Balkinization  

Monday, April 23, 2007

Half a Cheer (or Less) for the Partial-Birth Abortion Decision

Michael Stokes Paulsen

Call me a glass-half-empty kind of guy: But as a pro-lifer and an opponent of the lawfulness of Roe v. Wade and Planned Parenthood v. Casey, I find almost nothing to cheer about in the Court's decision last week in Gonzales v. Carhart, upholding the federal partial-birth abortion statute. The result is right -- the federal statute is not unconstitutional -- but Justice Kennedy's majority opinion is truly horrible.

A warning about what comes next. I'm the resident guest conservative, and a pro-lifer. My tone will reflect my perspective. And I tend not to pull my punches. This will not be the usual Balkinization fare. But I challenge readers to consider it. One may well not agree with my political orientation on this issue. But is my legal analysis wrong?

1. The essence of the decision is that it is not unconstitutional to ban "partial-birth" abortion (inducing delivery past a certain "anatomical landmark" before killing the fetus by puncturing the skull with a scissors, vacuuming out the brains, collapsing the skull, then completing delivery of a dead, intact fetus) because there is always another way to kill the fetus before delivery, by dismemberment -- and there is a constitutional right to such dismemberment abortions. As long as an abortionist intends to commit a dismemberment abortion, rather than an intact-partial-delivery abortion, the federal law does not prohibit such action. And the Constitution of the United States affirmatively protects it.

There it is, on pages 25-26 of the slip opinion: "Respondents have not shown that requiring doctors to intend dismemberment before delivery to an anatomical landmark will prohibit the vast majority of D&E abortions. The Act, then, cannot be held invalid on its face on these grounds." There is more to the opinion, of course. But this is the controlling rationale. The statute is constitutional because it does not ever prevent -- and only so long as it does not ever prevent -- any pre-viability abortion from occurring. The only prohibition is of a particular method of abortion. Indeed, Kennedy's opinion offers these words of encouragement to abortion innovators (p.30): "The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand."

And, the Court holds, the partial-birth ban is constitutional because it does not ever prevent even any post-viability abortion that is justified on the ground of protecting a woman's "health," if it can be shown in a particular case (that is, in an as-applied as opposed to a facial challenge) that the partial-birth method is required to preserve the mother's health. Moreover, once again, Kennedy insists that there is always another perfectly good way to kill a fetus. There it is on p. 34-35: "If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure. * * * Here, the Act allows, among other means, a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right." No worries, mate. You can always get a dead human fetus. The federal partial-birth ban never really prohibits any abortion from occurring, so it is constitutional.

This latter holding is not without some consequence, and it is a meaningful change in the law. It will result in a detectable cut-back in the number of obtainable post-viability partial-birth-method abortions. And the practical difficulties of bringing as-applied challenges on health grounds might result in fewer post-viability abortions, period.

But this is peanuts. What counts as "health" for purposes of the Roe-Casey line's post-viability entitlement to abortion is essentially any physical, psychological, emotional, family-planning, economic or social reason that the woman and abortionist/doctor agree should count as a sufficient reason for having a late abortion. The federal law upheld in Gonzales v. Carhart does not prohibit post-viability abortions. It prohibits one post-viability (and pre-viability) abortion method. A late abortion may still be obtained for essentially any reason the woman chooses, including economics, social convenience, spite of a boy friend, and (probably) sex selection of children. Nothing in Gonzales v. Carhart changes any of that, or portends much if any change in the scope of "health" exceptions generally. And if accomplishing such a late-term abortion is shown, in a particular instance, actually to require the partial-birth method to further the woman's "health," and if Kennedy's suggested lethal injection before partial delivery won't do the trick, the Court still leaves open the prospect that such a challenge to the statute will succeed.

So this is a huge reverse for pro-choice forces, a horrible intrusion upon women's autonomy and doctor's medical judgment? This is a dramatic win for the pro-life movement, a foothold for reversing Roe? Be serious. The opinion is the smallest of possible steps in the pro-life direction. As noted in an earlier post, it does not even make the claim that Stenberg v. Carhart was wrongly decided and should be (and now is) overruled -- the type of statement that Kennedy was more than willing to make in his opinion for the Court in Lawrence v. Texas. Instead, the judgment in Gonzales rests on artificial distinctions of Stenberg, "anatomical landmark[s]" designated with sufficient specificity, on-its-face-versus-as-applied challenges, and the ultimate, unquestioned right to an abortion had by some other means, in any and all circumstances when it could have been had before. Gonzales v. Carhart changes essentially nothing. While one can understand the internal-dynamic political forces on the Court that led Scalia (and perhaps others) to hold their tongues (see my earlier posts), the language and "reasoning" of Kennedy's majority opinion is so horrible as probably not to have been worth the effort. It is a legal and moral disgrace. It is an embarrassment.

2. But not at all for the reasons cited by my Balkinization colleagues. Obviously, my reasons for objecting to the majority opinion are different from Jack Balkin's and Marty Lederman's (posted nearby). Jack thinks that the "big news" in the opinion is beefing up the state's ability to use "informed consent" to talk women out of abortions (and to prohibit some abortion methods) by confronting them with "information" designed to inform them out of making that choice. Both Jack and Marty cite the condescending tone with which Kennedy makes this point. I will return to the tone point presently (with which I largely agree). But first the substance.

I submit that nothing in Kennedy's opinion in Gonzales v. Carhart is, in substance, different from Planned Parenthood v. Casey in this regard. I regularly pose to my students hypotheticals concerning what exactly Casey regards as an "undue burden" and whether the state may attempt to talk women out of having abortions, as long as it does not ban the choice entirely. May it tell a woman that "abortion is the killing of a unique, human person living within you" as part of the "informed consent" process? May it require a (state-subsidized) ultrasound and present the woman with pictures of the (developed) "tissue" within her -- essentially forcing her to see what is living within her womb? May it require description of precisely what is entailed in various types of abortion procedures, in the same clinical yet raw terms as is contained in Supreme Court opinions? (Last week, I asked my students whether it would be an "undue burden" on the right to choose pre-viability abortions to ask women seeking abortions to read the Court's majority opinion in Stenberg. They thought it would . . . on grounds of length and tedium, but not in terms of actually restricting a woman's ability to exercise a choice for abortion.)

Casey is not perfectly clear as to how these hypotheticals would be answered, but Kennedy's reading of it in Gonzales v. Carhart -- as permitting statements of moral value judgments concerning abortion-- is not at all implausible. In substance, I do not think there is anything much new here. Perhaps it signals that Kennedy (and the four others) would uphold many such laws, including several of the hypotheticals in the preceding paragraph. Is this so terribly surprising? It seems like the line in the sand Kennedy has drawn for a number of years: The state may not prohibit abortion, but the state (and individuals) should be free to talk people out of abortions. (Hill v. Colorado, decided the same year as Stenberg, illustrates this line. Kennedy was in vehement dissent in both cases.) Gonzales v. Carhart adds some moralistic rhetoric about the value of the human fetus, and the possibility of regrets by the mother (which I discuss below), but that's it. (I leave for another day whether Kennedy's opinion here, reflecting the permissibility and even desirability of legislation reflecting moral value judgments concerning abortion, can be reconciled with his opinion in Lawrence, one core prop of which is that the state may not base legislation on moral value judgments concerning homosexual conduct.) I don't think this is big news.

All right, then, what about the tone? I suspect that liberals and conservatives can find some common ground here. Left and right alike can be appalled by the pomposity, vacuity, hypocrisy, vanity, and I-know-better-than-all-of-you wisdom of the typical Anthony Kennedy substantive due process opinion. Liberals' objections to Gonzales v. Carhart -- how arrogant and condescending! -- sound much like conservatives' objections to Casey and Lawrence, as far as tone goes.

But what Jack, Marty and others on the left seem to find so objectionable in Kennedy's Gonzales v. Carhart opinion is the idea that some or many women (and, I would add, some or many men) might really have no true idea of what, exactly, it is that they are doing when they decide to have an abortion and that, if they really knew, they might very well come to regret their decision deeply.

Yep. Sounds pretty darn condescending and superior-wisdom-ish, even downright paternalistic and moralistic -- a typical work of Kennedy vanity. The author, and his style, certainly tarnish the message.

But is it untrue? I doubt it. In terms of how many women (and men) do not know, fully, what they are doing, or might later come to regret the abortion decision, I suppose this is a factual, empirical question. But is it really the case that this is rarely or never the case? Surely, at least sometimes, and I suspect not entirely infrequently, "some women come to regret their choice to abort the infant life they once created and sustained." Kennedy's opinion recognizes the absence of "reliable data to measure the phenomenon," and cites anecdotal evidence from an amicus brief to support the proposition. Kennedy's opinion is not a model of analytic rigor, and it is burdened by paternalistic prose, but the point is sufficiently made: some people do not fully realize what abortion entails; some may come to regret the decision later; some might in retrospect wish they had known more; and this tends to support the legitimacy of legislation requiring provision of more information in advance.

I have no doubt that many (but not all) men and women do not fully grasp what abortion entails. The determined (or negligent) human mind can engage in truly heroic efforts to avoid confronting difficult realities, and abortion is a difficult reality. The prospect that abortion might be the intentional killing of living human beings -- children -- is an almost unbearable thing to contemplate. Surely most folks seriously considering abortion would rather not entertain such a thought. Similarly, I have no doubt that many (but not all) men and women, confronted with fuller information about the abortion procedure, would recoil at the idea. Being forced to see what is entailed, or to understand it more fully, will affect decisions. Confronting such information for the first time after having had an abortion no doubt could create feelings of intense regret. One need not be paternalistic to recognize that this is simple reality about the way human beings are, psychologically and emotionally.

And my Exhibit A for this is Justice Anthony Kennedy himself. After writing in Planned Parenthood v. Casey, Kennedy seems almost to have been shocked -- shocked! -- to find out, as though for the first time, in Stenberg v. Carhart, that abortion involves the destruction of what bears a striking resemblance, omigosh, to a very small human baby boy or girl. If only this had been explained to him more clearly earlier! Even now, Kennedy seems less concerned if the abortion can remain an "unseen" act. It seems to make a difference to him if the abortion can be accomplished, earlier in the pregnancy, by means of a vacuum tube. And (rather stupidly) it even seems to make a difference to him if a later abortion can be accomplished by dismemberment in the womb, rather than intact-partial-birth abortion. It is scarcely surprising that a man who himself is affected, partially, in his own inconsistent moral reasoning, by the what-is-seen-and-known / what-is-not-seen-or-known distinction should believe that some who contemplate abortion might actually have their decisions altered by fuller information about abortion.

What is the point of the ban on partial-birth abortion? Exactly what many committed pro-choice folks believe and fear: It is a calculated political (and legal) strategy by pro-life folks to force more people -- and more Supreme Court justices -- to face exactly what is involved in abortion and to provoke more cognitive dissonance and moral doubt for those on the pro-choice side. It is a device for holding people's eyes open to harsh realities in their harshest setting. Kennedy himself is an ironic illustration of the situation he describes: people often would prefer not to confront the reality of abortion, and might come to regret the decisions they have made. In Kennedy's words: "The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."

Kennedy might have been talking about himself, as much as women choosing abortion.

* * * * *

Gonzales v. Carhart thus merits, at most, half a cheer from the people who one would expect to be cheered by it. It does not overrule Stenberg. It upholds the federal law only because, and only to the extent that, it prohibits no abortions. It does add some rhetoric suggesting the Court will take seriously the power of government to jawbone against abortions. And it does reflect some recognition by a majority of justices of the awfulness of at least some abortion procedures (but without any suggestion that the result, rather than the method, might be awful). And it does so in a pompous, windy opinion by the Court's most pompous and windy justice.

Hip, hip.

Michael Stokes Paulsen

Comments:

Here is where the pro-choice/anti-choice divide is so starkly clear:
I have no doubt that many (but not all) men and women do not fully grasp what abortion entails. The determined (or negligent) human mind can engage in truly heroic efforts to avoid confronting difficult realities, and abortion is a difficult reality. The prospect that abortion might be the intentional killing of living human beings -- children -- is an almost unbearable thing to contemplate. Surely most folks seriously considering abortion would rather not entertain such a thought. Similarly, I have no doubt that many (but not all) men and women, confronted with fuller information about the abortion procedure, would recoil at the idea. Being forced to see what is entailed, or to understand it more fully, will affect decisions. Confronting such information for the first time after having had an abortion no doubt could create feelings of intense regret. One need not be paternalistic to recognize that this is simple reality about the way human beings are, psychologically and emotionally.

If you define the embryo as a full, sentient human being, this paragraph makes perfect sense. However, if you do not, it sounds like gibberish; it's the equivalent of asking why don't cardiologists show video of open-heart surgery to all their patients. Why? Because it's icky, it's upsetting, it creates bad-dreams, it's simply not psychologically healthy sometimes to see the unvarnished truth of a procedure you're undergoing.

Questions these deep of course have to be fought out in the courts of law, but they are ultimately not legal questions that can be answered there - these are just tactics. Any more than the question of slavery was a question of law, or even politics. These are moral questions, hopefully built on a scientific basis, but ultimately depend on your paradigm for a human being.

And as Kuhn shows for science, it is almost impossible to talk across that divide - it permeates everything we think and do, the very basis of our arguments, that we just shout at each other like troops of monkeys howling in the trees. It is truly a difficult question about how these issues can be handled in a democratic society.

I honestly doubt there is any way for me to change Michael's mind, or for him to change mine on any rational basis. But I guess the legal mud-slinging (kindly meant) must continue.
 

I am not going to defend or even try to interpret Casey, which is more a product of Sandra O'Connor than Kennedy, and which never really gave any guideance as to what was an undue burden and what wasn't one.

Nonetheless, it cannot be the case that just because SOME women may not understand exactly what they are doing to Michael's satisfaction when they are aborting-- or even MOST women, that the constitutionality or morality of particular abortion restrictions should hang on this.

The law affords us a right to do some things and prohibits us from doing others. As Holmes famously said, it does this because the bad man is moved to act civilized by legal sanction. It isn't an implausible gloss on Holmes' point to say that one purpose of a regime of legal rights and sanctions is to save us the trouble of engaging in moral philosophy every time we decide whether to stop at a red light.

If abortion is a constitutional right-- and I understand Michael to be assuming the validity of Roe for purposes of his post-- then it must be a constitutional right because somebody, whether framers of the Constitution or judges on the Supreme Court, has already struck the balance and determined that it should be permissible. Given this, I see nothing particularly wrong with a woman going into her doctor and obtaining the procedure, even if she believes that she is killing a tadpole or something. I especially see nothing wrong with this when we add the fact that most women do have a basic understanding of pregnancy, do understand that the fetus will grow into a baby if not aborted, and probably have some either a vaguely formed moral notion or a fully formed belief as to whether personhood begins at conception or not.

So I find this entire argument to be bunk and a distraction. If you want to overturn Roe and outlaw abortion, advocate that. Justices Scalia and Thomas agree with that position. But if Roe is the law of the land, "educating" women about what they are really doing would seem to be the classic sort of "undue burden" that Casey SHOULD be seen to prohibit, if Casey means anything.

And I would add the kicker-- the moral philosophy that the pro-lifers are trying to shove down women's throat is, as randomsequence points out, entirely contestible. One of the worst facets of pro-lifers is that they all think this stuff is so self-evident when it isn't at all.
 

I agree with Michael that rational basis review seems to let the air out of the pro-life tires of this case. I can see why Brett mocked it in another thread; there's seldom ever just one way to skin a cat.

The whole rigmarole about regret, though, is wacky.

MSP: ...is it really the case that this is rarely or never the case? Surely, at least sometimes, and I suspect not entirely infrequently, "some women come to regret their choice to abort the infant life they once created and sustained."

Even trickier than calculating how many women (and men, I suppose) regret the choice they make, how does one calculate the increase in regret that might be caused by the policy of informed consent itself?

Consider two hypothetical women who have made the tough decision to have an abortion. Nothing the doctors or pamphleteers can say will dissuade either of them from their decision.

Woman A goes in and has the abortion done according to standard practices.

Woman B goes in, but before she can sign the appropriate forms, is subjected to an up-tempo song and dance number about the preciousness of human life (or the gruesomeness of the procedure, if you prefer).

Is it really "exceptionable" to think that Woman B will feel more regret (or some other emotion like anger or guilt) after the fact? And if "regret" is the basis for making policy, even at the level of "one of many factors," shouldn't we include the possible impact of our regret-reducing remedies in our calculus of emotion before we propose them?

One of the pervasive underlying assumptions here is that women are just tra-la-laing into a nearby abortion clinic on the way to pick up some vegetables for tonight's dinner, grabbing an abortion without ever considering the ramifications, and heading home. God forbid people should be assumed to have spent time thinking prior to entering the clinic. All of the people I've spoken with who have made this decision did so after much rumination.

How does one measure the seriousness of the decision process? Part of this is framing the argument, of course. In Kennedy's opinion and in several comments here on the site, the take is generally something along the lines of "women might not go through with the procedure if they knew what it entailed." In other words, they'd be easily swayed if they only knew what they were doing.

How might this paternalistic outlook change if our starting point were "Most people who seek an abortion know that it ends a potential life. After all, that whole something-is-ending concept is held within the very term 'abortion.'"?

A pro-life position may hold that the "unknowing mothers" rationalize their decisions because "the prospect that abortion might be the intentional killing of living human beings -- children -- is an almost unbearable thing to contemplate," but I suspect that the most unbearable thing to contemplate is that most people who seek abortions are perfectly aware that it's the intentional killing of a living human being (at least in potential) and they're doing it anyways.

Pretending that they don't is just a way of rationalizing away an unsightly "immorality." That's precisely where Michael finds the (where's the) beef of Kennedy's opinion: legislation can reflect moral value judgments towards abortion. The problem is that morality is often ever-so-subjective, owing more to the rules of one's God than the rules of law.

If the decision lacks teeth--and I agree with Michael that it does--let me be the first to throw out a half-cheer of my own.

"Hooray."
 

"But I challenge readers to consider it. One may well not agree with my political orientation on this issue. But is my legal analysis wrong?"

I read your piece up until I got to: "A late abortion may still be obtained for essentially any reason the woman chooses, including economics, social convenience, spite of a boy friend, and (probably) sex selection of children."

This has nothing to do with a legal analysis of Gonzales v. Carhart.

It has no place in the fine selection of essays that appear on this site.

It's simply appalling.
 

PMS: I suspect that the most unbearable thing to contemplate is that most people who seek abortions are perfectly aware that it's the intentional killing of a living human being (at least in potential) and they're doing it anyways.

What are you trying to say here? Of course everyone will agree that abortion is at least the ending of a potential human life. For some, it is different in quantity, and not quality, from contraception. What is so terrible to contemplate about that? Not very much.

Some may see it as a "killing", in the same way that you kill a person. But I doubt that a majority of women who have abortions see it that way. Anyone who sees it as a "killing" is already assuming that the embryo is an actual human being, and not a "potential human being". Killing a potential human being is semantically nonsense, even if you can grammatically put those words together in a sentence.

Really, what kind of person walks in for an abortion and believes that they are committing infanticide? Even in cultures that had infanticide, the members of that society did not believe it was infanticide. For example, in the American Southwest some cultures allowed for the ending of a newborn before it took its first breath. Of course, they believed that the first breath was when the soul entered the child, making it human.
 

What are you trying to say here? Of course everyone will agree that abortion is at least the ending of a potential human life. For some, it is different in quantity, and not quality, from contraception. What is so terrible to contemplate about that? Not very much.

I meant it was unbearable for the pro-life proponent to contemplate. Take a gander at the over-the-top emotional posts that are certain to follow in this thread about the inhumanity of abortionists, and I think you'll see my meaning.

You and I are, I would suspect from other posts you've made, pretty much in agreement as regards the nature of the fetus and the prerequisites of humanity.
 

PMS:

Ah, I see. You were illustrating the pro-life view. I'd agree that many can't imagine that others don't see the same embryo that they do. And I mean see in an almost literal way - as the poster shows, he really does see a human being, and is unable to really comprehend, emotionally, the point of view of the pro-choice. They presuppose the humanity of the fetus - what else can they do? And once they have, how could they emotionally understand the counter arguments?
 

The belittling of the legal impact of this decision seems misplaced. No, of course it did not substantively change the availability of abortion, and will not prevent a single abortion. But those limitations were inherent in the statute being reviewed and the case as presented; no one in their wildest dreams expected the decision to roll back Casey.

True, the majority could have reversed Stenberg and chose not to. But the most important impact is in precedential value in several areas: blessing for the lack of an explicit health exception, favoring as-applied over facial challenges, and emphasis on the weaker rational-basis standard of review. Those are big victories for the prevalent pro-life strategy of incrementally hollowing-out Casey without overruling it. Not bothering to reverse Stenberg was just an example of how incrememtalism can work. The net effect is still that the procedure in question is now constitutionally forbidden by law.

There may not be a frontal assault on Casey/Roe, and until there is it is difficult to see how laws can ever be crafted that actually would prohibit abortion prior to viability. But there will certainly be further limitations on abortion.

As for the tone of the opinion and the attention it pays to the matter of after-abortion remorse, I do think this is very significant -- not legally, but politically. Because this position seems paternalistic, even insulting, to many women, it will become a rallying cry for the pro-choice faction in venues such as the 2008 elections.

The political effect of Kennedy's rhetorical flourish here, which really was not necessary to support the result, is to divert attention from the gory details of the abortion procedure to what the other side prefers to talk about -- "choice." A lot of GOP-voting soccer moms who are repulsed by the former are very sympathetic to the latter.
 

Professor Paulson:

But this is peanuts. What counts as "health" for purposes of the Roe-Casey line's post-viability entitlement to abortion is essentially any physical, psychological, emotional, family-planning, economic or social reason that the woman and abortionist/doctor agree should count as a sufficient reason for having a late abortion. The federal law upheld in Gonzales v. Carhart does not prohibit post-viability abortions. It prohibits one post-viability (and pre-viability) abortion method. A late abortion may still be obtained for essentially any reason the woman chooses, including economics, social convenience, spite of a boy friend, and (probably) sex selection of children... Nothing in Gonzales v. Carhart changes any of that, or portends much if any change in the scope of "health" exceptions generally.

Welcome. It will be nice to have some pro life company here. However, I could not disagree more with you on this point.

As you observed above, the Doe line of cases allowed the abortionist alone to decide when an abortion was required to avoid "risking" the health of the mother. It did not matter whether the abortionist's idea of a "risk" was at odds with many or most of the medical community. Under this regime, it was impossible for the People's legislatures to bar any abortion "procedure," no matter how barbaric.

However, the Kennedy decision effectively takes the ability to define "risk" away from the abortionist. So long as the medical community disagrees about the existence of a "risk," the majority opinion held that a legislature can ban an abortion procedure. To my reading, this holding could effectively eliminate the Doe "health" exception because the vast majority of spurious risks advanced by pro abortionists in the past are hardly universally accepted in the medical community.

I submit that nothing in Kennedy's opinion in Gonzales v. Carhart is, in substance, different from Planned Parenthood v. Casey in this regard. I regularly pose to my students hypotheticals concerning what exactly Casey regards as an "undue burden" and whether the state may attempt to talk women out of having abortions...Casey is not perfectly clear as to how these hypotheticals would be answered...It seems like the line in the sand Kennedy has drawn for a number of years: The state may not prohibit abortion, but the state (and individuals) should be free to talk people out of abortions...I don't think this is big news.

Casey was in fact unclear whether informed consent laws were an "unconstitutional undue burden." Kennedy may well have believed all along that informed consent laws were perfectly constitutional. However, this was not the clear position of a majority of the Court until Altio replaced O'Connor. Whether this change is big news depends on whether you believe (as I do) that these informed consent laws can be effective in convincing mothers not to kill their children.

Kennedy might have been talking about himself, as much as women choosing abortion.

I suspected as much as well. Kennedy has not exactly been a reliable vote recently. However, partial birth abortion plainly horrified Kennedy. If this were a more theoretical exercise, Kennedy may have gone the other way.
 

Where are the stalwart pro-lifers who assert intact D&E is less reprehensible than plain-vanilla, first-trimester abortion?

In real life, the former happens only in really, traumatically desperate straits. The latter happens all the time for all sorts of reasons.

If abortion actually is murder, why ban the equivalent to self-defense first?

[Drops another pin.]

[Gets tired of waiting.]
 

Bart: So long as the medical community disagrees about the existence of a "risk," the majority opinion held that a legislature can ban an abortion procedure.

There you have a loop-hole you can drive an SUV through. You do know how science works, don'cha? That on any issue, there's going to be disagreement, and on most issues significant disagreement?

We can't even agree on the laws of physics! You think you'll ever get agreement in biology?

What we have in science instead is levels of confidence.
 

RandomSequence said...

Here is where the pro-choice/anti-choice divide is so starkly clear...If you define the embryo as a full, sentient human being, this paragraph makes perfect sense. However, if you do not, it sounds like gibberish

There are only two bright lines where you can define a human being as a person worthy of the protection of the law:

1) When the human being is a fully developed and sentient adult.

Or

2) At conception when we all start our lives as human beings.

Everything in between is a arbitrary construct often based on criteria completely unrelated to the human being in question like the trimester system or the time of birth.

If you take the first position, then then third parties should be able to legally kill born children, the disabled and the injured who do not have the capabilities of a fully developed and sentient adult.

If you take the second position, then third parties may not kill any human being, unborn or born, unless one of the exceptions under the law like self defense apply.

If you arbitrarily set a line during gestation before which an unborn child may be killed based on physical or mental capability, then third parties should be able to kill all born human beings with similar limitations.

If you arbitrarily set a line during gestation at the point of "viability" (as if surgical removal of the child was actually an option) on the theory that this is when the child could theoretically live without the support of her mother, then logically third parties should be able to kill all born human beings who cannot live without assistance of others.

The logic of the dehumanization of the unborn to legalize abortion must inevitably lead to dehumanizing the born.
 

BD: There are only two...

Please, for the love of God and all that is holy, stop making bifurcations like this.

All "bright lines where you can define X" are arbitrary. They vary by culture, cult, and method, at the very least.

The logic of the dehumanization of the unborn to legalize abortion must inevitably lead to dehumanizing the born.

Similarly, the logic of preserving the life of the unborn at all costs would inevitably lead to the preservation of the life of the born at all costs, including the abolishment of the death penalty and war.

Clearly, you don't agree with the latter connection, so why would you assume the former has any bearing on social reality?
 

pms:

You are welcome to offer another bright line point at which a human being becomes a person worthy of protection of the law. I gave two and discussed why other points used by courts are not internally consistent.

Bart: The logic of the dehumanization of the unborn to legalize abortion must inevitably lead to dehumanizing the born.

Similarly, the logic of preserving the life of the unborn at all costs would inevitably lead to the preservation of the life of the born at all costs, including the abolishment of the death penalty and war.


Nowhere did I make an argument that anyone is required under law to take affirmative actions to save the lives of the unborn (or born). Rather, I am arguing that third parties should not be able to kill the unborn except in self defense.
 

Bart: So long as the medical community disagrees about the existence of a "risk," the majority opinion held that a legislature can ban an abortion procedure.

This looks like a weak excuse to legislate to overrule medical opinion: Find one dissenting opinion (easy to do in discipline closely dependent on science like medicine, with the presence of scientific skepticism and scientific peer review), and regardless of the consensus of experts like the ACOG, just ignore and overrule them. The precedent found here seems to be that a court may overrule a doctor in spite of the majority of medical opinion. Bad news for people who go to doctors.
 

Bart: There are only two bright lines where you can define a human being as a person worthy of the protection of the law:

1) When the human being is a fully developed and sentient adult.

Or

2) At conception when we all start our lives as human beings.


That's just plain stupid. There are numerous lines that are just as salient. Independent existance is one. Another is myelinization. And on and on.

You're first case is actually one of the worst examples of a bright line. There is no clear demarcation between adulthood and childhood. Everyone will agree that a 5 year old is a child, and a 30 year old is an adult. But in between, what line do we pick? Sexual maturation? Attainment of full size? Brain maturation? Termination of secondary education? First reproduction? First beer?

Bart, try harder. Even conception is not so clear, since a significant proportion of conceptions don't make it through the first month. Many embryos that are conceived are non-viable! They aren't even "potential" human beings - they're simply an impossible gene combination.

The truth is, there is no bright line. Just as there is no bright line between human and animal, you have to start from a definition. If you define "human being" as I do, from the start of human mental life, then a "bright line" naturally emerges - myelinization at 3 months of age, post-birth (not that I think that should be the legal standard, just the outside edge from an empirical point of view). Given that, independent life seems an acceptable compromise - best to err on the side of caution.

If you think we're just a bag of genes, some kind of mechanism or robot, then you'd start at conception. If you believe in magic, you can define it whenever your particular religion defines that moment that the soul descends from Olympos - some Christian will say conception, I think Muslims say its at 14 weeks, and so and so forth.
 

Bart,

did you really say that a pregnant woman is a "third" party?

At least I now know that you're represented gender, male, is accurate in meat space.
 

You are welcome to offer another bright line point at which a human being becomes a person worthy of protection of the law. I gave two and discussed why other points used by courts are not internally consistent.

My point is that any "bright line" is debatable and is contingent upon particular views and methods held by the people drawing the line. Not technically arbitrary, perhaps, but certainly not self-evident, either.

You could draw a bright line and say a new human life starts at:

-recognition of self-other divide
-birth
-viability outside of the womb
-quickening
-first independent brainwaves
-first independent heartbeat
-first cell division
-conception
-act of coitus
-first intent to create baby (gleam in the father's eye)
-God's will
-arrival of the soul (first inhaled breath, four months after conception, or however you might define it)

etc. etc. etc.

If I had to pick one myself for "people worthy of protection of the law", it would be birth--the actual physical independence of the baby from the mother. Since it wasn't one of your "only two bright lines" even though the criterion is based in the critter itself, I assume you find something debatable about the usefulness of such a definition of personhood.
 

"Bart" DePalma:

There are only two bright lines where you can define a human being as a person worthy of the protection of the law:

1) When the human being is a fully developed and sentient adult.

Or

2) At conception when we all start our lives as human beings.

Everything in between is a arbitrary construct often based on criteria completely unrelated to the human being in question like the trimester system or the time of birth.


First off, ("Bart"'s favourite) fallacy of bifurcation here.

Second, where "Bart" gets the idea that "[w]hen the human being is a fully developed and sentient adult" is some kind of "bright line" is a mystery. "Bart" consistently disproves this idea on these very threads.

Thirdly, by chosing the first "bright line", he can then put this garbage forth: "If you take the first position, then then third parties should be able to legally kill born children, the disabled and the injured who do not have the capabilities of a fully developed and sentient adult."

That's what we call a "straw man".

This is sad, because he could argue more consistently and honestly for his position; that he chooses dishonest argumentation would seem to indicate that he has no confidence in the strength of his argument.

FWIW, I did take "Bart"'s position while I was a teen-ager: I said that because conception was such a discrete and obvious demarcation, we should draw the line there; no questions, no argument, no worry.

Since then I've learned a lot more science, and a lot more law. I now know that the "bright line" of conception is hardly as bright as one might want; it's a process, not a singular event, and just one of many in reproduction and development (some others have a similar "bright line" quality, such as spermatogenesis, ovulation, birth, coitus, cutting the umbilicus, etc.).

But more importantly, I've learned that "bright lines" may be useful, but are not useful per se.

One example would be scissors on airplanes. I've lost a couple of my favourites (I like long, sharp, high-quality ones). Currently, I have to make do with a little blunt-ended one with little plastic handles. Is this a danger to anyone? Any more so than my huge belt buckle at the end of a belt? The answer is no. The TSA recognises this, and allows such scissors. It's a judgement call, and I'm sure that some scissors that are nominally legal might be dangerous and some that are nominally illegal might be safe. Some TSA people may get over-protective near this line, and grab my scissors, and I'm subject to whims and human judgement. But the policy, for these failings, is certainly better than a blanket ban on scissors of any type. Such a blanket ban would have the virtue of a "bright line", but would hardly do justice to the purpose of the discrimination.

Similarly, in science, there's a number of sesors that can be remarkably precise, while not being accurate: some sensors, for instance can measure changes of thousandths of
a gram of weight, but can't tell you what the total weight is with any accuracy. Other sensors may be reasonably accurate (such as teling you the total weight) without being precise. In fact, most digital scales are made of such inaccurate devices (sensors that are quite non-linear), where this defect is cured by digital linearisation to impove the accuracy over the operating range). Precision and accuracy are not one and the same.

The same goes with the "bright line" tests: While it may be harder to determine precisely when some measure of consciousness first arises in foetal development, compared to the shorter timespan of conception, depending on the question you're asking and the relevant parameters, the beginning of consciousness is at least arguably a better line of "personhood" than the fertilisation of the ovum. From a certain perspective, the first is more "accurate" even if the latter can be determined more "precisely".

Then we get into other difficulties: If "Bart"'s going to insist that "personhood" begikns at conception, how do we even know when that happens?

Which is why, having learned a bit more than I knew in my young and tender years, I gave up that silly "bright line"....

Cheers,
 

For better or worse, there is a bright line already:

Fourteenth Amendment of the Constitution: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. ...

All federal statutes and regulations are governed by the Born-Alive Infants Protection Act of 2002:

(a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words 'person', 'human being', 'child', and 'individual', shall include every infant member of the species homo sapiens who is born alive at any stage of development.

(b) As used in this section, the term 'born alive', with respect to a member of the species homo sapiens, means the complete expulsion or extraction from his or her mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been
cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced
abortion. ...


One can argue that the bright line defined above should be moved. But it is rather silly to claim that it cannot exist where it does today.
 

bitswapper said...

Bart: So long as the medical community disagrees about the existence of a "risk," the majority opinion held that a legislature can ban an abortion procedure.

This looks like a weak excuse to legislate to overrule medical opinion: Find one dissenting opinion (easy to do in discipline closely dependent on science like medicine, with the presence of scientific skepticism and scientific peer review), and regardless of the consensus of experts like the ACOG, just ignore and overrule them.


Congress overrules "experts" in every field in which it legislates including medicine. No one is above the law.

The common law and statute have long held that you can use deadly force to defend yourself against substantial bodily harm or death. This exception to the homicide laws fits very nicely in abortion as well. Kennedy took a small step in that direction with this opinion.
 

Bart, the two bright lines you posit are not the only bright lines that can be drawn in the abortion debate. Birth is a pretty bright line. Before conception-- i.e., that one cannot act to prevent sperm and egg from meeting-- is also a bright line. (That is the Catholic Church's position.)

What you really seem to be saying is not that there aren't other bright lines, but that the only two "principled" places to draw the line would be at conception, where you have a unique human being with a complete set of cromasomes, and sentient adulthood, when you have a being that wills to live.

But those places are no more "principled" than any other. If conception is the place to draw the line, what about twins, which aren't "created" until after conception? Drawing the line at conception also makes nature a murderer, because so many fertilized eggs are never implanted, and may mean that many common methods of contraception such as IUD's and even the Pill may be classified as inducing abortions and banned.

In contrast, drawing the line at sentient adulthood ignores the fact that a human being outside the womb does not interfere with a woman's liberty interest in the same way the fetus inside the womb does. And how does one measure "sentience" such that we can determine, accurately, whom to kill and whom not to. (Indeed, this is a legitimate point that conservatives make in end-of-life debates.)

The fact is, pro-lifers WANT there to be an easy line that they can draw, but there isn't one. Human development is a CONTINUUM, from sperm-and-egg to fertilization to implantation to development and quickening to viability to birth and then beyond through the development cycle. You can't latch on to one aspect of humanity and just say "X-- this is the thing that makes us human and anything that has X has the right to life". It isn't that simple. And, of course, at different points in the development cycle there are different competing interests.

I would add that partial birth abortion laws show that pro-lifers actually understand this. Partial birth abortion laws, after all, regulate later term abortions, when the fetus looks like and has more characteristics of a baby, and regulate abortions that occur in part outside of the womb, thus giving rise to an analogy to infanticide. Thus, pro-lifers are implicitly conceding that things like birth and advancement of fetal development, things that matter to pro-choicers, actually do matter, and that abortions that occur in later stages or after a partial birth are more deserving of legal sanctions.

It's a seductive siren call, the desire to reduce the complex issue of abortion to a simple slogan that "life begins at conception". But it's fundamentally anti-intellectual, an attempt to avoid thinking about and confronting very hard choices, an attempt to impose a simplistic view of the world on lives that are very complex, experiences of women whom pro-lifers have no interest in empathizing with.
 

RandomSequence said...

That's just plain stupid. There are numerous lines that are just as salient. Independent existance is one. Another is myelinization. And on and on.

OK, then are you willing to apply these lines across the board to the born and unborn equally?

You're first case is actually one of the worst examples of a bright line. There is no clear demarcation between adulthood and childhood. Everyone will agree that a 5 year old is a child, and a 30 year old is an adult. But in between, what line do we pick? Sexual maturation? Attainment of full size? Brain maturation? Termination of secondary education? First reproduction? First beer?

The pro abortionists keep using the fact that the unborn are not physically developed as a reason to deny them protection under the law. Thus, the bright line they are using would be physical maturation.

Bart, try harder. Even conception is not so clear, since a significant proportion of conceptions don't make it through the first month. Many embryos that are conceived are non-viable! They aren't even "potential" human beings - they're simply an impossible gene combination.

We all die at some time during our lives. The fact that some do not make it far past conception does not change the fact that we are all living human beings with unique genetic structures at that point. To my thinking, that is the clearest bright line you can come up with.

Given that, independent life seems an acceptable compromise - best to err on the side of caution.

How do you define "independent life?"

Until at least later childhood, humans cannot live independently. They rely upon caregivers.

The "viability" line has always been absurd because it assumes that surgically removing a child from the mother is a viable alternative to carrying the child to term. An infant still needs an enormous amount of care and can hardly be considered to be "independent."

If you think we're just a bag of genes, some kind of mechanism or robot, then you'd start at conception. If you believe in magic, you can define it whenever your particular religion defines that moment that the soul descends from Olympos - some Christian will say conception, I think Muslims say its at 14 weeks, and so and so forth.

Let us stick with the science. Because we cannot know when we are endowed with a soul, we have to look at the human machine. We gain our individual human life at conception. There is your clearest point for granting each other basic human rights. Every other line is an exercise in dehumanizing someone else you think is unworthy.
 

"Bart" DePalma:

The common law and statute have long held that you can use deadly force to defend yourself against substantial bodily harm or death. This exception to the homicide laws fits very nicely in abortion as well. Kennedy took a small step in that direction with this opinion.

Let me correct that: "[Y]ou can use deadly force to defend yourself if you (and not some doctor and not some legislature and not some court) reasonably believe you're at 'substantial risk' of bodily harm or death."

"[R]easonable", of course, depends on where you live (Texas, anyone?). YMMV.

All is clear now.

No charge.

Cheers,
 

PMS_Chicago:

How does one measure the seriousness of the decision process? Part of this is framing the argument, of course. In Kennedy's opinion and in several comments here on the site, the take is generally something along the lines of "women might not go through with the procedure if they knew what it entailed."

No. Here's the thinking: "Women wouldn't go through this procedure if they'd just think like me. Just let me explain it to 'em. Now where's my bullhorn and my pickled foetus in a jar...."

Cheers,
 

Dilan said...

Bart, the two bright lines you posit are not the only bright lines that can be drawn in the abortion debate. Birth is a pretty bright line.

Not really. Birth deals with the location of the child. The child herself is not substantially different the moment before and the moment after birth.

Before conception-- i.e., that one cannot act to prevent sperm and egg from meeting-- is also a bright line. (That is the Catholic Church's position.)

The Catholic Church believes that life begins at conception. They oppose contraception because the Bible instructs man to go forth an multiply. Two very different things.

In any case, the sperm and egg are parts of the parents' bodies. You and I did not gain our own unique genetic structure until conception.
 

Arne Langsetmo said...

"Bart" DePalma: The common law and statute have long held that you can use deadly force to defend yourself against substantial bodily harm or death. This exception to the homicide laws fits very nicely in abortion as well. Kennedy took a small step in that direction with this opinion.

Let me correct that: "[Y]ou can use deadly force to defend yourself if you (and not some doctor and not some legislature and not some court) reasonably believe you're at 'substantial risk' of bodily harm or death."


That is incorrect. The objective reasonable person standard generally applies. Your subjective belief is not relevant. In short, it is up to a jury to decide if you were being reasonable.
 

Bart,

The question is simple. The rest of this is sophistry: What is a human being?

If you call it a specific collection of genes, then you not only have to define every fertilized egg as a human being, but also every totipotent stem cell. You're body is filled with stem cells that could be placed in a womb right now and would turn into a younger twin (Most stem cells are not totipotent, but even they with a little mechanical tweaking could be made totipotent).

By this definition, a child born with no brain, acephalous, is a human being with full legal rights. Someone who has reached brain death is a human being. An amputated limb while draining of life is a human being. It's absurd in practice, even if philosophically arguable.

As I said, for me a human being is a human mind. A human mind occurs within a human brain that is functioning or capable of functioning coherently. This would eliminate the unborn, and even newborns up to three months. Since we are talking here about practical matters, I think we should err on the side of caution, and use a definition that is salient to non-neurologists: birth. We could be even more cautious and use viability outside the womb.

There are no easy answers. Even your conception idea is absurd - non-viable embryo are not "people who die", even under a definition where a functioning genome is a person. They never had a functioning genome - they never had even the potential to form a child, as unlike a fully developed fetus. They are a literally mismatched genome that is eliminated by development as a waste of energy for the very genes involved.

If you want to argue that a genome is a human being, then you have to argue that only some fruit of conception are human beings - some just appear microscopically to be human beings but are not; since they will be eliminated naturally, a right to abortion does not apply to them, and the bright line question is inapplicable. That is if you really wanted to have a consistent argument; but I doubt that.

Do I have to do your work in arguing for you now?
 

How do you define "independent life?"

Until at least later childhood, humans cannot live independently. They rely upon caregivers.


Now you're just playing games, aren't you? Anthropologists might continue to point out that, aside from the occasional mountain man or wolf boy, humans don't ever live independently. Even nations are seldom, if ever, completely autarkic; one of the fundamental human conditions is dependence upon another.

Sure, humans are altricial, but are you really going to argue that they are inextricably attached to their mother? After birth, they become a separate being regardless of their inability to provide for themselves, as any number of custody battles should be able to show you.
 

Bart says

"Not really. Birth deals with the location of the child. The child herself is not substantially different the moment before and the moment after birth."

But like in real estate, location makes quite a lot of difference here Bart. An unplanned fetus in the womb has competing interests with the woman whose womb he or she inhabits. That fetus, outside the womb, does not have the same competing interests.

Further, you aren't really answering the point, which is that birth is a pretty bright line. It may not be a line drawn where you want to draw it, but that doesn't mean it isn't bright. Indeed, in a sense, it is the brightest line, because conception (where you want to draw the line) and sentience (the other bright line you concede) are both harder to detect than birth.

Finally, if birth isn't a bright line, why all the horror about partial birth abortions? Or does the fact that the fetus is partially outside the womb only matter when pro-lifers are trying to accuse pro-choicers of advocating infanticide and not otherwise?

"The Catholic Church believes that life begins at conception. They oppose contraception because the Bible instructs man to go forth an multiply. Two very different things."

They do believe that life begins at conception, but you are way off on the contraception teaching. It is not just about "go forth and multiply". Rather, they believe that the sex act is intended to conceive babies in marriage and therefore any interference in that process, either before or after conception, is immoral.

In any event, no matter how they get there, the point is, they end up drawing the line of what is permissible and impermissible before conception.

"In any case, the sperm and egg are parts of the parents' bodies. You and I did not gain our own unique genetic structure until conception."

This begs the question. First of all, not everyone has a unique genetic structure. Identical twins don't. (And by the way, Bart, when does a twin's life begin? At conception or at division? Before division, was that one life or two?)

Second, why is unique genetic structure the sine qua non of personhood? Why should a blastocyst or a zygote have any rights at all, much less rights that outweigh the rights of a living, breathing, sentient woman? An acorn may have the same genetic code as an oak tree, but that doesn't mean that you violate a law against felling an oak tree by stepping on an acorn.

The truth is, pro-lifers who say that life begins at conception (an important qualification-- Mormons, for instance, do not say this) don't have any articulable reason why an RU-486 pill that aborts a clump of unthinking, unfeeling cells should be prohibited. (They have better arguments when it comes to late-term abortions.) What they do generally have is a preexisting belief that the link between sex and pregnancy serves a purpose (by deterring sex outside of socially approved relationships or by punishing women who engage in supposedly immoral sexual activity) and should not be severed. Saying that personhood begins at conception and a zygote equals an adult serves that end, even if there isn't really anything deeper than the fact that the DNA is set in place at conception behind it.
 

Actually Bart, Dilan does not go far enough. This: "Not really. Birth deals with the location of the child. The child herself is not substantially different the moment before and the moment after birth."
is factually inaccurate. It has recently been found, for example, that glutamate receptors in the brain reverse function just around birth. The brain functions differently, with some excitatory signals become inhibitory and visa-versa, and is probably involved in post-birth remodeling of the brain.

And of course, we all know that the number of holes in the heart and in the liver change at birth, that the lungs expel all their fluid and become functional at birth for the first time, that intestinal function is activated at birth, and that a massive dose of oxytosin is shot into the infants brain, also signaling brain remodeling and activating parent-child bonding.

Eyes open, increased signaling in the brain occurs, pre-birth calcium signaling falls off (used in different, initial fetal brain modeling), the umbilical cord is cut. So really, its kinda loony to assert that being in the womb or out is solely an issue of location. Quite loony, to be candid, or lacking in basic biological knowledge.

The very moment of birth does not include all of these steps, but then of course there's a difference between the process of birth and the moment that the head extends out of the birth canal. Nothing biologically works in an instant - even conception is an extended affair, without a clear moment of beginning and end, but is an extended process. Even death is thus - there are rarely conditions where you can say "Now this man is dead, but a second ago he lived!", short of massive violence.
 

"Bart" DePalma:

[Dilan]: Bart, the two bright lines you posit are not the only bright lines that can be drawn in the abortion debate. Birth is a pretty bright line.

Not really. Birth deals with the location of the child. The child herself is not substantially different the moment before and the moment after birth.


So if it's my property, it's not trespass. It's yours, it is. We need a "bright line" there, I'm so confoozed by this wishy-washy "location"....

[Dilan]: Before conception-- i.e., that one cannot act to prevent sperm and egg from meeting-- is also a bright line. (That is the Catholic Church's position.)

The Catholic Church believes that life begins at conception. They oppose contraception because the Bible instructs man to go forth an multiply. Two very different things.


Unresponsive to the moral stricture Dilan pointed out.

In any case, the sperm and egg are parts of the parents' bodies.

Huh? How do you figure? "Every sperm is sacred!"

... You and I did not gain our own unique genetic structure until conception.

Clue for you, "Bart", your genetic makeup changes all the time (and if it didn't, you would be a little tiny blob right now). And it is predermined to some extent by your grandparents, great-grandparents, etc.. Your mDNA is your mothers and mother's only). Of course, "Bart" is of the opinion that "genetics is everything" too (which may explain why he refuses to actually learn anything here on these blogs).

"Bart" likes "bright lines" because he can't handle numbers bigger than 2.

Cheers,
 

RandomSequence said...

The question is simple. The rest of this is sophistry: What is a human being?

As I said, for me a human being is a human mind. A human mind occurs within a human brain that is functioning or capable of functioning coherently. This would eliminate the unborn, and even newborns up to three months.


Fair enough. I think you would also add the mentally disabled and those with significant brain injuries to your group of sub-humans.

My point is the inconsistency of the law.

If you take a machete and go into the hospital room of a brain dead adult and hacked her to pieces until she died, you would be looking at a first degree murder charge will aggravators for the heinousness of the crime.

However, if an abortionist rips an unborn child to pieces until she dies while conducting a standard D&E, this killing is protected by an unseen penumbra of the Constitution.

If you are going to be logically consistent in applying the law under your principle of when someone becomes human, then you have to legalize killing of the mentally disabled.

Are you willing to go this far?

My view is that a living human is a living human with the same basic right to life. To hold otherwise is to advance down a path which I have endeavored to outline here.
 

Bart,

You are incorrect in implying that a human mind is lacking in the mentally disabled. It is a damaged mind, but it functions coherently, with a personality, a memory and integration between it's multiple units: the different neocortical regions, the midbrain, the hindbrain and the cerebellum.

A newborn, whether mentally defective or not, lacks those qualities. Being not fully myelinated, no coherent thoughts can possibly occur - the system lacks integrity, in a word, since the time it takes for a signal to travel in the brain is still much too long compared to the speed of neuronal change and organismic changes. The neuron can't "remember" the state of the neurons its connected to, or the state of the organ systems its connected to. By the time a neuron receives a signal and responds to it, the rest of the system has changed too much for that signal to be relevant.

Speed of transmission is not a problem in mental disabilities, excepting some rare cases like advanced AIDS. The closest comparison of the state of the newborn infant is an invertebrate. The most intelligent of these, the octopus, is forced to have 8 ganglia (little brains) in addition to its main brain because of speed of transmission problems, where each appendage acts as an independent mind, and the central brain simple balances their behaviors. Our newborns are in worse straits, since octopuses have thick neuronal axons in order to speed signal transduction and overcome their lack of myelin; obviously, we lack their adaptations.

So, no, I do not have to legalize the killing of the mentally disabled. And I don't have to legalize the killing of newborns because they don't have a human mind yet - the abortion discussion had multiple simultaneous issues, balancing the woman's right, the fetus's rights, and social needs.

And yes, even if a newborn is not fully human, it does have rights. Humans are not the only organism with rights that should be respected, and charity towards others is a moral imperative, whether or not they are conscious entities. It may be legal to kill your dog, but it is clearly illegal in most jurisdictions to torture it, neglect it, or beat it. In some, even killing your dog has been made illegal, if done without consent of a veterinarian.
 

I lean toward acknowledging a fetus as having independent personhood with first brain waves.

Genetic uniqueness alone does not define a person because identical twins are not genetically unique, but they are separate persons. Conjoined twins may share many organs as well as a common genetic code, but they are separate people by virtue of separate brains. Life ends with the cessation of brain function. Even if the person who dies is an organ donor and organs with the donor's genetic code live on in other people, the donor's personhood ended with the cessation of brain function.

If a person's life ends with the cessation of brain function, why should it not begin the same way?

But where personhood begins is only half of the question. The other half is how far one person can be required to go in serving as another person's life support system.
 

"Bart" DePalma:

If you take a machete and go into the hospital room of a brain dead adult and hacked her to pieces until she died, you would be looking at a first degree murder charge will aggravators for the heinousness of the crime.

I'm not sure that's true. You may only be guilty of mutilation of a corpse (or some such lesser crime). If you have any cites to back up your assertion, out with them.

If, as many states have recently provided, "brain death" is in fact the criterion for death, then legally a "brain dead adult" is dead, and AFAIK, you can't be convicted of murder for "killing" someone who's already dead.

I'd note, FWIW, the lack of a murder prosecution for the people that removed Terry Schiavo's feeding tube.

Cheers,
 

Bart:"
Congress overrules "experts" in every field in which it legislates including medicine. No one is above the law.

The common law and statute have long held that you can use deadly force to defend yourself against substantial bodily harm or death. This exception to the homicide laws fits very nicely in abortion as well. Kennedy took a small step in that direction with this opinion."


I'm not arguing that anyone is above the law (why must you fabricate arguments to counter - does that work in court I wonder?). Rather, I point out that doctors make much better doctors that legislative bodies or judges. The SCOTUS seems to think that congress knows more about medicine that medical professionals. Nothing could make less sense, from a medical point of view. And, if you're a patient, that's the point of view that makes a true difference, not what a judge, or SCOTUS, or congress 'thinks'.

Looking for a any light at the end of the tunnel created by setting the precedent of letting congress legislate medical procedure, there is none to be found.
 

Bitswapper (to "Bart"):

(why must you fabricate arguments to counter - does that work in court I wonder?)

Ignoring arguments your opponents do make is often quite fatal in court; if they are not obviously specious, you'll lose the case unless you can explain why they don't pertain. Standard example might be a motion for SJ; if you don't answer at all, the court is almost obliged to grant it. Gotta love the adversary system....

Cheers,
 

The details of partial the birth abortion will disturb and disgust anyone. I believe it will be a rather effective tool in deterring mothers, who contemplate abortion in the late stages of their pregnancy. There is also the risk of a mother having a child and not wanting the baby. Situation like this occurs regularly like, when a mother drowns their own child, or throws the baby in the trash.
I personally do not know too much about this abortion issue and I tend to stay away from it. Strangely enough, there were some anti-abortion folks on my campus yesterday who called partial birth abortion genocide. The pictures they had up were very disturbing to say the least. Personally, in the case of regular abortion I believe it is the woman’s right to choose. However, seeing the barbarism of partial birth abortion made me realize that this procedure should definitely be banned with exceptions only in the most extreme cases. I agree with the decision in Gonzales v. Carhart. The fact is that the mother had many months to decide on whether to keep the fetus or not and killing it in such a manner and so late is too horrible.
It seems the main issue is not on abortion but the awful procedure of removing the fetus and then destroying it. This seems very brutal and primitive and I believe that may be the reasons why the ban was upheld. It seems that the procedure is destroying a human child as if the child is disposable. No matter how weak the argument on the trauma a mother might feel afterwards, the procedure of partial birth abortion should be banned.
 

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