I have a question for Prof. Post, who compared the definition of "human being" in the CA8-approved disclosure ("an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation") to defining "soul" as "the human DNA of a Homo sapiens." I take it he doesn't like South Dakota's definition, but why not? What's misleading about it? What does he think "human being" means?
 

chris posted the obvious question before I could.

I would only add that Prof. Post's hypo defining a "soul" as "the human DNA of a Homo sapiens." is not at all analogous to the case with which he disagrees. The definition reviewed by the court is factually correct, while the hypothetical attempt to redefine the definition of a soul is not.

Also, the argument that informed consent requirements prior to medical procedures somehow violate the First Amendment is without basis. Medical informed consent requirements are routine and generally uncontroversial. What upsets those who support abortion is that informed consent in this context makes it plain that abortion involves killing another human being.
 

Thank you for providing these. Great stuff.
 

In the physical anthropology course that I teach, the question of when a fertilized ovum becomes "human" makes for a great side discussion of ethics, particularly in the context of ES research. Students are often surprised to find such a variety of opinions within the classroom--isn't it an obvious fact that [enter own belief here]?! Some point to conception as the starting point, many to the first heartbeat, others to the first drawn breath. All of that variety of opinion within our own scientifically aware culture!

Post is right to point out that the concept of "humanity" is difficult to identify objectively. To make the point a bit clearer, do we need to verify the DNA of victims when considering whether an act is to be considered a "crime against humanity"?

Additionally, requiring doctors to state the "independence" and "separateness" of an organism that is non-viable on its own stretches the objective science to the breaking point.

Most of my students agree that the non-viable phase is one of potentiality, where the zygote/embryo/fetus has the possibility of developing into a fully functioning member of society. However, there is still every possibility that it will not occur.

If we considered every blastocyst to be a "unique and individual human being" worthy of protection to the point of outlawing abortion as murder, it follows logically that we would develop and mandate the administration of techniques--both medical and legal--for ensuring that every blastocyst survives. For example, consuming alcohol during pregnancy should be considered a form of assault (if not attempted murder)--13% of mothers in the United States would be guilty of the crime.

It's clear that our society doesn't normally value a potential human the same as it does an actual one. Such logical extensions into defending zygotes from bad parents are absurd on their face for a number of practical reasons. That's not to say that people can't or shouldn't take inconsistent positions; it merely points out that since such positions are inconsistent, it may be inappropriate to force other people by law to voice such inconsistencies against their own beliefs--scientifically valid or not.
 

Medical informed consent requirements are routine and generally uncontroversial.

I suspect that if a law were passed that required every provider of obstetric services, including Catholics and conservative Christians (or even every one receiving federal funds), before providing any such services to a patient, to provide reams of information about how the decision to have a child costs money, causes post-partum depression, can tie a woman into a bad marriage, can cause complications in pregnancy, etc., and providing the phone number and name of the nearest abortion clinic should the mother wish to terminate the preganncy, conservatives would see the First Amendment violation.

Medical advice is fully protected speech. Yes, true informed consent (i.e., providing information on the danger of a procedure that a patient is not likely to know) meets strict scrutiny and is constitutional, but these requirements have nothing to do with that. They are just attempts to get women not to have abortions.
 

pms:

As the court correctly observed, the issue is not what is a metaphysical human being but rather what constitutes a biological human being or living human sapien. It is undisputed science that we all start our existence as a genetically unique and living human sapien at conception.
 

dilan:

Informed consent for a medical procedure covers the results of that medical procedure. What you are discussing is not a result of the proposed abortion.

Of course, if the abortionist is intent in drumming up business, he or she is free to utilize free speech to offer your parade of horribles of having children.
 

PMS: "Most of my students agree that the non-viable phase is one of potentiality, where the zygote/embryo/fetus has the possibility of developing into a fully functioning member of society. However, there is still every possibility that it will not occur."

I don't see how this sort of consideration distinguishes the embryo from, e.g., someone in a coma who might not make it. The mere fact that there is "every possibility" that someone won't ever behave in the future in a way characteristic of people doesn't make someone not a human being.
 

I remain committed to the proposition that an implanted zygote is a human. At what stage thereafter it develops into something significantly more or less I find entirely unsatisfactory and unanswerable. We would not deny that a premature birth is of a premature human, thus stopping it. Nor would we claim a prepubescent child is not "fully human," of that a menopausal woman is no longer fully human, and yet all our arguments proceed along the same slippery slope arguments of "when life begins." The answer, if one exists, solves nothing.

Except the Supreme Court's casuistry, which I still regard are the height of double standards and inconsistence. A right to privacy does not equivocate into a right of abortion (so Plessy-like) but then even a right to privacy which guaranteed abortion did not guarantee a right of privacy to be homoerotically intimate until 2003. Yeah. No wonder people find the courts' logic lacks all consistency, coherence, and credibility.

I would posit that numerous values come into conflict with abortion: a right to life, a right to autonomy, a right to self-determination, and many others before I would grant a "right to reproduction." No one has a "right over the reproductive process," only over his/her body, his/her self-determination, and avoidance of harm. Since harm plays a role, harm of a sentient organism is not to be sidelined as it has been by the courts. We seem more concerned about animal sentience of cows and chickens than of our own species. That's biologically aberrant, and ethically and morally distasteful.

Since so many rights enter the picture, and prioritizing or ranking such rights would beget only more consternation, I have adopted a variant of "Solomon's Baby" solution. Any student of embryology knows the human embryo repeats in microcosm the entire evolutionary summation of life on the planet as a macrocosm, and the "morphology" of the embryo bears witness to this remarkable phenomenon. At the 23rd week, the fetus assumes a decidedly human form -- no longer amphibious, porcine, or otherwise earlier in the evolutionary series -- and our instincts to protect the most vulnerable of our kind arise out of our hardwired biological empathy. No one much cares about a zygote, a porcine-like organism, but a fetus that resembles a human child in unmistakable ways we all notice.

But, the biological morphology, the theory of moral sentiments so well established by the Scottish Enlightenment and confirmed by biologists Williams, Hamilton, and Trivers in the 20th century, the moral application of the Harm Principle from Greek Antiquity ("do no harm or injury"), and the practice of ethics in which the Doctrine of the Mean avoids the excess and defects on the extreme, all point to this solution. In fact, it is the only ethical solution, weighing the excesses and defects and dilberating to a mean. (See, Aristotle NE 1106b37). Thus, this solution meets all three axiological tests: (1) benevolent, (2) moral, and (3) ethical. That the law does not is a disgrace.

Thus, to "divide Solomon's baby" metaphorically, a woman's choice to abort or not should be unencumbered by any reason up to the 23rd week. As it so happens, over 90% of all abortions worldwide occur within this time frame, without further stipulation. After the 23rd week, abortions would be legal only for medical necessity of the mother, and I would not be more specific. If a physician can document a serious trauma will occur if pregnancy continues, that meets my "medical necessity." If a physician documents her patient changed her mind at the last minute, then medical necessity is not met.

80% of the American public already holds this view, or something very similar to it, without knowing why. I've just provided the raison d'etre, which is more than we can say for Roe v Wade.
 

"Bart" DePalma:

I would only add that Prof. Post's hypo defining a "soul" as "the human DNA of a Homo sapiens." is not at all analogous to the case with which he disagrees. The definition reviewed by the court is factually correct,...

No. As Post points out, it's the RW trying once again to engage in the fallacy of equivocation. They claim for purposes of defeating a free speech argument a definition that purportedly avoids this problem, but as Post notes, if that is indeed the definition they want, it really makes no sense. And in fact, we're not stoopid, and we know what definition that they're really pushing for, and what interpretation they're hoping will be attached to the compelled words. "Factually correct" here is defined as "disingenuous".

Cheers,
 

For instance, it's "factually correct" that "Bart" hasn't yet murdered any little boys today [at least I hope not]. That doesn't mean that I should compel him to issue this disclaimer before the waitress serves him his lunch.

Cheers,
 

Informed consent for a medical procedure covers the results of that medical procedure. What you are discussing is not a result of the proposed abortion.

You didn't do very well in law school classes that featured the Socratic method, did you?

What I described was the results of the decision to give birth to the child, which is exactly what the woman is consulting the obstetrician to do.

In any event, you missed the LEGAL point (strange for a lawyer), which is that such statements would VIOLATE THE FIRST AMENDMENT. In other words, your contention that the government can put words into doctors' mouths without implicating the First Amendment is wrong.

What you want is an abortion exception to the First Amendment, where putting words in doctors' mouths is legal so long as the words serve Bart DePalma's agenda of preventing women from exercising their legal right to terminate their pregnancies.
 

"Bart" DePalma:

As the court correctly observed, the issue is not what is a metaphysical human being but rather what constitutes a biological human being or living human sapien....

As Post points out, ... "as opposed to a furry rabbit, a nemotode, or a pet rock."

... It is undisputed science that we all start our existence as a genetically unique and living human sapien at conception.

Funny you should insist on uniqueness as a token of sameness? Are you confoozed, or just drinking early?

What about the eponymous HeLa cells (the lasting legacy of Ms. Helen Lane)?

Why aren't my skin cells "genetically unique" (they are, you know, as that's the basis for DNA forensics testing), and therefore worthy of protection? Why should I not be charged with assault if not murder every time I take a shower?

Enough of the "pseudo-sciene" (and "faux" science) taling points here, "Bart", no one but an ignorant fool buys them.

Cheers,
 

dilan:

Bearing a child is not a medical procedure. It is a natural process which occurred long before obstetrics was invented.
 

The mere fact that there is "every possibility" that someone won't ever behave in the future in a way characteristic of people doesn't make someone not a human being.

I used the sentence that included "every possibility" as a transition to the paragraph in which I point out the extents to which we do NOT go to defend "human beings," so defined. The coma patient example you bring up underscores that disparity: we turn a blind eye to the loss of billions of blastocysts every year, but we maintain people in a vegetative state for years. Why the difference in approaches?
 

It is undisputed science that we all start our existence as a genetically unique and living human sapien at conception.

It's just one starting point among many. If "whole" is our criterion, then we could point to the absolute non-viability of a fetus until the 23rd week or so.

If "separate" is our criterion, then we need to wait until the baby is removed from the womb, either through natural or surgical means.

If "unique" is our criterion, then we can point to the meiosis of the diploid germ cell and the "crossing over" event as when we start our existence. There are all sorts of unique proto-humans hanging out in our bodies right now. Every one of them is sacred, or so I've heard somebody sing. :)

So, when doctors are required by law to say "the abortion will terminate the life of a whole, separate, unique, living human being," it's a case of state-mandated equivocation.
 

Bearing a child is not a medical procedure. It is a natural process which occurred long before obstetrics was invented.

The decision to bear a child is a medical decision, just like abortion, that can have tremendous impact on the social, economic, psychological, and spiritual well-being of the patient.

Further, though, you stlll haven't answered why this makes a LEGAL difference. It seems to me the First Amendement should prohibit the government from putting words in the doctor's mouth in both cases.
 

I've never quite understood the SD statute. Does it require doctors to repeat that exact phrase, or do they simply have to communicate its meaning one way or another? Obviously if it requires doctors to say that their patients are killing "unique human beings," that can't be constitutional. But if there's enough wiggle room to the point where the statute would be satisfied by the doctor simply reminding the patient that she is killing a live fetus, then perhaps things aren't as clear-cut.
 

pms_chicago said...

BD: It is undisputed science that we all start our existence as a genetically unique and living human sapien at conception.

It's just one starting point among many. If "whole" is our criterion, then we could point to the absolute non-viability of a fetus until the 23rd week or so.

Whole in the context of this definition simply means complete, not fully developed or mature. Nothing needs to be added after conception to make us a human being.

If "separate" is our criterion, then we need to wait until the baby is removed from the womb, either through natural or surgical means.

Separate can have different meanings and not only different physical locations. We all were separate human beings from our mothers starting at conception. Indeed, our mother's bodies had to adjust to keep her immune system from killing us as a foreign organism.

If "unique" is our criterion, then we can point to the meiosis of the diploid germ cell and the "crossing over" event as when we start our existence. There are all sorts of unique proto-humans hanging out in our bodies right now. Every one of them is sacred, or so I've heard somebody sing. :)

We are speaking about human beings, not proto humans. Thus, the apparent need for the term "whole" in the definition.
 

chris and bart are convinced that from conception, there is a human being. Doesn't that imply this human being is a person under the 14th Amendment?
 

It isn't persuasuive that "human being" is merely an objective, biological term in this context. It clearly has the connotation and purpose of elevating the zygote/embryo/fetus to a moral status deserving of a right to life just like you and me.
 

Informed consent for a medical procedure covers the results of that medical procedure. What you are discussing is not a result of the proposed abortion.

Of course, informed consent also requires full disclosure on the part of the doctor of the consequences of not following through with the procedure. I recall that well from my own experience, when I was advised of the pros and cons of the operation (including the risks of doing nothing). Without getting absurd, the law (to be as even-handed as its supporters claim it is), should require physicians to advise women of the dangers of carrying a child to full term.

I also have a question (since I don't have as much access to legal resources, and my google searching is not having a good day): does the statute prevent the physician from disclosing that they do not agree with the formulation, or from presenting alternate definitions, constructions, or just saying that it's a load of hooey?
 

"Bart" DePalma:

[Dilan]: I suspect that if a law were passed that required every provider of obstetric services, including Catholics and conservative Christians (or even every one receiving federal funds), before providing any such services to a patient, to provide reams of information about how the decision to have a child costs money, causes post-partum depression, can tie a woman into a bad marriage, can cause complications in pregnancy, etc., and providing the phone number and name of the nearest abortion clinic should the mother wish to terminate the preganncy, conservatives would see the First Amendment violation.

["Bart"]: Informed consent for a medical procedure covers the results of that medical procedure....

... and what Dilan lists are possible sequelae or outcomes.

You know, "Bart", Dilan's list of facts has the advantage of being truthful and to-the-point, while your preferred 'lecture' is just quasi-philosophical (or is it (pseudo-?) spouting.

What you are discussing is not a result of the proposed abortion.

Quite true. It's some of the possible results of not having an abortion.

I don't mind discussion (based on facts) of the possible sequelae of any course of action (some women who get abortions do regret this later on, and this should be noted), but the pap the SD legislature wanted was pure 'moralistic' propaganda.

Cheers,
 

The Gay Species:

Any student of embryology knows the human embryo repeats in microcosm the entire evolutionary summation of life on the planet as a macrocosm, and the "morphology" of the embryo bears witness to this remarkable phenomenon.

Actually Haekel's "ontogeny recapitulates phylogeny" is a bit overstated as a fundamental truth. And when it does show, it's hardly remarkable, seeing as evolution works mostly with the material around, and many features are just rewarmed and reworked modifications to existing features.

I'd note the anti-evolution crew is violently opposed to recognising this phenomenon, for obvious reasons, and have criticised Haekel's drawings as not accurate (and this also is true, albeit the drawings weren't entirely manufactured).

Cheers,
 

"Bart" DePalma:

Bearing a child is not a medical procedure.

"Bart"'s obviously never given birth. But irrelevant. Informed consent is appropriate for anyone who is not only considering which procedure to choose, but also whether to elect or forgo one procedure.

Cheers,
 

PMS: "[W]e turn a blind eye to the loss of billions of blastocysts every year, but we maintain people in a vegetative state for years. Why the difference in approaches?"

I'm not sure the premise is true, but if we can't specify a morally-relevant distinction between the two, that's reason to think the difference in approaches is unjustified.

Just Looking: "chris and bart are convinced that from conception, there is a human being."

I wasn't trying to be dogmatic about it, just trying to find out why Prof. Post disagrees with South Dakota's definition. FWIW, I am inclined to agree with it, but Post's lack of a reply certainly doesn't make me think there are compelling reasons to disagree with it.

"Doesn't that imply this human being is a person under the 14th Amendment?"

That depends, as I see it, on the historical question of what "person" expressed in 1866-68. Some people (Blackmun et al. in Roe, Balkin, Scalia) think our contrary census policies are more compelling evidence of what "person" expressed in the 14A than a common-sense equation of persons and human beings. FWIW, I'm inclined to disagree, but that would require more explanation (and more historical digging).
 

just_looking said...

chris and bart are convinced that from conception, there is a human being. Doesn't that imply this human being is a person under the 14th Amendment?

We are arguing the science. The definition of person is a legal question and not automatically analogous with a biological human being.

My personal view is that a person is analogous with a human being and should enjoy equal protection of the law and whose life should not be denied without due process. Within that framework, I believe a coiurt could reasonably allow abortions in self defense in cases where the child offers a substantial risk of bodily harm or death to the mother or in cases of incest and rape when the mother did not consent to the natural risk of pregnancy. There is also a good argument that abortion would be justified if the child cannot live after birth as an unjustifiable risk to the mother which would not save the life of the child. Those exceptions would be affirmative legal defenses to what is otherwise homicide.
 

We are confronted all the time with human beings which aren't people, the brain dead. Soon, relatively speaking, we will be confronted with people, (AIs and the products of genetic engineering.) who aren't human beings. The two catagories tend to overlap extensively, but they aren't the same.
 

Doesn't that imply this human being is a person under the 14th Amendment?

It seems to me a semantic game is being played with the word "being". That zygotes (and for that matter, sperm) have human DNA is not in issue. That a zygote is a "being" does not follow from it having human DNA, but has to be separately proved.

In any case, as you correctly noted, the legal issue is the meaning of the word "person" in the 14th A.
 

Klarman's approach to backlash is totally ahistorical, he views these issues through the wrong end of the binoculars.

The Supreme Court's approach to racial segregation was not the result of some abstract desire to improve the lot of black people. In part, it came from the undeniable injustice of lynching and the Scottsboro boys case. In part it came from the equal suffering of WWII, with the sacrifices of black military units and the imposition of fair employment practices in the war industries. And in part it came in response the anti-colonialist theme of the Communist movement and its appeal to US blacks such as Paul Robeson; if the US were to win the world struggle between communism and capitalism, it would have to liquidate the racist base that supported colonialism.

The legal efforts for female independence and civil equality have roots in the 1890s and the prohibition and women's suffrage movements. Again, the service of women in the war industries earned them consideration for equality, and decisions on female jury service and female separate property followed. Equal employment rights for women came about as a result of southern efforts to torpedo the Civil Rights Bill empowering blacks. The career of Ruth Bader Ginsberg shows the big and small ways in which female inequality was a product of legal discrimination, in the same manner than Loving v. Virginia and the restrictive covenant cases showed the ways in which black inequality was a product of legal discrimination.

For Margie Pitts Hames, who handled the Doe v. Bolton half of the Roe v. Wade tandem, and many other feminists, abortion bans represented just another way in which women were denied physical autonomy by the law. It was as much the therapeutic abortion laws, which left women at the mercy of all-male hospital committees, as the prohibition of abortion, which motivated them. However, this was not the Court's approach. Justice Blackmun, for all that he had become sensitive to the demands of women for equality, was still the former attorney for the Mayo Clinic, in the same way Justice Powell's role in school desegregation was determined by his former role as attorney for the Richmond School Board. From a precedential point of view, the path to Roe came through Griswold v. Connecticut and US v. Vuitch; the Vuitch case had more than legal reality for the justices because it arose in DC where Vuitch was a symbol of the legal abortion movement.

The whole idea that the Court is controlled by backlash potential cannot be based on civil rights and abortion alone; you have to consider conservative counter-majoritarian cases such as the NRA and other 9 Old Men cases, and Bush v. Gore.

[Personal invective against Klarman deleted in the interest of the blog.]
 

We are arguing the science

The claim that South Dakota's statute is just about science doesn't pass the smell test, and that's why it violates Free Speech.

My personal view is that a person is analogous with a human being and should enjoy equal protection of the law

If we accept this view, then the judiciary must prevent the majority from generally permitting abortion (apart from affirmative, case-by-case exceptions*). Moreover the woman must be tried as a first-degree murderer for hire.

* Neither your rape/incest nor child-will-not-live exceptions hold. No other murder statute permits an exception when the person is placed in a position against their will which in turn led them to kill. Nor does any statute permit killing short of self defense when the victim would have died anyway.
 

does the statute prevent the physician from disclosing that they do not agree with the formulation, or from presenting alternate definitions, constructions, or just saying that it's a load of hooey?

Yeah, that's what I'd like to know. It's not clear to me that the statute actually requires the doctor to say the words 'human being.'
 

My personal view is that a person is analogous with a human being and should enjoy equal protection of the law and whose life should not be denied without due process.

*cough*

UNLESS that person has a post-it note stuck to his/her forehead with the word "enemy" upon it.

OR, unless I can IMAGINE a post-it note with the word "enemy" on it affixed to that person's forehead.

In such cases, I kill them with GLEE. OR, I experience glee when someone else kills them.
 

Brett:

We are confronted all the time with human beings which aren't people, the brain dead.

Or the anencephalic. But my favourite "poster children" are the much-maligned and neglected teratomas (which addresses "Bart"'s issue of the genetic "humanness").

Remember: "Teratomas Are People Too!!!"

Cheers,