Shouting Fire in a Crowded Day-Care Center

The decision with whom one should leave one's child is among the most serious a parent must make. As Virginia Postrel aptly notes in "Who's Behind the Child Care Crisis?" (June), this decision is only made more difficult by the presence of government bureaucrats who are convinced that they are wiser and more caring than parents.

Last year I was asked to serve on a state task force on occupancy standards for day-care homes. Of 22 members, I was the only representative of parents (what was labeled "consumers"). The majority were government bureaucrats. The task force focused on safety issues, particularly fire danger.

The number of children killed or injured by fire in day-care homes in Minnesota: zero. The solution: force day-care providers to install hard-wired smoke detectors, insist on mandatory fire drills as part of licensing, give more power to inspectors to enforce "safety" requirements, require two hours of fire safety education for providers, grant more funds and staff to the state marshal and the Department of Human Services, and award state grants to day-care provider organizations. The likely effect: day-care providers will go out of business or will elect to be unlicensed, parents will have to pay more for day care, and the number of children killed or injured in fires in licensed day care will still be zero.

When asked why not give parents the information so that they can make their own choices, one bureaucrat candidly replied, "In my experience, parents just can't be trusted to make the right decisions."

Gary Alan Fine
Minneapolis, MN

Tax That Gas!

Robert Poole ("Everybody's Favorite Tax," Editorials, April) makes the startling statement "that using gasoline tax monies to bail out the government would demolish the user-pays principle that has long been part and parcel of gasoline taxes in this country."

Most of the cost of city and county services to motoring and trucking—police and fire protection, traffic engineering, traffic signals, road repair and maintenance, etc.—is paid for by the property taxpayer. This arrangement saves motorists and truckers the equivalent of an additional fuel tax of 50 cents per gallon. In addition, the cost of real estate and improvements for parking and operation is only partially paid for by the user. This cost may be as much as $15–20 billion for the Los Angeles area alone. The aggregate of these subsidies to motoring and trucking may be as much as the equivalent of $3.50 per gallon.

The user-pays system has not been part and parcel of the gasoline taxation policies of this nation. The fuel tax has never been adequate to meet user-costs.

Since 1965, inflation has decreased the tax by a factor of three. While an increasingly inadequate fuel tax has been sequestered into trust funds for the construction of urban freeways, the property tax has had to be increased to fill the gap of local government automobile-related expenses. Interestingly, this explains the Proposition 13 "tax revolt" of 1978.

To complain that an increased fuel tax would discriminate against sprawled cities is similar to the plea of the murderer, who, having been convicted of murdering his parents, argues that he should be given clemency because he is now an orphan. Poole's denial that an increased fuel price would decrease demand will be passed over, mercifully, without comment. I am sure that Milton Friedman and the late Adam Smith will understand.

Stanley Hart
Chairman, Transportation Committee
Sierra Club
Los Angeles, CA

Mr. Poole replies: Contrary to Stanley Hart, I neither stated nor implied that a higher gasoline tax would not limit demand; of course it would. And I agree with Hart's complaint that the present gasoline tax is an imperfect user-pays system. Were highways operated as business ventures (as I suggested), they would have to charge enough to cover all their costs, which is presumably what Hart wants. He and the Sierra Club should therefore be working for highway privatization or at least joining the growing movement for toll roads. What is truly amazing is that an advocate of user-pays could be tricked into supporting a gasoline tax to bail out our spendthrift government, a move which would make a mockery of the user-pays principle.

Color Questions

Michael Konik's piece on the film colorization flap ("Color Me Blue," May) said exactly what has needed saying—that when you sign away the rights to your work, you sign away your rights. Simple.

But after finishing Konik's article I began to consider the legal limbo some musicians now find themselves in. Digital audio technology now permits snippets of one musician's work to be "sampled" by other musicians. No rights are signed away or consent asked. Many rap songs and dance tracks consist of sampled guitar riffs and drum licks with new lyrics layered on. These hybrids sell millions. Is this stealing?

I'm not sure, but using someone else's performance for monetary gain certainly merits a close look. If government must conduct some kind of hearing into the rights of artists, here would be a good place to start.

Jeff A. Taylor
Kingstree, SC

Michael Konik makes two technical errors that originated from a Turner press release:

1. The colorization process has nothing whatsoever to do with the preservation of films in black-and-white nor with their transfer from unstable nitrate film to safety stock. Also, colorizers do not strike new protection 35mm black-and-white prints from which to work.

Any transfer from nitrate to safety film was accomplished long ago (except in the case of some obscure "B" pictures that are not candidates for colorization anyway). Black-and-white preservation occurred when beautiful one-inch master tapes were made off of 35mm black-and-white fine-grain master positives before colorization was a factor. These same tape masters are used to make dubs that serve as a skeleton for the computer to colorize. They were the source for good black-and-white copies before these editions were withdrawn.

2. Anyone who has ever turned off the color on a TV to see the film in its original black-and-white has been sorely disappointed. The colorized images have been drastically altered in gradation, contrast, etc. To use Mr. Konik's example of Katharine Hepburn, if her hair is brunette in a motion picture and the colorizers make it blonde, turning off the color does not make the hair color revert to brunette.

Kit Parker
President, Kit Parker Films
Monterey, CA

Mr. Konik replies: The Turner company contends that colorizing movies encourages preservation (I've never seen the press release to which Parker refers, but this claim has appeared in many articles), and Parker contends that it doesn't. Let's assume Parker is right. Now we can safely call those who colorize old movies tasteless and greedy opportunists, not tasteless and greedy opportunists-preservationists. But this is not adequate reason for restrictive legislation. Having never encountered a blonde Hepburn—or for that matter, any other quasi-expressionist colorizing efforts—I've not been disappointed by the television adjustment method. But for those like Parker who are sensitive to gradation, contrast, etc., I suggest going to the video store or local revival house and watching the original.

Life and Death Debate

In condemning "pro-choice absolutists," Virginia I. Postrel ("Reconsidering Roe," Editorials, May) profoundly misses the point of the abortion debate. The main issue in dispute is not whether a fetus has a right to life; I am willing to grant Postrel's contention that after 20 weeks or so a fetus, having acquired a sufficiently developed brain to ground the rational capacities essential to being human, does become a person and so has a right to life. But this fact alone does not establish the impermissibility of abortion after 20 weeks.

A right to life is a right not to be aggressed against; it is not a right not to be killed in self-defense. A fetus is not a bystander but an aggressor (albeit involuntarily), and so its right to life does not constitute a right not to be aborted. Just as my right to free speech does not entitle me to demand the use of your property as a forum, so the fetus's right to life does not entitle it to demand the use of its mother's body as an incubator.

Roderick T. Long
Ithaca, NY

I'd like to add a few more facts to the debate that "Reconsidering Roe" will undoubtedly spark. First, any laws regulating abortion must be enforceable. Well over 15 percent of pregnancies end spontaneously almost before they've begun—before the woman knows she's pregnant. How could that zygote/fetus/baby have any rights protected short of ludicrous invasions of privacy? The law must draw its "bright line" at a point where enforcement is possible.

Second, two of the most popular methods of birth control do not always prevent conception. The pill attempts to prevent ovulation—and thus conception—and alters the lining of the uterus so that if conception occurs, the zygote cannot attach itself. The IUD does not prevent conception at all, but prevents implantation. If legal rights begin at conception, these methods of birth control must be prohibited (guaranteeing a growth industry in smuggling medical supplies).

Third, over half of induced abortions take place in the first 10 weeks of pregnancy, and fewer than 10 percent are performed after 20 weeks. Above and beyond the pregnancies that end in the first week or two, many end spontaneously after the parents-to-be have chosen names and decorated the nursery. Throughout history, these have been personal tragedies for the potential parents: is it necessary to add to their pain with legal action to assure that the fetus was not murdered?

Many, if not most, pro-choice advocates would happily accept a change in the law that defined human life—from a legal standpoint—based on brain life, so that we could move to reducing the need for abortion through better contraceptives and education. Are the anti-abortion people willing to be reasonable, too?

Lou Villadsen
Los Angeles, CA

Like most compromising positions on abortion, "Reconsidering Roe" has the defects of both sides and few of the advantages. We get the government intrusion into our lives (at our expense, of course), and we don't stop abortions.

The brain activity argument does not provide proper justification for saying A is human and B is not. We accept brain death as the proper standard for death because when brain activity ceases, it doesn't restart. If it could simply be turned on again like a light bulb, this would clearly not be a proper standard. Someday we may well be able to do that, but for the moment, it is a reasonable standard.

But the absence of brain activity in the very young fetus in no way means it will not have brain activity when older. Quite the contrary. So just as we do not deem a man in a coma no longer human, we can not call the fetus not yet human merely because of a temporary absence of brain activity.

The fertilized egg marks an event with a clear before and after. It has sharply increased chances to become something nobody would deny was human. So this remains the proper starting point for human life.

Those who value liberty need a justification showing the rights of the mother paramount. Trying to show the child is not human won't do (and is dangerous, as has been shown by other states that have taken to defining humanity narrowly).

David Carl Argali
La Puente, CA

Even assuming that a test regarding a physical level of brain development is accurate, it does not necessarily follow that it is the test for the right not to be killed. If cloning were feasible today, conception would still be the "bright line" Postrel says we should look for in abortion. Cloning wouldn't change the fact that human beings begin their lives with just one cell. Uncloned cheek cells would not be individual beings; they would be merely akin to sperm or ova. Cloning would be like conception, and cloned cells would be, like zygotes, human beings at Day One. Using Day One as the test has the virtue that it does not sever human life from human rights.

Doris Gordon
Wheaton, MD

Virginia I. Postrel is way off when she claims that "To decide whether abortion should be legal, and under what circumstances, we have to come up with a legal definition of when an individual exists and is therefore entitled to the legal protections accorded individuals in a free society. This is a legal definition—not a moral, philosophical, or religious one."

This separation of the moral/philosophical/religious from the legal is a myth. It ignores such simple facts as that the Founders learned their ideas about individual rights from philosophical reflections, from moral analysis, and even from religious ideas, discussed in the Federalist Papers and the innumerable pamphlets surrounding the Revolution and the ensuing political battles.

Ms. Postrel also fails to give any clear idea of what a "legal" definition is. In the philosophy of law and jurisprudence, when one classifies something a legal definition, one points to the fact that it has origin in nothing other than the legal processes within a community—elections, appointments to the bench, arguments based on precedent, etc. A legal definition is supposedly capable of being independent of moral/philosophical/religious convictions. But what the nature of a mature individual is, whether someone whose brain is dead is still a person, and whether a fetus of four days or three months is a human being are all philosophically pregnant issues, incapable of being resolved without recourse to something other than legal processes.

It may be that as our political system stands, abortion does not have full constitutional protection. Neither does unregulated business or sex. But there are aspects of the Constitution that could be interpreted so as to give such protection to individuals. Postrel's loyalty to positivism instead is shameful.

Tibor R. Machan
Department of Philosophy
Auburn University
Auburn, AL

Privatize abortion decisions. Virginia I. Postrel makes it sound complicated, but it's not. Roe v. Wade should be sustained.

A single ripened egg left to die in a virgin's womb is ample refutation of the right-to-life fallacy, or virginity is murder. Biological life began eons ago. There is no gap, no individual beginning. Conception is not the beginning of life. The egg and sperm were already genetically unique living human organisms before conception. Conception is no more the occasion for moral absolutism than ovulation or implantation.

The issue is equally clear legally. Postrel correctly separated life from person but did not finish separating philosophical from legal person. A legally defined person exists from a birth certificate to a death certificate. Consider the wrath of the IRS if a "preborn" dependent were claimed on a 1040. Moses did not treat the unborn as a legally defined person, either (Exodus 21:22-25).

Should government, that bumbling postmaster and disastrous drug czar, play God? For those still in doubt about abortion, that is my question. The integrity of the pregnant woman should be trusted. Let free minds in a free market decide.

Craig Dempsey
Liberty, MO

Virginia Postrel's analysis of the abortion issue was crystal-clear, and her conclusions are right-on. As she argues, the best thing would be for the Supreme Court to return the question to the state legislatures, so they can gradually develop a rational standard for when to allow abortions.

When I first surveyed this problem in REASON eight years ago ("A Calm Look at Abortion Arguments," Sept. 1981), I concluded that "brain viability" at about 28 weeks was philosophically more tenable than any other standard, including the notion of viability based on heart-lung maturity (24 weeks). But, as Postrel points out, while viability is still defined (by the American Medical Association) at about 23 to 24 weeks at the earliest, we now know that the brain's structural and functional development allows the "earliest operation of the human brain system critical to cognition and awareness" at just after 20 weeks.

This, I submit, is the best formulation yet of the quintessentially rational standard we are looking for: the beginning of the operation of the human rational faculty. When more straight-thinking people refuse to subordinate fact and reason to ideology and emotion, perhaps the legislatures will take us off the trimester system and onto the semester system.

Roger Bissell
Orange, CA

When she sets up the issue as "the right to life" and seeks criteria for humanlike life—EEGs and the like—Virginia Postrel has already chosen sides in the abortion debate, although I don't think she knows it.

This right to life, like the "right" to a job, an education, medical care, and a minimal standard of living, or the "right" to subsidies, price supports, protective regulation, and military defense, are all at root the "right" to parasitize someone else. And there is no such right without the victim's voluntary consent.

How one accepts such a responsibility is the question that should be asked. It's not sex, unless abortion foes get their way. Passing up an easy abortion in the first trimester might suggest the intent to shoulder such a responsibility. Baptizing the baby used to be proof conclusive; now perhaps it's taking the baby home from the hospital.

Tom Porter
Reseda, CA

I commend Virginia I. Postrel for her eminently rational editorial on abortion. Her analysis and reasoned arguments are a bright exception in a debate muddied by rabid, polarized absolutists. If the activists on both sides were to stop their screaming fits long enough to consider some libertarian approaches to the issue, there might finally be some real progress toward a solution.

Meanwhile, abortion remains not as a problem in a vacuum but as a symptom of the larger, less tangible problem of unwanted pregnancy. Tackling that will prove even more difficult, but libertarians have an opportunity to make a difference by speaking up now, before that issue too becomes another round of senseless trench warfare.

Glen Feighery
Jackson, MS