I think the legal analysis in this article really illustrates the muddled state of post-Casey abortion law. If the Supreme Court in Casey had fully upheld Roe and said that abortion was a right akin to free speech or freedom of religion, that would, at least, have been a clear legal position. Alternatively, if the court had overturned Roe and ruled that states have the right to restrict abortion rights as they please, that would have given lower courts clear guidance on how to deal with these issues.

But it seems to me that Justice Scalia’s dissent in Casey has been bourne out by subsequent controversies:

The shortcomings of Roe did not include lack of clarity: Virtually all regulation of abortion before the third trimester was invalid. But to come across this phrase in the joint opinion–which calls upon federal district judges to apply an “undue burden” standard as doubtful in application as it is unprincipled in origin–is really more than one should have to bear.

The joint opinion frankly concedes that the amorphous concept of “undue burden” has been inconsistently applied by the Members of this Court in the few brief years since that “test” was first explicitly propounded by Justice O’Connor in her dissent in Akron I, supra. Because the three Justices now wish to “set forth astandard of general application,” the joint opinion announces that “it is important to clarify what is meant by an undue burden,” I certainly agree with that, but I do not agree that the joint opinion succeeds in the announced endeavor. To the contrary, its efforts at clarification make clear only that the standard is inherently manipulable and will prove hopelessly unworkable in practice.

The joint opinion explains that a state regulation imposes an “undue burden” if it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” An obstacle is “substantial,” we are told, if it is “calculated[,] [not] to inform the woman’s free choice, [but to] hinder it.” This latter statement cannot possibly mean what it says. Any regulation of abortion that is intended to advance what the joint opinion concedes is the State’s “substantial” interest in protecting unborn life will be “calculated [to] hinder” a decision to have an abortion. It thus seems more accurate to say that the joint opinion would uphold abortion regulations only if they do not unduly hinder the woman’s decision. That, of course, brings us right back to square one: Defining an “undue burden” as an “undue hindrance” (or a “substantial obstacle”) hardly “clarifies” the test. Consciously or not, the joint opinion’s verbal shell game will conceal raw judicial policy choices concerning what is “appropriate” abortion legislation.

In practice, it seems, the “undue burden” standard is leading to a slow unraveling of abortion rights, as legislatures slowly make getting an abortion more and more burdensome. Precisely because the standard is so amorphous, it’s very difficult for the courts do draw a line in the sand and strike down any laws that cross it, as long as any given law isn’t too big a leap from the one that came before. I don’t think pro-choice activists have any reason to be happy or optimistic about the jurisprudential status quo.

Will and I penned an article up at the West End Word, an alt-weekly paper that serves upscale urban parts of the St. Louis area. And by “penned” I mean that I shamelessly ripped off Will’s great Reason piece about school choice and evolution and added a couple of paragraphs to relate it to the recent Kansas controversy. With his permission, of course…

On Saturday I got my first quote in a major national newspaper. The Wall Street Journal considers me a “a technology and intellectual-property expert.” Neat!

I’ve got a new article in the St. Louis Business Journal about a state legislator’s idiotic plan to punish umpires for calls he didn’t agree with by raising their taxes. It draws on the Tax Foundation’s excellent work on the subject.

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This is priceless:

You’ve probably heard some cretin insist that when he walks up to a bar where the owner has decided to permit patrons to smoke— where people clearly are, in fact, smoking—and decides to walk in anyway, it’s the smokers who are “imposing” on him. Often, he’ll even cite that popular encapsulation of Mill’s harm principle: “Your right to swing your fist ends at my nose.”

In my less Buddhist moods, I find myself thinking that a poetic reply would be to punch those people square in the face, then remonstrate them in a sort of shocked, scolding tone: “You know, your right to swing your head ends at my fist!” Motion is relative, after all.

This is surreal:

Another provision passed this month would ban cruel and inhuman treatment of prisoners and establishes the Army Field Manual as the governmentwide guide for all interrogations. Sen. John McCain, R-Ariz., the sponsor, was tortured during the more than five years he spent in a North Vietnamese prison during the Vietnam War.

Bush has said repeatedly that the United States does not torture prisoners. He opposes the measure because he says it would limit interrogators’ ability to get information from terrorism suspects, and he has threatened to veto the defense bill if it includes that amendment.

Our president couldn’t rouse himself to veto a campaign finance bill he had previously acknowledged to be unconstitutional. He made vague threats to veto the most recent transportation bill if it cost too much, but never followed through. Every single year, Congress ignores the spending limits in his proposed budgets, yet he’s never vetoed a single spending bill. Indeed, the president has yet to veto anything.

Wouldn’t it be great if the first (and possibly only) veto in his entire presidency was to protect his administration’s right to torture prisoners–something it claims not to do anyway? This president has only one guiding principle: expanding and protecting the power of the executive branch to do any damn thing it pleases.

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The Electronic Frontier Foundation is kicking off a campaign to raise money for its bloggers’ rights initiative. If you’ve not encountered EFF before, you might think of them as the ACLU of the Internet, fighting for online users’ rights to free speech, fair use, privacy, anonymity, etc. (They also take an occasional position that I don’t agree with, but it’s pretty rare)

If you want to make sure bloggers’ rights are protected, there’s no better way to do it than to make a contribution.

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I have to agree with Matt that the Republicans’ priorities are kind of disgusting. It’s apparently incredibly difficult to find anything to cut out of the lean, mean budget that the Republicans have been putting together.

Gosh, I seem to remember pork-laden energy and transportation bills being passed by Congress this year. Similarly, I could have sworn Congress passed a massively expanded farm bill back in 2002 that disproportionately benefited large agribusinesses, with many GOP legislators voting down an amendment that would have capped payouts to the largest farmers. in fact, I remember reading somewhere that the last couple of Congresses have been the most profligate in a generation, expanding government more than any since Lyndon Johnson was at 1600 Pennsylvania Ave.

Yet somehow, in a $2.5 trillion dollar budget, the only places that could be found to cut spending are in two programs that feed and provide medical care to poor people. (along with some reductions in student aid that primarily benefit upper-middle class people) Now, I’m not a big fan of either program. In fact, I don’t think the federal government should be involved in anti-poverty efforts at all. But as federal programs go, food stamps are certainly better than most. They do, in fact, provide food to a lot of poor people, and they do it with relatively little harmful effects on the market. (the analogous proposal for education–school vouchers–is considered by some to be a radical right-wing idea) Likewise, although Medicaid has its flaws, it does actually provide a lot of medical care for poor people.

Democrats talk incessently about how Republicans are fixated on “tax cuts for the wealthy” and attacking the services provided to poor people. Until recently, I always regarded this as demogoguery. Fiscal conservatives want to cut rich peoples’ taxes because they want to cut everyone’s taxes, I figured. And they want to cut the poor’s social programs because they want to cut government across the board, leaving everyone–poor people included–with more money in their pockets to spend on the things they need most.

But the last five years have made that line increasingly absurd. When’s the last time a Republican proposed cutting payroll taxes? Where are the Republicans fighting to cut regressive excise taxes? Conversely, when it comes to cuttiing spending, why are the only programs that come under the knife programs that go to poor people? Why not make at least a token effort to rein in the billions of dollars that get doled out to well-connected interest groups.

Those are rhetorical questions, obviously. Republicans cut the rich’s taxes and the poor’s spending because the rich hire more lobbyists and make more campaign contributions. But until recently, the Republicans at least did a convincing job of pretending they had loftier goals than scratching the backs of their supporters.

I think libertarians, especially, have to be careful not to become party to a cynical wealth transfer from poor to wealthy. I don’t think small cuts in Medicaid and food stamps, coupled with large increases in corporate welfare, is a step in the right direction. Likewise, I don’t think tax cuts are particularly praiseworthy if they’re just being piled on the deficit. Considered in isolation, such cuts might be worth supporting, but in practice they’re not in isolation. The Medicaid and food stamp cuts are calculated to help them look fiscally conservative, and to make more room in the budget for more coporate welfare.

Until the GOP makes at least a half-hearted attempt to control spending across the board, we ought to give them no credit whatsoever for making token cuts to social programs. Welfare isn’t only bad when it goes to poor people.

It looks like voters in California rejected everything that was put before them yesterday.

Although I think each of the governor’s four proposals, taken by itself, is good policy, the four of them together just look mean and partisan. The union dues measure and the teacher tenure measure are very specifically targeted at one of the governor’s biggest political opponents– public employees unions, especially teachers’ unions. The other two, redistricting and spending limits, are easy to spin as being aimed at the Democratic majority.

So I didn’t follow the campaign very closely, but it makes sense that voters might form the general impression that this year’s ballot questions were negative, politically motivated proposals and simply vote no across the board. I think it’s a well-understood property of human psychology that if you get people voting no on most of the issues, they’re more likely to vote no on the rest.

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Do you think the author of this article has an opinion?

Anti-smoking campaigners have said plans by one of the world’s largest tobacco companies to launch so-called “safer” cigarettes in Britain could cost hundreds of thousands of lives.

Not only does “safer” get scare quotes, but it’s “so-called” as well! Those cigarette guys must really be full of it. The thing is, I don’t see any reason to qualify the term. Cancer is caused by carcinogens in cigarette smoke, and if you can reduce the amount of carcinogens consumed I would assume you’d lower the cancer rate. It seems to me that objectively speaking, the cigarette would be less likely to kill you, and would, therefore, be safer.

But “health campaigners” aren’t buying it:

It is thought that BAT may be ready to launch new brands as early as next year – prompting outrage from health campaigners who believe such a move could hinder efforts to reduce the 120,000 annual deaths caused by smoking-related illnesses.

To paraphrase Matt Ygleasias in a slightly different context, “Making [smoking] less dangerous doesn’t really make things safer, it’s just a way of tricking people. Therefore, [smoking] should be as dangerous as possible so that it’s obviously dangerous.”

We have to kill the smokers in order to save them.

I’d call Colorado’s 52-48 vote in favor of suspending their Taxpayers’ Bill of Rights a sign of a closely divided electorate. That’s not how the St. Louis Post-Dispatch editorial board sees it:

Led by its conservative Republican governor, Bill Owens, taxpayers rose in revolt. By a 52 percent margin, they suspended TABOR for five years,forgoing tax refunds that should have averaged $491 each over five years.

If the vote had come out 52-48 the other way, would the Post-Dispatch have characterized that as a “rising in revolt” against the politicians seeking to raise their taxes? I’m guessing not.

It’s also silly to pretend that the Colorado vote is somehow a sign that TABOR is a failure. TABOR doesn’t prohibit tax increases, it just says the politicians have to ask the voters for permission first. That’s what they did in this case. The TABOR limit kicks in again in 2011.

That’s the way government should work: there might be legitimate reasons for government to take in more revenue, but they should ask voters first.

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TechCentralStation’s Nick Schulz has a great article on Google Print on Forbes.com:

Pat Schroeder, the former Congresswoman from Colorado is now the president of the Association of American Publishers (AAP) and a vigorous opponent of Google’s plan. She is also an author. I went to Amazon and searched in her book 24 Years of House Work and Still a Mess for the word “property,” and Amazon’s technology found for me on page 286 the following snippet:

“Protecting intellectual property is my main focus at AAP. Technology has made it so easy to copy anything you create …”

She’s right about technology. However, my finding that snippet and using it for this article is not a copyright violation. I didn’t ask Schroeder or her publisher for permission to use the quote in her book. Indeed, there’s an entire industry, book reviewing, predicated on the ability of people to do something similar to what I’ve just done.

The way the current copyright law works, I can take a book out from any library, read it and write a review of it for publication on the Web site I edit or in the pages of Forbes.com or anywhere else. This “fair use” of material involves no copyright violation. Readers benefit from learning a bit about the book, authors and publishers benefit from increased exposure.

While the details need to be hammered out, what Google hopes to do is similar. It’s not proposing making an entire copyrighted book available for public viewing. Instead, it’s enabling anyone at any time to see the functional equivalent of a quote or passage from a newspaper or magazine book review.

As they say, read the whole thing.

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