I Am Cassandra

Original Article

I have often been called a “Cassandra” by my critics. They don’t mean the term as a compliment. In the popular mind, the mythical prophetess was a predictor of doom and gloom, meaning that by hurling that term at me, my critics are accusing me of unwarranted alarmism.

But Cassandra’s pessimism was only part of the story: Cassandra predicted catastrophe. But her curse was that she was right—but nobody believed her. So yes, I plead guilty to being a Cassandra!

Case in point: Each year the Center for Bioethics and Culture asks me to issue predictions for the next year’s developments in bioethics. What I foresaw hurt my eyes and my heart, but a prophet must be honest.

My primary prediction involved the ultimate success of the Affordable Care Act, aka Obamacare. The landmark law faced two mortal threats to its existence as last year began. First, the United States Supreme Court would rule on its constitutionality. Second, if the Senate turned Republican and President Obama lost his bid for reelection, the new government would almost surely repeal the ACA, or at the very least, substantially replace most of its offensive provisions.

But “Wesleyandra” saw through the mists of time and foresaw that the quest was futile. I noted that the conflict was actually between “law”—e.g., “the government does not have the constitutional authority to force Americans to buy anything”—and policy—unless all are required to buy insurance, people “will wait until they are sick before purchasing insurance, which would collapse the system.” When rule of law conflicts with what the ruling class considers proper policy, the rule of law tends to lose. Here’s what I wrote about the then pending Supreme Court ruling:

The Supreme Court has vastly expanded the power of the federal government since the 1930s. In so doing, the justices have often based their decisions as much on policy as on law—and then fashioned legal justifications to back up their decisions (which, in turn, become springboards for further federal expansion). Some call this phenomenon “judicial legislation,” but we won’t get into that here. Moreover, the justices generally come from what is sometimes called the “ruling class,”—people who graduated Yale, Harvard, Princeton, etc.–people who have faith in “experts” and technocratic solutions to societal problems. The rulings of the Court on controversial social and political issues often reflect the views of this subset of Americans more than that of the general population (not that the opinions of either should be relevant). While polls generally show a majority of Americans opposing Obamacare, the ruling class tends to support it.

I then predicted: “With the above in mind, I believe the majority of the Supreme Court will rule that Obamacare’s purposes are laudable, that universal coverage is equitable and necessary for the country’s future, and that since the mandate is a necessary element of making the new law work, it is constitutional. That may sound like bootstrapping, but there it is.”

And so it came to pass. Justice John Roberts wrote an utterly incoherent ruling upholding the law. Why do I say “incoherent?”

  • First, Chief Justice John Roberts ruled that the individual mandate, requiring all to buy health insurance or face a penalty, was not a tax. That ruling allowed the case to proceed to ultimate resolution.
  • Then, he ruled the ACA violated the Commerce Clause by regulating economic inactivity. That should have been the ball game.
  • But in an act of audacious judicial activism, as if by magic, the “not a tax” was transformed back into a tax for purposes of finding the law valid.
  • Et voila: An unconstitutional law was able to be declared constitutional by being both not a tax and a tax at the same time. Like I said: incoherent.

Having predicted that the Supreme Court would find a way to disregard the unconstitutionality of Obamacare—although even I couldn’t have predicted that the same law would be both a tax and not a tax—I next predicted that the election would “not have sufficient electoral success to repeal the law legislatively in 2013:” An understatement, wouldn’t you agree?

But here’s the worst part: I saw the Supreme Court ruling as breaking the back of the Obamacare resistance:

With the Supreme Court legally validating Obamacare, the law will become a huge political issue in the 2012 election. But even though majorities of people oppose the law currently, this will not redound to President Obama’s substantial detriment. To the contrary, people like a winner. Besides, many people today believe that what is “legal” is also “right.” Thus, the Supreme Court’s ruling will improve the law’s popularity, or at the very least, make people resigned to an Obamacare future.

And that has happened too. Indeed, after the election, Speaker of the House John Boehner (R- OH) conceded that Obamacare “is the law of the land.” As far as I can see, organized political opposition to the law has pretty much degenerated into discontented muttering.

Lest I be accused of unremitting pessimism, I did have one thing wrong, well not wrong, exactly, but as close as I usually get. Massachusetts voters were asked to legalize physician-assisted suicide on the November ballot. Here’s what I predicted:

Massachusetts Voters Will Vote Yes to Legalize Assisted Suicide. (Some of my anti assisted suicide colleagues will be angry at me for this prediction, stating we must always keep a positive face. I argue that the MA initiative can be beaten, but it will require opponents to pull out every stop. Let this prediction alarm us into a maximum effort.)

Note in my defense that I said the initiative was beatable if “opponents pulled out every stop.” And that’s exactly what happened, resulting in a crucial defeat for assisted suicide, 51-49%. Here’s why the proposal failed:

  • People are not marching in the streets demanding legalized assisted suicide: Backing for legalizing assisted suicide is a mile wide but only an inch deep—allowing concentrated opposition to evaporate just enough support to obtain the victory.
  • The diversity of opponents got through to the voters: Legalizers of assisted suicide usually push the false idea that opponents are trying to force religion on others. But the anti-assisted suicide coalition is actually very diverse, including secular types such as disability rights activists, medical professional organizations, egalitarian liberals, and advocates for the poor, in addition to Catholics and pro-lifers. Unlike in Washington a few years ago, the opposition in Massachusetts was able to get that message out.
  • Massachusetts is a Catholic State: MA is a very liberal state, but it also retains a Catholic identity. The vigorous opposition to Question 2 by Cardinal Seán Patrick O’Malley made enough of a difference to hold the line. And the usual blatant anti-Catholic tactics of supporters of assisted suicide found less traction, even among Catholics who disagree with their church.
  • The Kennedy Name: Victoria Kennedy, Ted Kennedy’s widow, wrote a powerful op/ed against Question 2, lending the late senator’s aura to the no effort and providing “liberal” cover to opposing assisted suicide.

Some may be asking, “Why should I care what happens in bioethics?” As I have written widely—including here at tothesource—the field has generally abandoned the sanctity/equality of human life ethic that proclaims the equal inherent moral worth of all human beings. Indeed, believers in what I call bioethics ideology, reject the very notion that there is anything “special” per se about being a human being.

If I am right about that—and I am—it is important to see the bioethical agendas coming our way before they actually arrive so steps can be taken to thwart them. So, I will continue to play the part of Cassandra in the ultimate hope that I will one day be believed, resulting in concerted political and cultural action to prove me wrong.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.