I’ve got to get around to revising my Definitions page. One change I need to make is from George Washington’s “Government is force” to Isabel Paterson’s “Force is what is governed,” quoted in my last post. Another is to subtract my assertion that “ruling is itself intrinsically criminal, and is the essence of the State.” We are each of us necessarily rulers. We are not only the judges but the authors of the law. But this does not imply a subjective chaos:

The great experience of the forest consists of the encounter with the Ego, with the self, with the inviolate core and essence that sustains the temporal and individual appearance. This encounter, so decisive for the conquest of health and for the victory over fear, is also supreme in its moral value. It leads to the primal basis of all social intercourse, to the man whose example defines individuality. In this sphere we will encounter not only community but also identity. This is the symbolic meaning of the embrace: the Ego recognizes itself in the other human being in the saying, ”This is you.” The other can be the beloved, the sufferer, or the helpless victim. In giving help, the Ego helps its own immortal essence and confirms the basic ethical order of the universe.

That leaves as the essence of the State lies and theft.

Here is proof.

The heart of the case, as I saw it, was this: the abortion industry’s widely promulgated claim that abortion is “ten times safer than childbirth” is proved false and misleading by the generally accepted and established scientific fact that childbirth reduces the risk of breast cancer.

The victorious abortion industry also asked for attorney fees in a similar case I lost as lead counsel, but there the trial judge at least had the decency to deny their request, finding that “[t]he Plaintiff’s case, in the Court’s opinion, was obviously not a false and frivolous pleading. And they presented their case well and documented it as they deemed appropriate and so I find no frivolity there.” Indeed, the judge, in denying the Defendant abortion clinic’s motion for judgment as a matter of law at the close of the Plaintiff’s case in chief, had found that “the Plaintiff has submitted substantial evidence on each and every element necessary for its case.”

The heart of that case was this: the “substantial evidence” the trial judge acknowledged the Plaintiff had “documented” proved that the Defendant’s claim in its commercial brochures that “[t]here is no evidence” of a causal relationship between breast cancer and abortion was not just false and misleading but patently absurd.

So the law prof says to me: “You married?” “No.” “You got any kids?” “No.” “You might want to grab this thing by the tail and see where it takes you.” To the extent the prof’s words evoked the end of Moby Dick, they proved prophetic. My mind and my budding legal career were both boggled by the response of the legal system to this “cause of action,” and have remained boggled ever since.

Looking back, part of me fervently wishes I’d never stumbled on this issue. Part of me, especially in light of my present interests, wishes I’d sought a job as a public defender right out of law school instead of grabbing that tail. Normally being a published author on law review is expected to open doors, but in my case it’s shut them.

Perhaps I can’t blame only fate for my predicament. I’ve also struggled with a lifelong internal resistance to doing things I’m not passionate about, to earning a buck for the sake of a buck (even if that buck is necessary to the noble endeavor of keeping body and soul together), otherwise known as laziness. Or is that fate too?

And these days I again find myself, almost by compulsion, espousing what seems clear as day to me and yet is anathema to those around me, what marks me in the eyes of others as insane.

Part of me regrets grabbing that giant fish by the tail, but the better part of me doesn’t. Still, it’s awfully cold and lonely down here at the bottom of the sea.

Gene Callahan, who in the words of a critic is “apparently a former libertarian turned communitarian,” in a comment on Roderick’s post answers the cartoon’s question thusly: “Then some murder would be easier, and some murder harder.”

Roderick replies to Gene: “Killing a mindless collection of cells isn’t murder. And killing a person in self-defense isn’t murder.”

I replied to Roderick:

A one-day old baby is pretty mindless too, and it is not viable independently of external care and support, but killing it would be immoral. “Self-defense” against a child in the womb would apply only in cases of rape, where the mother isn’t responsible for the presence of the child within her body. A woman who engages in consensual sex and becomes pregnant is responsible for the presence of the child within her body, even if she uses birth control and the birth control fails. But since it would be unjust to prohibit abortion in cases of rape, and since rape is often very difficult to prove, and we don’t want to create a powerful motivation for false allegations of rape or force women who have been raped to make that allegation to “authorities,” for pragmatic reasons this necessary exception should be allowed to swallow and preempt any rule prohibiting abortion during the first trimester. And this rationale for not criminalizing abortion but limiting it to the first trimester (a woman who has been raped can be presumed to know that she was raped and to discover her pregnancy and to make a decision about whether to have an abortion within 12 weeks after the rape) rests on far more principled grounds than the currently extant “viability” rationale, which is a completely arbitrary line.

I outlined the above position at more length in an old post on this blog titled “Does the killer of Tiller the killer deserve to be killed?”.

Yesterday a federal district court issued a ruling granting in part and denying in part Planned Parenthood of Indiana’s motion for a preliminary injunction enjoining certain provisions of a new law enacted by the Indiana legislature:

U.S. District Judge Tanya Walton Pratt’s ruling Friday blocked parts of a tough new abortion law and granted Planned Parenthood of Indiana’s request for an injunction on the state’s move to defund the organization. The decision sides with federal officials who said states cannot restrict Medicaid recipients’ freedom to choose their health care provider or disqualify Medicaid providers merely because they also offer abortions.

. . .

Pratt’s ruling also addressed other provisions in Indiana’s law that require doctors to tell women seeking abortions that a fetus can feel pain at or before 20 weeks gestation and that “human physical life” begins at conception.

The judge found that because Planned Parenthood only provides first-trimester abortions, requiring its doctors to address fetal pain at or before 20 weeks gestation may be “false, misleading and irrelevant.” She issued a preliminary injunction on that part of the law as applied to Planned Parenthood only.

However, Pratt denied Planned Parenthood’s request to block the measure requiring doctors to tell women seeking abortions that “human physical life begins when a human ovum is fertilized by a human sperm.”

“The inclusion of the biology-based word ‘physical’ is significant, narrowing this statement to biological characteristics,” she wrote in her ruling. “When the statement is read as a whole, it does not require a physician to address whether the embryo or fetus is a ‘human life’ in the metaphysical sense.”

As much as I despise Planned Parenthood as an archly-hypocritical enemy of choice, I think that Judge Pratt in her ruling pretty much gets it right. If anything, I think that the provision of the new law requiring abortion providers to tell women seeking abortions that “human physical life begins when a human ovum is fertilized by a human sperm” is pretty sketchy from the standpoint of the First Amendment (even though I believe it is a scientific fact that life begins at conception), and that Judge Pratt might be justified in ultimately enjoining this provision too.

On the “defunding” issue, I concur with Wendy McElroy:

The consistent anti-abortionist must grant the same right of conscience in tax matters to others as he claims for himself. Otherwise, he is not arguing for conscience but for a special interest: his own. Indeed, the abortion objector is not arguing for rights at all. By their very nature, rights are universal; they apply to all people or to none. Unless the right of conscience in taxation is applied universally, the anti-abortionist is demanding a privilege. For most anti-abortionists, it is not even a privilege they are willing to extend to their anti-war counterparts who reject “the military tax.”

A universal right of conscience would revolutionize taxation by making payments virtually voluntary. It would immediately and radically limit the spending and size of government at all levels. Government would be forced to offer only the services that the public values. Now, that would be a glorious thing to see.

As far as I’m concerned, the “pro-life” Republicans in the Indiana legislature who passed this law and their “pro-life” cheerleaders are getting just what they deserve, for cravenly or cynically removing from the law the one provision in the original bill (after it had been passed by both houses of the legislature) that might have actually saved the lives of both mothers and babies: the provision that would have required abortion providers to inform women considering abortion about the scientific evidence linking induced abortion with increased breast cancer risk.

Just look at why the “fetal pain” provision got preliminarily enjoined:

The Commissioner presents evidence in the form of articles, affidavits, declarations, and reports relating to the present research and growing science of fetal pain perception. The Commissioner principally argues that in order to be “objective scientific information” as defined by the statute and therefore truthful and non-misleading, the statement need not be the ‘majority’ view within the scientific community. Instead, it need only be reasonably derived or supported by research in compliance with scientific methods. Gonzales v. Carhart, 550 U.S. 124, 129 (2007) (“Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”).

Although this argument has merit, the Court has been given no evidence to support the finding that within the scientific community even a minority view exists that contends pain perception is possible during the first trimester of pregnancy – the time during which PPIN exclusively performs its abortion services. The Commissioner’s evidence posits only preliminary evidence that may support the inference that pain is felt by a fetus at as early as sixteen (16) weeks postfertilization.

By contrast, the scientific evidence linking induced abortion with increased breast cancer risk would have easily survived such scrutiny.

An Indiana Senate panel voted today to eliminate a provision in a pending abortion bill that would require women seeking abortions be told the procedure is linked to breast cancer.

. . .

The Senate Health and Provider Services Committee approved the bill 6-2 with an amendment by Sen. Pat Miller, R-Indianapolis, that eliminated that language.

“We listened to what some physicians has said about the breast cancer issue and decided it would be best to take that out,” said Miller, a co-sponsor of the bill.

And from the Associated Press:

Committee members on Wednesday removed from the bill a requirement that women be told in writing they face greater risks of breast cancer if they undergo an abortion, but kept the requirement that warnings be given of increased infertility chances.

Abortion rights supporters argued that such warnings could force doctors to provide medically inaccurate information.

Committee Chairwoman Patricia Miller, R-Indianapolis, said she decided to delete the breast cancer warning mandate after talking with experts about possible links to abortion.

“That is a conflicted issue,” she said.

The bill also compels abortion providers to tell women that human life begins when the egg is fertilized and that a fetus might feel pain at or before 20 weeks.

So, let’s get this straight: Patricia Miller, R-Indianapolis, sponsored the original bill that included the breast cancer language and that she and her fellow state senators passed in February by a vote of 39-9. Then their fellow Republicans in the House passed a similar bill with identical breast cancer language by a vote of 72-23. And only now are they getting around to “talking with experts” about whether that language is supported by the scientific evidence, and only now is it dawning on them that this is a “conflicted issue”??

They are either the ignorant Midwestern rubes their pro-abortion critics across the country have said they are, or something far worse.

The scientific evidence linking abortion with increased breast cancer risk is out there for all the world to see. The so-called “pro-life” movement knows about it. The so-called “pro-choice” movement knows about it. The so-called “breast cancer awareness” movement knows about it. I’ve washed my hands of it.

But if you’ve had an abortion and weren’t told it would increase your risk of breast cancer and want to sue some lying bastards for medical malpractice, give me a call.

So, where do I stand today? I still consider myself a Quaker, being particularly drawn to its testimony against war, its non-dogmatic “theology,” and its history of civil disobedience, while being much more ambivalent towards its professed across-the-board pacifism (which I regard as inconsistent with its support of the state’s right to prevent and punish crime) and the big-D Democratic liberalism endemic in its modern-day membership. I will never describe myself as “pro-choice,” because I believe that the decision to have an abortion is almost always a bad choice and preceded by bad choices, and it makes no sense to describe oneself as being in favor of bad choices. Nevertheless, I think the decision to punish with the criminal law a woman who procures an abortion (at least before the point at which the unborn child could feel pain) would also be a bad choice (largely because the law could not justly prohibit abortion in cases of rape, and practical considerations would argue in favor of allowing this necessary exception to swallow any rule outlawing abortion). I remain a convinced anarchist, but see no inconsistency between this conviction and my approval of the recent Indiana legislation requiring abortion providers to inform women considering abortion of the abortion-breast cancer link. Anarchism principally means to me that an unjust “law” (such as the laws by which the State funds itself and its friends through coercive taxation) is no law at all — and is in fact itself a crime. This particular legislation is eminently just, especially in light of the fact that the federal government through the National Cancer Institute is directly and primarily responsible for actively misleading women about the abortion-breast cancer link.

Last Friday Congress narrowly averted a “government shutdown.” That’s too bad. Supposedly, the big hang-up in budget negotiations was the Republicans’ objection, spearheaded by Hoosier Tea Partier Mike Spence, to continued taxpayer funding of Planned Parenthood. Whether this objection was sincere or just a bargaining chip for what the Republicans really wanted, they ultimately caved, in the shameful style that characterizes politicians. Planned Parenthood’s big talking point was that, even though it is the nation’s largest provider of abortions and gets one-third of its entire budget from taxpayer funding, taxpayer funding isn’t used to pay for all those abortions but rather for all of the other wonderful things Planned Parenthood does, like provide breast cancer screening to women who otherwise couldn’t afford it (including, presumably, many women whose risk of breast cancer has been increased by abortions Planned Parenthood has provided without informed consent).

Even taking Planned Parenthood’s talking point at face value, and setting aside the question of whether the federal government should even be in the business of health care (it shouldn’t), my observation is this: Planned Parenthood doesn’t “provide” all these wonderful non-abortive health care services. Taxpayers do. Whatever genuine health care services Planned Parenthood might now provide using taxpayer funds could be provided by other organizations that aren’t objectionable to large numbers of taxpayers, leaving Planned Parenthood to do — with private funding — what it was born to do and does best. But I bet the good will and respectability Planned Parenthood enjoys among women by being the conduit of these taxpayer funded health care services does wonders for its lucrative abortion business. And I suspect that’s the point.

The Indiana House recently passed legislation that would require women considering abortion to be informed of “the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer.”

The legislative language quoted is accurate and objective. The “protective effect of a completed pregnancy” is generally undisputed in the scientific community, as is the fact that a woman who has an abortion loses this protective effect and thereby increases her risk of breast cancer relative to what it would have been had she completed the pregnancy.

The substantial body of scientific evidence linking abortion with an increase in risk over and above the loss of this protective effect is much more controverted and politicized, which is presumably why the legislation describes this additional increased risk as a “possibility.”

Nevertheless, abortion providers have a legal duty to inform women considering abortion about this possibility and the undisputed “protective effect of a completed pregnancy.” By failing to do so they are subject to liability for medical malpractice.

According to the National Cancer Institute, “[t]he older a woman is when she has her first child, the greater her chance of breast cancer,” and “[w]omen who never had children are at an increased risk of breast cancer.” And according to Wikipedia:

Lower age of first childbirth, compared to the average age of 24,^[32] having more children (about 7% lowered risk per child), and breastfeeding (4.3% per breastfeeding year, with an average relative risk around 0.7^[33][34]) have all been correlated to lowered breast cancer risk in large studies.^[35] Women who give birth and breast-feed by the age of 20 may have even greater protection.^[36] In contrast, for instance, having the first live birth after age 30 doubles the risk compared to having first live birth at age less than 25. Never having children triples the risk.^[37]

This “protective effect of a completed pregnancy” occurs only after about 32 weeks gestation, and is abrogated by an induced abortion. (Follow the link for a comprehensive review of the biological and epidemiological evidence, as well as the sordid political history, of the abortion – breast cancer connection.)

In selecting the title of this post I had particularly in mind the pro bono public interest litigation in North Dakota mentioned in my last post, the challenge I posed to abortion providers in this response to a comment on that post, and the following comment on my letter to the editor of the Indianapolis Star:

As a healthcare professional I am disgusted by the threat of an ambulance chaser (John A. Kindley) that I will be sued for malpractice if I refuse to give erroneous medical information to a patient. There is absolutely NO CREDIBLE DATA OR STUDIES to link abortion with breast cancer. You want legislation to limit abortion to less than 20 weeks? Ok, I can support that. But asking me to lie to a patient, NO!! And as a woman I have to say that if you have a penis you have absolutely no right whatsoever to even be in this debate! Have you ever been pregnant? Have you ever given birth? You have no concept at all of what you are attempting to speak about so please refrain from doing so.

The language from the bill quoted above is more than accurate: a “possibility of increased risk” is strictly and practically speaking not a “possibility of increased risk” but an increased risk. And the increased risk of breast cancer following an induced abortion is supported by an overwhelming preponderance of the scientific evidence. See, e.g., my student comment published in the Wisconsin Law Review in 1999, the briefs I submitted to the North Dakota Supreme Court in the case of Kjolsrud v. MKB Management dba Red River Women’s Clinic (including extensive citations to the trial transcripts of my cross-examination of the defendant’s expert witnesses), and the website of the Breast Cancer Prevention Institute (whose board of directors includes Joel Brind, who was my expert witness at trial in the Red River Women’s Clinic case).

It’s difficult for me to read all of the ignorant and deceptive commentary on the passing of this bill (after the Indiana Senate passed a similar bill in February) — such as this editorial in the Fort Wayne Journal Gazette, titled “Deceit doesn’t protect life” (H/T The Indiana Law Blog) — without having flashbacks to the maddening years in law school and immediately thereafter that I spent immersed in the scientific evidence linking induced abortion with increased breast cancer risk. All of this ignorant and deceptive commentary is made possible by the government-salaried hypocritical liars at the National Cancer Institute, which is cited by the ignorant — including the author of the above-linked editorial — as the final authority on the matter. My realization of the magnitude of the lies being actively told about the abortion-breast cancer link by this “trusted” federal government agency — one of which was central to the Red River Women’s Clinic case — coupled with the North Dakota Supreme Court’s disposition disposal of the Red River Women’s Clinic case and the longstanding failure of state and federal government in general to correct these lies, was in retrospect the impetus behind my gradual arrival at first libertarianism and then philosophical anarchism.

So, Indiana Republicans: I don’t have much to thank you for, but I thank you for your courage in standing tall, in the face of the ignoramuses who would portray you as anti-science rubes, to ensure that women considering abortion in Indiana will finally be told the truth about the evidence linking induced abortion with increased breast cancer risk.

My old law prof Ann Althouse links to an account of the Indiana House debate on the bill which exemplifies the hysterical and irrational opposition the bill’s proponents had to contend with. Along with the informed consent requirements, the bill also prevents insurance companies from providing abortion coverage under the new federal health care bill. The bill’s sponsor (Eric Turner) opposed a proposed amendment exempting women who became pregnant due to rape or incest on the grounds that such an exception would create a “giant loophole,” since “someone who is desirous of an abortion could simply say that they’ve been raped or there’s incest.”

Outraged by Turner’s allegation, state Rep. Linda Lawson (D) — who spent six years as a sex crimes investigator for the Indiana police — delivered an emotional rebuke. Describing her experience with both elderly and young children who had been raped, she forcefully informed Turner that “they don’t make it up.” “Women don’t make this up! My Goodness!” she exclaimed. “This is the state of Indiana!”

I beg to differ, Rep. Linda Lawson (D).