Month: November 2024

A Debate On Rent Control

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November 24, 2024

by Stephen Stofka

This is part of a continuing series of debates on economic and political issues. Substack users can find last week’s debate on climate change here. WordPress and other  users can visit my web site innocentinvestor.com here. Wishing everyone a good Thanksgiving this next week.

This week’s letter is about the price system, continuing an imagined conversation that began with last week’s letter. What is a price? Is it a measure? If so, it is not a good one because prices keep changing from year to year. Let’s imagine a haircut from the same stylist that costs 5% more in 2024 than in 2023. Did the quality of the haircut change? No. the service delivered is the same but not the price. So, what is price? It must be a good in and of itself – a commodity like wheat. A good that “evaporates” like water in the sun. The CPI calculator at the Bureau of Labor Statistics indicates that a $1 in 2024 buys what $0.50 did in 1995. Any interest earned on savings has barely compensated for the loss of buying power (see notes).

And now the conversation between Abel and Cain continues:

After the usual pleasantries, Abel said, “Last week I pointed out market failures where the price system in a free market does not control a negative externality like pollution. Another flaw in the pricing system is its inability to cope with social justice issues. Your group favors policies that emphasize growth. You claim that more growth will benefit everyone, including minorities. What about rent control? Land can’t grow. In densely populated cities like New York, the only way to grow the housing market is to build up. Zoning policies restrict the height of many residential areas, and the current residents prefer it that way.”

Cain replied, “Rent control is a price control and our group does not favor price controls in any form. They distort the supply and demand dynamics of a market. Rent control encourages landlords to make only those repairs which will avoid regulatory fines from housing authorities. The quality of the housing stock declines and that only contributes to the problem. Housing authorities must devote more resources to inspect properties, handle tenant complaints and regulate landlords.”

Abel interrupted, “So what’s your suggestion? In crowded markets like New York, the housing supply is too rigid, so it doesn’t shift to meet demand like in a supply demand model. If prices were allowed to find an equilibrium on their own, many working people would be priced out of the market. They would have to move further away from the city and drive long distances to get to work. This would choke an already overtaxed traffic and transit system. What’s your group’s answer? Let people move to another state? The tri-state area has already become a giant metropolis because families have tried that solution. The problem persists.”

Cain nodded. “Yes, there are choke points where circumstances or political interests constrict supply. The first question politicians should ask is ‘How can we adapt the price system to help manage this particular market?’ If we look at improperly maintained housing as a pollutant, perhaps policymakers could use a permit system or tradeable credits, the same system that has been successful with some pollutants.”

Abel asked, “How would that work? Make available a number of permits to not maintain housing units to safe health and safety standards? Housing can’t be turned into a lab experiment.”

Cain responded, “Each city may devise different pricing solutions. Some may work better than others, allowing competing policy frameworks to be tested in different circumstances. The point is that regulations and rent control should not be the first tool that policymakers reach for.”

Abel asked, “Has anyone used an incentive-based strategy using the price system to tackle the problem of affordable housing in a dense urban area?”

Cain replied, “Not that I am aware of.”

Abel argued, “Proves my point. Some issues cannot be resolved through the price system. People tolerate many inconveniences in a big city because there are many factors that induce them to stay.” Abel ticked them off on each finger, “Jobs, family, public transportation and infrastructure, civic associations with people having similar interests, schools for the kids, sports teams, the availability of internet, public institutions like libraries, internet, parks, museums.”

When Abel paused to take a breath, Cain interjected, “I get your point. A home of some sort in a city gives people access to amenities that are not available in a rural district with 2,000 residents. People want availability to all that stuff and pay as little as possible.”

Abel interrupted, “Are you saying that working people who spend half of their income on a place to live in New York City are freeloaders? It’s the upper income people that employ them who are freeloading. The rich are getting labor at an affordable rate. If working people could charge enough to cover their living expenses, they would get paid a lot more than they do.”

Cain argued, “It’s the rich people who are paying most of the state and local taxes that pays for all those amenities. The rich are subsidizing these institutions that the working class take advantage of.”

Abel said, “The median rent in the Bronx is 60% higher than the national average, according to an analysis by Zumper. The average monthly rent for a 2-BR apartment is almost $3500 and the  Bronx is one of the more affordable of the five counties in New York City. The national median annual wage for warehouse workers is $38,000, according to the BLS. That’s almost $3200 a month. A couple working two blue collar jobs would be spending more than half their gross income on rent. A prudent percentage is 30%, or less than a third of gross income. If New York City policymakers were to require employers to pay 60% above the national average, those warehouse workers would make almost $61,000 a year, or $5100 a month. Two incomes at that wage would total over $10,000 and that $3500 median rent in the Bronx would be about 34% of income.”

Cain dismissed Abel’s argument. “Those New York City employers wouldn’t be able to compete with other companies in surrounding regions with lower costs. They would leave or go out of business. There would be fewer warehouse jobs. That couple would have to compete with others for blue collar jobs. The increased supply of labor competing for jobs would further lower the market wage and make the couple dependent on social welfare programs. The city would have less tax revenue because those warehouse employers have left the city. Less property tax, less income tax, less tax on business income. The city could not afford to pay more benefits and might declare bankruptcy like it did in the mid 1970’s. A complex negative feedback loop. Policymakers who tinker with natural market forces only make the problem worse.”

Abel objected, “If that couple followed the signal of those market forces, they would move to a lower cost area in a nearby state. There would be fewer workers in New York City, driving up wages. As the couple tried to find work, they would drive wages down further in that nearby state. Those lower costs would enable employers to reduce their prices and put the New York City companies out of business.”

Cain responded, “In order to survive, those New York companies would also leave the city. Anyway, capital relocates faster than people. As soon as policymakers announced a law mandating that employers pay premium wages, a lot of blue-collar companies would relocate out of the city. Our blue-collar couple would be out of a job. Just as with a previous scenario, the couple would be dependent on the government for aid. The price system promotes independence.”

Abel protested, “Paying higher rents than the national average does not promote worker independence. A dense housing market is a seller’s market, a landlord’s market. Without some laws in place to protect renters, they would be entirely at the mercy of landlords. Market prices in a dense housing market like New York only promote independence for those with capital and access to capital like landlords.”

Cain shook his head. “Once again, your group and mine can’t agree. Your group blames capitalists for everything.”

Abel replied, “That’s overstating our objections. Capitalists promote a dynamic economy that responds to changing circumstances. But capitalists can’t operate only in the framework of the pricing system. In some markets, price dynamics often make the problem worse. As Keynes and other economists have shown, an unguided free market system can settle at equilibrium points that are below the productive capacity of a nation’s people and businesses. There is no automatic mechanism to move an economy to an optimal equilibrium of productivity.”

Cain turned to go. “Well, our group disagrees. The free-market system promotes growth, and it is growth that generates a productive equilibrium.”

Abel replied, “I know your group believes that, but belief doesn’t make it so. The housing market in New York City is just one example of market failure, the inability of prices to allocate resources. It is one of many.”

Cain replied, “Maybe we should talk about market failures next time we meet. Behind every market failure is a policy failure, believe me.”

Abel responded, “See you next time.”

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Photo by Shehan Rodrigo on Unsplash

Buying power note: Inflation has averaged 2.76% annually since 1995. The interest on a 1-year Treasury note (FRED Series DGS1) is similar to a 36-month CD rate and has averaged 2.6%.

The Maze of Our Arguments

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November 17, 2024

By Stephen Stofka

This is a bit longer than usual but in a conversational format. I will also leave copies of the in-text links in the notes at the end. The sources do not require a subscription.

This week’s letter is about our arguments. Some policies are implemented but the disagreements on the underlying issues are not resolved. The debate often detours through a maze of assumptions and perspectives, identities and loyalties before it can reach the main issue. Resistance and resentment simmer like the underground coal-seam fire in Centralia, PA that has been burning for six decades.

At the Constitutional Convention in 1787, delegates could not resolve the issue of slavery, and the southern states threatened to walk. The financial condition of the confederacy of thirteen colonies was desperate, making the new nation vulnerable to attack and encroachment by France and Spain. In a compromise, the delegates agreed to make the importation of slaves illegal after twenty years, but booted the issue down the road. For seventy years after the Constitution was ratified, the southern states periodically threatened to secede, and various compromises averted a crisis without resolving the issue. The 1820 Missouri Compromise was a key piece of legislation that kept the nation together. In 1857, the Supreme Court issued its Dred Scott decision which overturned the Missouri Compromise and public sentiment accepted the inevitability of civil war.

Climate change is not as emotional a topic as slavery or abortion, which I wrote about here. I will imagine a discussion between two groups of people who set policy for all the people in the country. Speaking for the first group is a person named Abel who claims that certain types of human activity are having a pronounced and growing effect on the climate. To counter these damaging effects, Abel’s group proposes regulating some activities and adopting different methods that will lower the impact of human activity on the climate. Cain, a spokesperson for the second group, is averse to most regulation of economic activity and argues that Abel’s claims and theories are a hoax. Any changes in climate are probably temporary and driven by natural physical variations that people can not influence.  

Abel offered to present the evidence for his claim, but Cain dismissed the offer. Cain turned to page 156 of Nassim Taleb’s Fooled by Randomness and handed the book to Abel, who read the highlighted passage, “I can use data to disprove a proposition, never to prove one. I can use history to refute a conjecture, never to affirm it.”

Abel responded, “In An Enquiry Concerning Human Understanding, the 18th century philosopher David Hume wrote that we could not state with absolute certainty that the sun would rise tomorrow or that it would not rise. Knowledge gained from experience can only move to greater certainty or uncertainty. Each year’s climate data moves us closer to certainty that  human activity is a significant contributor to climate change.”

Cain argued, “Our group requires incontrovertible proof, not just an increased certainty. Scientists were certain the climate was cooling in the late 1970s.”

Abel responded, “That is a myth that climate change deniers have used for decades to refute climate change. Peterson et al (2008) unraveled the making of that myth. J. M. Mitchell published his cooling hypothesis in 1963. When others checked his data, they found that his conclusions were based on weather station data in the northern hemisphere only. When researchers included data from the southern hemisphere, the conclusion was the opposite. The planet was warming.”

Cain interjected, “Scientists also claimed that world oil production had reached its peak in the 1960s, a theory known as Peak Oil.”

Abel responded, “Let me finish the rest of the story. In the 1970s, popular magazines like Newsweek promoted both theories as “news peg” headlines to attract readers’ interest. Controversy sells. There was already a broad consensus in the scientific community that the warming effect of man-made greenhouse gases were dominating any cooling effect from aerosols and natural factors. Prominent scientists like Carl Sagan presented that conclusion to Congress in 1985. In 1990, when the IPCC issued it’s first assessment of the global climate changes, it had already found a measurable increase in temperatures.”  

Cain argued, “Look, technologies change and new data causes scientists to revise their opinions. The same could happen with climate change. There’s no sense in imposing regulations that disrupt economic activity as long as there is a chance that scientists could be wrong.”

Abel responded, “Your group casually dismisses sixty years of scientific data and increasingly accurate predictions. Hume pointed out that there is always a chance that any claim is wrong. We have to act on probabilities, not absolute certainty. Your group adopts the reasoning of jurors in a criminal trial who reach a conviction only if there is no reasonable doubt. Our claim is more like a civil trial where jurors reach a conclusion based on a preponderance of the evidence. Each year provides more evidence that human activity is having a significant effect on the global climate.”

Cain replied, “Well, some of your group’s proposals seem criminal to me so yes, we require evidence that is beyond a reasonable doubt. Our group is suspicious of policy proposals that affect our economic lives. We believe that the price system provides the best environment for voluntary cooperation. Prices emerge from the decisions and preferences of everyone.”

Abel nodded. “Science works like the price system, only slower. There’s a supply of research and data, and a demand for solutions and understanding. Scholars publish their research. They put their data and conclusions on the market, so to speak. The research community digests that data and methodology, points out flaws and presents alternative conclusions. Theories improve just like the products we buy.”

Cain objected, “Unlike the price system, there is no equilibrium point.”

Abel responded, “Yes, there is. Some consumers and suppliers of fossil fuels want research that concludes that there is little evidence for anthropogenic climate change. These groups fund organizations that hire researchers to publish position papers to that effect. Demand and supply meet, but the quality of the supply of research is lowered.”

Cain objected again. “These are reputable scientists presenting their conclusions. Look, even if there was some credible evidence that the use of fossil fuels was having an effect on the climate, our group favors price incentives, not regulations. Carrots, not whips.”

Abel countered, “The free market and price system doesn’t cope with negative externalities like pollution. Do you acknowledge that?”

Cain nodded. “Yes, but we think those externalities can be priced as well. The polluters can compensate others for the nuisance or trade among themselves for permits to pollute.”

Abel replied, “But that requires some government agency to set the prices or the allotment of permits.”

Cain nodded. “It’s not a perfect world. More regulations that affect economic outcomes only incentivize people and companies to find loopholes to avoid the regulations. Government agencies must not only regulate an economic activity like pollution from manufacturing, but they have to play watchdog to catch the actors trying to avoid the regulations. Regulatory agencies are not an efficient way to accomplish a goal.”

Abel asked, “What about social and economic justice issues? How can the price system cope with them? Let’s say some business owner thinks that all black people are inferior workers, so he offers black applicants half the wage he offers white workers. How does the price system handle discrimination?”

Cain shook his head. “Our group does not endorse discrimination of any type. We question whether it is the job of a government agency, particularly a federal agency, to try to correct those attitudes and behaviors. We support policies that encourage economic growth. More growth will promote employment which will create more bargaining power for workers. Employers will have to compete to hire workers. Black workers will have a greater choice of jobs and can refuse to work at a lower wage. Employers will end their discriminatory practices because it hurts their businesses.”

Able argued, “Using Taleb’s reasoning, any  instance where the price system does not end discrimination would be cause enough to invalidate your conjecture. If the price system coordinates human activity and resources so well, why are there subsidies for suppliers and price controls for consumers?”

Cain shrugged. “Politics corrupts the price system. In a perfect republic, there would be no subsidies or price controls.”

Abel said, “You speak of the price system as though it were a natural force like gravity.”

Cain nodded. “It is a natural force of human interaction. Einstein said that gravity was the curvature of spacetime. The phrase ‘matter tells spacetime how to curve, and curved spacetime tells matter how to move’ captures an important element of his theory of relativity. Without political interference, suppliers and consumers tell prices how to curve and that curvature affects the decisions and behavior of both suppliers and consumers.”

Abel replied, “The price system provides incentives for a limited number of transactions or exchanges between people. There are economic activities where one party inflicts damage on another party and may not be aware of it. Pollution can affect people far from the source of the pollution as happened with acid rain. Decades ago, the amount of sulfur emissions from smokestacks near New York City were affecting farmers and wildlife in upstate New York. Climate change contributes to a global problem, making it more difficult to regulate with any price system. Human industrial activity contributes to the carbon dioxide blanket surrounding the planet. That blanket inhibits the release of solar energy from the earth’s lower atmosphere, causing ocean and air temperatures to rise. Heat seeks an equilibrium so that warming affects the convection of energy around the planet.”

Cain scoffed. “Your group is saying that a family driving a car powered with gasoline is affecting some people living in remote Kamchatka. Come on, there are limits to responsibility.”

Abel replied, “The family driving the car is affecting their own climate as well. The power plant in Kamchatka is affecting U.S. families. Climate change surpasses national borders. It’s the butterfly effect, an idea that mathematician and meteorologist Ed Lorenz proposed. How the beating of a butterfly wing could contribute to an initial state that eventually produced a tornado.”     

Cain objected, “Butterfly effect or not, we can’t be regulating every little action that people do because it might contribute to some problem. In the Fable of the Bees, Bernard Mandeville imagined a society that collapsed after it prohibited all vices. We just have to accept that living bears some risks and unpleasant things. We can’t craft a perfect society. The price system promotes a natural system of checks and balances. Is it perfect? No, but it is better than a bunch of bureaucrats micromanaging our economic activities.”

Abel sighed. “Your group’s solution is to do nothing. If the world goes to hell, so be it?”

Cain replied, “We struggle to solve our own problems. Coordinating human behavior is difficult. The price system is a coordinating mechanism. Sure, it has flaws, but it is more democratic than any autocratic system of regulation. Even if human activity were causing the planet to warm up, how would we get other countries to comply? We can’t force everyone to think like we do.”

Abel asked, “There doesn’t seem to be any area of compromise on this, is there?”

Cain smiled. “A solution will emerge. Don’t worry. For two centuries at least, technological prowess has raised living standards and our life expectancy.”

Abel objected, “The cumulative effect of our technological prowess is causing the problem. How can it solve a problem that it is contributing to?”

Cain turned to leave. “You have no faith in human ingenuity and motivation. That is the real problem.”

Abel replied, “You put too much faith in the price system. That is an even bigger problem. Let’s discuss that next time.”

The debate may begin on climate change but often shifts towards each group’s assumptions and perspectives on an issue. Each group pays more attention to others in their group than arguments from the other side. The signers to the Declaration of Independence argued over the list of British offenses or usurpations included in the Declaration. They had only minor changes to the noble sentiments expressed in the opening paragraphs that we cherish today. The arguments against rebellion? Loyalist sentiments, as they were called, were stamped out. In the northern colonies, some of the Loyalists were driven out and their property confiscated. Force is the final arbiter of failed attempts to compromise.

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Photo by Susan Q Yin on Unsplash

A 16-minute excerpt of Carl Sagan’s presentation before a Republican led Senate committee in 1985.

Anti-Loyalist sentiment

Fable of the Bees

The butterfly effect

acid rain

curvature of spacetime

Peak Oil

natural physical variations that contribute to climate change.

The Dred Scott decision and the inevitability of civil war. Roger Taney, the Chief Justice and author of the court’s majority opinion, was initially nominated by President Andrew Jackson to be Secretary of the Treasury. Taney was the first cabinet nominee to be rejected by the Senate. Jackson then nominated Taney for the position of associate justice of the Supreme Court and met rejection again. Later, Jackson nominated Taney for Chief Justice, and the Senate confirmed him after much debate.

An underground coal-seam fire in Centralia, Pennsylvania burning since at least 1962.

Peterson, T. C., Connolley, W. M., & Fleck, J. (2008). The myth of the 1970s Global Cooling Scientific Consensus. Bulletin of the American Meteorological Society, 89(9), 1325–1338. https://doi.org/10.1175/2008bams2370.1

Fortunate Son

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November 10, 2024

By Stephen Stofka

The country has elected a fortunate son for the second time. Throughout his life, Donald has enjoyed the protection of a phalanx of lawyers who have kept him out of jail. A recent decision by the country’s highest court will give him immunity for another four years. His physical condition and cognitive health are declining so rapidly that he likely will not serve out his full term. His much younger Vice-President J.D. Vance will become President and possibly the leader of the MAGA movement for another eight years.

Another take. Former President Donald J. Trump has made the greatest political comeback in the history of this country. Millions of supporters donated money to his legal efforts to defend the integrity of the vote and challenge voter fraud by the Democratic Party. Despite persistent persecution by Democratic prosecutors, Mr. Trump has emerged victorious. In the days leading up to the election, the former President  held many rallies, demonstrating the vitality of a candidate twenty years younger.

Yet another take – a just the facts, ma’am perspective. Presidents with low approval ratings, including Trump in 2020, do not win reelection. This election’s results repeated that trend. James Carville, Clinton’s campaign manager in the 1992 race, coined the famous phrase “It’s the economy, stupid.” Voters showed more concern about inflation and immigration than Trump’s character and demeanor. Voters are especially sensitive to inflation because they feel helpless, and people do not like feeling helpless.

The misery index is the sum of the unemployment rate and the inflation rate. A comfortable reading is about 7%. In 1980, the index was 20% and Jimmy Carter lost his bid for re-election. Bill Clinton and George W. Bush won re-election with misery readings of 8%, and Obama won the 2012 election when the misery index was near 10%. In the fall of this year, the index was below 7%. Perhaps the misery index is not a consistent predictor.

Which is your take on the election results? Each second of our day we download terabytes of information into our brains. We filter out much of that data, then arrange what remains into a version of the world that is uniquely ours. Then we interpret that stimuli, integrating it into our memories along well-worn neural pathways. In that integration process, we reconstruct the world again, discarding the information that conflicts with our previous experience, beliefs and values. We shape what we experience, and our experience shapes us. We may be traveling with others on a train through time, but we have a unique vantage point as we look out the window.

In her book Lost in Math, physicist Sabine Hossenfelder writes, “If a thousand people read a book, they read a thousand different books.” Each voter creates a unique election story. Media analysts focus on different elements of an election, creating their own version of the contest, weaving a narrative of cause and effect. In the telling of the election, we should remember Nassim Taleb’s caution, in Fooled by Randomness, that “past events will always look less random than they were.” Since we are rational creatures, we are both frightened and fooled by randomness. In an evenly divided electorate where a few thousand votes in several key counties can make a difference,  random events can decide the outcome. A snowstorm in a key state in the days before an election, the path of a bullet at an election rally, a decision by a federal judge.

The percentages of the Presidential election votes were no different than 140 million voters flipping a fair coin.. Heads equals a vote from Trump. Tails was a vote for Harris. Did any individual voter flip a coin? Possibly, but unlikely. As a collective, our individual actions can simulate random behavior. Randomness can make us feel helpless, so we act as though our actions have purpose. We act aggressively or assume a false bravado in the face of random mortal danger. Watch the clip from the Deer Hunter where the prisoners are made to play Russian Roulette.

Those who struggle through life may vote for the calm bravado of someone privileged. Ronald Reagan was known as the Teflon President. The public did not hold him responsible for several controversies and scandals that occurred during his eight years in the White House. In 1981 to 1982, the country suffered the worst recession since the Great Depression fifty years earlier. During the 1983 Lebanese civil war, Reagan ignored warnings that the U.S. Marines barrack in Beirut would be vulnerable to attack. The October 23rd bombing resulted in the loss of 241 lives, most of them Marines. . In his 1984 bid for re-election, Reagan won all but one state, a resounding vote of public approval. In 1986, the Iran-Contra scandal, a secretive trade of arms for hostages with Iran, occupied public attention but Reagan escaped any responsibility or public indignation.

Forty years later Donald Trump can wear that moniker, the Teflon President. A slim majority of voters overlooked his many scandals, his felony conviction, and his chaotic management style during the pandemic and most of his first term. Although the Republican Party’s name remains the same, Trump and his followers have erased the legacy of Reagan. The party’s former symbol, an elephant, has been replaced by a red MAGA hat. It has become a party dedicated not to any consistent set of principles but to one person, a fortunate son.

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Photo by Danilo Batista on Unsplash

Keywords: misery index, election, recession, inflation

The Soul of a Debate

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November 3, 2024

By Stephen Stofka

This week’s letter is about the principles and history of the debate on abortion, an issue that could be pivotal for Democrats in this week’s election results. Like many contentious policies, many of us have strong opinions on the subject. We have identified the central principle of the issue and brook no compromise on that principle. Such issues generate persistent conflict because we identify different principles and construct incompatible resolutions. The aim of this essay is not to change anyone’s mind on the topic because I don’t think that is possible.

Many laws banning abortion were passed at a time when women had no autonomy – not the right to own property or vote. They were subjects of men. Their chief function was to support and aid men, to bear and rear the offspring of men. To be subject to this demeaning legacy once again deeply offends many women.

The laws and religious doctrines on abortion were all created by men who showed more concern for their offspring than the women who bore that offspring. Greek philosophers and early Church fathers formulated their speculations and doctrines without any knowledge of genetics or embryology. Central to their debate on the matter was the question: when does a fetus become a human and acquire some guarantee of life in a society? The Greek philosopher Aristotle reasoned that all living things had a soul. “The soul is the cause and source of the living body,” he wrote, so that what distinguishes the living from the non-living was ensoulment, acquiring the presence of a soul. What distinguished human beings from other living things was the development of a rational soul within a woman’s womb, but Aristotle was unclear on the timing of that transition.

For early Church fathers, the bible did not resolve the question. Many people think that the Bible specifies the quickening when the fetus first stirs in the womb. However, the word quickening in the Bible is an animating event, not a specific time in gestation. The Bible gives no direct timeline when the soul enters the body. If the Bible is the word of God, as some believe, then God is concerned with many issues but not ensoulment or abortion.

Jerome of Stridon (c. 344 – 420) was an early Christian priest and historian who first translated the Bible into Latin. He professed a belief or doctrine called creationism. At conception, God created a new soul for each person. In Summa Theologica, the influential Catholic philosopher Thomas Aquinas (1225 – 1274) reiterated that doctrine. Aquinas also reacquainted Christian readers in Europe with the recently “rediscovered” works of Aristotle. In de Potentia, he wrote about Aristotle’s distinction between a primitive vegetal soul and a rational soul. During the Renaissance these philosophical speculations provoked controversy in the Church which Pope Pius IX resolved in 1869 with an encyclical declaring that ensoulment happened at conception.

Many 19th century state laws that ban abortion are based on the belief contained in that encyclical. The resulting policies treated an embryo’s life as though the embryo were human. Texas is one of 13 states that ban abortion outright. All of the former Confederate states effectively ban abortion, either outright or by imposing severe gestational limits when many women may not know they are pregnant. Before Jane Roe won her suit against Texas in the Supreme Court in 1973, the Texas penal code governing abortion was based on Texas laws passed beginning in 1854, when blacks and women were excluded from voting. Blacks were regarded as chattel to be bought and sold like farm animals. Few women could own property, and none could vote.

In Roe v. Wade, the Supreme Court established a balancing of state interests between “protecting the health of pregnant women and the ‘potentiality of human life’” (Oyez link here). That balance changes during the progression of a pregnancy. Jane Roe claimed a right to privacy inherent in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments but the court’s decision founded its decision on a woman’s right to privacy implied in the 14th Amendment. The Roe opinion placed bounds on a state’s interest that were loosened during the term of pregnancy:

“In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.”

At that time, a fetus was not viable until the 26th week, the end of the second trimester. Medical knowledge and technical development have lowered the threshold of fetal viability to 23 or 24 weeks in developed countries.

In the 2022 Dobbs v Jackson opinion, the court’s majority overturned the precedent established in Roe and a subsequent case called Planned Parenthood v. Casey.  In Dobbs, the majority found that the only implicit rights – not those expressly stated in the Constitution – that any American has are those “rooted in the Nation’s history and tradition”  and necessary to the “concept of ordered liberty” (text of majority opinion here and see notes below on ordered liberty). The phrase is copied from a 1997 Supreme Court decision asserting that the 14th Amendment did not imply a right to assisted suicide. The circumstances and principles of a person nearing death and living outside a womb bear little resemblance to those of an embryo totally dependent on its mother for its life functions. The balancing test in the court’s Roe decision recognized a state interest in preserving life but imposed bounds on that state interest. In her dissent, Justice Elena Kagan wrote, “Today, the Court discards that balance.” In doing so, the Dobbs opinion discarded the bounds on the power of the state established in Roe.

In the 165 years since the Civil War, the Constitution was reconstructed by the 14th, 15th, 17th, 19th, 24th and 26th Amendments, expanding the democratic franchise from a select few males to most adults. Are women to be governed by laws specific to them in which they had no voice or representation?

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Photo by Alexander Grey on Unsplash

Keywords: abortion, ensoulment, soul, viability, quickening

Ordered liberty is a theme of the conservative 18th century British politician Edmund Burke. In an age when only a small portion of the population could read, a select elite did the ordering of the liberties of the rest of the citizens.