October 30, 2012

"For neuroscientific findings of fetal pain to serve as a basis for permitting states to prohibit abortion prior to viability..."

".... they must tell us something about the nature of a fetus that makes the state’s interest in protecting it more compelling than its interest in protecting a woman’s right to make basic decisions about her own body. As pain sentience does not serve as a basis for legal prohibitions in general (or else mousetraps and deer hunting would be prohibited), the statutes’ real purpose is to use potential evidence of pain sentience in fetuses to indicate the presence of something far more compelling — namely, personhood."

From a NYT philosophy blog item written by William Egginton, a Humanities Professor the Johns Hopkins University.

The states are already allowed to prohibit abortion after viability (with exceptions for the life and health of the mother), but not because viability establishes that the fetus has turned into a person. In fact, the Supreme Court has never made much sense over why viability is the line. (I've taught the abortion cases many times, and the best I can say is that viability was chosen for the line because the Court wanted a place to draw a line and viability was a concept that existed within medicine.) The question of when the unborn is considered a "person" is reserved for the woman to answer for herself. That's the heart of the right that the Court has articulated. It was clearly stated in terms of autonomy to define life in Planned Parenthood v. Casey, when the Court revised Roe in the process of deciding not to overrule it:
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
It's interesting for Egginton to offer some philosophical analysis (and for neuroscientists to provide the information they have), but under Roe/Casey, it's for the individual pregnant woman to use that material as she sees fit in arriving at her own answer to the mystery of the value of the unborn entity. Pre-viability, anyway.

74 comments:

Jeffrey Levin said...

Ann

What happends when science extends "viability" to conception? Currently, the womb is the only game in town out to 24 weeks. But what happends when science catches up? Might this not be meaningful, if we continue to use viability as a measure?

madAsHell said...

a woman’s right to make basic decisions about her own body

The basic decision was intercourse. This is jumping off the bridge, and having regrets as the wind whistles past your ears.

Peter said...

"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."
Very appropriate of you to quote Justice Kennedy's incoherent drivel. It fits very well with "a woman's right to choose" as a way of brushing aside the question of how we justify ending a human life in its earliest (embryonic) stage.

Paul Zrimsek said...

If the compelling issue turns out to be a philosophical question-- "what is a person?"-- you'd think the last thing we'd want to do is have that question be decided by someone who has a vested interest in the answer.

Curious George said...

Althouse: "In fact, the Supreme Court has never made much sense over why viability is the line."

Yet you use their very argument as support for your "abortion is murder, but the state shouldn't get involved" hypocrisy.

MikeDC said...

Pain caused to animals is already the basis for all sorts of legal prohibitions regulations on the the treatment of animals.

Yes, we still allow people to cause pain to animals when there are other reasons we might do so, but the fact that animals feel pain is, by itself, enough for us to impose all sorts of restrictions on:
* General cruelty to animals
* Restrictions on time and manner of hunting
* Prohibitions of all sorts on the treatment of animals to be used as food.

Peter said...

Roe v Wade is the decision that just keeps giving and giving.

Aside from whether or not you want abortion to be legal, how many actually consider Roe v. Wade to be legitimate (i.e., actually based on the contents of the U.S. Constitution)?

traditionalguy said...

That's a lot of ethics being discussed as if the answer lies in finding a legal standard somewhere. But a better question may be what is the viability of the 5th Supreme Court philosopher king who made abortion a pregnant womans's absolute right.

And what does Mormon families first Mitt think?

sydney said...

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

This does not seem to be right and just.

Mitchell the Bat said...

It's just a matter of time before neuroscience proves that the unborn have preference, not unlike the lobster.

Scott said...

How viable is "viable"? A baby isn't viable past a certain point at birth. They would lay there and starve to death without assistance.

KJE said...

We have to jump through far more hoops to ensure that a condemned criminal doesn't experience "cruel and unusual" punishment in the death chamber than we do to remove an unborn child.

Irony.

BarrySanders20 said...

Rodents, human life. If you are unable to discern the difference, maybe you should not be teaching humanities.

And this is also monstrous: "The question of when the unborn is considered a "person" is reserved for the woman to answer for herself." Post-viability, anyway.

But why stop at birth? That's also an arbitrary line. Let's celebrate and venerate the vag to its fullest extent and let the woman answer for herself how far to stretch the concept of her own liberty to be rid of the life she created.

Curious George said...

"Scott said...
How viable is "viable"? A baby isn't viable past a certain point at birth. They would lay there and starve to death without assistance."

That's Allie Oops/Inga's position regarding black babies. Well, sorta. Not that they would starve necessarily, but would need to be fostered. So better to snuff 'em out.

SteveR said...

I think people who favor a broad use of abortion (anytime a mother wants one basically) need to be careful about the philosophical justifications. Sure its nice to have some legal or medical rationale but in most cases its birth control. Let's just call it that.

Synova said...

The woman defining her own existence isn't the same as defining it for another organism.

What is that other than, "I've decided that YOU are not human."

"If the compelling issue turns out to be a philosophical question-- "what is a person?"-- you'd think the last thing we'd want to do is have that question be decided by someone who has a vested interest in the answer."

So far we define the unborn exclusively by if it is wanted or not. The same fetus at the same stage has different status dependent on who wants it alive and who wants it dead.

Scott M said...

The question of when the unborn is considered a "person" is reserved for the woman to answer for herself.

Whether or not a human being is a person kept to the whims of another person has always bugged me.

In a hypothetical fatal drunk driving hypothetical, if a pregnant woman plans on bringing the baby to term (which would seem to indicate the unborn is a person to her), the drunk driver that hits her car would be charged with two counts of vehicular manslaughter.

If that same mother was on her way to an appointment at an abortion clinic with the intent to end the pregnancy, the same drunk driver would only be charged with one count.

All based upon the whims of the mother. Somehow, that just doesn't sit well.

Synova said...

There's lots of examples in History of someone with a vested interest deciding that someone else isn't human enough to count, probably doesn't have a soul, so no harm, no foul, wipe them out.

It's a might makes right thing; who has the power and ability to define the problem into a non-human solution and who isn't powerful enough to fight back.

kristinintexas said...

It's not her own body.

It's someone else's body.

I have someone else's body inside of me right now, and on Friday we find out if it's a boy or a girl.

Like madAsHell said, I decided what to do with my own body when I had sex with my husband. Now, it's not just about me any more.

Renee said...

Does it really matter if it is a person or not, or if it feels pain?

If my child needed a bone marrow transplant, could the state 'force me' through the procedure even if I didn't want it? Even if I knew it meant my child would die?


What about a kidney?

Children are persons, but the state doesn't force parents to give up their physical bodies for them.

BTW I'm 100% Consistent pro-life, I'm just dealing with what were working with.

David Gray said...

"At the heart of liberty is the right to define one's own concept of existence..."

The problem is that Roe allows the woman to define this for somebody else. That and the fact that it is a federal intrusion in an area where the federal government does not have power.

Phil 3:14 said...

The tyranny of the womb.

(And particularly hostile for females in China and India.)

slarrow said...

"The question of when the unborn is considered a 'person' is reserved for the woman to answer for herself."

You know, if we rewrite this to say, "The question of when the slave is considered a 'person' is reserved for the owner to answer for himself", this seems pretty monstrous. I wonder if the abortion question will seem the same in another hundred years....

Nonapod said...

Mice, deer, and babies are basically the same thing.

Paddy O said...

The question of when a woman is considered a "person" is reserved for the men to answer.

Might makes right, at least that seems to be the theme of that last paragraph. The ability to shape, manage, destroy a life gives absolute moral authority to shape, manage, destroy.

Now don't make things inconvenient for the men in your life and you'll be fine.

Paddy O said...

What's interesting as I think about the absurdity of my last comment is that this is precisely how abortion rights are supported--an argument against men having moral authority over women's bodies becomes women taking moral authority over other human bodies.

The oppressed fight their oppression by engaging in more oppression against those they can oppress.

Ann Althouse said...

"Very appropriate of you to quote Justice Kennedy's incoherent drivel."

Of course, it's appropriate. It's the Court's definition of the right. And it's strangely written, but not incoherent. If you examine it, it makes perfect sense as a definition of a right that is about personal autonomy and the sovereignty of the individual with respect to some decisions. If you don't like the individual having that realm of choice, you may feel like not trying to understand what is being said, but it doesn't impress me to hear you label it "incoherent."

Now, the viability line is incoherent. What's the point of saying that the human entity, if expelled or removed and not killed in the process could be kept alive by heroic measures, when the point of saying that is to justify forbidding its killing. If you don't kill it... if you leave it alone when it is not viable, it will grow to the point where it can survive on its own. Since we're talking about leaving the viable fetus alone to continue to grow, not to take it out and try to nurse it to survival, what's the basis for treating it differently from the slightly less mature unborn?

The only reason I can think of is one the Court doesn't talk about: that if an abortion is attempted on a viable fetus that gets out alive, then the doctor is going to feel ethically compelled to save it, and that's a very unpleasant and expensive situation.

ricpic said...

So...a woman's right to make basic decisions about her body...

trumps Thou Shalt Not Kill.

Not according to this retrograde traditionalist.

David said...

Contrast the tolerance of inflection of pain in abortion with tolerance for infliction during an execution for murder. It's another reason why abortion is undermining respect for law. Law (the individual woman defines personhood) conflicts with common sense compassion and morality (infliction of pain on an innocent and unprotected organize is immortal.)

wyo sis said...

And what does Mormon families first Mitt think?

What does this even mean?

William said...

The pains are five minutes apart. The pregnant woman has a past history of psychotic lesions. She starts screaming that the baby is the antichrist and demands an abortion....Does she have the right to an abortion in such a circumstance? They say hard cases make bad laws, but why is rape the only possible hard case?

edutcher said...

This looks like a job for SuperFluck.

PJ said...

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

I hope your students recognize the question-begging going on in this passage. To say that liberty encompasses the right to self-define life (where "one" = self and "existence" = life) just pushes the question from "what is a life?" to "what is a self?". If a fetus is a self, why doesn't it get to have a liberty interest in self-defining life? Sophistry.

SomeoneHasToSayIt said...

Very shortly after conception, it seems to me perfectly reasonable to allow the woman all rights and decisions.

Very shortly before full gestation birth, it seems perfectly reasonable to me to have had all rights (except imminent death of the mother) now residing with the nearly born child.

So when along the way, did it switch? No possible way to determine precisely, it would seem.

So we then need to err on one side or the other.

The whole abortion issue seems to come down to which side to err on.

madAsHell said...

kristinintexas

Congratulations!!

Deirdre Mundy said...

Except "Life and Health of the Mother"

inludes.. "This baby may be born retarded, I don't want it."

"This baby could impact my career, I don't want it."

After 24 weeks, there's no reason EVER to kill a baby before delivery. Just deliver the kid, pop him in the NICU, and put him up for adoption. Demanding to have him killed first so no one else can have him isn't about 'protecting the life of the mother.' It's pure selfishness.

Or, to put it another way, it's as if, in the 'Wisdom of Solomon' story, the BIRTH mother had said "yeah, cut it in half. That's a good plan."

In which case, Solomon would still have been right to give custody of the child to the woman in the 'don't chop up babies' camp.....

kristinintexas said...

Thanks, mad! He or she is our first and we're very excited. :)

Ann Althouse said...

"So...a woman's right to make basic decisions about her body... trumps Thou Shalt Not Kill."

The woman has the right to decide what is happening, what this action she is considering taking really is.

So if she says this is a collection of cells and not a person, then within her philosophy and morality, she is not killing a person.

The real defect is that she is allowed to have the abortion EVEN IF she believes the unborn is a person.

She's not required to sincerely believe she's not killing a person as a precondition to having an abortion.

But the government doesn't normally pry into what we believe. That is the realm of the individual.

n.n said...
This comment has been removed by the author.
n.n said...

The value of a human life is a metric which can only be determined through a philosophical or religious argument. It has no intrinsic value until it is granted by women, and men, who will determine its fate.

Sound familiar?

Let's hope the modern, enlightened human being does not choose a retrogressive path.

Then again, as per diversity and other degenerate classification schemes, we are interchangeable and disposable from conception to grave. Perhaps we should normalize evolutionary dysfunction and accept that the value of life is in the eye of the beholder. After all, no one actually knows the purpose of life, other than through articles of faith.

Why are we so afraid of death? It is, after all, inevitable. We follow a developmental path from conception, to emergence or expression of consciousness, to biological and, presumably, conscious death. Life as we know it is not static; but, death, objectively (i.e. within an accessible frame of knowledge), is.

Deirdre Mundy said...

Ann - by that logic "One should be permitted to kill what one believes is not a person" means, for example, that if I sufficiently dehumanize my political opponents and believe they're no longer people, but irrational, mouth breathing, animals in pants, I should be able to kill them.

After all, as long as *I* don't think they possess personhood, why should the government demand that I treat them like persons?

The question is, where does personhood come from? Is it something we can choose to grant to or withhold from other human beings, or is there some other source for what makes a person?

I agree that, historically, societies get to choose whether, for instance, Jews, Blacks, Women, and people from outside the clan count as "people." However, it seems that a consequence of our increased 'civilization' has been an ever-widening circle of which humans are also people.

And, from a Christian perspective, any view other than 'all humans are people' is wrong.

But, if we're not a Christian country, I suppose we COULD decide 'person' applies only to some subset of the population. However, if, for instance, the supreme court declared illegal immigrants to be non-persons to be killed with immunity, most people would be horrified. Why is the unborn child who will cause you to lose your job and cost you money a different category of being than an undocumented worker who does the same?

Paul Zrimsek said...

The woman has the right to decide what is happening, what this action she is considering taking really is.

Surely Kennedy meant something a little more robust than this! Even in the Bad Old Days, a woman was allowed to have whatever opinion she wanted about the personhood of the fetus, or about the permissibility of abortion more generally. The only thing she wasn't allowed to have was the abortion.

n.n said...
This comment has been removed by the author.
Texan99 said...

"You know, if we rewrite this to say, "The question of when the slave is considered a 'person' is reserved for the owner to answer for himself", this seems pretty monstrous."

This is almost verbatim what I was about to say. The most horrible social conventions human have come up with always seem to turn on this business of giving the decision over whether someone is human to the person who wants to do him harm.

n.n said...

Ann Althouse:

The mother is, in most cases, a voluntary guardian (other than in cases of rape or, to a lesser extent, in cases of superior exploitation, e.g. incest) of a developing human life. There is a near universal consensus that guardians do not have the right to commit premeditated acts of murder. Not of their biological children or anyone else under their care.

There is no reasonable argument to distinguish between different developmental stages of human life, other than, perhaps, the expression of consciousness. It is this last criteria which rationalizes the distinction between human life in the womb and outside. In the womb, a human life does not have a voice to protest its imminent termination. The inability to properly communicate its will, facilitates a mother's choice to prematurely terminate its life.

Anyway, the value of human life cannot be determined through the scientific process. It can only be properly measured in a philosophical or religious domain, unless it is capable of expressing and enforcing dissent in order to prolong its existence.

Once again, society is tasked with establishing a minimum level of personhood and associated individual rights. The case of a developing human life in the womb is only a special case by virtue that it lacks a voice to express its will.

Saint Croix said...

In fact, the Supreme Court has never made much sense over why viability is the line.

The first mention of "viability" in Roe v. Wade is in the Plato and Aristotle discussion. This is quite odd, since Plato and Aristotle had no neo-natal care units.

Footnote 22 also suggests that Blackmun is thinking of the ancient Greeks. (Note that footnote 22 references killing babies after birth).

When you read Blackmun's cites, Plato and Aristotle are talking about infanticide, the killing of newborns.

Blackmun hides this in his opinion. He discusses abortion in ancient Greece and Rome, without discussing all the baby-killing that went on in ancient Greece and Rome.

"Fetus" is actually a Latin word that means "newly delivered."

I don't think Plato and Aristotle were talking about surgical abortion. After all, Hippocrates was famously against abortion, precisely because it was so deadly to women.

mark said...

@Ann "So if she says this is a collection of cells and not a person, then within her philosophy and morality, she is not killing a person."

That is a form of insanity you know.

State of mind does not change reality. It changes your perception of it and the state's perception of guilt. Not reality itself.

slarrow said...

Thanks, Texan. That's a distillation of something I wrote back in January 2009, actually. Briefly, here's the case:

Suppose you live in 1850s Tennessee. Your uncle from Mississippi dies and leave you some property, and that property includes Jim, a slave. Keep Jim a slave, and your property is profitable. Free him, and you lose money as your inheritance becomes a financial hardship. As it happens, your neighbor Louis also finds out that his Alabama uncle has died and left him property, including John, and the same profit issues apply.

Now, Jim and John: are they people, or are they property? For you to exercise your conscience, the law has to establish that they are both property. Then, if you feel so inclined, you can make your decision about Jim and free him. By your decision, you basically change him into a person where he wasn't before. That seem right to you?

Now imagine you're a married woman in modern Chicago and are two months pregnant. Your situation is stable, but a baby would really complicate matters and make it tougher on you financially. Lo and behold, your twin sister who lives six blocks from you is also eight weeks pregnant and has similar financial and marital circumstances. You're eyeballing the Planned Parenthood clinic halfway between you and your sister, and she's coming up with names already (Edward if it's a boy, Caroline if it's a girl.)

So, the fetus in your body and the one in your sister's: are they people, or are they property? For you to exercise your conscience, the law has to establish that they are both property. Then, if you feel so inclined, you can make your decision about your fetus and allow him to be born. By your decision, you basically change him into a person where he wasn't before. That seem right to you?

Saint Croix said...

What happends when science extends "viability" to conception?

The Supreme Court’s “viability” formulation would protect the existence of tiny microscopic zygotes. Is a human zygote “potentially able to live outside the mother’s womb, albeit with artificial aid?” Yes!

Doctors can take a zygote, formed by the union of father’s sperm and mother’s egg, and freeze it for eight years. That zygote can survive outside your uterus for eight years! And then doctors can take the zygote and implant it into the uterus of another woman.

So a zygote is viable, while an unborn baby often is not. Thus, because the Supreme Court’s viability doctrine measures survivability, as opposed to human life, the zygote should be protected under it.

Under the Court’s inane rule, we can’t terminate a zygote who can survive outside the uterus, but we can terminate a baby!

This is so because simple organisms can survive in places where complex organisms cannot. The zygote, a simple human organism, can easily survive outside the mother’s uterus. But a baby, a far more complex human organism, for many months can only survive in his mother’s uterus.

It’s just a huge flaw to take the viability theory of the ancient pagans--a theory used to justify the killing of newborns--and attempt to use that theory to justify aborting a baby inside the womb.

Whether or not the unborn can survive outside the uterus is a rather stupid question to be asking. What the Court needs to answer is the “difficult question” that the Court did not want to discuss—whether the baby is alive.

mark said...

At one time the greatness of an individual and society was it's ability to care for those who are unable to care for themselves. For the injured. The ones with birth defects. Those with autism, downs syndrome, etc.

Our society celebrates the abilities of mothers to "better society", and there own "lives", through the killing of the weak.

We celebrate Eugenics and call it progressive thought. We murder our weak members, and call it mercy. We kill our children, and call it the rights of mothers to determine what life is.

Sad. Pathetic. And monstrous.

BarrySanders20 said...

"The woman has the right to decide what is happening, what this action she is considering taking really is.

So if she says this is a collection of cells and not a person, then within her philosophy and morality, she is not killing a person."

The vag is a wonderful and powerful thing, but I and many others don't agree it or the Constitution grants this power.

Saint Croix said...

That's a lot of ethics being discussed as if the answer lies in finding a legal standard somewhere.

I believe our laws can and do answer all these questions.

A person is a live human being, for instance. The word "person" is not a legal term of art. You don't have to be an Ivy League scholar to know what a person is. Indeed, the whole point of the equal protection clause is to forbid dehumanizing people. You're not allowed to define groups of people as sub-humans and start injecting poison into their necks.

Of course an unborn baby is in the class homo sapiens, so she's human. The difficult question is when is she alive in the sense that you or I are alive. Or, more specifically, when is abortion a homicide?

Our law answers that, too! We have laws on the books in regard to when people die. It's the same law in all 50 states. Widespread agreement.

I believe our Constitution would help us resolve the abortion controversy. Clearly defining the unborn baby as property hasn't resolved anything.

traditionalguy said...

The Mormon Mitt may not be like a Catholic on the sanctity of life issue. I wonder.

A religion that gives us free will does not control women's choices except by excommunication. What is a Mormon's position? A Calvinist would see predestination at work in the mother's choice, forgive and get along with her.

So Mitt is predestined to select a Justice but is it one who sees sanctity in human lives? Stay tuned.

Saint Croix said...

I agree that, historically, societies get to choose whether, for instance, Jews, Blacks, Women, and people from outside the clan count as "people."

We fought a Civil War over this and that "choice" is now off the table. And denying the humanity of people invites violence, and modern day John Browns.

The homicide issue is important and for the Supreme Court to ignore it is to make them the moral equivalent of slave-owners.

And some great Americans were slave-oweners. Washington, Jefferson, Madison. But in this one little area, they were wrong and evil. We recognize this today.

Slavery lasted so long because good people participated in it. Nice people. People who helped the sick and gave money to charity. But in this one little area, they had a moral blind spot. And they were monsters.

"I tremble for my country when I reflect that God is just."

-Jefferson

Methadras said...

Human conception is the instantaneous point of when a human begins. There can be no other result other than a human being. The genetic programming of that combination and recombination of those genes do not permit any other species to be conceived. It is a human being in it very early state. To parse it to pain sentience as a function of viability is absurd. Until a man and a woman who conceive a child and she gives birth to a goat or a fish or a lion, then I'll reconsider. Until then it's a human being.

MikeDC said...

1. The state already compels us to definitions of personhood. I can't say I believe Ann Althouse to be a non-person and kill her. I can't even say my newborn is not a person and kill it. What's more, the state creates a legal obligation on part, as a parent, to take care of a newborn whether I consider it a person or not.

2. I can partially avoid that responsibility by surrendering my child to the state, but I still have a legal responsibility to pay the taxes to support that newborn (and those of others). Along with lots of other things the state defines as people but I might consider to be not people.

3. Because of those facts, I don't see how one can call viability "incoherent". In the larger context of human life, the state has a declared interest in protecting human life. It spends enormous resources to protect and extend that life even in cases where the life isn't individually "viable".

We don't kill off the weak who can't care for themselves. It's almost the basic guidepost of any society.

4. Now, applying that to abortion, the viability question makes perfect sense. How much do we impose on the living person in furtherance of the society/government's right to protect and foster life? At birth a mother may give up her rights to the child, but may not kill it, even though it is not independently viable. If left alone, the child dies.

Those creates very little imposition on the mother who wants to forgo those rights.

The point of viability is that it's the point as which the government could basically remove the child and make it an immediate ward of the state.

I don't see how removing the fetus from the mother and keeping it alive creates any more burden on the mother than removing the fetus and ensuring its death.

Saint Croix said...

Equal protection results in fair rules, because the rules apply to all of us. When you deny the humanity of a baby, and cast her outside of our Constitution and our legal system, it results in rules that are highly likely to be unfair and unjust to her.

Imagine, for instance, an old woman who has cancer. Her doctors have said that she is non-viable. She’s going to die. And yet, right now she’s still alive, costing her family money and giving her children stress. So the children decide that their old, infirm mother should be killed against her will. And they pay the doctors to terminate her. So the doctors strap the old, helpless woman to a bed, and inject poison into her neck.

Now imagine a Supreme Court that says it’s right for children to do this to their parents. Imagine also that the Court says that the children can do this for reasons of their own health, including their financial well-being.

I believe that such an opinion would be attacked by pro-lifers who are appalled at children who kill off their mother. In fact I do not think the old people who sit on the Supreme Court would ever write such an opinion. It might apply to them one day!

This is why equal protection is so important. If you apply the viability doctrine to you or me, we realize how unfair it is. It’s quite dangerous to define the unborn as sub-human, and say that our death and homicide statutes do not apply to them.

mark said...

As a "seconded" to Saint Croix.

Eugenics and Other Evils – Gilbert Keith Chesterton

Most Eugenists are Euphemists. I mean merely that short words startle them, while long words soothe them. And they are utterly incapable of translating the one into the other, however obviously they mean the same thing. Say to them "The persuasive and even coercive powers of the citizen should enable him to make sure that the burden of longevity in the previous generation does not become disproportionate and intolerable, especially to the females"; say this to them and they will sway slightly to and fro like babies sent to sleep in cradles. Say to them "Murder your mother," and they sit up quite suddenly. Yet the two sentences, in cold logic, are exactly the same.

Saint Croix said...

Human conception is the instantaneous point of when a human begins. There can be no other result other than a human being.

If you try to protect human life at the microscopic level, equal protection demands that you do it at the other end, too, when we declare people are dead.

Ashes to ashes, microscopic organism to microscopic organism.

Thus under your rule, we can't declare anybody dead until they cease to exist and all cells have disappeared.

Not saying your state can't try that rule on for size. I just think if you try to apply it to all people, equally, you're going to run into problems.

For instance, you're going to have cadavers piled up in the hospitals, because nobody can declare that anybody is dead. You're forced to wait for non-existence.

Pro-choice people are free to define death as consciousness--or whatever rule they prefer--but then they have to apply that rule to all people. They have to apply it to people who are asleep, or people in comas. And they will have the opposite extreme scenario of burying people alive.

Equal protection doesn't say anything about the substance of a rule, whether it's good or bad. It's a procedural guide. It simply insists that you must apply your rules to everybody. That keeps the rules quite fair, I think.

ken in sc said...

Since mothers have abortion rights up until birth, I think fathers should have abortion rights from birth up until about 18 years old. If at any time the fetus shows signs of being defective, such as not taking out the garbage or refusing to do homework, the father should be able to take it down to a Planned Parenthood clinic and have it taken care of.

Michelle Dulak Thomson said...

Ann,

The only reason I can think of is one the Court doesn't talk about: that if an abortion is attempted on a viable fetus that gets out alive, then the doctor is going to feel ethically compelled to save it, and that's a very unpleasant and expensive situation.

Actually, what generally does happen seems to be that the doctor feels no ethical compulsion at all, and dumps the inconveniently live baby in the nearest broom closet until it's dead the way it was supposed to be. This is the practice that led to bills like the one Obama voted against three times (IIRC) in the Illinois State Senate

Methadras said...

Saint Croix said...

Human conception is the instantaneous point of when a human begins. There can be no other result other than a human being.

If you try to protect human life at the microscopic level, equal protection demands that you do it at the other end, too, when we declare people are dead.

Ashes to ashes, microscopic organism to microscopic organism.

Thus under your rule, we can't declare anybody dead until they cease to exist and all cells have disappeared.

Not saying your state can't try that rule on for size. I just think if you try to apply it to all people, equally, you're going to run into problems.

For instance, you're going to have cadavers piled up in the hospitals, because nobody can declare that anybody is dead. You're forced to wait for non-existence.

Pro-choice people are free to define death as consciousness--or whatever rule they prefer--but then they have to apply that rule to all people. They have to apply it to people who are asleep, or people in comas. And they will have the opposite extreme scenario of burying people alive.

Equal protection doesn't say anything about the substance of a rule, whether it's good or bad. It's a procedural guide. It simply insists that you must apply your rules to everybody. That keeps the rules quite fair, I think.


We have definitive laws for life and we have definitive laws for death. Both are mutually exclusive to each other. I'm simply stating that the one that defines what life is as a matter of viability or pain sentience needs to be re-examined and/or re-written. Now death on the other hand is a different matter since there appears to be different medical definitions of death. There is even new study now on whether the death we are familiar with is death or if there is a deeper level of death. However, that is beyond my understanding at this point.

Saint Croix said...

We have definitive laws for life and we have definitive laws for death. Both are mutually exclusive to each other.

Yes, exactly. Death and life are mutually exclusive. But they are not independent of each other. They are utterly intertwined.

The pro-life criticism of Roe v. Wade is that it is a homicide, right?

If you want to address that charge, the key question is not "when does life begin" but rather "when do people die?"

And we can answer that as a legal matter. We have answered it.

This is not to say that early embryos or zygotes or sperm are not alive. Of course they are. Doctors can tell the difference between live sperm and dead sperm.

But it's not a homicide to kill sperm, or zygotes, or very early embryos. Even an embryo with a heartbeat, it's not a homicide to kill it under our law, if the embryo does not have brain activity.

Similarly, it's not a homicide to kill you or me if we have a heartbeat, but not brain activity.

That's the point of equal protection, to give the unborn baby the same homicide and death statute protections that you or I get.

Our death statutes were created not in regard to the abortion issue, but the issue of organ transplants. Could you take out a person's heart? Or is that a homicide? The law says you can (in all 50 states) because the critical issue for homicide is brain activity.

Baby has brain activity 6 weeks after conception, or 8 weeks after the last menstrual period.

Of course states are free to change their death statutes. Equal protection simply demands that whatever your law is, it applies to everybody.

Saint Croix said...

The question of when the unborn is considered a "person" is reserved for the woman to answer for herself.

In other words, as a legal matter the Supreme Court is saying the critical point is birth. That's when humanity attaches. The moment you are a citizen, you are also a person. And the murder statutes apply.

The problem with this is Carhart. Partial-birth abortion means you are half-born, and half-unborn. You are half-person, and half-property. You are half-free and half-slave.

We can't accept this. It's illogical. And since the Supreme Court is so used to dehumanizing babies in abortion cases, in Carhart it continued to dehumanize a baby who is now outside the birth canal.

No longer unborn. And yet still dehumanized!

If Kennedy had his wits about him, he would have fought for the born/unborn distinction that Roe said was so important. He should have recognized a born infant as a person, and applied the equal protection clause, and the murder statutes.

But he didn't make that argument. None of them made that argument.

mark said...

@Saint Croix "Ashes to ashes, microscopic organism to microscopic organism."

You need to also apply time features, reproductive, and the self sustaining features of life. A fertilized egg is far far different then my body seconds after my head is cut off.

Given time and nutrients a fertilized egg will become a full legal adult.

The question is: until the time a person is a full legal adult, what can we do to them?

We made it legal to kill them at any time up until about 40 weeks. Just for fun and self pleasure if that is what is wanted.

After that they get some protection. But, they are not full persons in the sense of the law. Until 18 years minus 40 weeks (or 21 years minus 40 weeks) we have laws that are entirely different for them.

Pulling skin cell, sperm, dead body arguments is a fallacy.

Saint Croix said...

Given time and nutrients a fertilized egg will become a full legal adult.

Mark, that's exactly right.

I didn't mean to imply that states do not have any justifications to outlaw early abortions. There are many, including ones that don't include the baby at all. (For instance, the possibility that abortion leads to breast cancer in women, or worries about doctors violating the Hippocratic Oath).

Indeed, I think it's a very good idea for a state to make it a crime for a doctor to violate the Hippocratic Oath!

My point is simply that you cannot charge a doctor with homicide in the case of very early abortions, because the death statutes would not apply in those situations.

That's what equal protection would require, in my opinion, that people apply the death statutes.

A state could still allow early abortions, or criminalize them. The Constitution doesn't speak at all about abortion, and it's highly controversial, so the substantive issue should be resolved democratically.

My point is that no state can allow homicides, and I'm using state law to define what is a homicide. That's fair, and if a state is unhappy with it, they can change their law. What they cannot change is the Constitutional provision that requries laws to apply to everybody.

Tom said...

As philosopher Hadley Arkes said of Kennedy's infamous phrase in Casey, "That is the sort of philosophy one finds in the better brands of fortune cookies."

dbp said...

This seems to me similar, though coming from the opposite direction, as death penalty opponents attacking the punishment as causing pain.

Their method seems to be to attack any given execution method as cruel & unusual, with the idea that in theory the death penalty is fine, but no method satisfies humane requirements.

It makes a lot of sense to go after abortion using the same tools.

mark said...

@Saint "make it a crime for a doctor to violate the Hippocratic Oath"

That can't happen. Do no harm is an ideal. It can never be a standard. Because harm can not be defined universally. That would make it a mess greater then trying to interpret any of the amendments.

As far as abortion compared to homicide. States allow for justified killings. Protecting self, property, etc. The whole "it is a woman's call ... it is her body ... it isn't a child ... we are better off with fewer of 'those' people ... " arguments are just an appeal to justified killing in the mind of the person advocating abortion. With out having to say it out loud.

Saint Croix said...

Do no harm is an ideal. It can never be a standard.

That's true. I was thinking in regard to some of the specific rules in the Oath (i.e. no abortions, and no assisted suicide).

I was being sloppy there. What I meant to say is that a state could outlaw early abortions, and one of the justifications for the criminal sanction might be that abortion is thought to be corrupting to medical ethics.

And you can cite the Hippocratic Oath for that.

See, for instance, the 20/20 story, "Fetal Parts for Sale," about a doctor making a lot of money selling baby parts to medical researchers. You can access the transcript here (you'll have to scroll down to find it, it's Appendix B).

20/20 isn't at all concerned about infanticide in that story, but they are concerned about greed and corruption.

Indeed, one could argue that abortion (like a sex-change surgery or plastic surgery) isn't the practice of medicine at all, since in almost all cases, pregnancy isn't an illness.

Dr. Hern, who wrote the aborton textbook, Abortion Practice has argued that pregnancy is an illness ("Pregnancy should be seen as a bio-cultural event in the context of other human illnesses") and that abortion is the cure ("Abortion is the indicated treatment for pregnancy"). That would be a good example of abortion warping and disturbing the practice of medicine.

Indeed, I think abortion has been pushed out of hospitals and into clinics (along with plastic surgery), because it's not really part of the practice of medicine (see Hippocrates). Rather, you are using your medical training for a non-medical purpose.

Saint Croix said...

I was shocked, by the way, to discover that the New York Times has actually published abortion photographs. Bravo.

heyboom said...

After viability, it doesn't matter if the baby comes out alive or dead in regards to the life and health of the mother. Essentially, after viability an abortion is murder.

TMink said...

Mousetraps? Deer hunting? Well, at least he displays the poverty of his humanism!

Trey

Saint Croix said...

What causes fits with equal protection analysis, by the way, is that women get pregnant and men don't.

This is a biological inequality!

And you can't pretend that we are equal in this regard. Depending if you like pregnancy or dislike pregnancy, women are superior to men or inferior to men. Or we're just different. Neither superior nor inferior, but different.

Whatever we are, you cannot say we're "equal" when it comes to pregnancy.

Nor can you say that abortion equalizes us! Only women will have abortions, after all. Men get to have irresponsible drunk sex, while women have to clean up after the party. (And feel guilt for the rest of their lives).

It's your body, it's your choice. Doesn't concern us at all!

And this irresponsible behavior has been encouraged by a legal system that has stripped men of any authority over human reproduction. We can be made a father against our will. Or have fatherhood stripped from us against our will.

So our abortion rules encourage men to be irresponsible sexually, to abandon fatherhood and not think about that loss.

Roe v. Wade is not just a legal disgrace--although it is clearly that--but also a dictatorial feminist rule that has done a great deal of harm to our families, to men and women, and of course to the children we terminate.