June 8, 2013

"Did doctors in a country that bans abortion under any circumstances manage to terminate the pregnancy without violating the law?"

Yes, because there was a delivery through Caesarean section, and even though the baby died soon after, the motivation of the doctors was to save the woman's life, not to kill the baby.
Sidney Blanco, one of the high court judges who ruled against Beatriz, said that “if they intervene and only Beatriz survives” because the fetus could not be saved, then it could be that her doctors “were not committing any crime.”...

Beatriz said her doctors would have terminated her pregnancy regardless of what the [Salvadoran] high court ruled, expressing a confidence that they would value her life over that of an unviable fetus.
This is a very old moral principle. I've seen it in the context of discussions of doctor-assisted suicide, where the idea is that the doctor — though ethically prohibited from killing the patient — may give pain relief, even where the consequence of the medication will be that the patient dies, because the point is to relieve the pain and not to end the life.

Ah, yes, here it is:
The principle of double effect; also known as the rule of double effect; the doctrine of double effect, often abbreviated as DDE or PDE, double-effect reasoning; or simply double effect, is a set of ethical criteria which Christians, and some others, use for evaluating the permissibility of acting when one's otherwise legitimate act (for example, relieving a terminally ill patient's pain) will also cause an effect one would normally be obliged to avoid (for example, the patient's death). Double-effect originates in Thomas Aquinas's treatment of homicidal self-defense, in his work Summa Theologiae.

61 comments:

Saint Croix said...

there was a delivery through Caesarean section, and even though the baby died soon after, the motivation of the doctors was to save the woman's life, not to kill the baby.

Why not a constitutional right to put a baby in a neonatal intensive care unit? Why did the abortion cases develop as they did, with a kill-right, instead of a right to “remove a trespasser” or something like that? Why not finish the delivery and put the tiny baby in a NICU? The pregnancy is still aborted. Mom is no longer pregnant. And in that scenario, the doctors are making very best efforts to keep the baby alive. What’s wrong with that?

Consider again the Carhart opinions. The doctors are inducing labor and delivering the baby. Why are doctors doing that? It’s because a D&E abortion is dangerous to the mother. Birth is safer than D&E abortion, at this stage in the pregnancy.

Now look at what the doctors are actually doing. They are inducing birth. And yet instead of finishing the delivery, and putting the baby in a NICU, the doctors are killing the baby halfway outside the birth canal. The baby is outside the uterus, almost a citizen, and yet no attempt is made to keep her alive.

"Viability" is just academic theory. Abortion clinics don't have NICUs. If you are worried about premature babies, and want to make sure we are keeping them alive, you would want a NICU to be somewhere in the vicinity.

Of course, saving a premature baby’s life is expensive. That’s why a NICU is always found in a hospital. Abortions are cheap, and take place in clinics.

In the Akron opinion, the Supreme Court overturned a state law requiring that a 2nd or 3rd trimester abortion take place in a hospital. Thus the Court puts both mother and child at risk.

The Court writes, “a second trimester abortion costs more than twice as much in a hospital as in a clinic.” Yes, because a hospital is where all the life-saving equipment happens to be.

As the Supreme Court writes in Akron, an “in-hospital abortion costs $850-$900, whereas a dilation and evacuation (D&E) abortion performed in a clinic costs $350-$400.” And so the Court holds it’s unconstitutional to require a hospital visit.

Of course, a NICU is expensive. They cost a lot of money, and they are designed for parents who desperately want their baby to live. Those are high-value babies. A baby in an abortion clinic, on the other hand, is a low-value baby.

We have defined the baby as a commodity, and we have a value system in place. The high-value babies get neonatal intensive care. The low-value babies get the knife.

Carl said...

expressing a confidence that they would value her life over that of an unviable fetus.

But if she were on the Titanic or even the Costa Concordia, her husband would be expected to value his life below either of the two.

Keep that in mind, gents. Know your place. It used to be

baby > mother > father

but now it's

mother > baby > father

You'll want to keep those evolving standards in mind.

madAsHell said...

How can the longest comment since Carol Herman be first??

Saint Croix said...

Preemie baby at 24 weeks.

"Constitutional right" at 24 weeks.

Ann Althouse said...

"Why not a constitutional right to put a baby in a neonatal intensive care unit?"

The baby was put in an incubator and provided fluids. It died in 5 hours. It was treated with respect and cared for, I believe.

As for intensive care, this was a baby with the birth defect of not having a brain. I don't know how you would want medical care to be determined.

Saint Croix said...

The baby was put in an incubator and provided fluids. It died in 5 hours. It was treated with respect and cared for, I believe.

Yes, I'm not criticizing El Salvador! It's our country that is barbaric and cruel.

Ann Althouse said...

"Why did the abortion cases develop as they did, with a kill-right, instead of a right to “remove a trespasser” or something like that?"

This is the problem I have with late term abortion where it's necessary to save the mother: Why not deliver the child, by Caesarean or induced labor? What is the advantage to the mother in killing the child? If there's no answer to that, then I think the option of killing the child (under Roe and Casey, after viability) should be forbidden.

Pro-abortion rights ideologues have trouble with that question, I believe.

What they want to say is that where the baby has a severe birth defect, the mother should be saved the ordeal of a Caesarean section, which damages her health, making her need to have future children by Caesarean section.

Saint Croix said...
This comment has been removed by the author.
Ann Althouse said...

"Consider again the Carhart opinions. The doctors are inducing labor and delivering the baby. Why are doctors doing that? It’s because a D&E abortion is dangerous to the mother. Birth is safer than D&E abortion, at this stage in the pregnancy."

But with the "partial birth" technique, the head is collapsed before it passes the cervix, so that is much easier on the woman than delivering the living head.

But why is this baby being killed at all, late term? The question is the woman's life/health.

edutcher said...

Good intentions pave a certain road we all know.

I understand Ann's point, but the good Dr Kevorkian, time and again, insisted his intent was the alleviation of pain.

Those doctors may have tried to follow the law and morality, but what was going on in their unconscious, what was the primary end and how expendable was the secondary one?

Ann Althouse said...

""Viability" is just academic theory. Abortion clinics don't have NICUs. If you are worried about premature babies, and want to make sure we are keeping them alive, you would want a NICU to be somewhere in the vicinity."

Viability as the line does not make sense to me (and I've taught the abortion cases many times). The point of viability is where the line is drawn and the woman doesn't have a right to terminate pregnancy (except to preserve her life/health), so that baby is staying inside and maturing. It's not going to be required to struggle for life.

All I can think is that there's a terrible problem with a botched abortion. Now, you've got someone who can live, but it's going to be a big, expensive struggle (not to mention the fact that it's there in the presence of the people who were just trying to kill it).

Saint Croix said...

What is the advantage to the mother in killing the child? If there's no answer to that, then I think the option of killing the child (under Roe and Casey, after viability) should be forbidden.

That's not "under Roe and Casey," but is re-writing them, again. You would have to remove the "health" prong of Roe and Casey and start enforcing the viability doctrine. You would have to overrule Akron and say that states could require a hospital visit for 2nd or 3rd trimester abortions.

You would have to start using the "baby" word in abortion opinions.

I'm not sure the Supreme Court is ready for all this honesty. Probably easier just to overrule Roe. (The Scalia option to allow the Court to save face).

Saint Croix said...

Viability as the line does not make sense to me

It's the line drawn by Plato and Aristotle (who Blackmun cited for the doctrine). It was the justification for abandoning a baby to die. The baby is weak and helpless. She's not autonomous. She can't survive on her own.

It's a pagan standard, designed to justify infanticide (and slavery, and rape). The strong survive and the weak suffer.

This was all upended by Judeo-Christianity, which is why Blackmun had to go back 2000 years to find his "viability" doctrine.

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

Late term abortion should b strictly limited to hospital settings with NICUs. Late term abortions should be strictly limited in cases of well documented risk to the mother's life, she should be made to agree that the infant, if not severly deformed or ill, will be given every chance at life as any premature baby would be.

Saint Croix said...

not to mention the fact that it's there in the presence of the people who were just trying to kill it.

Yes, no baby is viable if the people in the room want the baby to die. Indeed, they don't have to do anything, they just have to walk away (and ignore the crying).

Hence the pagan rule about abandoning a baby to die. You were not actively stabbing or poisoning the child. You just had no moral or legal obligation to keep your child alive.

So the baby would starve to death.

The Supreme Court took this pagan justification for infanticide and tried to make an abortion rule out of it. But viability has always been nonsense because nature has built the perfect neonatal intensive care unit--the uterus.

The baby can survive just fine if you leave her where she is.

Thus the Supreme Court's viability doctrine is mush. When the baby can survive outside the uterus is the moment when you can no longer abort the pregnancy!

The viability standard has never been enforced (see the health exception, including "the stigma of unwed motherhood"), precisely because it's arbitrary and has no real meaning.

Casey sought to shore up viability by pretending the Court had been enforcing it, and by pretending as if it's an important point in the baby's existence.

Viability has always been a justification for infanticide, from the very beginning.

Inga said...

Induce labor, give birth vaginally, to an unharmed infant or deliver by C section, but the baby needn't be killed in late term abortion of a pregnancy that will put the mother's life in jeopardy. Agreed.

That wasn't a difficult conclusion to come to, if birth is safer than a D and E as St. Croix asserts and it gives the infant a chance at life or to die naturally.


missred said...

I would like to know HOW the MOTHER's life was at risk. From what I read, the baby had no brain and would likely not survive after being born in a normal matter. Usually defective babies are miscarried. That is normal.
This woman and her doctors decided to interrupt the normal and take the baby at their convenience rather than wait for the natural occurrance, be it natural birth or miscarriage. The fact that they put the baby in an incubator looks like CYA.
From what else I read once the discovery of no brain was made, the mother and her doctors decided, why bother, let's go ahead and terminate the pregnancy. In my opinion that is the point of moral degradation of this story. There was no need for medical intervention based on the health of the mother.

Saint Croix said...

Why does birth create legal obligations for mothers and fathers, but not pregnancy?

Inga said...
This comment has been removed by the author.
Michelle Dulak Thomson said...

Ann,

This is the problem I have with late term abortion where it's necessary to save the mother: Why not deliver the child, by Caesarean or induced labor? What is the advantage to the mother in killing the child?

The "advantage" is that she doesn't have to be a mother. I don't mean merely that she doesn't have to take personal and financial responsibility for the child; she can drop that at birth (or, in at least some states up to a month later, no questions asked; that's the case in CA, anyway). No, she doesn't want to know that she has a living biological child somewhere, period. This is why late-term abortion, even of healthy fetuses, is sort of skewed toward producing, not only a non-pregnant woman, but also an incontrovertibly dead fetus.

All I can think is that there's a terrible problem with a botched abortion. Now, you've got someone who can live, but it's going to be a big, expensive struggle (not to mention the fact that it's there in the presence of the people who were just trying to kill it).

Exactly. And "kill" is right, here. Even in late-term abortions the desired result isn't just that the woman be no longer pregnant; it's that the fetus be no longer alive. If by some mischance (!) the fetus is born alive, s/he therefore is now a live infant, and an American citizen with all the rights of a citizen. While the pregnant woman we have been for convenience calling the "mother" (though the pro-choice folks, who use "mother" in this context as much as anyone, would be hard-pressed to say what she's the mother of) is now non-pregnant, and the actual mother of an actual child. Awkward, yes? It's this sort of thing that leads to babies born during the course of abortion procedures being casually tossed in supply closets for a few hours, until they're safely dead. Stuff like that led to an IL state bill that Obama voted against more than once, one that only stipulated the obvious: That any infant born alive is a patient whose life it is the duty of any physician to preserve.

Inga said...

I agree with missred, what was the nature of the risk to her life? if there wasn't any and the abortion was done for the defect of the baby, why terminate the pregnancy before th due date?

Inga said...

http://www.anencephalie-info.org/e/report.php

Contrary to common belief, only a small number of affected babies died in utero.

Here are the statistics:

7% died in utero
18% died during birth
26% lived between 1 and 60 minutes
27% lived between 1 and 24 hours
17% lived between 1 and 5 days
5% lived 6 or more days

Thus, of babies conceived with anencephaly, 75% survived the birth. Nevertheless, there were significant differences in survival rates as related to different birth methods.

In case of a planned c-section, only 4% died during birth (all those babies had additional malformations which increase mortality). Not only did more babies survive the birth, but they also lived longer. Of affected babies born by c-section, 53% died within 24 hours, 30% lived up to 5 days, and 13% lived longer than 6 days.

In case of vaginal birth, the risk of stillbirth following artificial rupture of the membranes is twice as high as if no intervention is done. When the amniotic bag was ruptured by the obstetrician or midwife, 37% of the babies died during birth against 18% when water broke naturally.

Pregnant women should draw their obstetrician’s attention to this fact in order to increase the chance of a live-birth.

The length of pregnancy is decisive as well. There is no significant difference between the rate of live-births of babies born before 37 weeks of gestation or thereafter. But premature babies have a lower life expectancy, as only 7% live longer than 24 hours as opposed to 32% of the babies born after 37 weeks.

Saint Croix said...

It's this sort of thing that leads to babies born during the course of abortion procedures being casually tossed in supply closets for a few hours, until they're safely dead.

Yes, and dead babies in abortion clinics are defined as non-viable. And to prove it we have a dead baby, who died without any signs of violence.

Indeed, abortion clinics don't have NICUs, so in many cases there is no way the doctors could keep the baby alive if they wanted to. But of course they don't want to. The whole purpose of the abortion clinic is to kill the child. So abortion clinics don't bother to install a NICU, for the same reason abortion clinics don't have bottles of milk.

Ian Nemo said...

St. Croix:
"Hence the pagan rule about abandoning a baby to die. You were not actively stabbing or poisoning the child. You just had no moral or legal obligation to keep your child alive.

So the baby would starve to death."

Unless the wolves adopted the child, and it nursed on their milk, and one day returned to wreak havoc. Unless indeed the gods might be propitiated with the blood of the lamb or the bullock, and the sweet smell of the holocaust.

Ann Althouse said...

"That's not "under Roe and Casey," but is re-writing them, again. You would have to remove the "health" prong of Roe and Casey and start enforcing the viability doctrine. You would have to overrule Akron and say that states could require a hospital visit for 2nd or 3rd trimester abortions. "

No, you are wrong, because you're not reading my "if" clause.

Ann Althouse said...

"The "advantage" is that she doesn't have to be a mother"

That's not the life or health of the woman which is the question under the doctrine.

Saint Croix said...

Double-effect originates in Thomas Aquinas's treatment of homicidal self-defense, in his work Summa Theologiae.

Aquinas is also famous for arguing that life does not begin at conception. See this for a Catholic discussion on why Aquinas was wrong.

I think Aquinas is right on the money, actually. He's right when he says that early abortion is a murderous intent, without actually qualifying as a murder.

I think the life-death issue is of paramount importance. And whatever science tells us about biology today, "life begins at conception" is certainly not a Biblical law. Nor is it even a secular law, since in all 50 states the critical biological point for human life is brain activity.

I believe Justice Scalia--and some of the other Catholics on the Supreme Court--have been unduly influenced by the teaching that life begins at conception. And this has shut them off from the idea that our law speaks very clearly in regard to when people die. And it has caused them to say nothing as the Supreme Court has defined the baby as sub-human property.

They know it would be absurd to say that our Constitution forbids all abortion. And so to avoid that absurdity--which is to say, to avoid Catholic teaching--they have no infanticide arguments to make. They are blind to what our laws saw in regard to human death. And they continue to define an unborn child as sub-human property.

Saint Croix said...

No, you are wrong, because you're not reading my "if" clause.

You couldn't be more O'Connor if you tried!

There's no sense in writing...

I think the option of killing the child (under Roe and Casey, after viability) should be forbidden.

if you're going to add...

unless you get a note from your doctor

Which is the "health" exception. Does the stigma of unwed motherhood justify aborting viable babies? Blackmun gives us a whole laundry list of things that he thinks justifies late-term infanticides.

Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Nobody can define "health" like that and simultaneously argue that a viable baby is important and protected. Where? In what country is that happening?

(I know! I know! El Salvador!)

Rabel said...

This is from the Times on May 29 after the Salvadoran Supreme Court made its final decision:

"It is up the Health Ministry to decide what steps to take next. The health minister had said earlier that Beatriz could travel abroad for an abortion, although she does not have a visa to enter the United States and would have to obtain a special humanitarian one.'

"But Mr. Mata said that the trip would pose risks to her health and that she should be treated in El Salvador. “There are many more cases like this,” he said. “There has to be an integrated solution."

They wanted her to die. After all, the only good martyr is a dead martyr.

Petunia said...

The mother has lupus and was at high risk for renal failure, pre-eclampsia, and possibly death had the pregnancy continued.

During her first pregnancy, her lupus was exacerbated, she developed pre-eclampsia, and the baby had to be delivered by C-section, after which he spent a month in the hospital. She had an appointment scheduled to be sterilized, but she didn't show up.

The fetus she was carrying this time was anencephalic. The baby would not have lived for more than a few hours or days even if the pregnancy had proceeded to term.

Saint Croix said...

What is the advantage to the mother in killing the child?

I admire the honesty in framing the question like this. But of course this is never going to work. You can't talk openly of killing a child or a baby. That's why the Supreme Court uses the Latin. It's why they always talk about "potential life." It's why newspapers never run abortion photographs.

You can't be honest about abortion, Althouse. Even the Nazis had to use euphemisms ("final solution"). Killing innocent people is a recognized evil, and we all know it.

The American people are opposed to infanticide. That particularly moral debate has already been fought, and won, a long time ago.

Call a pro-choice person a "baby-killer" and they will get mad. Why do they get mad? Because they too object to infanticide.

Thus abortion is not a fight about morality. It's a fight about reality.

You can't acknowledge pro-lifers are right on the infanticide issue, and simultaneously protect a woman's right to kill a baby. The Supreme Court has never framed the right in those terms, for good reason. Even low-information voters object to baby-killing.

That's why one of your students objected to Justice Kennedy's use of the "baby" word in Carhart II. It's why everybody objects to photographs of aborted babies, and why they are censored.

Your side has to cover up facts, hide them, call ultrasounds "rape" and ruthlessly self-censor in the media. It's why your side has to use Orwellian rhetoric.

I appreciate your honesty! But once you acknowledge abortion kills an innocent baby, how do you justify that?

Saint Croix said...

Unless the wolves adopted the child

It's interesting that both Romulus and Moses were abandoned babies. These origin stories assume the infanticide of the age.

Richard Dolan said...

The DDE principle, working the other way to the detriment (indeed, demise) of the mother, was a central element of The Cardinal, a movie made some 50 years ago. Principles, if adhered to, have a way of undermining political agendas; they're quite non-partisan in how they do that.

heyboom said...

Saint Croix, you are doing yeoman's work on this thread! Well done.

As always, I cannot reiterate enough to some here that there is no reason whatsoever to terminate a viable baby even if the mother's life is in danger. The remedy for saving the mother is to get the baby out, and the quickest way to get the baby out is by C-section. It does not matter if the baby is alive or dead.

Saint Croix said...

The mother has lupus and was at high risk for renal failure, pre-eclampsia, and possibly death had the pregnancy continued.

I think the possibility of death was exaggerated. She was quite willing to have the baby before she found out it was anencephalic.

In any event, I believe the doctors could have killed the baby in defense of the mother's life. See this, for instance.

The judges said that Beatriz's health was "stable", although they recognized this could change, ordering doctors to continue to monitor her health and provide all necessary treatment.

And from the New York Times article:

On Monday, doctors removed Beatriz’s fetus — which had a severe defect that prevented the brain from developing — through an incision in her abdomen. They would have used the same procedure had the court ruled in Beatriz’s favor, according to her lawyer and the nation’s health minister, María Isabel Rodríguez.

So the lawsuit was medically irrelevant. Why sue, then?

It's an attempt to strike down an abortion law. So you choose the most sympathetic mother you can find ("she's about to die!") and the least sympathetic baby you can find ("that baby's almost dead already!").

So bravo to the Court in El Salvador for upholding the law. And I have no problem with the doctors inducing delivery in this case.

Michelle Dulak Thomson said...

Ann,

That ["not having to be a mother]'s not the life or health of the woman which is the question under the doctrine.

I think you might actually get some push-back there. If "health" includes mental health, and mental health includes the absence of "distress" (I think this term came up in a case post-Roe,, though I can't remember which), then "not wanting to have any biological progeny" would qualify as a medical reason for an abortion if the woman found the idea sufficiently "distressing."

Saint Croix said...

As always, I cannot reiterate enough to some here that there is no reason whatsoever to terminate a viable baby even if the mother's life is in danger. The remedy for saving the mother is to get the baby out, and the quickest way to get the baby out is by C-section. It does not matter if the baby is alive or dead.

I'm out of my depth on a lot of these medical issues. I would think in some instances you would do an abortion? For instance if the embryo is attached to the fallopian tubes instead of the uterus.

By the way, one of the things the Supreme Court has never talked about are the health risks of elective abortion. For instance, abortion often scars the uterus.

Uterine scarring from abortion is why, I suspect, the number of women with a tubal pregnancy doubled in the 1970's.

A tubal pregnancy is very dangerous (the leading cause of maternal death in the first trimester). What's incredibly annoying is how abortion advocates always put these deaths under "pregnancy" and how they ignore how abortion (in many cases) actually caused the underlying issue.

cubanbob said...

Considering the fact that in our country of 300 million plus a very tiny few are hunter-gatherers or subsistence farmers 99% plus of us are only viable thanks to the societal umbilical chord the whole viabity concept is a bit bizarre to say the least.

cubanbob said...

The mother has lupus and was at high risk for renal failure, pre-eclampsia, and possibly death had the pregnancy continued."

The question that hasn't been asked is if this woman has such a dangerous underlying medical issue why didn't she have her tubes tied and thus avoiding the issue to begin with?

m stone said...

Kudos also to Saint Croix. You make some compelling points.

cubanbob said...

Having read the BBC article it's clear the Salvadoran court simply followed it's country's constitution. There was no medically indicated reason to kill the unborn child to save the mother's life or to prevent her suffering serious physical harm. The court simply ruled that to save the mother it was permissible to remove the child out of her which was done but not to kill the child since that wasn't needed to save the mothers life. Nothing that difficult to conclude based on that country's constitution.

MayBee said...

Didn't Tiller use mental health as the medical reason to perform late term abortions?

Renee said...

Saint Croix,


The abortion/breast cancer link is taboo subject matter, as well.
When pregnant, your body changes including your breasts.

Abortion is a physical trauma to your body. The doctor isn't performing medicine, the doctor isn't caring for an ailment. (Unless for the for the double effect, exception) A fetus isn't a parasite or a cancer. It's suppose to be there, that is how our bodies are designed.

Abortion ultimately becomes violent misogyny. How this became feminism, I don't understand.

Ann Althouse said...

St. Croix said: "'Viability as the line does not make sense to me.' It's the line drawn by Plato and Aristotle (who Blackmun cited for the doctrine). It was the justification for abandoning a baby to die. The baby is weak and helpless. She's not autonomous. She can't survive on her own. It's a pagan standard, designed to justify infanticide (and slavery, and rape). The strong survive and the weak suffer. This was all upended by Judeo-Christianity, which is why Blackmun had to go back 2000 years to find his "viability" doctrine."


No. You are combining 2 different parts of the decision. Plato and Aristotle are discussed in the part of the opinion that arrives at conclusion that "the unborn have never been recognized in the law as persons in the whole sense."



The next section begins with the proposition that the state cannot "by adopting one theory of life" override the woman's rights. But rights aren't absolute, the state has interests that may be "compelling." So the Court goes on to talk about the state's interests, which can include "protecting the potentiality of human life." Now, the court comes back to the topic of viability, announcing: "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability." Why? It certainly does not say, because that's what Plato/Aristotle thought! It says: "This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb." That's what doesn't make sense to me.

Ann Althouse said...

Now, feel free to say: Since it doesn't make sense, the Court must have really thought viability should be the point of the state's interest in "the potentiality of human life" because of Plato and Aristotle, but the 2 old philosophers are only discussed in the part of the opinion that collects philosophy, religion, and law to arrive at the conclusion that there's no constitutional personhood for the unborn, which leads to the view that woman's own mind — as she exercises autonomy within the realm of her body — will be the place of decisionmaking about the humanity of the unborn.

But when the Court itself makes viability legally relevant, it is no longer talking about the philosophical question of the personhood of the unborn. It's talking about the state's compelling interest, which is what is needed to "override" the woman's choice. As noted about it says: "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability." The next sentence begins with "This is so because," so this is purportedly the reason for the line: "This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb." Now, that just restates what "viability" means. Why should the state care about "the capability of meaningful life outside the mother's womb" when it's trying to keep the baby in the womb? Why talk about it out of the womb? I can only think of the problem of a botched abortion, where we've suddenly got an entity capable of living on our hands, detached from the life-support of the womb. (And what's "meaningful life"?)



The next 2 sentences are, 1: "State regulation protective of fetal life after viability thus has both logical and biological justifications." That's just asserting that a reason has been given. And 2: "If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother." That's moving on from the state's interest to what it can do about those interests. Note the absence of reasoning about why the state "may go so far" with its interests that have been found compelling. Why as far as that? Why not farther? Zero discussion on that point!

Ann Althouse said...

St. Croix said: "There's no sense in writing... "

If I had read that response to me, before I wrote the last 2 posts of mine, I would not have taken so much trouble to write a long response engaging with you.

You accused me of leaving out the exceptions, but I did not. I had them included in a clause that began with "if," and I pointed you to that clause.

You should have said: Thanks. I'm sorry. Your paraphrase of the exceptions made me think that you'd forgotten about them.

Ann Althouse said...

"Having read the BBC article it's clear the Salvadoran court simply followed it's country's constitution. There was no medically indicated reason to kill the unborn child to save the mother's life or to prevent her suffering serious physical harm. The court simply ruled that to save the mother it was permissible to remove the child out of her which was done but not to kill the child since that wasn't needed to save the mothers life. Nothing that difficult to conclude based on that country's constitution."

It was clear to me all along -- here's my previous post -- that abortion rights people in and outside of El Salvador were using this case to push their agenda. They were playing the usual "misogyny" routine and acting like only abortion rights would save the woman from dying.

The court had another way to deal with saving the woman, and it did not embrace the idea that the brainless baby was worthless and in need of immediate deletion.

Ann Althouse said...

"... it did not embrace the idea that the brainless baby was worthless and in need of immediate deletion."

Which is something people interested in disability rights should care about.

Mitchell the Bat said...

Define progeny as property, same as cats and dogs.

Headache's gone!

Anacin®

Saint Croix said...

You are combining 2 different parts of the decision. Plato and Aristotle are discussed in the part of the opinion that arrives at conclusion that "the unborn have never been recognized in the law as persons in the whole sense."

Blackmun first mentions viability in the historical discussion.

"Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25."

This is a rather absurd argument to make, since there was no neonatal intensive care units in ancient Greece and Rome. And when we look up those references, the quotes are actually appalling. Plato and Aristotle are clearly referencing the killing of newborns.

Why cite to pagan infanticides?

And why conflate abortion with the practice of killing newborns in ancient Greece and Rome?

Did Blackmun not actually understand the passages he was citing to? Or was he dishonest?

Saint Croix said...

"With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability." Why? It certainly does not say, because that's what Plato/Aristotle thought! It says: "This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb." That's what doesn't make sense to me.

Yes, there's no logic in Blackmun's reasoning. As John Hart Ely writes, he mistakes a definition for a syllogism.

But he does mention "viability" in the historical discussion that explains why Plato and Aristotle were okay with infanticide (without mentioning infanticide). There is also footnote 22, which again cites Aristotle.

Aristotle's thinking derived from his three-stage theory of life: vegetable, animal, rational. The vegetable stage was reached at conception, the animal at "animation," and the rational soon after live birth.

Note that this footnote acknowledges Aristotle's view that newborns are not alive and may be killed in the Gosnell fashion.

Non-viability is the ancient justification for baby-killing. That's why Blackmun uses the doctrine. Roe limits the non-viability doctrine to the unborn, but Blackmun does not seem to be worrying about infanticide at all.

Saint Croix said...

See also "We need not resolve the difficult question of when life begins."

This is because Blackmun has defined the baby as property (thus the baby's life is outside the Constitution's protections). And he thinks these homicides are okay because Plato (the original Platonic guardian) says viability is when the baby's life has value.

So Blackmun jettisons Judeo-Christianity and brings back the infanticides of the pagans. And he wonders why Christians are upset!

And, as I've mentioned before, Blackmun circulated an infamous memo that gives us a clue as to his mindset about the baby's life. (Note too that this memo is proof positive that Blackmun is violating his oath to follow our Constitution).

Saint Croix said...

You accused me of leaving out the exceptions, but I did not.

No, I was just pointing out that under current case law, you can't convict a doctor for killing a viable baby, because the health exception is so wide.

You should have said: Thanks. I'm sorry. Your paraphrase of the exceptions made me think that you'd forgotten about them.

You misunderstood my post. But I do owe you an apology as my tone was disrespectful. It's hard for me to be civil in any abortion discussion. I do apologize as I appreciate very much your honesty and openness.

David said...

"the doctor — though ethically prohibited from killing the patient — may give pain relief, even where the consequence of the medication will be that the patient dies, because the point is to relieve the pain and not to end the life."

How about fiscal relief? Coming soon to a theatre near you?

Saint Croix said...

The abortion/breast cancer link is taboo subject matter, as well.

The guy to read on this is Joel Brind.

When you become pregnant, your body is flooded with estrogen. When you abort the pregnancy, these estrogen cells have nothing to do. It's like you injected estrogen into your body for no reason whatsoever.

Estrogen is the risk factor for breast cancer. It's why women are 100 times more likely to get breast cancer than men. So the theory is that estrogen-based birth control pills and abortion have dramatically increased breast cancer rates in women.

Giving birth to a baby, by the way, actually decreases your risk for breast cancer. Nuns are more likely to have breast cancer than moms.

It's almost as if nature wants humanity to have sex and reproduce!

Saint Croix said...

But when the Court itself makes viability legally relevant, it is no longer talking about the philosophical question of the personhood of the unborn. It's talking about the state's compelling interest, which is what is needed to "override" the woman's choice.

I believe viability is a sham. It was never intended to be enforced.

In Colautti v. Franklin, Justice Blackmun writes, “Viability is reached when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus' sustained survival outside the womb, with or without artificial support.” That is the standard definition of viability, the one given in Roe.

But now in Colautti, the Supreme Court adds a new wrinkle. “Because this point may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability--be it weeks of gestation or fetal weight or any other single factor--as the determinant of when the State has a compelling interest in the life or health of the fetus.”

So how do we protect a viable baby? More specifically, how do we enforce the viability doctrine against a doctor who is killing viable babies? How can we prove that a baby was viable, if we’re not allowed to rely on weeks of gestation or fetal weight?

The Supreme Court seems to be saying here that there can be no objective criteria for viability. It is entirely subjective, thus entirely up to the abortion doctor. You can’t say a baby is viable at 24 weeks, or 28 weeks, or 34 weeks, or 39 weeks. Nor can you say that a baby is viable at 2 pounds, or 4 pounds, or 6 pounds.

So how do you enforce the viability doctrine?

Saint Croix said...

That was how Justice Blackmun acted in 1979, when liberals ruled the Court, and they could do and say whatever they wanted. "Five votes can do anything around here," as Justice Brennan put it.

Of course there was pushback. After several years of Reagan and Bush nominees, Blackmun now had to fight for the rules he made up in Roe.

It was ten years after Colautti, in Webster v. Reproductive Health Services, when Justice Blackmun lost interest in deconstructing the viability rule. Now he pretended that the Supreme Court had been enforcing it all along!

"No one contests that, under the Roe framework, the State, in order to promote its interest in potential human life, may regulate and even proscribe nontherapeutic abortions once the fetus becomes viable."

Yet viability remains a lie. After all, it's Roe that says you can abort viable babies for "the stigma of unwed motherhood," for psychological well-being, even for financial considerations. A viable baby is still defined as sub-human property, and still may be killed for the shabbiest of reasons.

For instance, the baby murdered in Carhart II was 26 weeks, and yet not a single Justice talked about the so-called "viability doctrine."

Blackmun talks about viability in Webster and Casey for the same reason that O'Connor, Souter, and Kennedy talk about it. They are all trying to save face and avoid facing the ugly truth of the infanticides that they have done.

It is this concern that absorbs the Supreme Court's thoughts in regard to abortion. Not the mother's "right to choose" or the baby's "right to life." Casey is awash in a rather obscene discussion of the Supreme Court itself, and how best to save face.

choiceone said...

Viability is a modern medical term. If a fetus has not got sufficiently developed lungs, it cannot survive outside the woman.

During the embryotic and early fetal stages, after implantation and before viability, the embryo~fetus cannot be said to have a life of its own. While a zygote, morula, or preimplantation blastocyst does have a life of its own, as is obvious from the fact that it can be grown in a petri dish, it has a natural life span that does not allow it to develop through the following stages toward viability. This is not just a fact about humans, but about mammals in general.

It's illegal to grow a human blastocyst in a lab beyond 14 days, but experiments with other mammalian blastocysts show the following. Using the most powerful supernutrient known (it includes necessary oxygen), it is possible to double the natural pre-implantation life span of a mammalian blastocyst in a petri dish. But it naturally dies after that doubling. For humans, this would mean that the 8-10 day pre-implantation natural life span could reach 16-20 days max. That is basically no longer than the duration between menstrual periods.

Hence, after implantation, the embryo is not just receiving nutrients and oxygen from the pregnant woman. It literally lives as her body parts do, and if she dies, it always dies - you cannot remove an embryo or early fetus from a dead woman's body and keep it alive. It lives inside not just her body, but her life.

Viability means that that point at which the fetus has at 50/50 chance of continuing to live outside the woman whether or not she lives. That occurs at 24 weeks. The problem is that some fetuses have a chance of surviving earlier, but there is a point before which they have no chance. To date, no fetus has survived earlier than 21 weeks and 6 days.

choiceone said...

Viability is a modern medical term. If a fetus has not got sufficiently developed lungs, it cannot survive outside the woman.

During the embryotic and early fetal stages, after implantation and before viability, the embryo~fetus cannot be said to have a life of its own. While a zygote, morula, or preimplantation blastocyst does have a life of its own, as is obvious from the fact that it can be grown in a petri dish, it has a natural life span that does not allow it to develop through the following stages toward viability. This is not just a fact about humans, but about mammals in general.

It's illegal to grow a human blastocyst in a lab beyond 14 days, but experiments with other mammalian blastocysts show the following. Using the most powerful supernutrient known (it includes necessary oxygen), it is possible to double the natural pre-implantation life span of a mammalian blastocyst in a petri dish. But it naturally dies after that doubling. For humans, this would mean that the 8-10 day pre-implantation natural life span could reach 16-20 days max. That is basically no longer than the duration between menstrual periods.

Hence, after implantation, the embryo is not just receiving nutrients and oxygen from the pregnant woman. It literally lives as her body parts do, and if she dies, it always dies - you cannot remove an embryo or early fetus from a dead woman's body and keep it alive. It lives inside not just her body, but her life.

Viability means that that point at which the fetus has at 50/50 chance of continuing to live outside the woman whether or not she lives. That occurs at 24 weeks. The problem is that some fetuses have a chance of surviving earlier, but there is a point before which they have no chance. To date, no fetus has survived earlier than 21 weeks and 6 days.