Test for Roe v. Wade?
A bill drafted specifically to test the Supreme Court’s current view on abortion rights — and to set up a direct challenge to Roe v. Wade – won approval Wednesday in the upper house of the South Dakota legislature. The bill, H.B. 1215, was passed by the state Senate on a 23-12 vote. It differs slightly from a verison passed by the South Dakota House on Feb. 10, but the measure is expected to emerge virtually intact in final legislation.
The version of the bill that emerged on Feb. 17 from the state Senate’s State Affairs Committee can be found here. It is understood that the bill won Senate approval in this form, without further amendment, on Wednesday.
The bill declares that “life begins at conception, a conclusion confirmed by scientific advances since the 1973 decision of Roe v. Wade…” It says that, based on experience since 1973, “abortions in South Dakota should be prohibited.” While it imposes a flat ban on abortion, it declares that no doctor who “performs a medical procedure designed or intended to prevent the death of a pregnant mother” is guilty of violating the ban. But it does require the doctor to make “reasonable medical efforts” under the circumstances to save the lives of both the mother and “her unborn child” in a manner “consistent with conventional medical practice.”
The bill, if cleared by the two houses of the legislature, would then go to Gov. Mike Rounds, who said this week that he supports a ban on abortion, but had not yet decided whether he would sign the pending bill if it finally passes. Kate Looby, South Dakota director for Planned Parenthood, said “we will be lobbying the governor to veto the bill,” but added that her present expectation was that he would sign it into law.
The initial sponsor of the ban, Rep. Roger Hunt, a Republican and an attorney from Brandon, S.D., has told reporters in the state repeatedly that his aim is to set up a test of Roe’s continuing validity. He noted the appointment of two new Justices, and cited the possibility of “one or two more replacements within a few years,” creating a Court that he would expect to be more willing to reconsider Roe.
Immediately after the Senate acted on Wednesday, Planned Parenthood Federation of America and its Minnesota/Dakota affiliate announced that, if the bill is signed into law, a court challenge will begin immediately to stop the law from taking effect. South Dakota director Looby said: “Quite quickly, we will be going to court to ask that the bill be enjoined so that it never takes effect.”
“South Dakota’s ban is the most sweeping abortion ban passed by any state in more than a decade,” according to Planned Parenthood staff attorney Eve Gartner.
Under the bill, South Dakota’s existing abortion laws, including a provision allowing abortions during the first 12 weeks of pregnancy with a doctor’s approval, would be repealed. But the act specifies that, if the new ban is struck down, the existing laws would go back into effect.
During the Alito hearings, Senator Coburn said:
“And my hope, Judge, is that science and technology, and recognition of life on some parameter ought to be applied. And my hope is, as we get to the court, is that we have common sense. And it doesn’t have to be my way. You know, it could be Senator Schumer’s or Senator Durbin’s view.”
It’s all about common sense. Our current federal jurisprudence, which offers zero protection to unborn human life, does not.
Comment by Ben Kennedy — February 22, 2006 @ 9:37 pm
Allowing states to ban abortions except when the health and life of the woman is at issue in the final trimester is “no” protection? Allowing parental notification (bypass alt. not currently req.) or consent (bypass) to counsel said teen that abortion might not be necessary is “no” protection? How about informed consent requirements that reference alternatives and current fetal development (see Casey)? Or allowing the state to target women assaulted with the result being the fetus is killed with some additional penalty than if she is not pregnant? Allow partial birth abortion bans with a health exception?
Remember the rule is “no” protection, not “not anyway close to enough.” As to this “new evidence” that “life” begins at conception, what exactly do we know now that we don’t know than that warrants banning abortions even in the first week? Also, surely “life” of some sort is present. The test, however, is personhood.
I’d add Ayotte started with a provision that probably all nine justices did support that it is irrational to ban abortions when the woman’s health would be severely threatened. So if limited to death alone, this law just won’t do the trick even if as Kevin Drum suggests Stevens dies tomorrow and all the chips fall their way.
Comment by Joe — February 22, 2006 @ 11:01 pm
Joe – allowing states to restrict abortion is not the same as providing federal protection. It is Consitutionally permissible to allow abortion up until birth. That is to say, fetal human life at any age, even after viability, has no intrinsic Constitutional rights. Roe vs Wade says so explicitly – the unborn are not entitled to equal protection under the law under the 14th amendment.
I’ll also point out that saying the test is “personhood” is begging the question – it makes an a priori assumption that there such a thing as a human creature that does not have rights, which is the what the debate is over in the first place. Is there really a rational basis for concluding that a 1 day old fetus has equal protection under the law but a 9 months fetus does not? Or that a 22 week fetus is a viable “person” and cannot be aborted but a 20 week fetus can be? Or, more generally, that a N day fetus is a “person” but a N – 1 day fetus is not? Is this a continuum fallacy where the term “person” is simply a subjective term (in which case “personhood” at all ages is up for legitimate debate), or is there a simple resolution to this paradox of the heap?
Comment by Ben Kennedy — February 23, 2006 @ 12:12 am
Sorry make that “Is there really a rational basis for concluding that a 1 day old baby has equal protection under the law but a 9 months fetus does not?”
Comment by Ben Kennedy — February 23, 2006 @ 8:21 am
I sympathize with your position, Ben, although I’m not entirely sure how far we agree on a more practical level.
On another blog a couple of days ago, someone (obviously pro-life) pointed out that the Constitution doesn’t mention abortion or unborn children, but on the other hand, nor does it mention African Americans, Gypsies, Jews or Hispanics, and no-one would argue that they aren’t protected. I sympathize, but the argument is just flat-out dumb. The Constitution may not mention any of those groups, but nor does it mention caucasians. The term used is “persons,” and that term is expansive enough to cover anyone considered a person at the time of ratification, so In order to say that the unborn are protected by the Fourteenth Amendment, you must either a) demonstrate that the unborn were considered personsvin 1868, or b) abandon originalism in favor of something else.
(This point is usually challenged by the familiar recitation of states that had criminalized abortion prior to the Fourteenth Amendment; see, e.g. Roe, 410 U.S. at 176 n1, Rehnquist, dissenting. However, to say that this is evidence of a prevailing belief in fœtal personhood at the time of ratification is a non sequitur, because it relies on the demonstrably flawed presumption that, not only are there no valid reasons to prohibit abortion other than a belief that abortion is murder, a view I share, but rather a much more expansive presumption: that there are no reasons – period – to prohibit abortion other than said belief in fœtal personhood.)
The goal of overturning Roe and its progeny is not, to me, primarily about “fixing the abortion problem” – it’s about making a fix possible, which under Roe it is not.
It seems to me that formalism requires that whether the law is rational or not is simply not a question for the Courts; I agree with you entirely that it makes no sense whatsoever that a one day old baby does have equal protection under the law but a nine month old fœtus does not, but that is a question for the legislative process, or, in the final analysis, the Article V amendment process. There are many things that the Constitution says (directly or in practical effect) which make no sense to me, but that doesn’t mean they can be “fixed” by litigation. I don’t think that the Unitary Executive is a particularly attractive proposition on a normative level, but I do think it’s what the Constitution says; likewise, I agree with you that it would be better if the Constitution did protect the unborn (things get a little hazier with partial-birth abortion, for obvious reasons), but unless it can be demonstrated that a fœtus was considered a person in 1868, they aren’t protected by the Fourteenth Amendment.
Comment by Simon — February 23, 2006 @ 9:48 am
Simon – I appreciate your thoughts. I believe that it is not difficult to contruct the case that the term “person” used around 1868 could include the unborn. Blackstone writes,
“The right of personal security consists in a person’s legal and uninterrupted enjoyment of life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of the law as soon as an infant is able to stir in the mother’s womb … An infant in ventre as mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.”
What Blackstone didn’t know was that a fetus “stirs” 22 days after conception when the heart starts beating. Letting states fix the problem is certainly a good first step, but suppose a state were to say that “personhood” begins at 3 years? Or, suppose a state declared that due to genetic abnormality, some individuals are not to be considered “people” and could be sterilized – is there no federal remedy?
Comment by Ben Kennedy — February 23, 2006 @ 10:34 am
My credentials are woefully lacking for participation — I bailed law school after two weeks — but it seems that most legislators miss the point. See: Not sacred, but with reverence.
“Ultimately, the underlying issue has nothing to do with the sanctity of life, but with an issue the South Dakota legislature could not bring itself to face. The real issue isn’t abortion, but how do you take care of unwanted children. How does the state guarantee that unwanted children will be treated with honor and respect — that they will grow up in a loving household, be provided quality of life, and decent schooling. How will the state finance foster families and make adoption easier. The issue is that, if life is not sacred, how will the state treat the living with reverence. To leave children in families unwanted and unloved is to commit a secular sin.”
Comment by sbw — February 23, 2006 @ 11:46 am
I don’t think that this law has much of a chance of making it to the Supreme Court. The South Dakota courts and the federal courts are obligated to strike it down. So, unless they choose not to, the Supreme Court could just deny cert. and be done with it, no?
Comment by federalist — February 23, 2006 @ 5:50 pm
Ben. Part of the way the federal Constitution offers protection to all sorts of individuals is by allowing states and the federal gov’t the authority to pass laws so doing.
If you mean rights security by constitutional demand, okay. But, I’m not sure where you get that from the text anyway — it was not originally understood to apply to the unborn. If you want it to, for instance by requiring an ad litem to defend their interests, an amendment seems necessary. I guess a “living Constitution” approach can breath life into “person,” but I wonder if you are a fan of that approach.
As to personhood, again, the word has a specific meaning in the Constitution, born individuals. This does not mean the state necessarily is stopped from banning abortions. We ban torture of non-persons like dogs. But, we don’t give them constitutional rights either.
Comment by Joe — February 23, 2006 @ 7:52 pm
I add, btw, I’m still confused about what new evidence SD speaks of. Surely, quickening was originally put in place in part because of limitations of science and so forth. Blackstone had limitations.
But, what developments in the last 30yr. changed our understanding of life at conception? Maybe a bit later, respecting pain and so forth, but conception is really a bridge too far.
Comment by Joe — February 23, 2006 @ 7:56 pm
Joe – see my comments regarding Blackstone on the unborn. The unborn deserve legal protection not on the basis of the text of the Consitution, but on the basis of natural law. If certain unborn humans are not protected by the law, then there is the potentional for anyone not to be protected. The abortion debate is just another example of preference utilitarianism versus natural law. Those who believe in a natural law believe that the most supreme role of government is to protect life itself, even a zygote which is just a very young human being. Those that believe in utilitarianism beleive that the supreme role of governemnt is to protect the quality of life for those who are already alive. Thus, “reproductive freedom” is prized over the lives of tiny humans. The whole “when does personhood begin” debate is a red herring.
As for what we know now that we didn’t know in 1973, since 1978, it has been proven that human life can be created in a test-tube, demonstrating that human life is viable from conception – pregnancy is a period of gestation for an independent human organism. Also in 1973, human conception had never been captured on film – “The Miracle of Life” was released in 1983. As recently as 2002, researchers Cornell have, in a rather chilling experiment, allowed a human embryo to grow while attached to uterine tissue samples removed from a woman. The experiment was halted after two weeks to be consistent with laws regarding IVF. How many years until the artifical womb becomes reality? Medical science has effectively disentangled the rights of the fetus from the rights of the woman, and the Supreme Court must confront these new realities.
Comment by Ben Kennedy — February 23, 2006 @ 10:38 pm
Quoth Ben Kennedy: “If certain unborn humans are not protected by the law, then there is the potentional for anyone not to be protected.”
You’re closing the gate after the horses have run off. Just a few quick questions for you on this point.
1. A 16 year old is not allowed to purchse, own, and carry the same firearms in the same fashion as a 21 year old. Do you think all citizens of the USA should have the right to keep and bear the same arms as any other?
2. Many states deny convicted felons and the mentally ill the right to vote. Do you think felons and the mentally ill should be allowed to vote?
On a more general note, how do you think the following and similar situations should be resolved in a world where live begins at conception? Situation: A pregnant woman reaches to pull out a gun on a police officer. The police officer pulls his gun out first and repeatedly shoots her in her center of mass. The woman lives but her baby dies. What crimes, if any, are the police officer guilty of?
Comment by CJ Croy — February 24, 2006 @ 12:15 am
1. A 16 year old is not allowed to purchse, own, and carry the same firearms in the same fashion as a 21 year old. Do you think all citizens of the USA should have the right to keep and bear the same arms as any other?
2. Many states deny convicted felons and the mentally ill the right to vote. Do you think felons and the mentally ill should be allowed to vote?
There are many arbitrary age-based delineations in law – sentencing guidelines for juveniles, licensure ages (e.g. driving, guns), statuatory rape laws, etc. They recognize the biological realities that as people grow, they change. I should have said “not recognized” instead of “not protected” to make my point clearer. Even a non-voting death-row felon has posession Constitutional rights, while a unborn human does not. Historically, going out if your way to call someone a “non-person” has been the first step toward full-scale oppression
On a more general note, how do you think the following and similar situations should be resolved in a world where live begins at conception? Situation: A pregnant woman reaches to pull out a gun on a police officer. The police officer pulls his gun out first and repeatedly shoots her in her center of mass. The woman lives but her baby dies. What crimes, if any, are the police officer guilty of?
If the officer is simply defending himself, he has committed no crime. If a woman uses her unborn child as some kind of hostage, she would be held responsible for the child’s death. If the officer aimed for the child (in the same manner as if he aimed for any hostage), then perhaps he has committed a crime – facts for the jury to sort out.
The only people who complain about fetal homicide laws do so not because they are hard to enforce, but because they create a distinct legal status that threaten abortion rights. Apart from the impact on the abortion debate, it is hard to defend the proposition that someone who kills a pregnant woman, particurly with a late-term baby, is responsible for only one homicide.
Comment by Ben Kennedy — February 24, 2006 @ 8:59 am
Ben,
Re your reply to my comments above, that’s an interesting point. If I might rephrase your point: if fœtal personhood was understood to occur at the time of quickening in 1868, and since that time, science has demonstrated that quickening in fact takes place earlier during pregnancy, does that change the balance of probabilities that the original meaning of persons extended to the unborn? I don’t know the answer to that, but it’s certainly an interesting point. I have to say that I remain sceptical, though, since (as you point out), this theory of quickening as the start of personhood goes back at least as far as Blackstone, yet laws criminalizing abortion in England and the United States did not begin to appear until decades after Blackstone, in the early 19th Century.
It’s an intriguing point, though. Arguendo, if the original understanding of the Fourteenth Amendment could clearly be shown to be accepting of fœtal personhood at, say, six months, on the premise that this is when “quickening” takes place, and that this confers Congress power to regulate abortion after this time, but in the years since 1868, we have determined that quickening actually takes place earlier (this is totally wrong, but let’s say it takes place at one month), does that mean that the original understanding permits Congress to regulate abortion after six months (the original understanding of the timeframe), or after one month (the original understanding of the event)? That isn’t, after all, an evolving concept of decency, but the expansion of scientific knowledge; it is a factual, not subjective, inquiry. I’ve argued before that, even absent evolving content, the Eighth Amendment does prohibit certain punishments, even if they did not exist at the time of ratification (that is, even if it is not a “living constitution” in the sense that it grows and morphs, it is alive in the sense that it continues to apply to new and unforeseen circumstances); hence, I don’t know what to think about this point.
Comment by Simon — February 24, 2006 @ 9:28 am
Whoa whoa whoa…this is not my realm, but isn’t Roe a privacy issue?
Comment by Stella — February 24, 2006 @ 9:37 am
I have to say that I remain sceptical, though, since (as you point out), this theory of quickening as the start of personhood goes back at least as far as Blackstone, yet laws criminalizing abortion in England and the United States did not begin to appear until decades after Blackstone, in the early 19th Century.
Just a quick point before I run out the door – abortion had always been a common law offense. What I ommitted in my earlier citation of Blackstone was:
“For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemesnor.”
Bracton in the 13th century described abortion as a homicide “if the foetus be already formed and animated, and particularly if it be animated.”. Roe vs Wade cited a “recent review of common law precedents” that came to the conclusion that abortion was not a common law offense, despite Blackstone, Bracton, and Coke all saying in one form or another that it was.
Comment by Ben Kennedy — February 24, 2006 @ 9:41 am
Stella – the entire premise of the pro-life movement is that there are two lives involved, not one.
Comment by Ben Kennedy — February 24, 2006 @ 10:11 am
(i apologize in advance if there are no paragraph breaks in my post. in the “preview pane” they appear to have disappeared.)
you’re making a sound argument, bk. i completely agree.
as for joe’s questions about the developments in the years since roe, here are a couple:
roe asserted “that a new human life is present from the moment of conception” is simply a theory, and refused to answer the question of when a human life begins because the “disciplines of medicine, philosophy, and theology are unable to arrive at any consensus. The development of man’s knowledge, is not in a position to speculate as to the answer.”
south dakota’s ban says that scientific and medical knowledge is now there to answer that question. it can now be said without question that there is a new, living member of the homo sapien species present from the moment of conception.
roe also said that abortion is needed to protect the health of the mother. after 33 years of experiencing legalized abortion, science finds that abortion may actually be detrimental to the health of mother.
roe said that “In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situation and except when the rights are contingent upon live birth.”
since then, several states, including South Dakota, have enacted fetal homicide, informed consent, fetal pain, fetus abuse, partial-birth abortion, and “baby moses” laws. even the federal children’s health insurance program now covers unborn children.
further, the supreme court in the webster case said that states could value childbirth above abortion by “withholding public funds for nontherapeutic abortions but allowing payments for medical services related to childbirth ….” it also said that “Roe implies no limitation on a State’s authority to make a value judgment favoring childbirth over abortion.”
roe said that because “throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”
sounds eerily similar to the dred scott case and it ignores history and the foundations of our law.
the framers of the constitution did not have the scientific and medical knowledge that we do today. they could not prove that a human life began at conception. prior to these advances, abortion law reflected the limited scientific knowledge of a human life in the womb. as ably argued by ben, above, the law can only protect what it can identify.
Comment by lexrex — February 24, 2006 @ 10:52 am
nor does it mention African Americans
It’s a pretty idiotic interpretation of the Constitution to ignore the 3/5s Compromise, the 13th Amendment and the 15th simply because the 14th is phrased in general language. When addressing the slavery issue, the Founders and future Congress clearly intended to protect former or potential slaves. Why a term “African-American,” which did not exist until the 80s, would be present in the text of the Constitution is really beside the point. The Constitution does not mention “Native Americans” either, but it clearly refers to Indian Tribes.
Comment by Commentator — February 24, 2006 @ 12:03 pm
Ben
From Oyez on Roe:
The Court held that a woman’s right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment.
I made no mention of abortion or my stance on it, only the laws concerning it. There is only the law, and that is what we are here to discuss. There are no ‘pro-choice’ or ‘pro-life’ laws.
Comment by Stella — February 24, 2006 @ 12:38 pm
Stella – Roe explicitly stated that the unborn until birth have no Constitional protection under the 14th amendment, or anywhere else. The debate is over far more than simply an issue of privacy
Comment by Ben Kennedy — February 24, 2006 @ 1:37 pm
Natural law on some level is extraconstitutional. Positive law is required to put it in practice, including the Constitution. The Constitution protects various classes of individuals.
Some argue it doesn’t protect all (e.g., homosexuals) or deprives them of key rights like basic economic security. Slavery was recognized by the Constitution. So, again, if you look at the Constitution not all rights, even those of fundamental importance, are secured.
As to developments. I’m unclear how in vitro fertilization changes the calculus any. We knew about fertilization when Roe was involved. This just concerns locale. The fertilized egg is not viable without implantation. In fact, the process in practice requires disposal of many eggs. It actually works against the pro-life argument to some extent!
When artificial wombs are a reality, Roe would truly have to be rethought. Currently viability changed only a relatively insignificant amount, a vast majority of abortions occuring long before viability.
As to the separate reply, sorry, the claims respecting the health of the mother have been found overblown and if anything would only limit the number of abortions to cases where it would be more dangerous. Informed consent was allowed under Roe. I said conception. Is pain existing then? Partial birth is also non-responsive to conception!
As to comparisons to Dred Scott, the dissents there pointed out how blacks actually had various rights. I’m unaware of the same being the case with one week embroyos.
Comment by Joe — February 24, 2006 @ 8:33 pm
I also reaffirm my point that the federal courts have repeatedly given the gov’t take the interests of the unborn into consideration in various ways, including by selectively funding childbirth even if abortions are shown to be necessary for the health of the woman. The net result is their “rights” are protected in various situations, if not as much as many would like.
As to the alternative hoped for, countries in Latin America that do have such a status have quite a few illegal abortions. The ‘life from conception’ regime here is a nice symbolic move that will do little or nothing to help the unborn. If they actually wanted to do so, there are any number of other means in place that have been shown to actually prevent unwarranted pregnancies or help those bring them to term.
Comment by Joe — February 24, 2006 @ 8:41 pm
Ben,
Location, location, location. A 9-month fetus is within the private sphere of its mother’s body, is her body, and lives indivisibly under her dominion. A 1-day old baby is present in society and a member thereof, touchable, and non-surgically seperable.
The newborn has joined the human club, though it won’t become a person for many months. Your pet dog has more personhood. Nevertheless, we imediately start treating the baby as if it was a person, and even believe it to be so, which is part of the evolutionary trick of human development of the premature brain.
You are right that the 1-day-old baby is no more of a person than the fetus, developmentally. Neither are persons. But we begin regarding the newborn as such at birth, and that regard is an ingredient of eventual personhood. Under patriarchy, the newborn lived under the exclusive dominion of the father, who could order exposure under certain circumstances soon after birth.
Comment by Scroop — February 24, 2006 @ 10:50 pm
Joe – the point of mentioning IVF is that it shows that all fetal life is viable – that is, it is capable of survival outside the mother’s womb. It can be another natural womb, or soon an artificial womb – see my earlier post.
When artificial wombs are a reality, Roe would truly have to be rethought
The arrival of articfial wombs won’t change the fundamental nature of unborn life, so I don’t see why we shouldn’t have that discussion today. I would also argue that IVF pretty much serves the same function as an artifical womb for the purposes of this discussion, again demonstrating that a fetus has complete biological independence from its genetic parents.
The ‘life from conception’ regime here is a nice symbolic move that will do little or nothing to help the unborn. If they actually wanted to do so, there are any number of other means in place that have been shown to actually prevent unwarranted pregnancies or help those bring them to term.
The sad fact of the matter is that post-Roe, there was an explosion of both abortions and conceptions – that is, abortion became a form of birth control. This is further demonstrated by any poll that asks why women get abortions, and the high number of repeat abortions. I don’t think that the problem is that there are not enough crisis pregnancy centers or adoption agencies, there are plenty of each.
Comment by Ben Kennedy — February 25, 2006 @ 12:01 am
In theory, we knew that life could be viable outside the womb when Roe was handed down. I’m sure in fact that in vitro technology was already in the theory stage at that point. In fact, however, it cannot be. In fact, the options once pregnant, is abortion or childbirth. Again, nothing has changed on that front.
As to abortion being birth control: I’m unclear if this really is true, given it is a pretty rough form and other much more easier means are available. But, the fact remains: SD knows their move will fail. Even if it does not, women will be able to go out of the state to get abortions. Such is the reality in Latin America, though illegal abortions factor in more.
The basic questions remain then and now. The basic facts do as well. Nothing fundamental “changed” as to conception. As to weeks or months after, this is more debatable. But as to conception, they overplayed their hand. Just one of many, as some accounts suggest re the flawed report behind the law etc.
Comment by Joe — February 25, 2006 @ 12:28 pm
You are right that the 1-day-old baby is no more of a person than the fetus, developmentally. Neither are persons.
This is a logical consquence of any utilitarian philosophy that does not value human life for the sole reason that it is human. Personally, I feel that it defies common sense – children, unborn and born, are not precious solely because of their present capabilities, but because of what they will become. For that reason, I find no logical way to distinguish the fundamental nature of a pre-conscious fetus, a pre-consicous newborn, and a very immature child. Since rights are tied to one’s fundamental nature, I find it illogical to apply a different set of rights to different stages of human life.
Also, saying “newborns aren’t people” forces one to take the position that abortion, and even infanticide, are morally acceptable – or at least, no more unacceptable than killing a dog, which you suggest is more of a person than a newborn. But if you thing that killing a newborn is worse that killing a dog, then you must be deriving legal protection from something other than “personhood” – if so, then what?
Comment by Ben Kennedy — February 25, 2006 @ 7:08 pm
Laws can protect anything from fresh water to animals to presidents, and we can attribute “rights” to the obejcts of our protection, but the force of our protection comes from the value humans place on the things that are under our care and pity, which we relate to our own self-preservation. A dog has no right to life under law (despite laws against cruelty). A fetus does. Yet the emotional cost of killing a pet dog can be quite high, while the moral cost of infanticide can be low in a situation where the alternatives are difficult. A dog may represent years of companionship, while a newborn can be replaced interchangeably, and possibly to advantage, in about 9 months. King David invoked the death penalty as punishment for the killing of a pet lamb (2 Sam. 12:5) while King Solomon famously commanded the splitting of a disputed baby (1 Kings 3:25). Neither story answers your question about “rights” but instead illustrate human responses to cruelty and mother’s love. These are life and death calculations that people make imperfectly, and counsious of the fact that “nature” also makes such “calculations” without our intentional intervention (i.e. miscarriage and mortality).
How does assigning “rights” to humn life at all stages solve real problems about life’s value? What “rights” did other species of hominids possess? What about primates and other animals?
I’m more interested in the many aspects of personhood that can be observed than in a particular definition of inherent rights. And I don’t think the right to life is separable from liberty and the persuit of happiness, so I don’t see “rights” as being relevnat to a fetus.
Comment by Scroop — February 26, 2006 @ 2:55 pm
Laws can protect anything from fresh water to animals to presidents, and we can attribute “rights” to the obejcts of our protection, but the force of our protection comes from the value humans place on the things that are under our care and pity, which we relate to our own self-preservation.
Again, this is the approach of utilitarian philosophy versus natural law. Under your approach, laws simply reflect an arbitrary human value system. Under natural law, the rights exist as univeral natural rights (or original rights) that existed before any laws were written, and continue to exist even when laws do not protect them. Suppression of natural rights justify Revolution, according to Jefferson.
And I don’t think the right to life is separable from liberty and the persuit of happiness, so I don’t see “rights” as being relevnat to a fetus.
With regard to fetal life, a fetus has no more or less interest in life, liberty, and happiness than an infant. Or as you have pointed out, the “personhood” of a fetus and newborn are the same, so I can’t see why rights are relevant to one and not the other. Since an embryo or fetus is unquestionably an actual live human being, the issue as to whether or not he or she has a right to that life is very important – particularly in the abortion debate where there are competing rights.
Comment by Ben Kennedy — February 26, 2006 @ 7:52 pm
I’m not schooled in law, but would guess your concept of natural law is about as practical for our society as Aristotle’s theory of eternality is to biology.
I admitted a newborn has no more “personhood” than a fetus. Yet, a newborn is in a different location with respect too society, which contributes to the development of its members. By giving birth, a mother gives over some control over an infant that recently was part of her body and within her personal domain. An infant has a one-shot chance at success, so society censures and sanctions bad parenting as it participates in the “social gestation” of a person. What I’m saying is that personhood is empirical and very aspective.
Some societies permitted infanticide or its moral equivalent in situations where death did not seem needless or “cruel,” but ours does not, probably because our bonds of community are fragile.
But Ben, you didn’t answer my question. Why does homo sapiens sapiens have original “rights” which other hominids, primates, and animals did not or do not have? With some reason, we likely would place a surviving example of homo habilis in a zoo and an example of homo erectus in an assylum. But both are US, but not persons as we understand ourselves.
Comment by Scroop — February 27, 2006 @ 12:44 pm
I admitted a newborn has no more “personhood” than a fetus. Yet, a newborn is in a different location with respect too society, which contributes to the development of its members. By giving birth, a mother gives over some control over an infant that recently was part of her body and within her personal domain
A fetus isn’t “part” of a women, elementary biology and IVF demonstrate that it is quite clearly a distinct human being. A fetus is not owned by a mother either – it has already been settled that human beings should not own each other.
Why does homo sapiens sapiens have original “rights” which other hominids, primates, and animals did not or do not have?
I never said they didn’t, but I don’t think the existence of human natural rights necessarily implies that possibly-sentient animals have rights of their own.
Comment by Ben Kennedy — February 27, 2006 @ 2:35 pm
It seems unlikely to me that our twig on the tree of life should have “original” rights indipendent from all other forms of life with which we share genetic origins. When did our “rights” pop into the picture? Why wouldn’t our cousin species have them? Your argument would have more credibility with me if you advocated release of captive chimpanzees.
A fetus is both distinct from and complexly part of it’s mother–biologically you could describe either aspect, but the latter analysis is more useful medically. In an ownership society, you could say a woman owns both her uterus and the occupancy thereof, and the sugars and proteins in her bloodstream.
Comment by Scroop — February 27, 2006 @ 6:31 pm
It seems unlikely to me that our twig on the tree of life should have “original” rights indipendent from all other forms of life with which we share genetic origins. When did our “rights” pop into the picture? Why wouldn’t our cousin species have them? Your argument would have more credibility with me if you advocated release of captive chimpanzees.
A fetus is both distinct from and complexly part of it’s mother–biologically you could describe either aspect, but the latter analysis is more useful medically. In an ownership society, you could say a woman owns both her uterus and the occupancy thereof, and the sugars and proteins in her bloodstream.
Comment by Scroop — February 27, 2006 @ 6:34 pm