1. In a democratic society, do all persons have equal intrinsic rights
Yes, especially considering the right to life. Those that try to take away this basic right (murderers) are treated with the most aggression by the society (life in prison, or lethal injection). Even some of out most "bothersome" laws (speed limits) are initially based on protecting life.
2. When is a person a person?
This is, IMHO, the crux of the whole argument/reason/proof/rebuttal.
a) Some see "life" as starting at "independant" life, or when the child become non-dependant. As long as there is an umbilical cord attached then the child is really not "dependantly alive" but rather more of a parasite, and therefore can be terminated with little to no guilt.
b) Some are like Option A above, but draw the line at the 3rd Trimester because so many babies can, in fact, exist (in an incubator) during the 3rd Trimester after being removed from the mother. The normal human fetus is usually viable, or capable of surviving outside the mother's womb, without artificial support, by the end of the 7th month.
c) Some are of the opinion that the child is "alive" at the time of conception, even though the embryo/fetus is not viable yet.
So here we are at a crossroads. When is a person alive, or when does a person actually "exist" beyond a collection of cells and tissue?
As long as you believe that the cells and tissue are not alive or are not a person, then the removal of such is of no great concern, and the host (the woman) should have every opportunity to remove it (not with my tax dollars, but to have it removed).
But if you are of a mind that the cells and tissue are, in fact, a human entity, a living creature, then all our laws and philosophies should protect the life of that entity. I don't care if it "distresses" or "makes life uncomfortable" for the woman - if you believe that the cells and tissue are a living person, then this living person has certain basic rights, the first of which should, in our society, be the right to life.
It is so strange to be that it is usually the liberals that are so in favor of abortion, yet it is also usually the liberals that want to rescue animals from research facilities, and want to punish the clothing industry for using real fur. Wouldn't it be a better world if PETA treated little humans with the same zeal as it treats animals? Wouldn't it be a better world if Greenpeace treated little humans with the same zeal as it treats whales?
- But those humans in the womb are so defenseless, so tiny, so invisible, that their death goes so unnoticed.
- The responsibility of birthing and raising a child is so great when compared to simply sucking its brains out through a straw.
- Having sex is so much fun as compared to actually being responsible for having sex that abortion is a quick-and-dirty birth control measure.
I am a Christian. I believe that a soul enters the "clump of cells" at conception. I believe that a human is created at conception. I believe that this human has the same rights to life as the mother - one is no greater or less great than the other.
If the mother REALLY wants some options as to her unwanted child, then take the baby out of her, take it to a labratory/incubator, and coax it into life. Then strap the mother down and suck her brains out through a straw, or spray her down with a powerful acid and let her dissolve onto the floor. Surely that doesn't sound barbaric, considering that the reverse happens everyday all over the country.
Thanks for the thoughtful framing of the second question.
There are two subissues that you noticed: one has to do with dependency and the other with the intrinsic property of the individual, i.e. the "clump of cells".
On the issue of dependency, I think that our answer is found in the answer to the first question--that we are all intrinsically equal regardless of whether we are fed by a machine, in utero, or through a complex system of economic exchanges. The intrinsic nature of the person is not regarded by a democracy to be a function of the dependency.
But what about a dependency in fact? This is the second subquestion. A simple clump of cells will throughout the progression of time be nothing that we would regard as human. However, a fertilized egg will become human (as we recognize all humans) under the normal course of time in most instances. Before fertilization, nothing. After fertilization, everything.
Thus human life begins at conception. But is this human life a person? What principle do we apply then? At this point in the discussion, I see this as an open question.
1) Yes.
2) When the entity in question is not a liberal.
<kidding>
When is a person a person?
When that person is "allowed" to make her own decisions about her own body. And I am sorry, but a fetus is not capable of doing that--not because it isn't rational or alive, but because its body doesn't exist on its own. So any "rights" the fetus is granted simply cannot be recognized or enacted except by the woman whose body is carrying--and creating--it.
What's interesting is that you're trying to frame this debate around the "personhood" of a fetus, while completely overlooking the personhood of women.
What's interesting is that you're trying to frame this debate around the "personhood" of a fetus, while completely overlooking the personhood of women.
Not at all. Women (and men) are endowed with sovereignty of their bodies. This is a fundamental form of sovereignty that implies that a person may act physically on their environment directly though their biological presence. Our nervous system defines this immediate realm of potential action and gives us first claim to the tissues and organs they control and regulate. This form of sovereignty derives from natural law.
Of course, the nervous system of the mother is distinct from that of the child. Furthermore, the child and mother have distinct genes as well and are in fact distinct entities connected temporarily for the function of feeding. We are presently on the verge of creating artificial uteruses so it appears that this biological connection may soon be an option rather than an imperative.
Even Siamese twins that share digestive tracts are distinct persons.
Now, note that your definition of sovereignty is actually anti-sovereignty. We are never sovereign if it is by permission of others that allow us to make decisions. Note also that a woman cannot spontaneously create life. She may only nurture preexistent life.
No. She creates it. Pregnancy isn't just a holding pattern.
Well, actually the child is genetically distinct from both the father and mother. The implantation of the zygote in the uteran wall is for the purpose of feeding (and the elimination of waste) only, not transferring prefabricated tissues and organs. There is no neurological connection.
In fact, the egg is free floating, being released as jetsam from the ovaries before it is fertilized. So, from conception, the child is an individual. Thus it is possible to have surrogate mothers that are not much more than a spare uterus in biological relation to the child. The only constant is the autonomy of the child who regulates its own growth and development.
The mother create life no more than she is the creation of her mother. So, if you hold that the mother is sovereign (and I agree), so must be the child.
A three-month-old can't make decisions about her body. A three-year-old can't. A six-year-old can't. (Otherwise there would be no childhood immunizations.) Are they persons?
Laura,
A three month old is autonomous. So is a three day old (from conception).
So if the criteria for personhood is autonomy, conception is the point of reference. You seem to imply that the criteria should be based on cognitive ability.
Would you care to elaborate?
Earlier comment:
"When is a person a person?
"When that person is 'allowed' to make her own decisions about her own body."
My point is that no one allows infants or small children to make their own decisions about their own bodies, yet they are certainly persons. I'm not sure about the autonomy of a newborn, and I don't think it's that relevant. We were all newborns once. We were all embryos and zygotes once. The way humans reproduce may be messy and weird, but it is what it is. I reached the conclusion a very long time ago that personhood begins at conception.
OK, I understand now. Your reply was in response to bitchphd.
Thanks
I'll bite (saw your post at TPMcafe and couldn't stop myself) and I'll limit myself to concerns over your two questions. and then, i'll be done, take these thoughts from a NYC area liberal how you may.
question 1: Which rights are intrinsic? Are they equal? Can we defend our system as supporting truly equal rights of all citizens? If only it were so simple...(see: racial profiling, inheritance rules, unequal education, taxes, subsidies, etc.)Government can strive only for fair and reasonable respect for rights when in conflict. I want to be clearer, but it's late and i can't figure out how to be clearer on this. sorry.
2. The concern I have here is that there are two rights in conflict. A woman's right to control her own body (should she spend 9 months pregnant?) and life (is she ready to be a mother?) is a right I think clearly and fundamentally exists in all pregnancies. Hard to argue that it doesn't. The fetuses right to live, if it exists, is extremely potent. The problem, however, is that the first right is undeniably a right. The second right leads to an "if/then" that cannot be definitively proven (save maybe for scientific definitions of "viability"). To me, a society based on individual rights and freedoms has to, in such cases, support the known right (the woman's right) over the potential right (the fetus' right) when making laws.
Secondly, here may be where the first question ties in (not sure about this line of thought, but it intrigues me). There is an inherent inequality to pregnancy and were society to take away a woman's right to get out of a pregnancy, it would be treating pregnant women (and, by extension, all women) in an inequal way by asserting an obligation that it does not and cannot ask of all its members. So, if all people have equal intrinsic rights in regards to control of their body and how it is used by society, anti-abortion laws may be invalid.
Finally, to Shamalama, I respect your passion to protect life, but I have to add two thoughts. First, the rhetoric about performing abortions on mothers is a disgusting rhetorical trick. Second, one of the most unfortunate aspects of the abortion "debate" (more like everyone screaming at each other) is that the concept that we all find life sacred (but don't know when it "starts") is forgotten in much of the heated rhetoric. Though sadly there are abortions done by women who are purely irresponsible, there are also abortions performed by women who are spiritually sound, truly responsible people who have decided they cannot have a child at that point in their lives. There's no need to denigrate their extremely difficult personal decision by simply assuming that all mothers who choose that route are there because "- Having sex is so much fun as compared to actually being responsible for having sex that abortion is a quick-and-dirty birth control measure."
I'm avidly pro-choice, but I'll agree that abortion should not be seen as quick-and-dirty birth control. And I'm not a member of PETA. Just like us liberals shouldn't assume too much about conservatives, the same certainly applies on the other side. And I think that whichever political view is in power has the most duty to watch out for making assumptions.
ok, that's much more than i wanted to write. i promise, now i'm done.
A creature becomes a human when it has a human brain. How can you have empathy for a creature (embryo) that, lacking a brain, does not feel? And while I have empathy for sentient creatures that are less than human, they are not deserving of the same protection I would afford another human being. That is the status of a fetus before the third trimester.
I think Rory has largely done a good job arguing the position. I would just like to supplement it slightly.
First, rights aren't intrinsic in anything. It is certainly possible to have a democratic government that doesn't recognize any broad conception of rights. Take a look at ancient Athens. "Rights" are a shorthand for talking about legal positions and legal enforceability.
When someone says they have a right to free speech that means that their speech cannot be infringed by a governmental actor with legal repercussions and sanctions against the government. When someone says they have a right to life, that means that they cannot be deprived of their life without due process of law--and the only process sufficient is a murder trial conducted under specific fair procedural requirements.
Those are just examples, but the point is that natural rights don't exist. Rights are dependent on the existence of a government willing to enforce them.
Second, again, Rory is correct in her description of the conflict of rights. The question in Roe was when does the state have a compelling interest in protecting the life of a fetus. Can we honestly say that government has a compelling interest at the time of conception?
I don't see any rational way to get to that point. A zygote or even a fertilized egg may be alive, though like Justice Blackmun I am unable to make that determination when so many people disagree. Even if it is 'alive,' how does that simple fact demand that it is protected in the same way a 5 year old child, or a 30 year old man, or a 70 year old woman is protected?
It's not even terribly likely that the fertilized egg will make it on it's own. A lot of them just don't survive. Given the uncertainty, is it really true that the state has a compelling interest in ensuring that it remains alive?
Ultimately, a woman's liberty is a actual compelling interest while the life of a fetus or a zygote is simply potential until it is recognizably similar to all those persons that we actually protect.
Furthermore, consider simply that the statute at issue in Roe was designed to put the full force of the state's criminal law to work against doctors who performed abortions and women who had them. The government wasn't just going to tell them to stop; it was going to take them out of their houses and communities and place them in prisons. There is no clearer deprivation of liberty than this.
Finally, let me leave you with a hypothetical:
Consider that you go out to dinner one night. In the course of your dinner, you black out, and when you awake, you find you are in a bed with an unconscious grown man lying next to you. The room is clean, and chock full of medical equipment. You soon notice that you are connected to this unconscious man through a serious of complex tubes and devices. About this time, a woman walks into the room and tells you, "I'm sorry, but we had to bring you hear. This man is a great pianist, but he has a rare blood disease. Your body produces anti-bodies that fight the disease, and connecting you to him is the only way to save him. The good news is that this disease always runs it's course in 9 months. Until then, you'll have to stay connected to him."
The question, then, is are you morally bound to remain in this bed, attached to this man for the next 9 months? Does his right to life trump your right to personal liberty?
Food for thought.
Rory,
Let's take up the issue of equality. You asked, "What rights are intrinsic and equal?"
In our democracy, the intrinsic rights are enumerated as "life", "liberty", and either the "ownership and use of property" or "pursuit of happiness". The later is the rosy phrasing of a concept in the Declaration, the former is a more concrete approach in the text of the Constitution (as we have seen in Kelo this is not as concrete in practice as it would appear on paper).
Life is the most fundamental of all rights. If we do not have a right to life no other rights have application. The right to control one's body is a derivative right that falls under the right to liberty. We do not have total control over our bodies. For instance, public nudity is prohibited, so is the ingestion of certain drugs. There are hygiene restrictions for food handlers, etc. Some aspects of bodily functions are beyond our control. Asserting a right to control a function over which we have no control makes no sense as a right of liberty.
The right of liberty must be the right to control voluntary activities. The right to life covers those involuntary activities necessary for life. It seems to me that both rights are absolute within the realm of the person, i.e. that you have the absolute right to control your voluntary functions (thinking, breathing, etc.) and an absolute right to keep your heart beating if neither activity has effect beyond one's person.
So none of the societal restrictions on one's liberty are relevant to the realm of the person. (One can be as nude or unclean as they want if they are isolated from others as an absolute right.) Of course, no one can control their biological sex (a facet of their genetic coding). This is determined at conception. We cannot control the color of our eyes, the shape of our skull, and many other biological features of ourselves. At best, we can perform some alterations. Genetic reencoding is not one of the things that we can control. Therefore, equality in a democracy must be invariant to genetics. In general, those rights which are equal by the right of liberty are those that can be controlled voluntarily. We extend these rights by Amendment to include limited equality between the sexes (to vote for example) and blanket equality over any racial features. There is no absolute equality between the sexes in our democracy.
I think this exposition answers your immediate question gives us a basis to proceed further in discussion. It seems to me that we are now at the second question posed.
Sharman,
The human brain begins its development at conception. I would agree that a human whose brain was removed is no longer a person. But then there would be no possibility for that brain to be regrown.
What about a person whose brain is growing? If we say that the right to life is contingent on the development of the brain, then we would no longer have an equal right to life.
Reece,
We are only concerned here with our democracy which does recognize intrinsic rights.
We are approaching the second question, "When is a person a person?"
I'll wait a bit for Rory's reply before moving ahead. Your hypothetical is akin to the "Violinist hypothetical". It has several obvious problems in the analogy. I think the best way to approach the problem is from the bottom up, i.e. to lay the foundation of the analysis rather than to simply bat about on the obvious flaws (our disagreement at this point is more fundamental).
If there is no reply from Rory by tomorrow, I'll address your post in its entirety directly.
Paul,
While we live in a democracy that recognizes specific rights, that wasn't my point. My point was that "rights" aren't absolute.
There is no such thing as a 'natural right.' Any right that exists exists because it is recognized by the society which protects it.
It's not the case that your right to life is such that it may never be denied to you. Capital punishment demostrates that. And you are undoubtedly a full-grown person in whom all existing rights are vested.
What we're talking about then is something that is not a fully grown human being with fully vested rights. We can talk about when that developing fetus becomes a person (and I'll do that in a moment), but that isn't really the issue. The issue is at what point in human development do we decide to enforce rights. We--society--are the creators of rights and ultimately, rights protection is not dependent on when something becomes a person.
If it were about when a fetus became a person, then your position would hold no more water than the beliefs of someone who thinks that humans aren't persons until they are 21 years old. Human growth and development doesn't stop until our early 20s. There isn't really a well-settled or well agreed upon point at which someone becomes a 'person.' What 'person' means isn't even clear.
Some animal rights activists argue that certain animals are 'persons'--that a chimpanzee, for example, is sufficiently similar to legally protected humans that it should also be protected. What if you and the animal rights activists are both right? Are you willing to allow Constitutional rights for chimpanzees?
I know I'm not, but my position isn't dependent on the definition of 'person.' Chimpanzees can be persons, but I don't have to grant them rights. And the reason is that the question we have to ask is not when something is a person, but when do we protect it's rights.
Put another way, your question is mistaken because it asks when a person becomes a person without asking how we know something is a person in the first place. Your questions beg the point--you're assuming a zygote is a person and then using that to prove its a person.
If my hypo is similar to a violinist hypo, its probably because I read that a while back. I was just recalling it from memory and so had to give it my own details. Nonetheless, it's point is legitimate. I don't know anyone who would say that you are morally obligated (or that you should be legally obligated) to remain attached to the other person for 9 months. And it doesn't have anything to do with the personal responsibility of the individuals involved.
It is the rights analysis that is important, not the manner in which the rights come into conflict. You don't give up your liberty right just because you have sex. That would be silly.
Finally, there is a strong moral background for our rejection of the obligation to remain attached to this person: Kant really did hit on something when he argued that we are opposed to using other people as means only and not ends in themselves. In this hypothetical, the person is being used as a means to support the life of another man without concern for their own moral projects, liberty, or well-being. Banning abortion presents the same issues--it would be the state using women as means to produce more people without treating women as an end in themselves.
All that said, though, we're going to lose this debate over the next member of the Supreme Court. And the simple reason is that, as demostrated by this post, our positions cannot be boiled down to pithy slogans.
The basis for our democracy is that there exist intrinsic rights (life, liberty, etc). At their source, these rights must be absolute; otherwise, they are no rights at all. However, once we create a society with more than one origin of a sovereign right, there must be a line of demarcation between the limits of action of one person's rights and that of another. This conflict exists whether or not there is an entity, created by sovereign people, called a "government". So if we can settle on the demarcation line sans government, we ought to be able then to determine what role the government should play in enforcing this division of rights in society.
Our government derives its sovereignty from the people. This is explicitly confirmed in the Preamble of the Constitution. In other words, the people are sovereign individually, but the government is not sovereign by itself. The people make a partial grant of sovereignty to each other in forming the democratic government. They must retain some fundamental sovereignty in the process including an intrinsic right to life and liberty. The question is practice is to how much sovereignty do they retain, not whether or not they have any.
Note that the 5th Amendment explicitly states that an individual's life is not forfeit except by indictment by a grand jury (and other due process) or if that individual is serving in the military under certain circumstances. The authority for conscripting the individual is again provided by Article I and rests with the Legislative (representative) branch. So the individual may only forfeit his life to the government by consent of one form or the other. When the government acts outside these restrictions in taking the life of an individual, it has committed a crime.
The source and extent of the intrinsic sovereignty of an individual is the question of personhood. This leads us directly to the problems with the hypothetical. It seems to me that we can only arrive at a correct consensus solution to the hypothetical once we are in agreement over the existence and extent of intrinsic individual sovereignty.
So my short answer to you is that the people can exist without a government but that a government cannot exist without a people. Our Constitution recognizes this fact explicitly.
I will modify the proposition of question 1 to be "our democratic society" rather than "a democratic society".
Note to readers that have gotten this far:
I have just made the argument for the existence of fundamental, intrinsic and absolute rights to life and liberty consistent with our Constitution. I have not yet argued the range of application of these rights in society.
It seems that since these natural rights are beyond the scope of governmental (or societal) mitagation in our democracy (which makes no claims against them without the implicit consent of the individual), that they cannot be quantified by that society or government. So they must be translated into that society as equal by the maximum entropy principle.
The possibly more interesting part of a principled argument pertains to the second question, "When is a person a person?" Here we need to consider time as well as present state. The issue of consent may reenter the line of reasoning in a number of ways.
I'll likely excuse myself from this thread very soon because too many terms and thoughts were too far from clear to me. This is not to doubt the ideas, nor myself, but to state that I'm confused as to where we've gone in this posting.
I would like to say that it seems Paul's first post in response to my thoughts on question one seem to lead to the only consistent anti-abortion argument I've ever heard: that there a sacred space for all life that government has no right to violate and further, all other rights are secondary to said right to life. I find the idea that government has a compelling interest in extending (not just protecting) my life to be intrusive, personally, (as were I struck with a terminal debilitating injury, I would like the chance to end my life without state intervention) but that is a tangent to an extent. we can talk euthansia and suicide another time, perhaps.
I would hope that anyone who uses the "intrinsic" right to life would then have to also be against any form of euthanasia or capital punishment, but I know that is often only the hope of someone who thirsts for perhaps too much consistency.
To go back to some quotes from Paul. A right to control a function over which we have no control confuses me. If we cannot control it, then the right to control it is a non-sequiter, I'd think. However, the "function" of pregnancy is now medically controllable. Hence the problem, I thought. Second, the idea that my right to control my voluntary or involuntary actions as long as it has no effect beyond myself is too vague. My mom would be sad if I died. But someone else might live from my donated organs. and what if it will save 100 people? Or 100 people will die with me because I commit suicide? I don't think this is what you're getting at, but these are the questions your post raises in my mind.
Oh, and I know the Gilmore Girls made my name sound female, but I'm actually a guy. A point that may be of interest in consideration of the current topic.
But I don't think these (and I'm very ready to back away from this statement if I have to and return to the first question for more clarification) are the crux of my argument for legalizing abortion. I still believe the definition of a "citizen" of our country (these are the people to whom government has any duty) is not at the moment clear in society in regards to the fetus (this is the question about when is a person a person rephrased, I think). As such, we are faced with a potentiality (the fetus' possible/future right to live) vs. an actuality (the women's right to control her body). In such cases, I believe a government must choose the actuality for a variety of reasons, from the basic fear of an overreaching government (if government could act to limit rights and liberties based on "possibly good", then it is far too powerful even if it turns out to be right), to just knowing how often government gets it wrong, to wanting to avoid a government that acts upon a specific spiritual belief system over another.
So, to present two specific (I hope specific) questions to anti-abortion thinkers:
1. How do you know that the "clump of cells" (as described earlier) is in its current state has rights?
2. If the above question (as I believe) cannot be factually proven, how can a potential right trump a known actual right?
Also, in the other post about abortion you mention monetary payments to raped women who carry child. I find that idea really repugnant for the idea that the hypothetical woman will be more able to have a child of rape because government paid her off. I don't think the main reason raped women often choose abortion is in any way connected to money or anything else materially replaceable.
-------------------
In fact, I'd also add an emphasis on the difference between government's duty to protect a life vs. its opportunity to extend life.
But again, my head is jumbled in thoughts and writing them on a blog site is only making it hurt more so i'm going to stop now, hoping that i've been clearer than I think I have been. g'luck solving society's great moral splits...
Edited By Siteowner
Rory,
To clarify what I can first going through your post.
A consenting person (rational and responsible) should be able to allow conditions to be placed on their life by others. Also, the exercise of that intrinsic liberty is not in contradiction to the intrinsic right to life. So, I have no problem with capital punishment per se. When I use the word "intrinsic" it does not mean "inviolable", rather that the property goes with the person in all situations and for all time. For example, a person that is executed by the state retains his intrinsic right to life; it is only that he has allowed his life to be taken from him through implicit consent. The state never has a right to his life--they do have a right to the action of killing that was granted by the individual i.e. the right is his; he may use it as he wishes. Likewise, he also has an intrinsic right to commit suicide; however, society may intervene if that act is conducted in a manner that affects it. By the same token, government may not keep him alive by extraordinary means against his wishes. What is considered ordinary is part of the social contract. If a person cannot bargain away their life, they never had a right to it in the first place (or their liberty is impaired).
On control: the existence of a right does not imply the ability to act on the right. For example, I may have the right to sell property, but if I am unconscious, I cannot execute the transaction. We can largely control pregnancy through drugs but in the end, the egg and sperm will do what they will do. We do not have complete control over every aspect of fertilization.
On your right to control voluntary nervous reaction: I use that example because it is an absolute right that is in no way mitigated by your casual relations in society. (You can give up control of your nervous system to others, but it is still yours to give). The idea is that you have some sphere of autonomy; the closer to the source, the more absolute your right; the farther into society, the more likely it is to be compromised by a competing claim.
On to the meat of your objection (where you weigh potentiality and actuality): As I see it, potentiality stands for nothing. Either the person is or is not. An unfertilized egg may or may not become a person at some later point, it matters not to me. Carrying the idea of potentiality forward would imply that no person is fully sovereign. They would be the source of some potential for millions (for men) or thousands (women) others and those potential lives would have some lean on the sovereignty of the person.
The real question is, "What is the basis for sovereignty?" or, in other words, "When is a person a person?"
Note: Please go ahead and comment on the other post if you would like, but for clarity please register your comments there. I would like to respond, but not at the expense of taking this discussion off track as I think we are breaking into new territory (at least for me).
I will edit your comment above to substitute the corrected paragraph. (and include the additional text).
>The human brain begins its development at
>conception. I would agree that a human whose
>brain was removed is no longer a person. But
>then there would be no possibility for that
>brain to be regrown.
Paul,
The above statement runs so far afoul with reality that I'm not sure how to respond. A fertilized egg dividing into a sphere consisting of a few hundred undifferentiated stem cells would hardly characterize a "human brain" developing at conception.
The notion that the status of such embryos should override the rights of women and doctors to make medical decisions is bizarre, unless it is based on one of several relgious interpretations of the "soul." To the extent that such arguments are based on a particular set of religious beliefs, the criminalization of a medical procedure has no place in our constitutional system.
To the extent that you (or perhaps some of your peers) have a close relationship with God, perhaps you should suggest that s/he stop wasting souls by zapping them into little clumps of cells that implant less than 50% of the time even without any sinful meddling. Perhaps the soul thing could be synched up with the trimester timetable laid out in Roe - that way everyone could be happy (and you guys could move on to all those important social justice issues that I'm sure you'd be working on were it not for all the uppity sluts trying to game the system).
Pete,
Easy. If you have an unfertilized egg or a sperm, no brain results no matter how long you watch them individually. However, a fertilized egg will grow by itself under the normal course of events to develop a brain. Where did that brain come from? There is far more going on with that fertilized egg than what you seem to observe.
Notice that there is no religious references in my arguments. However, you are the second person that seems to want to infer this strawman. Pete, that's an indication that you need a crutch for your rationale.
I had promised to address Reese's hypothetical today. Here is one reply: Unstringing the Violinist.
I would prefer to take a more systematic approach if we had developed this argument further by today. What is clear in this hypothetical is that the analogy introduces an appeal to emotion that tends to corrupt the argument. (The damsel in distress).
The interesting aspect of the analogy is that it fails at the point that is most critical. The woman is the violinist, only some years removed. The only purpose of making this analogy is to introduce error into the argument. There is nothing mysterious about being pregnant against one's wishes.
For example, pregnancy is not like being strapped to a bed, immobile. At the point that the child becomes cumbersome, she can survive unattached to the mother (about 6 months). The intentional exaggeration here is also an appeal to emotion and want. It assumes that the person would be alive to enjoy their freedom. The fact is the person would be dead.
A better analogy would use Siamese twins. Would we kill one so that the other can have more liberty? It is their decision. So we can rephrase it as would we prefer to risk death at the price of a temporary mitigation of liberty? That answer is clear. If we are dead, there is no liberty, so we choose life. The analogy simplifies nothing.
Of course, this all depends on the answer to the question, "When is a person a person?" We still have not addressed that.
Now that I see the violinist in full effect and this attempt to refute it seems flawed. To take some examples from what seemed the crux of the argument (before falling into its own slippery slope logic with Susan Smith.). The paragraphs rotate, one from the link by Paul, one by me (I suck with html):
"Both Thompson and McDonagh treat the child—the woman's own daughter or son--like an invading stranger intent on doing harm. They make the mother/child union into a host/predator relationship. "
The woman's own daughter or son is very often a stranger, in the sense of unexpected and often unwanted. Intent on harm is only in McDonagh, an argument I'm not going to address as I don't think it adds anything right now.
"A child is not an invader, though, a parasite living off his mother. A mother's womb is the baby's natural environment. Eileen McDonagh wants us to believe that the child growing inside of a woman is trespassing. One trespasses when he's not in his rightful place, but a baby developing in the womb belongs there. "
Why does "natural" matter here? The point is the mother is now actively supporting an unwanted fetus.
"Thompson ignores a second important distinction. In the violinist illustration, the woman might be justified withholding life-giving treatment from the musician under these circumstances. Abortion, though, is not merely withholding treatment. It is actively taking another human being's life through poisoning or dismemberment. A more accurate parallel with abortion would be to crush the violinist or cut him into pieces before unplugging him. "
Ahh...the not quite right definition of abortion. Dismemberment and poisoning are not the only means to the end of abortion. And the ugliness of the method is secondary to the actual concept of abortion. Now, whether or not there is a difference between withholding (actually, many early pregnancy abortions can be performed through withholding, see, for instance, RU-486) and actively destroying is an interesting point. But I don't know that it changes the argument--the question is whether or not the woman has the right to "kill the fetus" living inside her, be it through withholding or dismemberment, or taking the morning after pill.
"Third, the violinist illustration is not parallel to pregnancy because it equates a stranger/stranger relationship with a mother/child relationship. This is a key point and brings into focus the most dangerous presumption of the violinist illustration, also echoed in McDonagh's thesis. Both presume it is unreasonable to expect a mother to have any obligations towards her own child. "
I spoke to this earlier. The fetus is still a stranger in the parallel. We do expect parents to have obligations towards children, this is why an unwanted child is an issue. If the woman could just dump the child to the side after birth, then abortion wouldn't matter. But that's not really an option (and no, adoption doesn't count. if we need to get into that, we can).
"The violinist analogy suggests that a mother has no more responsibility for the welfare of her child than she has to a total stranger. McDonagh's view is even worse. She argues the child is not merely a stranger, but a violent assailant the mother needs to ward off in self-defense. "
McDonagh I don't touch. But Thompson says nothing about the "child" only about the "fetus". She may allow that the fetus is a person, but she does not necessarily allow that it has a relationship to the mother as such. And would the violinist argument be less persuasive if the violinist happened to be your father? your child? It might be more repugnant to others when the woman takes the child/violinist off her treatment, but that doesn't change the moral reasoning, just our instinctual/socialized reaction. The analogy, I believe, would still stand.
My problem (still me) seems to be the assumption by the writer of the refutation that at conception automatically the mother has a connection to the baby, must have said connection, and is wrong to not have said connection. I doubt that it is so easy, and if it is not, I don't think the refutation holds much water.
I, unlike Thompson, do not concede personhood at conception. But even still, I find this response to her argument to be weak and unconvincing.
I guess I leave with this thought. I don't think a fetus is "a person" in the sense that it has equal rights to a fully-functioning human being. I do think that at viability, the fetus, as no longer fundamentally dependent on the good health and grace of another specific human, has gained rights that make elective abortions (for reasons other than the mother's health, for example) morally off-limits. I don't know that the violinist argument has been refuted enough for me, but beyond that, I don't agree with granting a one-day old fertilized egg equal rights as a baby or an eight month old fetus.
But, alas, on tuesday I start a new job, so my time for these discussions draws to a close...
Rory,
I'll take your criticism of the analogy and McDonagh's refutation as noted for record. The analogy is an unnecessary abstraction that breeds more confusion than clarity in my opinion. The analogy fails by assuming the existence of the woman. The woman did not spring into existence by any other process than the one in question. Disconnect the violinist and you disconnect the woman earlier in time. So the woman never exists to be connected.
We seem to be agreed that personhood should not be taken as a given. We are also agreed that viability is a limit in the dependency relationship that is an upper bound on the absolute liberty of the woman. So the unresolved questions remains centered on the personhood/scope of life of the child.
This question is still unresolved, but now bounded in time between conception and viability. The argument I am pursuing does not claim equal extrinsic rights for woman and child (only equal intrinsic rights for all). If there is an intrinsic right to life that is absolute within a scope, then we have equality at this level since this domain is beyond the ability of society to measure (by the MEP).
I think we would also agree that rights derive from personhood, but that personhood does not derive from rights. The question is about the origins of our democratic sovereignty and remains open for further exploration.
As you can see, it is easy to short circuit the analysis. Assumptions are everything. This issue is fundamental.
I'm entering this discussion a bit late, but let me see if I can correctly characterize the positions I've found to be interesting thus far.
After the usual "start of life" and "my rights vs its rights" arguments (which do nothing to win over neutral adherents, but still must always be stated before a group can get down to business), an intriguing series of comments were exchanged regarding "natural rights" and the roles of government. This is actually where the discussion needs to start, because it is only then established whether the previous issues are even relevant to the ruling that should be made.
Rory, your position seems to be that "rights" come into being as governments seek to clarify rulings on contentious issues, and that these rulings and resulting "rights" are binding on the society through precedent and narrow the future choices available to that government. The crux of your argument for abortion is that it is most consitent with past rulings involving already-enumerated rights, and that there is no legal precedent for considering "potential rights" (rights that depend in some way on unknown future events). While I disagree with your conclusion (because the same argument could also be used to deem the legal underpining of the insurance industry null and void), I find your starting premise very interesting.
Reece, you pick up on Rory's point and clarify that a government creates "rights" by deliniating areas into which that government restricts its own lattitude for action. "Rights" are mere words describing what decisions have been made, rather than proscribing what decisions will be made. Still, to the extent that a government needs continued buy-in from its populace, a government will seek to make the establishment of rights in similar areas consistent if only to avoid claims of being fickle and unfair. In a sense, you seem to be saying that a set of rights will be chosen to be compatible primarily to aid in maintaining the illusion of having its authority grounded on principle. With regard to the abortion debate, your position is not about the imposition on any of the individuals involved but instead on the extent of the government's interest in regulating citizens' actions in this area. In your view, restricting first-term abortion would be an overstretch in terms of the potential for societal gains versus the costs for the government (in cash and in popular support).
Paul, you hold to the idea that our government is based upon a set of "natural rights". But up against Rory and Reece's position that the granting of rights can be largely arbitrary in response to the decisions the government has already set out to undertake, I am not won over. I believe that the US has throughout its history been blessed to have been led by individuals who attempted to act on "natural rights" that they perceived through faith or through divinations by some other less reliable ethical compass. But in the end, the words of the founding documents are just words, especially in the Post-Modern Post-Originalist environment we have today. Laws will be deemed to be consistent with those words if the courts decide that they are. No need for word-smithing. If the pwers that be say the law is consistent, it is, and otherwise it isn't. So we are subject to a fairly arbitrary system of fiat legir (rule by whim). I am not dismissing your points that the contract written in our government's founding documents point to an intentionality to determine and act on "natural rights" when possible. But I am saying that the contract is unenforceable, and that these promises are largely irrelevant to the current issue.
I once upset a Libertarian I worked with very deeply. He gave me a card called the "World's Smallest Political Quiz" (I still have it), which allows you to assess to what extent you are a self-governor (Libertarian) on personal and then economic isues. It's a series of questions about what you think a government is allowed to do. I ended up in the deepest part of the Authoritarian realm, as far removed from Libertarianism as you can get. I had interpreted the questions as what a government "can" do, rather than what it "would" do if I were setting things up (in which case it actually be necesarily Autocratic, by definition, yes?) Anyway, my point (aside from the fact that he should have minded his own business if he was going to get his feelings all hurt so easily) is that a government CAN do whatever it is allowed to do by its contract with its populace. That contract may not be written; Saddam's secret police would in a sense constitute a portion of an unwritten contract about the government's intentions, and it would be fairly clearly understood.
To paraphrase the Declaration, governments are established and dissolved by a people in order to secure the "rights" they deem important. Because dissolution of a government is a messy and disruptive business, it is not (and should not be) done to seek redress for small dissatisfactions. In fact, it has been the case throughout history that people are much more willing to deal with suffering under a known but unpopular government than to risk changing it. There's some bit about "manly firmness", but otherwise the rest of it says what is wrong with the British government of that period and what basis the new government is being established under -- the life liberty and pursuit thing. But that's all been superceded now by the court-as-temporal-rights-granter era, and so I guess the Founding Fathers' beliefs are a bit passe.
So the way I see it, there are really three answers to your question:
1. The government/courts can decide arbitrarily what the rules on abortions are, as it can decide pretty much any issue to the extent that it is allowed to by the general populace. It doesn't need to be consistent in its rulings, nor even to purport to have a guiding aim, so long as people do not demand it.
2. The government is still under the contract set out in the founding documents, as modified in the interim by Constitutional ammendment. Areas where "rights" have not be ennumerated in the Constitution are not beyond the scope of the government to intercede or to alter its allowable actions, and laws will be made in accordance with the current majority view to the extent that the legislature executes its business in response to that majority. If the majority view is not represented by legislation, then that majority must assess whether the disaffection is sufficient to "throw off the shackles that bind". We did that once, but that was a long time ago. Don't wait up for reports of a revolution.
3. The Constitution is a living document, but unlike other living things it doesn't scream when we kick the crap out of it. The old contract is essentially gone, but is a great opiate for those who feel all gushy inside about what it used to mean. Rights will be afforded, and then defended, as if they were native to the original documents. Precedent will be more important than Constitutionality in appraising whether new laws can stand.
I reach the specific conclusion in all three of these cases that there is not an a priori right/wrong answer to what the government can rule with respect to abortions. The specific mechanism for reaching this conclusion is different in the three cases: 1. The gov't can do anything it can get away with; 2. The gov't can only be held to a particular course of action by a non-apathetic majority; 3. In the absence of a connection between the original contract and current ejudication, there is no need to make current actions consistent with the "natural law" aims of that contract.
In the absence of a right/wrong answer, what "should" the government do in this area? I guess I'd have to go with the majority (i.e., red state America) and say stop them all. That is the will of the people, plain and simple. How the majority comes to that decision is not the issue.
JimBob,
Our democracy is defined by the Constitution which is based on an appeal to natural rights for legitimacy, specifically citing the people as the source of sovereignty of the nation. Your conception of government seems to be that it ought to be corrupt. There are at least two problems with this approach:
1. There is no stable consensus on the manner a government ought to be corrupt so in the end, the argument leads nowhere.
2. It is not consistent with the reality of the history of our democracy. We do still expect that the written law is honored as written. While the courts have not always been faithful to the law, we are not at the point where we think faithlessness ought to be the norm of jurisprudence.
Finally, your understanding of the Declaration is incorrect--it appeals to natural rights.
Paul, at heart I am as idealistic as you. I would love to see our country return to being the federalist constitutional democracy that was planned and established at the outset of the American adventure. I believe that these documents have well thought-out purpose and meaning, but that even in the hands of their authors could not be held tightly against the growth of a dynamically growing government. There is ultimately no enforcement mechanism for the constitution's provisions if the people drift from their allegiance to it. It become yet another prop in a rhetorical contest to justify one's desired outcomes.
I am in complete agreement that the Declaration and the Constitution are using Natural Law almost entirely as the bedrock of their arguments. But there is one ingredient that you are leaving out. "We" hold these truths to be self evident, blah, blah, blah. The Declaration and the Preamble both emphasize that the point of view is plain and clear to the authors, and that this is what they'd like to see in their own government. The Declaration says quite clearly that their exhortations to the English common folk (and not just the government) made them understand that their point of view was not a universal of all of mankind. But it didn't need to be. They weren't seeking to change the other governmental institutions of the world; they only sought to change their own. Their source of rights would clarify (and they hoped guide) the government's areas of nonintervention.
The problem is that the founders of the nation were not the sole set of movers even at the outset, and were not available in perpetuity to continue to guide the country along the trajectory they intended for it. Martin Luther King, Jr., hit it right on the head:
>>Now ever since the founding fathers of our nation dreamed this dream in all of its magnificence—to use a big word that the psychiatrists use—America has been something of a schizophrenic personality, tragically divided against herself. On the one hand we have proudly professed the great principles of democracy, but on the other hand we have sadly practiced the very opposite of those principles.>1. There is no stable consensus on the manner a government ought to be corrupt so in the end, the argument leads nowhere. >2. It is not consistent with the reality of the history of our democracy. We do still expect that the written law is honored as written. While the courts have not always been faithful to the law, we are not at the point where we think faithlessness ought to be the norm of jurisprudence.>Your conception of government seems to be that it ought to be corrupt.
Something weird happened when I hit send, and a bunch of what I wrote got deleted. Give me a second to rewrite it.
Starting again from the MLK quote (The problem might have been my double-arrows at the end of the quote):
[Now ever since the founding fathers of our nation dreamed this dream in all of its magnificence—to use a big word that the psychiatrists use—America has been something of a schizophrenic personality, tragically divided against herself. On the one hand we have proudly professed the great principles of democracy, but on the other hand we have sadly practiced the very opposite of those principles.]
The government has never been made up of dispassionate clerks with undying allegiance to enforce the intent of the Constitution.
In direct response to your comments:
[1. There is no stable consensus on the manner a government ought to be corrupt so in the end, the argument leads nowhere.]
Correct. Without an overarching set of "meta-rules" subscribed to by the majority as binding, legislation must seek to satisfy a fickle majority. You either have a constitutional democracy, or you don't. It's that simple. There's not really a halfway point.
[2. It is not consistent with the reality of the history of our democracy. We do still expect that the written law is honored as written. While the courts have not always been faithful to the law, we are not at the point where we think faithlessness ought to be the norm of jurisprudence.]
Au contraire. We have not really been operating under a constitutional framework for the majority of the last 120 years. Judicial decisions have been increasingly ends-driven and disconnected from the Constitutio, as courts have sought to enforce (in both directions) their own vision of social constructs.
I'm not saying that the results have made for bad laws. But they are not laws. Laws are passed by legislative bodies that are subject to removal by a majority. Judicial review that is grounded in a constitution can be held as endorsed by the majority, even when the results of the review are in conflict with the will of the majority (because in the end, those who disagree with the outcome have to say "Well, if that's what it says, OK."). But if judicial review is not grounded in a majority subscribed constitution, then the outcomes are autocratic and do not need to be accepted by the majority.
I have talked to many lawyers in the Northeast who see know substance to the argument for Originalism (reading the constitution literally as a guide for the bounds on legislation). Their position is "Who cares what they thought back then? This is now." They don't seem to see a danger in unhinging decisions from a timeless standard. I think that they naively believe that their side has both a current and permanent lock on the majority. Or perhpas they aren't looking any farther than the specific outcomes currently of the particular decision under discussion.
[Your conception of government seems to be that it ought to be corrupt.]
No. My position is that it will be what it will be, and that if it becomes corrupt I will still be responsible for making right decisions in my own life. I can whine about it, I can with things were different, I can advocate against it. But in the end I can only changes in my personal response. My faith says that I my life is supposed to be transformed, not that I am supposed to transform my surroundings.
You can't read a lot of history without realizing that most people have gone through their lives in anonymity, just trying to eke out an existence under what could be very harsh circumstances. I used to think that these people were idiots, or had very little self-respect, and had thrown away their lives. I now realize that they probably exercised control over the things that they could, and accepted that there were a reat many more things over which they had no control. I guess that's where I am now.
JimBob,
I am in general agreement with you on the value of originalism (if originalism is what you mean), but for different reasons. Originalism is not the same as reading the plain text of the document; it is interpreting the document according to the intent of the authors. All written law in a democracy serves the purpose of communicating a rule set to the people. The rule set is what the people believe it is and has greatest value when it is clearly understood. If not understood or if it for some other reason lacks authority, its value is merely historical.
As long as we wish to have a coherent democracy (one that the people can intelligently control), we will need a documented rule set. I disagree that faithlessness is or can be the standard of judicial conduct. The fact that the Democrats have lost the last three election cycles to the Republicans and no longer control the two elected branches of national government is proof of this.
Stable rule sets allow growth and intelligent self-organization. Unstable rule sets dissipate useful energy wastefully. Clearly understood and stable rule sets decrease risk and encourage economic and social innovation within the constraints of the rule set. Since the vast majority of economic and social activity is directly controlled by individuals, it makes sense that the people should have the greatest influence in defining and adapting the rule set. It would be foolish to allow a small group to render significant extents of the rule set incoherent and unpredictable to the vast majority.
Yes and no, depending on how you derive their "intent". I think that using context to understand how word use in the 1700s might differ from current usage is fine. But looking for hidden code words that reflected intentions that couldn't be realized is getting into the voodoo realm. The Constitution in particular is a written contract, and pertains only to what it addresses. If something is not covered, it is not covered. If wording points to a sensibility that is different the norm today, tough. The amendment process is available to address the need for changing text if the original version is felt to be problematic.
These guys were brilliant, and many of them also had exemplary character (for the most part). If a Founder's private writings indicate that they would have liked to include certain additional rights, it is fine for legislators and common citizens to seek to move legislation in that direction. But that is not the same as basing a judicial ruling on the private writings, which is not OK because those writings are not part of the written contract.
The modern court would not need a 13th ammendment in order to knock down slavery laws, because they would have just redefined their interpretation of the words of the Constitution to say that it was clear that slavery was understood to be illegal. Or the decisions would go into the psychic realm and claim that "even though the authors wrote ..., it is clear from a better understanding of their lives and the nature of the idiots that they had to win over to get the document signed that they would have much preferred to have written ..." Or you can take the Breyer approach and go the international route by saying "we'd like to be as well regarded internationally as the people of ..., and so we will take as precedent their ruling that ..."
I am in complete agreement with you regarding the importance of a stable understanding of the actual meaning of the written law. Laws (and even the Constitution) can be changed, but they should not be morphed into something that it was not. As you have said, stable rules allow individuals to make decisions with more certainty and to avoid the need to hold reserves or self-insure against political dislocation, and this in turn increases the multiplier effect for investment and innovation. Imagine that in chess either player had the option at the end of turn 8 to switch roles with their opponent -- you wouldn't see much aggressive development until turn 9. (Actually, that's how I play my 9 year old in order to give him a fighting chance. But I'm finding that he's getting too clever about throwing away pieces I need in those first 8 turns. But I digress.)
I know that I made light earlier about the list of specific petitions in the Declaration of Independence that warranted the split from Britain, and I apologize. Their qualms were not inconsequential. But the specifics of any one of them is far less important than the pattern they paint of a government that had turned away from the Magna Carta, and its guarantees that common law would be codified and applied in a consistent and immutable way. Not there were not also indictments against specific laws that had been recently passed, but the primary upshot is that the King is treating existing laws as fully malleable and subject to his usage in ways unnatural to their intention. The "usurpations" referred to are against that charter, against the promise of constancy in interpretation.
Now I seriously doubt that the Founders were such political purists that they would have stood up against the inconstancy if they or their neighbors were the benefactors of the "usurpation", and I think that we do a disservice to the greatest political thinkers of England at that time to criticize them as uninterested in supporting the Colonists' case through legal or extra-legal means. When you are on the gaining end of governmental inequity and inconsitency, it is very difficult to look at the mechanism of the largesse. Since both sides in the US have been "fed" in verying degrees by decisions which were not Constitutionally based, there is not a sustainable opposition to this movement of the courts. (For some reason, this makes me think of the exchange from The Life of Brian where one guy asks "What did the Romans ever do for us?" and after a pause somebody sheepishly says "Well, they gave us the aqueduct." And there's general agreement.) It is very difficult to diconnect results from process.
The average person doesn't care about the procedure at all, only the ends. The sad thing for me is that academics (who are in the position to distinguish results from process) use to nearly the same extent the metric of advantageous/disadvantageous in assessing whether a court decision is "good". I don't have a serious problem with the fact that they are as ideologically homogeneous as the mainstream media, but I'd like them to at least be honest about process.
But I've hijacked this conversation, and I apologize. I think that it is a fatuous indulgence to discuss what the ruling would be based upon a constitutional law framework, because I think that we have wandered too far from that basis for it to be relevant to the discussion. It is a "my will vs yours" legal environment, and so the arguments can only be settled by contemporary majority opinion.
Pardon the interruption.
So we are in agreement ref. originalism. It is good to realize that the method of interpretation is esentially undemocratic.
Just before your first comment, I was making a constructive case that the practice of abortion is also undemocratic since it places an intrinsic liberty right over an intrinsic life right. Since liberty is dependent on life, this inverse relation can only be achieved if either no rights are intrinsic (so they would be a function of government/power in society) or if personhood (and the intrinsic right to life) is not achieved until some point in time after conception (so perhaps it is dependent on intelligent autonomy).
What are your thoughts on this?
My wife and I are both of the mind that once the baby could, even if it took severe I.C.U. gear to do it, survive out of the mother's body, then it's a person and should not be killed.
Before that, it's akin to a parasite that lives within her at her whim. The second it's born she could relinquish all claim to the child to the State, and never be called to account for it's upkeep (at least here in AZ that's the case, to discourage matricide due to postpartum depression and teenage girls hiding pregnancy).
Now if the State wants to outlaw abortion after viability, that line would move with technology. Allowing abortion before viability, but having the State pay for removal and ICU/adoption after that is we'd most like things to be.
Is there a principled basis for your view that you might care to share?
It can be argued that all people are parasites of one form or the other. For example, many of the elderly (and children) rely on others to survive.
On the other hand, the function of being in or outside of another body (or dependent on it) does not seem to be determinant by your reasoning.
What is the unifying principle of the argument?
Autonomy and self-determination.
If I cut off my pinky, it can't survive apart from my body. If I donate a kidney, it can't live unless it is implanted in someone else, but I don't die.
Right now before around 7 months, a baby is like a kidney: it has no ability to autonomously survive, and thus must be considered a part of the mother, subject to her will for survival.
After that, well, it'll almost certainly live and I'd consider it a crime to terminate. And medical technology moves fast enough that I'd easily agree to banning all third trimester abortions. And the gray area will move slowly back into the second trimester someday.
But a first trimester pregnancy can in no way be viewed as autonomous or survivable aside from the mother. Most first trimester pregnancies spontaneously abort ("miscarry"), usually without the mother knowing.
So while I can't support last trimester abortion being legal, nor can I support banning it in the first.
I'd say that that's reasonably self-consistent, no?
In a democracy, we all have equal rights notwithstanding that some are parasites on the state and some are producers. We do not give greater rights as a matter of law to people based on dependency.
You are not a mature kidney. Kidneys can't use the internet.
The argument that you give is not an argument of principle. It is an assertion of power. I'm concerned only with principled arguments, not compromises based on competing wants.
Well then I guess we have nothing to say if what I consider a 'coherant philosophy' is to you merely a 'compromise based on competing wants'.
Good day.
This discussion is different from typical political discussions. We are looking for a conclusion based on rules that are objectively valid (principles) or at least consistent with accepted rules outside of the immediate context. The conclusion is secondary to the logical process. I'm not concerned with what seems acceptable, but with the reasoning.
The statement that we should protect a child once viable outside the womb given unlimited modern technology, but not before is not a statement of principle or an immediate deduction from any principle you have given—it is a political policy statement. There might be a principle involved in this inclination, is so, what? How do you reach this conclusion? Any principles involved and their application is not transparently obvious. Instead, it seems to be a compromise based on power relationships (the ability to live outside the womb v. a want not to be inconvenienced). This thinking is inextricably bound to subjective wants and gets us nowhere. That is the problem with the current discussion of abortion.
1. No, it cannot be said that all persons have the same intrinsic rights.
In general, the allocation of legal rights is not equal. Consider (a) citizens vs. non-citizens, (b) children within mandatory school age, (c) young people under 18 or 21 or whatever, (d) convicted felons. You probably can think of more differences in legal status, or "rights", some of which are age based. In each case, the inequalities in rights are created by various legislatures, courts and administrative agencies. While individual beliefs may differ as to what lines should be drawn and where, the fact is that in our society we do draw these lines and as a consequence, there are differences between the rights that different people enjoy.
2. We obtain different answers to the question of when person-hood begins depending on whether we are talking about biology, psychology, and so forth.
Donald,
The key qualifier is "intrinsic".
So children, regardless of other attributes, once they reach voting age can vote (unless they commit a felony, renounce their citizenship, etc.) These rules are state-created conditions on a otherwise natural state of equality. We are concerned about that natural state, not the ability of the state to make regulations.
On personhood, since it is an independent property of the individual and not a descriptor of an action on that individual, there can be only one unique defining characteristic when we consider that individual in all his/her dimensions (so any difference in method is an artifact of the limitations of the method and most likely have a interval of uncertainty that overlap if the method is valid). This is like the analogy of the blind men and the elephant. The elephant remains the same and the descriptions are all valid, but uncertain when comparing the entire creature.
Paul,
Even in a state of nature (if that is what you mean by 'natural state'), rights are conferred, not intrinsic. The source might be a tribe or other local group or more recently a national government, but it is not realistic to assert that "rights" exist in the absence of some authority to define, confer and protect those rights. Furthermore, while we probably can list certain rights that should be acknowledged in all cases, the reality is that over time there has been no uniformity among cultures in this regard, nor equality in how individuals are treated.
In our society, our rights derive largely from our state and federal constitutions and from the mechanisms that they created. Equality has always been an ideal under our federal system, and probably has been achieved more than in any state of nature, but again it is not always the reality.
I realize that you want to talk about ideals and 'what should be' in this thread, and my point is not to detract from that, but only to take issue with relying on words such as natural or intrinsic to carry all of the weight of the argument.
To any pro-choice purists.
1.) We do know that "fetal viability" is currently at 22 weeks. The "fetus" does not need the uterus to guarantee survival.
2.) OB/GYNs agree that a vaginal birth is safer to a woman than an induced abortion.
Does it not stand to reason, for seeking some common ground that is in the spirit originally made in Roe v. Wade, that abortions should not occur after viability ?
Paul, IMO regardless of anti-abortion laws women will continue to make their own decision to continue a pregnancy. Abortion is traced back to antiquity. I don't support making laws that regulate choice. For instance, in the Jewish faith, Jewish women do not believe life begins at conception. To regulate choice in this instance would mean regulating religion. Are you prepared to suggest these women go against their faith to meet your notion of viability?
Donald,
Does a bird have a right to fly? A lion to hunt? or a bee to pollinate flowers? Natural rights are not granted by a collective. Where would they obtain the rights to grant in the first place?
Regardless of what sort of rules we construct for our society, that society is composed of people who in turn define their society by their own conceptions. Hopefully, they come to an agreement on what is equitable so that they can spend most of their time constructively rather than squabbling or destroying what someone else has built. To do that they need to agree on some very fundamental ideas such the natural right to life. Otherwise, it is all talk about nothing.
Chris,
So were stealing, murder, rape, etc., and we would have more of it if we had no laws against these behaviors. Some organized religions have admonitions against these practices because they attempt to be coherent--to have application to this limitied dimensional world. However, we would still find it necessary to restrict these practices without organized religions.
For a democracy to function over the long haul, I argue that there must be a recognition of intrinsic equality that sources from natural rights. This is the basis of our Constitution, in fact. Nothing more specific than that.
Paul:
Your answers aren't wrong--they comport with those of "natural rights" lawyers/philosophers. Though I respect such an approach, I'm a constitutionalist, and constitutionalists differ; my answer to both questions is the same: "what does the Constitution say?"
The Fifth Amendment (which prohibits the taking of a life interest absent due process) covers persons--without defining persons. The "privileges and immunities" clause of the Fourteenth Amendment applies only to the born and naturalized, not the unborn. The "due process" and "equal protection" clauses are worded like the Fifth Amendment, appling to undefined "persons." In sum, the Constitutional text does not clearly settle the question.
Context doesn't help. The 14th Amendment was aimed at leveling among race, color and creed. None of its drafters and supporters expressed any intention of covering the unborn. On the other hand, the 14th Amendment is not limitless: "equal protection" did not demand female suffrage. And given that, it is a stretch to read it to exclude at least some of the unborn (as the Roe and Casey courts did). In sum, nothing in the context of the Constitution settles the question.
Accordingly, the 10th Amendment reserves the choice of whether to protect the unborn to the states and their citizens. Meaning, quite simply, this: the status of the unborn is to be decided in the same manner as anything not explicitly demanded by the Constitution-- democracy: "let the best idea win: not by personal or judicial fiat, but by simple numerical majority. That's how we settle disputes in America."
America is a government of laws, not men. The Constitution is silent on the rights of the unborn. That devolves the decision to the voters, and their elected state representatives, in 50 states. The abortion has been poisoned by an unconstitutional and unwarranted centrally-imposed diktat. So Constitutionalists reject both the pro- and anti-abortion platforms. Rather, whether seeking to protect the unborn or to abort them, the rules are the same: persuade the electorate. This is a democracy. So "fight like an American" and put abortion to a vote.
I agree. The American people once defined certain others as non-persons and that was in specific compliance with the Constitution. And I agree that the only method of rectifying the situation is to put it to a vote.
In my arguments, I'm admittedly going a little beyond the Constitutional text. I am claiming that to be perfectly stable, we require a recognition of personhood from conception, i.e. from distinct life. Otherwise, there will always be some lack of recognized sovereignty of the individual--a lien by others. Our Constitution hints at this, but it does not demand it. It only demands some existence of natural rights at some nebulous point before birth. Arguably, it must be before viability.
Until the time that we are able to establish complete recognition of the sovereignty of the individual, I think we will suffer other infringements as well. We have a ways to go.
Paul:
My point is that there is nothing beyond the Constitutional text except democracy. Our rights as Americans are limited to 1) what the Constitution says; and 2) whatever we can convince one another. Our Constitution neither demands nor recognizes any natural rights. Implicitly, a constitutionalist such as I treats abortion as a question no more important than, say, environmental laws. Because if it's not in the Constitution, no special legal mechanism (outside voting) is necessary. So, while not necessarily disagreeing with you, constitutionalists are not likely to be moved by pleas that America is unstable or incompletely sovereignty absent a decision -- one way or another -- on abortion.
1. Yes - I agree.
2. I would have to go with the Jewish Theory. Life begins at the Quickening - when the baby first moves.
Nofp,
The Preamble recognizes natural rights and defines the scope of the Constitution (sovereignty sources from the people who are imbued with certain rights). This recognizes also the fact that finite rule structures (or algorithms) cannot define all solutions even for algebraic systems.
Benning,
Does that include cellular movement or just when a mother is able to sense movement?
Nofp,
The Preamble recognizes natural rights and defines the scope of the Constitution (sovereignty sources from the people who are imbued with certain rights). This recognizes also the fact that finite rule structures (or algorithms) cannot be define the solution to all problems, even algebraic ones.
Benning,
Does that include cellular movement or just when a mother is able to sense movement?
Actually, Paul, I view your reading of the preamble as a stretch. "The blessings of" strikes me as even less substantive than "A well regulated militia, being necessary to the security of a free state." And whereas a canon disfavoring interpretations creating surplusage might apply to Amendment 2, Preambles are mostly surplusage. Were it important to and intended by the Founders, "natural rights" would not be opaque, but explicitly codified in an Article or the first 10 Amendments.
Assuming Americans have extra-Constitutional natural rights, what are they? Do they affect abortion? Without text or instruction manual, Natural rights appear infinitely elastic. How can more than a few agree on meaning? Or reconcile differing interpretations? Amorphous Natural law produces weak government, with little or no separation of powers or judicial independence.
Even codifying natural rights would be difficult. What rights should individuals have? How extensive or important? Absolute or limited? If balanced, when must they yield?--and to 'what'? Are they to be distributed to all--or targeted to a few? Who decides the 'what,' 'scope,' 'when,' "where" and 'who'? for each Natural Right? Most important, is unanimity essential for approval of codified natural laws? Or should approval require only some majority (or super-majority)? If you're gonna go through all that, why not use America's pre-existing, successful Constitution?
To sum up:
Natural law theorists bear the burden of production and persuasion. And that won't solve your problem. Plenty of Americans would reject any anti-abortion natural law; plenty would dispute a pro-abortion natural law. Unwritten and/or disputed natural law is worse than no law at all.
The Constitution, by contrast, solves little, but provides a process for resolving disputes. If Roe/Casey were overturned, both natural law types and constitutionalists could address the question in its proper forum: the legislatures of each of the 50 states.
Is there a "right" to life support or organ donation at the cost of possible mental or physical harm to the person providing the life support or providing the organ? Against the donating individual's consent? US Case law has consistently said no, even when the donating person is no longer alive. What makes fetuses a special class? Alternatively, why do pregnant females have less rights than corpses with regard to this issue?
Hmmm, an argument that subsumes your interpretation of natural law and expands on your understanding of it such that the fetus still does not have the right to the unwilling donation of the mother's time and body, and you are silent. Interesting.
Odanu,
Is gestation a donation of a kidney? I don't think so.
You're second comment was not clear to me what point you are trying to make.
Remember all people are formed in this way. It is not as if there is some alien process going on here. Deny the right to life and you deny the "mothers" right to life. Where do these rights come from?
No, sweetie, gestation is the donation of a uterus, part of a circulatory system, and various other parts of a human body, for a time delimited period. That means that a woman is performing life support (i.e., for the slow in the room a fetus cannot live outside this environment) for nine months.
No other class of human being other than a fetus has the right to force another human being to provide life support. So which is it. Are fetuses special human being with greater natural rights than other human beings? If so, why? --Or are female human beings so completely devoid of rights with regard to how parts of their bodies are used that they rank below corpses?
Denying the right to life support is not the same thing as denying the right to life.
To turn your argument around, when a fetus is capable of breathing and feeding independently of forcing another human being to provide it life support, then it has a right to life. Until that point, your justification is that the right of a female person to be free from force is nullified by the right of a fetus to force a female person to gestate. This does not negate the fact that any female person at any time can choose to provide life support to another human being, even should doing so be to her detriment.
Simple occupation of a female human being's body part does not grant a fetus the right to force a female human being to allow it to stay any more than simple occupation of a dwelling by an unwelcome human being does not grant that occupant the right to force the building owner to allow it to stay.
The "all people are formed this way" argument is irrelevant. Women have aborted fetuses both through their own agency and through natural processes outside their control throughout recorded history. You are not arguing against a woman's ability to abort, you are arguing against a woman's ability to abort safely.
How about taking the Ferengi approach and having the mother charge rent to the unborn individual?
This is not the only valid pro-choice argument in existance, it is merely the one that is the best answer for the natural rights argument, since natural rights theory derived very heavily from the theories of John Locke and were grounded in the right to own property. In this argument, a person's own body is her property. Unless PD is willing to state baldly and openly that the uterus of a woman is the property of either a man or a fetus, in which case he has denied the natural rights of women as humans, he cannot argue against abortion on the natural rights argument.
odanu,
If we share the same air, are you donating it to me? What is the purpose of the uterus if not for gestation? Is the child (this is also both of us we are talking about) a hostile invader? The nervous systems are separate. The only connection is for exchange of fuel and waste.
Now, if you were to take your argument further, one could say that welfare recipients lose their right to life. Is that true?
Finally, abortion is not the denial of life support. Witness partial birth abortion. Abortion is the intentional destruction of the human life.
So Aaron, looks like you are looking at the wrong side of the board.
Q: When is a person a person?
A: As soon as that person is alive.
I'd say that's erring on the side of caution. I'm not going to risk saying a moment earlier. I'm not going to risk saying a moment later. I think you've got it. Reminds me of:
A: Bert, I thought your yacht was longer than this.
B: No, my yacht is precisely as long as it is. No longer. No shorter.
Seriously though, I take it that you are saying that personhood begins when there is a living entity, right? I suppose my response is twofold. First, suppose that you are right and 'person' covers the organism from the moment of conception onward. I think this is going to make problematic the application of principles that are supposed to apply to all persons. For example, a reasonable principle is that if there are scarce resources that belong to neither x nor y but can be used to save the lives of either x or y and both x and y are persons, neither x nor y has a stronger claim on this resource but this resource should be distributed to either x or y unless there is some weighty reason not to. Seems to me that if you had to distribute this resource where x is an infant and y is a zygote, you must go with the infant. You must not provide it to the zygote.
Perhaps the fix is to say that we think of this kind of principle as derived from some more fundamental principle to take the interests of all persons into account equally. The problem is that it seems that there will be some persons on your conception of person that do not clearly have interests. Can a fertilized egg be wronged or treated unjustly? Most unclear.
I'm not certain how you'd want to address these worries, but there are some further worries that need to be considered. The moral principles we tend to endorse that use the concept of person are generally accepted because we tend to think of the representative person as something with various attributes: psychological capacities that enable the subject to suffer, desires and preferences that can be thwarted, and so on. These figure in explanations of why and how persons matter which justify principles like 'Don't use persons merely as means' and the like. All bets are off, however, when you deny the presuppositions that were in place when these principles were endorsed by figures like Kant. I'm just not sure what you'd put in their place. Maybe embryos and fetuses are valuable because they will become what philosophers tend to think of as persons (autonomous, rational, moral agents), but it still seems that though they may be valuable, we do not value them for their own sake and the principles that cover 'persons' at early stages might not rule failing to confer ends status upon them because being an end unto oneself is a matter of being a rational/moral/autonomous agent. This in turn problematizes the idea that such entities have rights. Would we ban a medical procedure that harvests frozen embryos in IVF clinics for spare parts to repair other embryos to then implant and develop into children? Most would not object to such things but I've yet to meet a person who thinks such procedures should be allowed in the case of infants or children.
I'm curious as to the first point you make about rights. Have you read Judith Thomson's defense of abortion? Her entire discussion rests on the assumption that the fetus is a person. She understands the right to life as forbidding someone's unjustly removing the resources from someone necessary for her to live. It isn't clear whether denying the fetus resources necessary for it to live are unjust in many circumstances (rape or accidental pregnancy, for example). I'd be interested to know what you thought.
Best,
Clayton
p.s., I don't think you should be suing people. My impression, fwiw, you seem like a pretty nice guy in all the posts apart from those that pertain to the suit and this is coming from a godless, leftist, pinko. If you seem likeable even to people like me for the most part, you're doing something right. I just don't get why you can't let it be.
Paul, a uterus is not a disconnected entity with a purpose separate from the human being who possesses it. But you have answered my question. In your world, a woman indeed has less civil rights than a corpse. Sharing the same air does not mean I provide you life support, and frankly, that you would use that example suggests that you need to take a course in rudimentary logic.
A fetus does not "share" a woman's uterus, it is utterly dependent on it. It creates a physical and psychological hazard to the host human being. Any human being is welcome to take on that hazard, but no one should ever be forced to, based on the same natural rights arguments you have tried so desperately to use. It is, indeed, a generous act to gestate (provide complete life support) for a fetus for nine months, at the cost of one's physical and mental health.
Here's a (vaguely science fiction) scenario for you: What if you were to walk into a hospital, and despite taking precautions against it in your blood donation, (that was an expected social ritual of entering this space), were told you were required to donate the use of your kidney (in your body) for nine months to someone who was at that hospital, and if you did not do so that person would die certain death?
Oh, and by the way, you had two choices after this nine month procedure. Either the stranger would go home with you and would be financially and emotionally dependent on you for just after two decades, or after investing a great deal of time and energy on that stranger, you would hand it over to someone else to care for and never see it again. But if you did that second thing, your friends and family would look down and be ashamed of you.
What if you knew that the procedure itself was known to have killed an average of between 600-900 donor people undergoing it in your country per year, and caused serious injury or health problems to an additional 1.2 million donor people undergoing it? What if you knew that between 10-15% of donor people undergoing this lengthy procedure would develop a specific and serious mental illness directly related to this procedure?
Of course, these are relatively rare effects, but there are always the more common effects of long periods of nausea and vomiting, rapid weight gain, edema and swelling throughout the body, permanent scarring over much of the body, and permanent changes to body structure and metabolism such that you are likely to permanently gain significant weight.
Let's not forget social consequences, employers finding excuses to lay you off, or your own sickness from this donation causing an unacceptable number of sick days, the strain on relationships with significant others and children due to the temporary conditions of your body, and worries about finances after the stranger comes home with you. Remember, this is a complete stranger. Of course, it turns out that this stranger is related to you by blood, which is why you are the only person that can save her? And dont' forget, there is also the issue that so many people had benefited from this kidney procedure that large swaths of the earth were overpopulated.
Oh, and by the way, there's a good chance that even if you go through this procedure, there's a statistically significant chance that the person you're donating to will remain mentally or physically disabled for life, or might not survive the procedure at all. What if you already were caring for someone who'd benefited from the procedure and required significantly expensive care? What if you'd attempted to donate several times, each time the beneficiary had died, and you'd been informed that you were greatly increasing your own chance of harm by trying again.
So. Valuing human life, you may decide that all of these hardships are worth it, to have a chance at helping a human being live a happy and productive life. It might, indeed, be something that brings yourself and family significant joy.
What if, on the other hand, you were told that by walking through that door and giving a blood sample to the technician, you had implicitly consented to the procedure even though, as I stated before, you had taken precautions to prevent it (allow me this one small piece of SF to make the analogy complete), and that the person, the completely helpless stranger, about which you did and couldn't know anything for nine months had the right to demand that you take these risks and ignore your own personal judgment.
Would that forced submission to a life saving procedure that may cause you significant difficulties or even death, be a direct violation of human sovereignty?
Whether the donor is male or female, whether the recipient is adult or infant, to demand that any human being take significant quantifiable risks even to save another human being's life against his or her own judgment is to deny that human being his own right to sovereign control of his life.
Whatever happened to the libertarian ideal that your rights stop where the other fellow's nose begins, anyhow? That fetus is punching his mama's nose. If mama wants to permit it, as a free human being, she is welcome to. She is not obligated to provide the nose, or the fist that is punching it.
Edited By Siteowner
Oh, and a response to Oak Leaf. In the year 2000, 343 women in the United States died as a direct result of childbirth. Eleven died as a direct result of an induced (legal) abortion. Zero died as a result of illegal abortion. If your Ob/Gyn is stating that childbirth is safer than induced abortion, you have an incompetent Ob/Gyn and should change doctors immediately.
For an interesting comparison, in 1972, the last year that abortions were illegal, there were 24 maternal deaths due to legal abortions (as states could decide legality or illegality), 39 due to illegal abortions, and 477 due to childbirth.
All of statistics are readily available on US government websites, including the CDC website and the Health and Human Services website.
Odanu,
You wrote:
Your hidden assumption is that the female human being who is pregnant is an object in which a human being is growing. When you begin your argument with the assumption that the human being making a potentiality possible is a mere object, I must question your devotion to the value of human life.
I'm not sure how I did this, but this is certainly something I would reject. Do you think this was something I assumed in the early part of the post? There I was trying to show that it is mad to compare the fetus to the woman in terms of moral status. On views that treat fetuses as if they were persons too, I cannot see that we can continue to confer proper respect upon women.
In the second half when I mentioned Thomson, Thomson makes assumptions made by opponents of abortion to show that even if we grant take on board their assumptions (which she and I think we have overwhelming reason not to do) their conclusions wouldn't follow anyway.
I hope this clears it up and we can still be friends (well, friends for complete strangers talking on a thread that seems like it is petering out).
Best,
Clayton
Clayton, you're right. I was confusing your quote of the OP with your own words. And I think that you and I agree essentially on most points.
I don't know if we can be friends, but we can certainly have a decent conversation.
Odanu-
Your hospital analogy does not hold up. First of all, the person in the hospital who needs help for nine months to survive is absolutely NOT in the hospital BECAUSE of the unwilling/willing persons actions. I would absolutely argue that if you run over someone and put them in the hospital, and they can only survive if you sacrifice your autonomy for nine months (and if you don't you will be socially shamed), then you are morally obligated to do so. I would argue this even if you ran over the person because someone else held a gun to your head. If you are the only person who can save an individuals life that you caused to be at risk, then yes ---- you are morally obligated.
Of course the topic is WHEN does a human embryo reach full personhood, thereby aquiring all the rights that pertain to all U.S. citizens under the constitution.
PDN. You mean, of course, since one was responsible for giving conception, one must automatically continue with gestation, because the "gift" of conception cannot be rescinded? Interesting. A woman conceiving a child does not cause that child to be at risk, she causes that child to be. That's a whole different state of affairs. Again, a fetus is a stranger to the mother who happens to be related, and is occupying a part of her body. She has the right under law, and morally, to decide whether or not to provide life support to any other human being, at any time.
The risk analogy does not hold up. Conception does not put a child at risk. It puts the mother at risk.
Oh, and the other argument for continued legalized abortion? Here it is. Large scale international studies have consistently shown that the abortion rate is steady at about 1:3 abortions to live births, regardless of legality or illegality of abortion. The only difference that making abortions illegal creates is to greatly increase the mortality rate of the mother.
So,if you claim to be "pro-choice" and not "anti-abortion" there are far more effective ways to lower the abortion rate than making abortions illegal, especially including drastically improving women's access to birth control and the morning-after pill.
If you really don't care about human life, you'll continue to support an idea that doesn't significantly change the rate of abortions, but greatly increases the death rate among human females. Safe, legal, and rare -- that's the rational goal for those who understand the stakes.
odnau,
First in response to your last post, the rate of abortions has increased dramatically after Roe and continued to increase until the mid 80s.
This is a response very similar to a step input to a underdamped second order system. The clear inference (which is undisputed by reputable professional social scientists) is that the abortion rate was much less that 1:3 before Roe.
Continuing on to consider your long post.
The fetus is the woman at an earlier time in the woman's life. The woman does not creat life, she only sustains it. The egg is ejected as jetsam before fertilization at which time it becomes a distinct entity with a distinct genetic code and eventually grows (in the normal course) to become you and I.
By what right can a person destroy this life? You offer none except the implication of convenience. Your assertion that the embryo poses a risk to the woman is incorrect. The embryo is the woman. Get it?
The woman does not exist without being an embryo first.
Commenting by HaloScan
