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What (and When) Is a Person?

Friday, January 15th, 2010

The U.S. Supreme Court in 1973

The U.S. Supreme Court in 1973

Patricia Blair is pro-choice.

She didn’t put it exactly that way. Until recently, when she thought about abortion at all, it was not as a political issue, but as it related to her, and she couldn’t imagine ever wanting one.

“I wanted babies,” she said.

Now, though, she’s aware that “some women might need an abortion,” and thinks they should have the right to make the decision, “as a matter of womens rights,” which sums up the pro-choice position rather succinctly.

It’s somewhat ironic, then, that the 38-year-old Pownal mother of three, may have propelled Vermont into a debate about abortion, even as she and the two legislators who responded to her plea insist that what they’re doing has nothing to do with abortion.

More ironic because the lawmakers – Bennington Democratic Sen. Richard Sears, and Newport Republican Sen. Vincent Illuzzi – also favor abortion rights, a stance that has not stopped them from sponsoring bills that trouble the state’s pro-choice campaigners while offering the minority but dedicated anti-abortion faction in the state a rare opportunity to score points.

Segueing, as they say in the TV world, to yet another irony: the political consequences of this impending dispute might be just what the anti-abortion forces do not want.

Assuming, that is, that there are any political or legislative consequences at all. There’s a good chance that neither bill will get out of committee, that the issue will be overwhelmed by the state’s budget battles and other more urgent matters such as the relicensing of Vermont Yankee.

For one thing, the proposed legislation is not likely to have much if any impact on the real world. Both bills are statements of philosophy as much as likely remedies to actual problems. That makes them no less interesting, and perhaps more contentious. Abstract arguments can be fierce, even when, as in this case, all sides agree that last August 10, something terrible happened to Pat Blair.

That was the day of her auto accident on Route 7, an accident caused, according to authorities, by the driver of another car, a young woman from Pownal who was allegedly driving while impaired by taking prescription drugs. Blair was injured. Her husband was more seriously hurt, remains confined, and is unable to work.

But that was not the worst consequence. Blair was pregnant with twins. They were killed in the accident. To Blair, she did not lose two fetuses, but two babies. She wants them remembered that way, and she wants other pregnant women protected from similar losses in the future.

Context matters here. Not long ago, the Blairs lost a daughter who was born with umbilical cord prolapse, a rare but often fatal childbirth emergency.

“But that was from natural causes,” she said. “This time, someone else’s choice caused their death. I don’t see why Vermont can’t hold her accountable.”

It’s close to impossible not to understand Blair’s anguish, and to want to help her overcome it. On the other hand, a state does not typically pass legislation to assuage the feelings of one of its citizens, which is pretty much all these two bills would accomplish.

The Sears bill (S-273) ”proposes to enhance the penalty for assault of a pregnant woman” if she is attacked or the victim of grossly “negligent operation of a motor vehicle, or operating a vehicle under the influence of alcohol or drugs.”

As deterrence goes, this isn’t much. How many impaired people are going to decide that they’d better not get behind the wheel of a car because they might cause an accident involving a pregnant woman? Besides, it doesn’t satisfy Blair; it doesn’t mention the fetus, only the pregnant woman.

Blair prefers Illuzzi’s bill (S-175) which specifically “proposes to establish that a fetus be treated as a victim under state homicide law.” This could have some practical effect. If, for instance, a pregnant woman survived a physical attack but her fetus did not, the assailant in this case could be imprisoned for life, as if he had killed a born person.

To say the least, this is a rare circumstance. Usually, such a vicious attack on a pregnant woman ends up with her death, also, and her killer is sentenced to life in prison, or even execution. That’s what happened, for instance, to Scott Peterson, the Californian convicted of the 2002 murder of his wife and unborn child. He’s appealing his death sentence, which almost surely would have been imposed had his wife not been pregnant.

California is one of 37 states whose laws do recognize a fetus as a separate entity, effectively as a person. Like Vermont, California is a state with a strong pro-choice majority, lending some support to Blair’s claim that “fetal homicide laws can coexist with abortion rights.”

But Jill Krowinski, the communications director of Planned Parenthood of Northern New England, said there were potential dangers to women in legally recognizing the personhood of the fetus.

It’s the wrong approach,” she said. “It would separate the pregnant woman from her fetus in eyes of law. That could be the first step in threatening a woman’s right to control her own pregnancy.”

The first part of that statement is exactly what Blair wants to accomplish. Both are what the anti-abortion movement wants to accomplish, which helps explain why the Vermont Right to Life organization is supporting her, even tough she does not advocate their cause and says she “hasn’t had a whole lot of connection with them.”

Here’s where the political irony comes in. If the Legislature debates either of these bills, it will raise the saliency of the abortion issue, a development which might hurt Brian Dubie, the likely Republican candidate for governor, and an opponent of legal abortions.

Were politics entirely rational, this would make no difference. A woman’s right to choose an abortion is protected by the U.S. Constitution, as interpreted by the Supreme Court in the famous Roe v Wade decision of 1973. That decision is safe with the current Supreme Court, or any Court changes while Barack Obama is president, which will be at least to the end of the first term of whoever is elected governor this year.

But politics is not entirely rational, and just to complicate matters further, Alan Gilbert of the Vermont chapter of the American Civil Liberties Committee points out that Vermont’s old abortion ban remains on the books. It’s 13 V.S.A. § 101, and should Roe ever be reversed, it would have to be repealed or abortions would be illegal here.

A repeal that would be more difficult with an abortion foe in the Second Floor Corner Office in Montpelier.

An unlikely scenario, perhaps, but that doesn’t rob it of all political oomph.

Gilbert brought up another point. In 1991, he wrote in a letter to Sears, the Legislature amended the law (23 VSA 1091) to deal more harshly with grossly negligent drivers who cause death or injury to a fetus. The law he said, had the effect of broadening the (negligent motor vehicle operation) offense to cover pregnancies terminated by injury, because the mother is almost always the victim of serious bodily injury in such a crash.”

Gilbert said he through the driver who allegedly caused Blair’s accident could receive up to 45 years in prison, a sentence he called “quite punitive.”

So Vermont law already (if perhaps implicitly) recognizes the fetus. Not as a person, exactly, but as something to be protected.

VEGI Burgher

Wednesday, January 13th, 2010

This afternoon, a joint Executive-Legislative “Emergency Board” will be asked to consider whether to authorize spending another $15 million from the state’s General Fund.

That’s the largest of the several state funds that together face a $150 million deficit for the coming fiscal year (FY 2011, starting July 1), or $112 million if the state can really save $38 million via the government streamlining plan introduced with great fanfare last week.

Yes, that’s the same deficit that Gov. Jim Douglas says must be eliminated by spending less. The Democratic leaders of the legislature agree with the Republican governor here, but he’s the more resolute budget-cutter. When the Democrats said last week they hoped to “do more with less,” Douglas at one point interjected that he wanted the state government to do “less with less.”

So who wants to spend an additional 15 million smackeroos?

Yup, Mr. Budget-Cutter the Governor himself.

Meaning that the deficit would rise to $165 million (or $127 million if the state can….see above)?

Not a bit, says the Douglas Administration.

It should reduce the deficit if the jobs are created, and that means an increase in income and payroll taxes, sales and use taxes, transportation taxes and fees, (all of which) results in more net revenue,” said David Mace, the Director of Communications of the Vermont Agency of Commerce & Community Development.

A plausible if debatable assertion, which will be considered in some detail below. Meanwhile, what is definite and not debatable is that if the Emergency Board (the Governor himself plus four legislators) does what Douglas asks, the State Treasury will pay up to $15 million to a bunch of companies which promise to expand their work force, or to move into the state from elsewhere, thereby employing more Vermonters, thereby culminating in the happy state of affairs described in the previous paragraph.

There’s nothing new about this. In one way or another, the state’s been doing it for years. It is now doing it through something known as VEGI, which even though it is pronounced (and sometimes spelled) “Veggie,” is not a pseudo-burger, but the acronym for the Vermont Economic Growth Incentive Program, which is in turn part of VEPC, the Vermont Economic Progress Council, which in turn is part of the Agency of Commerce and Community Development.

The Emergency Board meeting has been called because VEGI approved applications totaling $4.5 million late last year, but the “economic activity,” as Mace put it, by the subsidized companies didn’t begin until this year. So that $4.5 million counts against VEGI’s 2010 annual cap of $10 million.

But now VEGI has applications from four companies totaling $16 million. If they are all approved, the total will exceed the cap. So Douglas wants the Emergency Board to lift the cap from $10 million to $25 million. (And, later, he wants the Legislature to abolish the cap entirely)

And who are these four companies?

That’s a secret. The information is not being divulged, said Mace, citing an exemption to the State’s Open Records Law (From the statute establishing VEGI itself, he said. Title 2, Subtitle 2, Part 3, Chapter 151, Subchapter 11E, § 5930a (h)).

Even the legislators on the Emergency Board don’t know. One of them, Rep. Martha Heath, the Westford Democrat who chairs the House Appropriations Committee, said she understood that two of them were Vermont companies, two firms thinking of moving some or all of their operations into the state.

Heath said she thought the Board would put off its decision, recessing until a later date (but before January 28, when the VEGI board has to decide on the applications), “so we have time to get some information,” including “what (raising the cap) would do to revenues. We need to take a good look at it, and not take a chance about increasing the deficit.”

At this point, she said, she and the other lawmakers on the Emergency Board (the chairs of the four money committees, all Democrats) are not challenging the whole concept of pursuing “economic development” by offering subsidies to companies that agree to move in or expand. But she acknowledged that some in the Legislature have those questions.

As do many outside the Legislature, and outside Vermont. Paul O’Neill, President George W. Bush’s first Treasury Secretary, said that when he was head of ALCOA he never made a plant siting decision based on a state or local tax subsidy. He took the money, he said, because if someone is going to give you money, you take it. But he decided where to do business based on the quality of the work force, proximity to material and markets, and other traditional business considerations.

Not that VEGI and similar programs simply throw money willy-nilly at businesses which say they’re thinking of moving into the state or hiring more workers. On the contrary, VEGI has an elaborate set procedure that requires applicants to submit a great deal of statistical evidence to support their contention that they will add jobs. If they don’t, they don’t keep getting the money (these are usually multi-year obligations) or may even have to give some back.

According to a study by the Federal Reserve Bank of Boston, “to approve a firm’s application, the state must determine that the firm’s project (a) would not have occurred without the incentive (the but-for”test) [that means ‘but for’ the subsidy, the business would not expand or move]; (b) will provide a net fiscal benefit to the state…and (c) will meet “quality-control” guidelines, such as minimum compensation requirements for new jobs.”

The experts make that determination, Mace said, based on “an economic model.”

Very professional. But this model, Mace said, is the “proprietary,” property of a consulting firm called the Remi Company, apparently meaning that it isn’t reviewable by citizens, lawmakers, or state economists.

Besides, economic models are…well, models, useful, but not always precise. In this case, some of their findings have to be based on information that is not just subjective, but hypothetical. That whole “but-for” business, for instance, rests in part on the assertion of a business official that his or her company will act differently with the subsidy than without it.

Even pro-business state Auditor Tom Salmon, in a report about VEGI, noted that that “a critical decision to award incentives is difficult to audit,” and that “the awards are not based on a company’s financial need and…companies are not required to furnish financial statements, business plans or tax returns with applications.”

That report by the Boston Fed found that in VEGI’s first year, “the state authorized $9.7 million…and projected that the recipient companies would create 1,310 new jobs from 2007 to 2012. This implies an average gross cost of around $7,400 per job.”

If those jobs paid about $50,000, the worker wouldn’t pay more than about $1,500 in state income taxes (assuming he/she was married with children, a homeowner itemizing deductions). That worker would have to buy a lot, stay in a lot of hotels, eat lots of restaurant meals and drive many miles to pay another $6,000 or so in state taxes.

Martha Heath said state officials were not claiming the subsidies would pay for themselves in one year, but in nine.

Maybe they will. But how would anyone ever know?

Clarification, Elaboration, Notoriety

Monday, January 11th, 2010

Like a person, a web site must take a day every now and then to establish its procedures, clarify some confusions, and take note of new information which might confirm (or refute) earlier statements.

This is one of those days.

Last week the News Guy gratefully received a generous donation from an out-of-state political advocacy organization.

And reluctantly returned it.

The alternative was to keep it, but then, when dealing with the subject of this particular group’s interest, insert a parenthetical, “full disclosure” statement.

Nah! That’s no good, and not only because it’s awkward. You either take the money or you don’t.

The News Guy does not. At least not from: elected officials; senior appointed officials (as in, direct appointees of the governor); anyone running for office now (donations from former candidates gladly accepted, even those pondering another run sometimes in the future); political parties; interest groups.

As for individuals who work for political parties and interest groups, let’s use common sense. On the one hand, the News Guy is not about to research every contributor to see where he or she is employed. But then, he doesn’t have to do that with the chairs of Vermont’s three political parties. They should not donate.

If you do not fall into one of those categories, however, and have not sent a donation, you are encouraged to do so. Simply look under “Pages” (in the top right quarter of the page), click “donate,” and contribute as little (or, better yet, as much) as you wish. More revenue does not enrich the News Guy as much as it makes it possible to cover more stories, better.

If and when the site seeks advertisements, ads from any legal entity will be accepted: candidates, causes, defense contractors, tobacco companies, subversive organizations, escaped convicts. Whatever.

Two big differences between donations and advertisements. First, the ads are out there in plain site for all the world to see. Second, the revenue from each one is infinitesimal. In fact, the revenue is zero unless someone clicks on the ad. In that case the revenue is pennies. The News Guy can be bought, because anyone can be bought. But not for pennies.

Similarly, though it doesn’t really do any harm, all Facebook “Friends” (the quotation marks are needed because most of these “friends” remain complete strangers) might save their energies by not inviting the News Guy to be a “fan” or otherwise support (or attend the event of) a political cause, or for that matter a commercial enterprise.

Reporters are not fans, at least not of anything but sports teams, musicians, and actors. Yes, technically, the Facebook page under discussion here is personal, but it is effectively the News Guy web site’s page. As such, there is no point in urging him to become a friend of any business, or a fan of “Let’s Close Vermont Yankee,” VPIRG, the Champlain Housing Trust, “Fight Animal Cruelty.” Or Radio Free Vermont.

Since the December 28 post, “Population Balm” two pieces of information have generally confirmed the point of that post that Vermont’s stable population is a result of who Vermonters are rather than what they, or their state government, does.

One was a new Census Bureau report showing that Vermont was one of several states in which there were fewer young people (under 18) last year than in 2000.

Then there was a report by the Southern Education Fund revealing that a majority of students in public schools in the Southern states were both low-income and minority.

Not, the report said, because of the “white flight” of earlier decades, or because so many whites go to private schools; the South has the smallest percentage of private school students in the country. Instead, black, Hispanic, American Indian and others now comprise more than 50 percent of the Southern public school students partly because of increased Hispanic immigration. But also, according to the report, “Higher rates of birth among the South’s Hispanic and African American populations in recent years explain a significant part of the increase in school enrollment.”

The report does not quite say that whites, and especially affluent, educated, whites, are simply not having as many children as other groups, or as many as they used to. But it suggests that conclusion, which is also found worldwide in other population statistics.

It is one reason Vermont’s under-18 population has declined by 14 percent, faster than any other state’s, though the decline in Maine, Michigan, and North Dakota was also ten percent or higher.

Michigan, which is losing total population, is a special case these days because of the decline of the auto industry. Maine is almost as white as Vermont, but North Dakota is not, and neither is as affluent nor as well-educated.

Whether the drop in the under-18 population is a problem or an opportunity, it is undoubtedly a factor. It’s happening, and therefore should be discussed in connection with whether state policy can, or should, try to: (a) reverse: or (b) encourage and exploit the trend.

And finally today, reluctant though the News Guy is to pick on the poor, pitiful, Burlington Free Press yet again, a blunder in Saturday’s paper can not go unremarked. In a straightforward story with no byline, the Freeps informed us all that the speaker at Burlington’s annual Martin Luther King, Jr. remembrance next Sunday would be law Professor Anita Hill, who “earned notoriety during the 1991 confirmation hearings of Supreme Court Justice Clarence Thomas.”

Not exactly wrong. At the time, Hill earned notoriety – that is: infamy, dishonor, ill repute – because at the time most people didn’t believe her allegations of misconduct against Thomas. Later, thanks to new information that backed up her contentions, public opinion turned more in her favor.

But the point here is not to relive the squabbles of 1991. The problem is that like many people these days, the writers and editors at the Free Press seem to think that “notoriety” means “fame.”

Minimally defensible. “Known widely” is the start of the Dictionary definition of “notorious,” but the words immediately following are “and usually unfavorably.”

A great language, English, because it allows nuance and precision. One of the great examples is the distinction among “fame,” “celebrity,” and “notoriety.” Newspapers oughtn’t muck them up.