” (When I used to wear three-piece suits to court, I would carry this watch and medallion in my vest pockets. The watch still works beautifully.)

My grandfather continued working at Kohler for another dozen years, but then a strike came. Kohler was by far the largest employer in the area, and the walkout, with my grandfather joining the strikers, had a huge effect on the town. As the strike went on and union benefits lessened, families faced tough times. Some strikers sought other work, but there was not much to be had. A few decided to return to work. Loyalties were tested. In a town with a tavern culture, some regulars found they were no longer welcome at their favorite bar. Sporadic acts of violence occurred. I was only eight or nine when it began, and the kids seldom mentioned it. Child friendships did not follow the fault lines fissuring from the strike, but at home I learned the epithet “Scab” and the words to Solidarity Forever.

And I saw the effect on my grandfather. He was now home at times I had never seen before. And he looked lost, bewildered. Part of his life, his identity, had been stripped. I have no idea what kind of economic strain was weighing on my grandparents, and from the sanctuary of childhood, I never thought about it, or I never thought about it until a few years after the strike started. I was with some friends, and we wandered into a park behind our school’s playground. And there was my grandfather raking leaves. Until then, I was not aware that he worked for the city’s Parks Department. He saw me; I saw him. We made no signs of recognition. He looked embarrassed. Raking leaves was the kind of demeaning make-work projects of the Depression. It was akin to a handout. It was not the real work of making something as was done at the Kohler Company. Or perhaps, my grandfather was fine, and only I was embarrassed for what he now had to do. I know that I did not want my friends to know that the lonely-looking figure under the trees was my grandfather. Perhaps my grandfather was truly embarrassed or perhaps he recognized that I was or perhaps both, but we exchanged no greetings.

The strike lasted six years, then, and I still think today, the longest strike in the country’s history. The National Labor Relations Board eventually found that Kohler had not bargained with the union in good faith, and that set off another round of contentiousness about what back pay was owed the strikers. The year the strike ended my grandfather died.

My sister recently told me something I did not know–that my grandfather waited by his upstairs window watching for me to come home from school. He knew that I was studying German, a language that he considered his native tongue (he also spoke English, of course, and Lithuanian), and he was proud of my German studies. Although I would try to exchange a few words of German with my grandmother, I never said a word of German to him. I am sorry for that, and I am sorry that I did not go up to him in that park. We did not hug much in my family, but I wish that I had given him one. He may no longer have had the job that had been part of his identity for forty years, but work was still important to him, and the many others like him. I try to remember that, especially on Labor Day.

Labor Day was meant to honor the American labor movement, but do we do that on the holiday or at any other time? Aren’t we much more likely to denigrate the laboring class or organized labor? How often do you praise unions? When you pass a highway road crew, do you spot workers seemingly idling and think, “Working hard or hardly working?”

That was often my reaction at least until I got a job in a cemetery in the summer after I graduated from high school. My first assignment was to rake a grassy plot that had been recently cut. I thought that this would be easy, even pleasurable. I was young and fit, and I loved the smell of freshly mown grass. But after quarter hour my arms were sore. I took a few minutes’ break. After another fifteen minutes, my shoulders started to burn. I took another break. After a total of ninety minutes, every part of my body seemed jelly-like. How could all those people do something like this for eight hours day after day? Luckily, a regularly scheduled coffee break at nine interceded, and I was given a new assignment at its conclusion.

 During that summer, I worked alongside the full-time employees, and I saw how hard they worked and how often they took pride in what they accomplished. I had a new-found respect for those who labored. This education continued into the summers of my college years when I worked in a factory. I learned how hard it was to do repetitive tasks on my feet for a workday, but again I learned that the workers cared about the product. If I did not assemble something correctly or made some other mistake, I was quickly informed on how to do the task properly. These were boom times, and we worked nine-and-a-half hour days during the week and a half-day on Saturdays. The full-time workers did not complain but were happy for the extra money that they could make. I bitched a lot, got regularly drunk in what was left of the evening after scarfing down a meal, and then dragged myself out of bed at 5:45 A.M. for the start of another nine-and-a-half hour day.

(concluded on Labor Day)

Non-Binary Tennis

( Guest post from the NBP)

I am the “non-binary progeny” of my dad’s blog. Non-binary, should you not know (and I don’t mean to imply that you are unaware, but a whole lot of people don’t know this), means that I identify as neither a woman nor a man. However, my gender “assigned at birth” was female, thus I was raised as a girl. This proved to be complicated for me growing up. Playing tennis revealed some of the issues that a regular girl might not have encountered, but I was not a regular *gulp* girl.

When I was nine my parents started renting a summer place in Pennsylvania. It’s a really “nice” er civilized place: a small community of about 300 families, it has 27 holes of golf, a beautiful Olympic-sized swimming pool, and 10 tennis courts. As a kid, I hated it. There were almost no kids there my age. I was a year younger than one group of girls, who, of course, formed a clique, and I was a year older than other girls who, of course, wanted nothing to do with me. I played mucho tennis.

At 11 or 12, I had rather longish hair, and it was very thick, or thicc as they say now. That’s what girls had, after all (*^%*$%$*). However, “hair things” (ties, scrunchies, elastics) seemed like accessories or jewelry. I hated that kind of stuff, so I wouldn’t have one of those “hair things” touch me. No matter how hot I got, I would keep my hair down. My hair would, of course, fall into my face and stick to the sweat there. Pleasant. My mother, seeing me struggle with my hair with sweat pouring down my face and neck tried to convince me that boys and men would put their hair in pony-tails, “like Andre Agassi,” she said. Well, he was one of my idols. Nevertheless, I wouldn’t budge. I wouldn’t touch a hair thing. I must have been in a constant state of dehydration.

And then, of course, there was the issue of tennis clothes—more specifically, the dreaded tennis skirt. It was common that girls wore tennis skirts, or worse, tennis dresses. Some got away with wearing shorts, but skirts were more common. Personally, I think it’s absurd to wear a skirt for anything athletic. In tennis it seems totally nonsensical, and it’s plainly uncomfortable to stick a ball in your tennis underwear when you could so easily put it in a pocket. So I wouldn’t wear a skirt. I don’t think I ever in my life put one on. (Under duress, once of twice I would succumb to culottes or gaucho pants in place of a skirt, but that’s another story.) I only wore shorts; that, after all, is what boys wear. During the school year I played in various clubs around the City. The main one in which I trained enforced an all-whites rule. You could wear any combo of tennis attire, including t-shirts, but they had to be white. We always checked before coming to a given court, but luckily, none of the courts where I played enforced the rule that girls had to wear tennis skirts.

So now I’m 16 and a pretty fair tennis player. Dad thought it would be fun for me to try out to be a ball-person at the U.S. Open. I had a thrower’s arm (thanks to him) and could easily loft a ball across an entire court, which was a distinct requirement. If you couldn’t throw a ball the length of the court, you were cut. I was also good at fielding balls (Dad had trained me well), so after the first round, I was accepted. It was a rule, of course, that all ball-people had to wear the uniform of the athletic sponsor (e.g., Fila, Izod, Ralph Lauren, whatever). Boys got shorts and boy-cut shirts. Guess what girls got? I declined the acceptance into the ball-person ranks.

Much as I hate the idea of tennis skirts, I do greatly and deeply thank tennis for allowing me to wear sports bras all the time. Sports bras aren’t all frilly or lacy. They are made of sensible, non-chafing material. And even though I had no chest to speak of really, I wanted to hide what there was of it, and sports bras were tight enough to serve as a binder. They made me look flat-chested, and because I was coming to realize how much I wanted to rid myself of feminine attributes (no skirts, no lace), they were perfect.

My high school didn’t have a tennis team, but I continued to play tennis outside of school and got to be a better-than-pretty-fair player. College coaches were impressed enough with the video I sent (heh, VHS) with my application to want me on their team or at least wanted me to try out, and it didn’t hurt when the coaches nudged their Admissions Office to give me the thumbs up.

I chose to attend an all-women’s college, which, not surprisingly, promoted feminism and female power—intellectual, societal, political, athletic—plus, dude, I wanted a girlfriend and they are more queer friendly institutions. Imagine my amazement, then, when I learned that the girls on the tennis team had to wear tennis skirts. The field hockey team, a group of women who looked as though they could take on Roman gladiators, also had to wear skirts. I just didn’t understand. It made no sense whatsoever. What was this skirt tyranny all about? (Sorry; that was my own personal little rant there.) I resented not having the option of attire. I’m happy if a woman wants to wear a skirt to play; then she absolutely should be able to (and likewise, so should a male). On the flip side, however, she should also have the option of wearing shorts. Today, happily, these choices are more accepted. This is good; people should be able to choose what they wear without taboos and prejudice being applied.

Needless to say, I didn’t join the team there. I just couldn’t.

The game figured prominently in my youth and young adulthood. I don’t play tennis much anymore, but I do continue to hit tennis balls, mostly against walls. It’s good exercise/therapy after all, and I have to get some use out of all my shorts.