November 9, 2006

"The proceedings seemed more like a medical school seminar than an appellate argument."

Linda Greenhouse describes yesterday's oral argument in the abortion case.
What exactly was the procedure that the law, the Partial-Birth Abortion Ban Act of 2003, sought to prohibit, the justices wanted to know. When, if ever, was the procedure necessary? What would be the impact of banning it? What alternatives were available to women seeking second-trimester abortions and to doctors performing them?...

Justice Kennedy’s questioning suggested that he had not made up his mind, despite his strongly worded dissenting opinion when the court struck down Nebraska’s version of the federal law six years ago, and despite his obvious distaste for the procedure at issue. Instead, his questions suggested that he remained open to persuasion that the law placed doctors in legal jeopardy and imposed an unconstitutional burden on their patients’ right to terminate their pregnancies.

One example was his response to the assertion by Solicitor General Paul D. Clement that it was never necessary for doctors to use the banned procedure because a more common procedure, one not covered by the statute, “has been well tested and works every single time as a way to terminate the pregnancy.”

Justice Kennedy responded: “Well, but there is a risk if the uterine wall is compromised by cancer or some forms of pre-eclampsia and it’s very thin. There’s a risk of being punctured.”
Since Justice O'Connor was the fifth vote in the previous "partial-birth" abortion case, we're especially interested in any cues that might have come from Justice Alito, but he said nothing at all. Scalia was "unusually disengaged." Chief Justice Roberts was active:
At times, he appeared to be trying to bolster the defense of the statute by the solicitor general. At other times, the chief justice appeared eager to find differences between the federal law and the Nebraska law. Differences in the way the state and federal laws defined the procedure could be the basis for a decision that upholds the federal law without disavowing a recent precedent.
That sounds as though Roberts was looking for a minimalist theory for upholding the federal law, while perhaps Kennedy was looking for a minimalist way to provide the fifth vote for striking it down.

What Kennedy does is important, and I think the Democrats acquisition of control of the Senate makes it easier for him to assume the position previously occupied by Justice O'Connor and vote against the law. There will be outcry against Kennedy, but those who are opposed to abortion rights can no longer hope for new openings on the Court to fill with solid conservatives. With the new Senate, any new Justices are going to be judges who operate much like O'Connor and Kennedy.

64 comments:

Joe Baby said...

Does Kennedy take any grief for his previous dissent re: PBA?

Or are too many legal observers such fans of abortion that it will be glossed over?

Joe Baby said...

Didn't mean for the above to be too snotty.

Just that if memory serves, his dissent in Stenberg left little room for nuance.

Fritz said...

Ann wrote: but those who are opposed to abortion rights can no longer hope for new openings on the Court to fill with solid conservatives.

This is 2006, the MSM doesn't control information. Roberts and Alito were approved by the public too. The Daily Kos didn't win this election, hello! If Lemont had won, you would be right, too many Democratic Senators come from pro-life states.

Simon said...

Joe,
Unfortunately, I take Scalia's sullen attitude to mean that Kennedy has indicated that he's found some room for nuance. They don't call him Flipper for nothing.

Simon said...

"[T]hose who are opposed to abortion rights can no longer hope for new openings on the Court to fill with solid conservatives."

Where does that leave those of us who want the court out of the abortion business regardless of our opinion on abortion rights? I want the Supreme Court striking down federal laws on abortion as readily as it upholds state laws on abortion. Surely you, of all people, can see that many of us are opposed to Roe because of the legal principles involved, rather than because of our opinion on abortion. Why the presumption of bad faith?

"With the new Senate, any new Justices are going to be judges who operate much like O'Connor and Kennedy."

Hence, unmitigated disaster.

Too Many Jims said...

I think that an articulate minimalist like Roberts could still get confirmed if his/her record evidenced that certain prior decisions relating to privacy rights were "settled law". While I certainly think the Roe questions will be a big part of the process, I expect that a judge's view on executive powers will be much more discussed than in prior confirmation proceedings.

Eric said...

Simon - I think is is probably too late to argue the court should stay out of the abortion business. 34 years is a long time for precedent. It seems that they're in the abortion business unless science says definitivley that life begins at conception (at which point, everything would be moot). Until that time, they'll always have their hand in these laws. No sense fighting it.

I have a question that I'd like all of you (especially Ann) to try and answer: would it hurt the Republican Party in '08 more if the law was UPHELD 5-4? I feel like that would invigorate the liberal base more than anything else the Court could do (which would clearly be seen as an about-face on the issue). However, if they rule against the law 5-4, the status quo is maintained and liberals lose the "conservative judges" ammo for presidential attack ads...

Mortimer Brezny said...

"With the new Senate, any new Justices are going to be judges who operate much like O'Connor and Kennedy."

Nah. O'Connor was confirmed by a Republican Senate. Kennedy by a Democratic one. But Rehnquist and Thomas were confirmed by Democratic ones, too. If Bush wants to be sure his pick is confirmed, he should just pick a minority Democrat whose positions are aligned with his: anti-gay marriage, anti-abortion, pro-business, and Jesus-loving.

I'm Harold Ford, Jr. and I approved this message.

Anonymous said...

unless science says definitivley that life begins at conception

But science has already told us that at conception, a genetically unique creature is created, independent of its mother. Genetically, the creature is human. Science has been quiet clear on this for quite some time now, and it hasn't helped the abortion debate a bit.

Paul Zrimsek said...

When confirming judges requires a supermajority, it doesn't matter all that much who's got the majority.

Seven Machos said...

Harold Ford, Jr. would be no different than Kennedy or O'Connor on the court. And he's a helluva lot more fun to party with. And he's looking for work.

I'm talking to you, John Paul Stevens.

Simon said...

Eric,
In my view, the intersection between originalism and stare decisis is an important and woefully undertheorized issue, and there is substantial disagreement as to what the answer is in the abstract, let alone in concrete cases (compare, for example, Justices Scalia and Thomas, who take quite different approaches). There's an important paper by Lee Strang that you can find here that makes what I think is an extremely persuasive case that originalists have to account for stare decisis, because it was sufficiently entrenched in the common law that it was part of the original understanding of the judicial power (I must add that while the bulk of Strang's paper devotes itself to identifying and posing the question, I very strongly reject his answer to that question, which is perhaps why I didn't see why the fuss over Scalia's Hudson citation last term).

Unless anyone has a compelling need for something to put them to sleep, in which case I'm happy to oblige, I'm not going to go into tedious detail as to my view of how, where and why stare decisis applies (I'm a moderate on the issue). But what I will say is that I think that the issue with Roe -- just as it was with Plessy and just as it continues to be with Griswold -- is that it is so wrong, and the results of its being allowed to stand are so damaging to the Constitution as to overcome the protection of stare decisis. And the only difference the passage of time makes is how much damage continues to be done by a Supreme Court infected with the mindset that sustains the substantive due process doctrine, and which produces results like Roe.

And I promise you, in all honesty and sincerity, I say the foregoing purely because of my views about the Constitution and the system of government it ordains, not because of my views on abortion. I would be no less viscerally hostile to Roe if it decided a substantive due process right to the playing of tiddlywinks. I don't ask that people agree with my views, but it's frustrating and frankly upsetting when they question the sincerity of why I hold them.

Simon said...

Paul Zrimsek said...
"When confirming judges requires a supermajority, it doesn't matter all that much who's got the majority."

Are you alluding to Hugh Hewitt's bullshit that this is all McCain's fault? If you want someone to blame for the fiasco over the nuclear option, blame Bill Frist. We all knew that the Democrats were going to continue to obstruct nominees in the 109th Congress, and Frist had the opportunity to change the rules and eliminate the filibuster at the commencement of the session. And he blew it! Once that ship sailed, once the opportunity to change the rules by simple majority (rather than changing the rules after their adoption, which would, of course, have been filibustered) slipped away, it was gone.

I was as convinced then as I am now that the nuclear option was and is unconstitutional. Just as my opinion on Roe is driven by my view on what the Constitution says, so too my view on the nuclear option cannot be driven by my personal opinion of the filibuster, or by how badly I wanted to get those judges confirmed, but rather, it must be driven by the best-faith reading of the Constitution that I can muster. It doesn't change to suit liberal needs, and it doesn't change to suit mine.

Paul Zrimsek said...

Are you alluding to Hugh Hewitt's bullshit that this is all McCain's fault?

Nope. Just pointing out that the rules haven't changed, and wouldn't have been.

Simon said...

Okay. Sorry. I'm still kinda touchy. Sleep deprivation, anxiety, depression and despair will do that for you. ;)

Sean said...

Regarding Eric's argument about 34 years being a long time, that was one of John Davis's major arguments in Brown v. Board of Education. But, as Holmes said, it is revolting to have no other reason for a rule than that it existed in the time of Henry VIII. Decisions that cannot be defended on any other than precedential grounds are usually on shaky grounds.

TMink said...

I think that this procedure is the wrong one to pin hopes on for an abortion reversal. If I understand it correctly, the mother's life is in jeopardy every time this procedure is done. I am anti-abortion, straight up, but not against this procedure because of the impending threat to the mother's life and the sephallic compromise of the baby that require it.

I am glad that the discussion felt like med school, it is pertinent to the discussion.

Trey

Simon said...

Sean,
One of the worst aspects of the Supreme Court's ongoing meddling in areas it shouldn't on behalf of liberal causes has been the corruption of the debate on stare decisis, which is now used purely as a cipher for talking about Roe and its progeny.

Stare decisis is a conservative doctrine that promotes stability in and compliance with the law. Decisions also foster legitimate reliance interests on the part of people attempting to comply (as a thought experiment, try to imagine a field such as antitrust law without stare decisis). So as a normative proposition, stare decisis is a desirable doctrine, a fortiori if one happens to be of a conservative disposition.
Far more importantly, moreover, as I said above, it was almost certainly part of the original understanding of "the judicial power" granted by Article III. (Although, one hastens to add, how a common-law doctrine that evolved under an unwritten constitution was expected to interact with a written supreme instrument like the U.S. Constitution was something that probably hadn't even been considered in 1789 - hence, discussion of stare decisis and originalism inevitably involves discussion of originalism and underdeterminacy. The plot thickens.)

My point would be only that it isn't necessarily best to dismiss precedent out of hand. Would you overrule Marbury v. Madison on the grounds that nowadays, the case would have been dismissed as moot? As then-Judge Scalia admitted during his confirmation hearings, at a certain level, government is a practical enterprise, and some things are done, and when they're done they're done and you move on. The question, as I see it, is this: just how wrong does a case have to be to overcome stare decisis? Just how deleterious of an effect does it have to have? My argument isn't that overruling Roe is a piece of cake, or that it shouldn't even be evaluated in terms of stare decisis, it's that it is so grossly mistaken, and that it has done so much damage, both within its own area and to adjacent areas of law (which, when we're talking about substantive due process, is comparable to the areas "adjacent" to the Mississippi), and the harm it causes is grave, massive and ongoing, that it simply cannot be allowed to stand.

The simple fact is that overruling Roe and its progeny will not accomplish my political goals on abortion. Nobody seriously believes that it will, and many people - Jeff Rosen, for example, although I think he is being disingenuous - claim that it will do my side of the debate irreparable harm to overrule Roe. So I would emphasize again, the issue here is not whether abortion should be legal, it is, what is the scope of the authority of the state, how far is it constricted under the federal constitution, and what is the role of the Supreme Court? And frankly, anyone who's read Ann's scholarship -- and I take the opportunity to urge her again to get an SSRN page, because I think a lot of readers, and especially detractors, do not realize the context of that work -- will tell you that this is a singularly apt place to discuss issues like that.

jpe said...

Unfortunately, I take Scalia's sullen attitude to mean that Kennedy has indicated that he's found some room for nuance.

Kennedy's a fan of stare decisis and pretty protective of the court's power vis-a-vis Congress. The Neb. decision, in conjunction with the Congress's big raspberry in the court's direction with the D&X ban should seal the deal.

Mortimer Brezny said...

Hmm, I think Harold Ford, Jr. is to the right of Kennedy.

Eric said...

Joan - science has said no such thing. You're simply wrong. I can't imagine any scientist would conclude life exists independant of the mother at conception, as removal of the blastocist would surely destory it. Further, there is no proof that, at conception, the blastocyst has a "soul" or some such thing. Science will unlikely prove either (the former is clearly obvious) so we are stuck with the court making these decisions.

Simon - too much to discuss on a workday. I respect that you find substantive DP distastful (even if I do not), but as you alluded to, it isn't going anywhere. There's just too much precedent. This isn't a Brown question. Plessy didn't spawn (nor was it part of) a body of jurisprudence that spans/touches as many areas as the "Mississippi."

With so much precedent involved in SDP, it would clearly weaken the Court’s authority if they overturned it. As a matter of self-preservation, it could never happen. (This also sums up my feeling on stare decisis – as a practical matter, citizens cannot have faith in a court system that can overturn itself willy-nilly).

As an aside, I’d love to hear the argument that SDP is hurting the country. I went to school (law and undergrad) at Wisconsin. It isn’t an argument you hear too often at that illustrious institution.

Sean: Plessy was built on bad facts (and the law was never really overturned). Far different situation than Brown, as I’m sure you’re aware.

Freeman Hunt said...

Joan - science has said no such thing. You're simply wrong. I can't imagine any scientist would conclude life exists independant of the mother at conception, as removal of the blastocist would surely destory it.

Her point wasn't that it could be removed from the mother. Her point is that the blastocyst is genetically independent of the mother. It is its own person with its own DNA.

John Kindley said...

Casey's "viability" line is no less arbitrary and unprincipled than Roe's scientifically outdated trimester framework. A three-day old baby is not a viable life form if you don't feed it and take care of it, as nature and law require. A fetus three weeks (or three days) after conception is in pretty much the same situation. It is alive and viable (and was since conception) and will ordinarily go on living so long as you don't violently remove it from its natural environment. Likewise, if you strip a Supreme Court Justice naked and leave him at the North Pole, that is not a viable life form.

Anonymous said...

I can't imagine any scientist would conclude life exists independant of the mother at conception, as removal of the blastocist would surely destory it.

You don't know much about infertility treatments, do you, Edward? Where do you think test tube babies come from? The fertilized egg needs a friendly environment, for sure, but it doesn't need the womb to survive. The very existence of in vitro fertilization proves it.

That's a minor point, anyway. Freeman Hunt is correct in that my major point had to do with the unique, human, genetic identity of the conceptus.

Eric said...

Joan - "Freeman Hunt is correct in that my major point had to do with the unique, human, genetic identity of the conceptus."

I am probably not being very articulate today - too much work, no time to check anything. In any event, my best response will have to be: agree to disagree.

I need some help from the conservatives in the audience - who should I read for a reasoned conservative voice? I know David Brooks, George Will, Greg Easterbrook, William Safire. I'd like to read/listen/watch more, though. And, please, no O'Reily/Rush types - I want people who will represent the conservative position well. Thanks!

Harsh Pencil said...

I had always thought that once you convinced someone that a unique human organism was created at the moment of conception (and science really has proved this) that this would make that person more likely to be against killing it. But I've seen something worse happen over and over. Once convinced, the pro-choice person simply becomes comfortable with the killing of certain classes of human organisms (because while human organisms, they haven't reached some concept of "personhood") and thus while still pro-choice on abortion, they are now more willing to kill profoundly disabled babies, old people in comas, and so on. Apart from any religious arguments, there is a purely practical argument against separating human organisms into a class worthy of protection against those who would do them harm and a class that deserves no such protection. Once we get comfortable with this idea, we don't have a great track record.

nunzio said...

I read the transcripts of the arguments and everyone kept using the term "fetal demise." Sounds like the name of a grunge band.

Revenant said...

I had always thought that once you convinced someone that a unique human organism was created at the moment of conception (and science really has proved this)

Only in the sense that science has proved that a kidney is a "human organism". It is certainly composed of living human cells, but it doesn't have a brain, a personality, or a capacity for surviving outside of its host body.

Hunter McDaniel said...

Doesn't your title really encapsulate everything that's wrong with Roe and all the judicial history that has it has generated.

These guys aren't interpreting law, they are setting POLICY. And the usual procedure a legislature follows when setting policy is to hold hearing that go into deep technical detail (and then to establish the policy that you always preferred anyway).

And of course this just devalues democracy by turning legislatures into the equivalent of the NHL regular season - a long a meaningless exercise which only determines who has home-field advantage for the playoffs.

Simon said...

Eric,
Well, in a nutshell, the argument against substantive due process rests on the premise of the kind of government ordained by the Constitution, which as I see it is one in which you have a federal government of limited and separated powers, and state governments which are assumed to be omnicompetant outside of (a) positive restraints on what and how imposed by the federal Constitution or the state's own constitution and laws, or (b) matters reserved to the federal government where no concurrence can exist (the power to tax, for example, is clearly concurrent; the power to set tariffs is no less clearly an exclusive power). And recall that the states have consented to these terms and conditions, in the act of ratifying the Constitution.

Within that paradigm, substantive due process is problematic for several reasons, the most obvious of which is its fundamental illegitimacy as a matter of Constitutional law, but let's put it in more practical, descriptive terms: every time a court says that a state may not do something because of a limitation in the federal Constitution, they are narrowing the range of what laws the citizens of the states may enact.

Now, obviously, your counterargument should be that the same thing applies with federal preemption - for example, ERISA has foreclosed a whole bunch of options for states, as Maryland found out recently when it tried to impose certain obligations on WalMart. But when Congress does so (and does so intra vires), that action has the virtue of a democratic and formalist pedigree, within the system in which it operates, because that law has been consented to by the people's duly-elected representatives, signed by the people's duly-elected President, and by consenting to the Constitution, the States consented to the possibility of such a burden being imposed.

When a court declares that the Federal constitution precludes a state from taking a certain action, it narrows the scope of what states may do. The constitution contains several substantive restrictions on states, and several procedural restrictions. You cannot be executed, jailed, or fined except when the state acts through the normal operation of the rule of law. Or, in the argot of the fourteenth amendment, you can't be deprived of life, liberty or property, except after due process of law. Remember - states have consented to these limitations on what they can do, and in my view, courts should not be shy about striking down state practises that infringe on those rights -- even when their pedigree may not be immediately obvious (my favorite example of an implied right is the knock-and-announce rule, which the Fourth Amendment imposes on states by virtue of the common-law background that undergirds the Fourth Amendment, and the incorporation of the bill of rights, which, in my universe, was accomplished by the Priveleges or Immunities Clause of the Fourteenth Amendment. But see Slaughterhouse Cases, 83 U.S. 36 (1836).

But when the Supreme Court gets it wrong, and finds a right in the Constitution that does not exist, it does incalculable harm to the structural constitution, by removing an area of action from states (and usually - although not always - the federal government). And the more contentious the issue, the more harmful it is - whether that issue is minimum wage laws (see Lochner v. New York) or abortion, the results are always the same: the reputation of the courts, the ability of communities to govern and police themselves, the Constitution of the United States, and even the legitimacy of the rule of law, all these things are the worse for that action. As Ann pointed out in her NYT op/ed, you have to think about WHY each branch has certain power. You have to consider why the courts can legitimately strike down laws duly enacted by the people. Giving judges the power to invent new restrictions on states - which is precisely what substantive due process does - undercuts that legitimacy. What substantive due process does is to transform the exception into the rule: it transforms the risk of a mistake from being made into a doctrine that requires the courts to make a mistake by parsing the wisdom of laws and inventing "a veritable fairyland castle of imagined constitutional restriction" upon the states.

Federalism stands for the proposition that you can have both laggard states and vanguard states cohabiting in the same union. Sometimes, they are obligated to uniformity - and whether you think that's is a good idea, of course, is a point on which there's no avoiding the normative question of just how much power the states should have. When Congress narrows, intra vires, the authority of states, then in determing whether that's appropriate or not, I agree with Ann that "there is no escape from the normative question: Will state autonomy do more harm than good?" But I disagree that "[h]ow this question is answered inevitably drives the thinking about whether to endorse stronger judicial enforcement of state autonomy," insofar as I think that the judiciary should absolutely enforce our structural Constitution, all the more so since the Seventeenth Amendment drove the Senate out of that business. And to the extent that substantive due process detracts from the structural Constitution, and does so in an inherently standardless and illegitimate manner, I'm hostile to it.

Sorry, this wasn't as short or lucid as I'd hoped it would be.

Revenant said...

Her point is that the blastocyst is genetically independent of the mother. It is its own person with its own DNA.

If we base independence on genetics, how are we to treat genetically identical people (e.g., twins)? It seems to me that human individuality has to be brain-based rather than gene-based. Otherwise twins are only one individual split into two bodies.

And if individuality is brain-based, a blastocyst can't have it.

OddD said...

revenant,

Your question seems like it misses the point since we're not discussing general "treatment" but whether one organism will be killed. (I don't think anyone's going to argue that it's okay to kill ONE member of an identical twin set.)

Also, identical twins are not so identical.

dick said...

OddD,

You are wrong about killing one of a set of identical twins. In fact one of the NOW and NARAL heroines did just that. She and her husband were going to have triplets. She thought that would be too much for her to deal with so she and her husband went to the doctor and had him inject saltwater into one of the triplets effectively killing the fetus. She then wrote a magazine article talking about it and justifying the killing because she would not have been able to realize her full potential if she had to take care of triplets. What a wonderful role model!!

Harsh Pencil said...

revanant is simply devolving into an assertion that there really is no such thing as an organism, or at least no scientifically defensible definitions of an organism. And one can make such arguments since the boundaries of an organism can be hard to define. Who is to say the relation between my stomach and the rest of me is fundamentally different than the relationship between my stomach and a parasite that may happen to be in it?

But this is really just a disguised assertion of nothing means anything. You could say the same thing about there really is no such thing as a chair because there are so many example of pieces of furniture which are hard to classify.

But, guess what. There really are chairs and there really are organisms. Kidneys are parts of organisms just like legs are part of chairs.

OddD said...

dick,

I remember that, but that was an abortion. The logical conclusion implied (or I should say inferred by me, I guess) is that if we used genes as the measurement of person-hood, that would somehow make any individual twin expendable.

As far as that triplet situation, if you start with the premise that its okay to abort, then you can't fault a woman who chooses to abort selectively. (No matter how horrifyingly self-centered it comes out in practice.)

Revenant said...

Your question seems like it misses the point since we're not discussing general "treatment" but whether one organism will be killed. (I don't think anyone's going to argue that it's okay to kill ONE member of an identical twin set.)

I don't think I'm missing the point. We were discussing what makes an organism a unique human invididual. I'm saying the answer is clearly not "the genes", because that would mean that genetically identical humans could not be individuals. It can't be "being a distinct set of genetically human cells", because that would mean a skin culture is a human being. The most sensible answer, and the one which makes the most intuitive sense to people, is "the brain" or "the mind". Blastocysts don't have brains, and thus don't have minds; ergo killing them does not extinguish a human individual.

Yes, they're human organisms, but so are cancer cells. Nobody thinks twice about killing those.

Also, identical twins are not so identical

They're genetically identical, which is what matters for purposes of my argument.

Revenant said...

revanant is simply devolving into an assertion that there really is no such thing as an organism, or at least no scientifically defensible definitions of an organism.

I'm doing no such thing. There are, indeed, such things as organisms. It is just that the word isn't helpful to your argument. You're trying to sell people on the idea that science has proven that a fertilized egg is a complete human being, and that's simply a lie.

Scientifically speaking, *all* cells are organisms. A fertilized egg is (a) a single cell and (b) genetically human, ergo a fertilized egg, like a skin cell or a white blood cell, can be said, in some trivial sense, to be "a human organism". It is *not*, however, a "human organism" in the usual sense of the term -- i.e., a complete human being with distinct, mututally beneficial organs. It doesn't develop into one of those for many weeks after fertilization.

Freeman Hunt said...

Only in the sense that science has proved that a kidney is a "human organism".

No, not in that sense. A kidney will not develop over time into an adult human being. An embryo will. It is a human, just very young.

As for the twins...

They are not only genetically different from the mother; they are also physically separate entities from each other. There are other ways, aside from genetics, that prove people are distinct. Genetics is only one way. The fact that there are other ways does not make the genetic distinction invalid.

Anonymous said...

You're trying to sell people on the idea that science has proven that a fertilized egg is a complete human being, and that's simply a lie.

The fertilized egg is certainly a genetically complete human being. And all it lacks is time and proper care to develop all the other characteristics of humanity.

It's ridiculous to assert that a skin sample or a kidney are complete human beings: they are not, in and of themselves, genetically unique. They share the genes of the human from which they were taken. The conceptus is genetically complete and distinct from either of its parents.

If you want to argue that it's not a "person" yet, that's certainly your perogative. But there's no point in denying that it's genetically human, because it is.

Revenant said...

No, not in that sense. A kidney will not develop over time into an adult human being. An embryo will. It is a human, just very young.

The term "organism" does not imply that the entity in question will later turn into something else.

If you want to argue that the capacity to develop into a human being is what makes a fertilized egg worthy of special protection then fine. But that's a separate issue from whether an egg is (a) genetically distinct or (b) a human organism.

Anyway, if you want to focus on the "potential humanity" of a fertilized egg, then it becomes necessary to point out that a fertilized egg only has a 40% to 70% chance (studies vary) of actually surviving to birth, even if it isn't deliberately aborted. Then the question becomes one of what the magical percentage chance of humanity is that triggers special protection.

For example, any unfertilized egg has a nonzero chance of becoming a human being, as it may be fertilized prior to its death. Killing an egg therefore kills an organism that had a chance of becoming a human being. Ditto for sperm cells, and so on and so on.

Revenant said...

It's ridiculous to assert that a skin sample or a kidney are complete human beings: they are not, in and of themselves, genetically unique.

Then it is ridiculous to assert that identical twins are complete human beings, as they are not geneticall unique.

Anonymous said...

Revenant: It seems to me that human individuality has to be brain-based rather than gene-based.

This remark sounds remarkably like an argument for killing off senile old people and the mentally retarded, not to mention babies born prematurely. But that would never happen, would it? Never mind. (This was 16 years ago. Do you think it's any better now?)

Revenant said...

Oh, and one more thing:

But there's no point in denying that it's genetically human, because it is

I didn't "deny" that a fertilized egg is genetically human. In fact I specifically said it was genetically human. So please stop implying that I've said otherwise.

Revenant said...

This remark sounds remarkably like an argument for killing off senile old people and the mentally retarded, not to mention babies born prematurely.

I can see how a complete idiot might think my argument justifies that. But I'm not accountable for other peoples' inability to use their brains.

Anonymous said...

The term "organism" does not imply that the entity in question will later turn into something else.

But a conceptus isn't turning into something else. It's completing its own development. It starts out human, and it continues to be human. It's kind of funny to see you continue to argue against this. I've heard more than one scientist say that the genetic humanity of the fertilized egg is something you'd find in any basic med school text.

And yes, it's true that some (possibly quite large) percentage of fertilized eggs fail to develop into humans, perhaps by reason of genetic defect, or failure to implant, or what have you. So what? When we're talking about abortion, we're obviously discussing members of the class which have gone on to implant and develop, of which the overwhelming majority will reach term if left undisturbed.

Then it is ridiculous to assert that identical twins are complete human beings, as they are not geneticall unique.

They may start out genentically identical, but they certainly don't stay that way.

Back to this issue: I didn't "deny" that a fertilized egg is genetically human. In fact I specifically said it was genetically human.

Talk about splitting hairs! You said:

If you want to argue that the capacity to develop into a human being is what makes a fertilized egg worthy of special protection then fine.But that's a separate issue from whether an egg is (a) genetically distinct or (b) a human organism.

Oh, wait, I see now that you just said "an egg". Did you mean an unfertilized egg? If so, I would state as fact that it is neither (a) nor (b) above. A fertilized egg, however, is certainly (a), having DNA from both parents, and also (b) since it is clearly an organism (a living thing), and genetically human.

Anonymous said...

I can see how a complete idiot might think my argument justifies that. But I'm not accountable for other peoples' inability to use their brains.

So, I guess all those doctors in the Netherlands that are euthanising patients (with and, mostly, without consent) are idiots following an idiotic practice that has been codified into idiotic law.

I agree, but I'm sure they don't.

Revenant said...

But a conceptus isn't turning into something else. It's completing its own development.

First of all, you're moving the goalposts. We're talking about a fertilized egg. "Conceptus" is the term used for the embryo, which doesn't develop until the end of the second month of pregnancy.

Secondly, whether you want to call the growth of a single cell into a human being "turning into something else" or "completing its own development" is nothing more than semantics. The end result of the development process is a completely different organism from the one that began it, unrecognizable as its former self.

It starts out human, and it continues to be human.

As I noted earlier, this is true only in the trivial sense that a skin cell is a "human".

So what? When we're talking about abortion, we're obviously discussing members of the class which have gone on to implant and develop, of which the overwhelming majority will reach term if left undisturbed.

Unless you're conceding that there's nothing with aborting a fertilized egg prior to its implantation and development, we're talking about the entire pregancy. You are correct that 80 to 85% of implanted eggs go on to become children, but all that matters is that the number is less than 100% -- which means that an abortion only kills something that *might* have been a child, not something that was *definitely* going to be one.

They may start out genentically identical, but they certainly don't stay that way.

Um, what? Identical twins start out genetically identical and stay genetically identical. They don't stay physically identical, but a skin cell and a kidney cell aren't physically identical either, and you've already said that their identical genes make it ridiculous to consider them individuals.

Oh, wait, I see now that you just said "an egg". Did you mean an unfertilized egg?

I have no idea what you're babbling about. I said, in my posts, that a fertilized egg was (a) genetically human (b) not necessarily genetically unique and (c) not what would normally be considered "a human organism" except in the sense that every cell in the human body is "a human organism". If you parsed that as me saying "a fertilized egg isn't genetically human" then you have my sympathies, but as already noted I'm not responsible for other people not using their brains.

So, I guess all those doctors in the Netherlands that are euthanising patients (with and, mostly, without consent) are idiots following an idiotic practice that has been codified into idiotic law.

The doctors in the Netherlands aren't using my argument to justify their acts.

I said that our brains is what makes us human individuals, and that a fertilized egg is therefore not a human individual. You then proceded to bore us all with some tale of people with inferior brains being killed.

Well, I didn't say anything about inferior brains. I said "brains". A retarded person has a brain. A fertilized egg does not have a brain. Yes yes it has the potential for a brain and blah blah blah, but it does not have a brain. Killing it does not kill a brain. Killing a retarded man does. Killing a premature baby does. Etc, etc.

Anonymous said...

On the continued identitical nature of twins' DNA, you really should've followed the link that Oddd provided. Here it is again: not so identical

My understanding is that "conceptus" means the product of conception. (google it) I thought it was easier to write "conceptus" than "fertilized egg". I'm not trying to move the goalposts.

Well, I didn't say anything about inferior brains. I said "brains". A retarded person has a brain. A fertilized egg does not have a brain. Yes yes it has the potential for a brain and blah blah blah, but it does not have a brain. Killing it does not kill a brain. Killing a retarded man does. Killing a premature baby does. Etc, etc.

OK, you said "brain-based." You seem to think that's a nice, bright line. The (things) that are killed in late-term D&X procedures demonstrably have functional brains. Why is it OK to kill them?

If you can't recognize that having a "brain-based" defining line is the first step in euthanizing those with , as you put it, "inferior" brains, then you are either hopelessly naive or you have more faith in mankind than I do. The fact that the "inferior brain" rationale is already in use should help you see that it's not the great defining characteristic you seem to think it is.

If my comments are boring to you, what is compelling you to reply?

downtownlad said...

How come nobody is bringing up the Federalism issue?

Scalia and Thomas don't think the Federal Government is allowed to pass laws that prevent violence against women, because it's a violation of States Rights, but somehow they are allowed to outlaw abortion procedures????

Please explain to me how the Commerce Clause allows this?

Simon said...

Downtownlad -
Because none of the litigants (and as far as I know, no amici) raised that question. I actually agree with you, that the FPBAA is ultra vires, but you're asking the court to sua sponte convert a facial challenge under Stenberg into an as-applied challenge. And John "call the balls and strikes" Roberts isn't going to go for that. Look, if you want a modest Supreme Court, that means at least this: that the court shouldn't reach out to decide issues that aren't before the court. The power of Congress to enact this law has not been brought before the court by the litigants, and for the court to go for that will inevitably involve it in not calling the balls and strikes, but throwing a pitch of its own.

I actually very seriously toyed with the idea of filing to submit an Amicus brief in this case making the federalism argument, hoping to get Justice Thomas to bite, but in the end thought it beyond my place.

I've not actually had a chance to read the transcripts yet, so I don't now, maybe someone raised that issue at oral argument, but while I think you're right that thelaw is unconstitutional, you've ultimately got to blame (a) the litigants and (b) the people who keep talking about wanting a "modest," or "minimalist" Supreme Court. If you want tojoin me in saying that John Roberts is wrong and Cass Sunstein is an opportunistic fool that's just fine with me. :p

Joe said...

If you want to be pedantic, life is a contiuum. Sperm and egg cells have DNA independent of the parent and are surely biologically alive.

Kirk Parker said...

dtl,

"Scalia and Thomas don't think the Federal Government is allowed to pass laws that prevent violence against women [emphasis added]"

Well, if they really could do that, I might go ahead and favor them doing so, the Constitution be damned. But sadly, it seems the best they can actually achieve is to sanction violence, and in this they are no better than their ppers in the state legislatures, whose place it actually is to pass such laws...

AlaskaJack said...

The Rev has suggested that the distinctive quality that defines a human being is "the brain" or the "mind". (He seems to equate the two.) Although this definition has a superficial attraction, I think it leads to some serious difficulties. Why, for example, does the empty and thoughtless brain of two or three day-old infant merit legal protection? Is it because the infant's brain (or mind) has the potentiality to acquire self-awareness and knowledge or is it for some other reason? If the notion of potentiality is ruled out of order (as Rev has apparently done in a related discussion), doesn't his position imply that a two or three day-old infant is not entitled to legal protection? If not, why not? What is so special about potential self-consciousness that it merits legal protection?

After the Rev has enlightened us about these matters, perhaps he can explain to us why he believes that the brain and the mind are identical. After all, it may well be the case that the brain is simply an organ that is utilized by the mind.

bearing said...

Here is the secret to revenant's argument:

It is *not*, however, a "human organism" in the usual sense of the term...

"In the usual sense of the term."

1. It's okay to kill a thing that isn't a human organism.

2. I want it to be okay to kill this thing.

3. If I and my buddies carefully craft our sentences to use the term "human organism" in such a way as to exclude this thing, and insist upon its exclusion often enough and loudly enough, then the "usual sense" of the term "human organism" won't include this thing.

4. Therefore it won't really BE a human organism.

5. And that makes it okay to kill it.

Hm. I've heard this kind of argument somewhere before.

Eric said...

Simon - Well, I have more comments than I can add to your post about SDP. I wasn’t looking for an argument against why you think the DP Clause does not provide substantive rights – I was asking for your argument why that hurts the country (I believe you had made some such post). As I understand it, SDP gives individuals rights against the government, no? How are these rights hurting the country? That’s the argument I never heard at Madison. Of course I heard the argument against SDP, but it was always easily dismissed (as I would easily dismiss the argument in your post) - “life, liberty, and property” – what do you think those words mean? To uses a simple analogy, the 1st guarantees you the freedom of speech. But if the state is allowed to put you in a soundproof box, that right is destroyed without it being literally destroyed. So the right of free speech obviously implies that you have the right to be heard as well, otherwise the right to speak is superfluous. The same is true of the DP Clause. The necessary conditions for life, liberty, and property must also be included in this right. The right to privacy naturally follows (because without it, how can you have…) This isn’t anything you already do not know, I’m sure, so we may never agree on this point (as I cannot believe those words operate in a vacuum). Thus, I just wanted to hear how having the right to privacy (and other SDP rights) hurts the country. I’ve never heard that argument.

Simon said...

Eric,
Isn't it strange, that in a thread ostensibly relating to the Supreme Court hearing a question about Constitutional Law, everyone except you, me and apparently Downtownlad wants to focus purely on the normative questions about abortion? Do you get the same feeling that I do - that most of the commenters are conceding the liberal framing of the debate: that the Supreme Court's abortion cases are about abortion? ;)

Perhaps if I put it like this - substantive due process is a method -- not the only method, to be sure -- by which Judges can and have placed new and illegitimate restrictions on what states and the federal government can do. That is the harm that is done. It is nothing less than an assault on the concepts of limited government and self-government.

A Constitutional right is not the same thing as a natural right - a natural right to free speech would be the right to say whatever you want, but your First Amendment right to free speech is a quite different beast: it is a specific prohibition on government from abridging that right. Thus, every time a right is defined in the Constitution, it detracts from the power of communities to govern themselves. When that is done legitimately, by the consent of the governed, that is one thing, but it is quite another when it is done illegitimately by judges "discovering" new rights. In my view, that is hurting the country, both in the abstract and, in other cases, quite literally.

Moreover, I would add, that there are imagined rights and then there are imagined rights. It's bad enough to find a substantive due process restriction on the power of government to do something as specific as banning abortion. But far, far worse is finding something as amorphous and nebulous as a restriction on government from "invading privacy"; so indistinct a doctrine is an open invitation for Judges to ban whatever kind of laws they find offensive on a case-by-case, one-by-one basis, and as Robert Bork has pointed out, if the "right to privacy" were taken seriously, government would be literally impossible.

Joe Baby said...

Simon,

Know you've got nothing else to do, but post a recommended reading list on SDP when you get a chance.

Simon said...

Joe,
Start with this Scalia speech from last year (it's also available on CSPAN) as a primer. I'll see what I can pull together for you this afternoon.

Simon said...

(As a general rule, if you can start with Scalia, I usually prefer to. Not just because I think he's great, and almost invariably right -- not always, see, e.g., Edmonson v. Leesville Concrete Co. -- but rather, because he's lucid, engaging and readable, even for those who aren't deeply enmeshed in ConLaw).

dick said...

OddD,

Yes, that was abortion. What is this about that is different? A woman decides that she does not want twins or triplets so she goes to her friendly local abortionist/doctor and has one of them killed by injection and then writes an article praising her making this choice because it will let her fulfill herself totally. Shame about the kid, but what can you do. You come first!!

It would be even worse if she waited until the last moment and said get rid of that one. That is the basis of what she did. She just did it a little earlier is all. I just find it hard to understand how someone can see the soundings and feel the kick of a living creature within them and then cold-bloodedly say kill it now!!

Joe Baby said...

Re: abortion, envisioning a future Equal Protection argument once I start "GirlGone," my chain of high-end, boutique abortion centers that caters to parents who only want boys. (Valet parking so you can avoid the rabid feminists outside.)

I'll even throw in a year of free meals at HomeTown Buffet.

(Side benefit: lots of Muslim immigration by those who cherish this great Constitutional right.)

Heck, we're so close to artficial wombs that we eventually won't even need women to give birth. That will keep the live women fresh and supple for "sexy time."

We'll use the profits (ooh, Medicaid) to research the gay gene. After all, why would someone put themselves through that?

Revenant said...

alaskajack

Why, for example, does the empty and thoughtless brain of two or three day-old infant merit legal protection?

I would first ask, I suppose, what makes you think the brain is empty and thoughtless? Certainly infants appear to exhibit a very limited range of thought, but that is quite probably just a function of their having a very limited range of wants and needs and an even more limited means of getting those needs met. But they've got all the basic brain parts as an adult, just in a less-developed state.

In any case, as I already noted, I am arguing for a brain/no brain distinction for identifying humans. I am uninterested in arguing about how good a brain has to be before it "counts". Maybe the infant brain is inferior in some respect to the adult brain -- but it exists. In a zygote, it doesn't.

After the Rev has enlightened us about these matters, perhaps he can explain to us why he believes that the brain and the mind are identical.

I believe that the mind is a product of the brain, not that the two are "identical". You don't need me to explain why I believe this -- it is hardly an unusual idea, and there are plenty of excellent books on the subject for you to read.

Revenant said...

Hm. I've heard this kind of argument somewhere before.

Yeah -- your ass. Where you have your head lodged, and from whence you pulled the chain of reasoning you attempted to ascribe to me.

I'm not looking for an excuse to kill fertilized eggs. I don't even need one, given that people intuitively understand that a fertilized egg isn't a human being -- even people who *claim* to believe it don't have funerals for a miscarried blastocyst. I have simply been pointing out the gaping holes in the arguments of people who claim otherwise.

So far people have tried, and failed, to offer a number of rationalizations for why a fertilized egg counts. So far "genetic uniqueness" and "potential humanity" have been offered, and shot down as inconsistent, and "having a brain" has been denounced as Nazi-esque. Now you've resorted to simply claiming that everyone who disagrees with you is evil.

It's obvious you're not rational people, so I don't see much point in continuing the discussion.

Anonymous said...

even people who *claim* to believe it don't have funerals for a miscarried blastocyst.

Because a miscarried blastocyst looks exactly like a slightly delayed menstrual period, and the mother isn't likely to even be aware of its existence. I know plenty of women who mourned their miscarriages, and I know at least one woman who had her miscarried child buried in her family's plot and commemorated with a headstone.

I found your defense against infanticide interesting: But they've got all the basic brain parts as an adult, just in a less-developed state.

But, earlier, the fetus also has all the basic brain parts, just in an even less developed state. How developed do the brain parts have to be before they count? Four weeks from conception, the neural tube has formed and closed. It will become the brain, spinal cord, spinal nerves, and backbone. It began its formation just two weeks after conception. The parts are there.