Hans has already conceded that the equal protection clause must be flexible enough to promote value-judgments that are essentially political. He just has different politics — and value-judgments — than you. He doesn’t stand for an equal protection clause that is strictly and consistently interpreted, just one that garners the results he favors. He’s an instrumentalist, like most good appellate litigators! (And he is a good appellate litigator.)

I don’t like the term “potential” due to the ambiguity of the term. It can either mean “capacity” or “possibility”. If an embryo is a “potential” human life by capacity of becoming a self-aware human, then an infant must fall into the same category. In fact, it is precisely this “potential” that is why killing an infant is just as wrong as killing an adult – killing equivalently biologically developed mammals is not morally equivalent. Plus, it’s not a sliding scale of “wrongness”, we don’t categorize murder based on the age of the victim.

The other definition of “potential” is “expressing possibility”. In that sense, a married couple may possibly have children, or not. It is a completely different issue than what is described above, which speaks to the intrinsic ability of any human life to grow into adults. A sperm and an ovum each on their own no capacity for becoming a self-aware human being, they are just cells that are part of a man or woman. Once they are brought togther (conception), the resuling totipent cell *does* have this capacity, it is human. The only scenarios for it not reaching self-awareness are that is dies naturally, or dies unnaturally. That is the bright line for defending and protecting life.

I am not sure I understand your train of thought. Contraception is simply a way for sex to not result in conception, preventing the creation of a new human life. The pro-life argument speaks to human life after it has been created. People should be prefectly free to choice to not reproduce – they can abstain from sex, or use contraception. The only kind of contraception that is problematic is that that actually allows conception, but discourages implantation, e.g. the IUD.

When pregnancies end through miscarriage, it can be very tragic, but it is a natural process and a natural death for the unborn human. This is in stark contrast to induced abortion, which causes an unnatural death. There is no practical way to prevent miscarriage, so there are no additional steps to “protect” the unborn beyond not killing them in the first place.

Thus, it makes perfect sense to support freedom of choice in the first trimester, when the embryo has not developed much at all.

And it makes perfect sense to ban abortion in the third trimester, where the fetus more closely resembles a newborn than it does an embryo (unless the mother’s physical health is endangered, not just some self-serving finding by the abortion provider that the patient’s ‘emotional health’ would be allegedly affected by carrying a normal pregnancy to term).”

Arbitrary cutoffs make sense when it is simply impossible to make a decision on a case-by-case basis. An infant does not have capacity to vote, cannot drive, cannot consent to sex, etc, because they are very young. Therefore, certain rights are rightly delayed. However, it is not logical to delay the fundamental right to life on account of age. We all agree (for the most part) killing a born infant is a crime. I fail to see why stage of life development is a criteria to determine when this particular right should be applied. “Common sense”, as you say, suggests that all pre-conscious humans should have the same right to life. Is there any real logical different between having a brain but being not self-aware (like an infant) or not having yet developed a brain (like a fetus)? Does “common sense” suggest that a viable, 9 month fetus is a Constitional non-entity but a infant born at 8 months is? “Viability” is a measure of the state of our current medical techonology, not a property of the fetus – does it make sense to say that the rights of the fetus depend on our ability to keep them alive outside the womb?

Hans, the fundamental point is that it is impossible to uphold the right to life of infants without upholding the rights of the lesser-developed unborn, given that both are far less developed than a born human. The only way for the pro-choice side to get around this problem is to claim that the unborn are not human beings (which they used to do circa 1972), which defies science, logic, and common sense. Be honest with yourself about this – at one point in your life you were a fetus. At that time, did you not have a natural right to grow into who you are? Abortion is something that sometimes is necessary, but it should be viewed as something that invloves a conflict of rights between the pregnant woman (who, in this day and age, may not be the biological mother) and the unborn fetus.

Boy, Hans Bader sure is tying himself up in knots trying to promote inequality through his interpretation of “equal protection of the laws”.

I think Ben makes a viable point here. It is difficult if not impossible to determine at what point in time a fetus is to be considered a “person.” However, if we operate under the assumption that fetuses must be protected because they all possess the potential to eventually have a brain and be self aware, it becomes increasingly difficult to, at the same time, determine at what point that potential is no longer worth protecting (this difficulty in many ways parallels the problem Ben raises with being able to determine at what point a fetus is to be considered a “person”). Around 10-15% of pregnancies end in miscarriages or stillbirths, and while the percentage of successful conception after intercourse is much smaller than the chance that a fetus will survive pregnancy, it must be accepted under this framework that this potential must be defended. As a result, if you are pro-life you must also be prepared to coherently address why you are not anti-contraception.

“The mere passage of time” commonly increases one’s rights and responsibilities. You can’t drink until you are 21, and you can’t vote until you are 18. See also Roper v. Simmons (2005) (imposing age-based limit on death penalty).

Those distinctions may seem arbitrary at the margins — some 19 year olds aren’t mature enough to be sensible voters, and many 17 year olds are — but they reflect basic common sense.

The fact that not everyone matures at the same rate is no reason to get rid of age limits for voting and give even 2-year olds the right to vote, just as the fact that a 2-day old embryo has the same DNA as an 8-month old fetus is no reason to give the former the same right-to-be-born over the mother’s wishes as the latter, when the latter is vastly more developed than the former.

Common sense produces cut-offs (like the requirement that people be 18 or over to vote) that look arbitrary at the ages, but are nevertheless sensible from a distance (obviously, a 2 year old should not be allowed to vote, and a 30 year old should be, even though 17 year olds and 19 year olds aren’t very different).

Thus, it makes perfect sense to support freedom of choice in the first trimester, when the embryo has not developed much at all.

And it makes perfect sense to ban abortion in the third trimester, where the fetus more closely resembles a newborn than it does an embryo (unless the mother’s physical health is endangered, not just some self-serving finding by the abortion provider that the patient’s “emotional health” would be allegedly affected by carrying a normal pregnancy to term).

Most people who don’t think the unborn are not equal is because they have made an a priori assumption that they are not equal. I used to feel the same way as Hans, the tipping point came when I took an unbiased look at my assumptions. I could not get past the notion that the mere passage of time or division of cells was enough to transform “non-persons” into “persons” – it just doesn’t make sense. The clincher was actually reading Roe vs Wade, which implies that killing a 9-month fetus minutes from birth would have no federal Constituional implications.

The distinction between early-term and late-term abortions is consistent with both common sense and the trimester framework recognized in Roe v. Wade.

Terminating a two-week old embryo that has no brain and no ability to feel pain is very different that killing a viable nine-month old fetus that can feel pain and is approaching imminent birth.”

That is the big issue. I see no substantial difference between killing the two from a moral standpoint. Both are less developed than an adult chimpanzee, which does not have the same kind of fundamental rights we ascribe human beings. The reason we do not place children in zoos is because they have human rights, rooted in a natural law (whether it be derived from religious or secular sources). It is the fundamental *humanity* of a born infant or a nine-month fetus that justifies the existence of human rights and legal protection. Having a brain and being self-aware are the essence of being human, but not having them *yet* does not sever one from their humanity. Neither a 2 week embryo or a 1 day infant can yet claim the promise of full humanity, yet killing one is murder and the other is not – that is inconsistent and defies common sense.

Human nature is human nature. Either fetuses are human beings or they are not. Any failure to recognize their personhood is a moral and legal flaw. Apparently, to Hans Bader, equal does not equal equal.

But the fact that other unjustifiable late-term abortions should also be banned is not a reason to permit partial-birth abortion.

Underinclusiveness is not generally a basis for invalidating a law (at least outside the First Amendment and race/sex/religion discrimination context), since a legislature can proceed one step at a time, first prohibiting one evil and then another.

Although Ben reprints my comment that “An early-term abortion is very different from a late-term abortion,” he doesn’t explicitly take issue with it.

The distinction between early-term and late-term abortions is consistent with both common sense and the trimester framework recognized in Roe v. Wade.

Terminating a two-week old embryo that has no brain and no ability to feel pain is very different that killing a viable nine-month old fetus that can feel pain and is approaching imminent birth.

By giving a green light to killing of the latter, by allowing late-term babies to be killed by having their brains sucked out just because the abortion provider (who receives financial compensation for performing the abortion) claims that killing the baby will promote the mother’s “emotional health,” Stenberg v. Carhart drained Roe v. Wade’s trimester framework of any meaning.

Thanks to Carhart, even viable infants can be killed in a gruesome fashion, even in the third trimester, in which fetal protection was supposed to be permitted under Roe v. Wade’s trimester framework.

The court should put meaning back into Roe v. Wade’s trimester framework by overruling rulings like Stenberg v. Carhart that permit late term abortions just because a financially-interested abortion provider thinks (or claims to think) that the abortion will benefit a woman’s nebulously-defined “emotional health.”

A good first step to doing that would be to uphold the federal ban on partial-birth abortion.

And procedures that gratuitously inflict pain or blur the boundary between abortion and infanticide are quite different from procedures that do not.”

How is dismembering a fetus in the womb really any different that partially delivering and killing it halfway though, or delivering it completely and letting it expire? Today, the first is legal Constitutionally protected abortion, the second you claim is a gruesome awful procedure, and the third is infanticide if there happens to be a crack medical team on standby that could potentially save the infant (it is “viable”).

The reality of the sitation is that you have a dead human being, and ironically, the most humane and safe way of achieving “fetal demise” may be to complete the delivery before killing the fetus/infant – this was the thrust of some of the Chief Justice’s questions. There is no logical reason to draw legal distinctions regarding possesion of fundamental rights based on arbitrary time limits. Natural rights are based on our human nature.