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Belmont Club


March 29th, 2013 - 4:21 pm

According to Justia, in Roe vs Wade “the Court established that the word “person” as used in the due process clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection.”

However just when exactly a fetus crossed the magic line to personhood became more problematic as technology advanced. The neat “trimester” boundaries were soon overtaken by medical science. Just who was alive? Professor Teneille Brown, writing in the Yale Law blog examined legislation put forward by four states to measure consciousness in an effort to answer that question. They relied on the determining the ability to feel pain, arguing that  “at least by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.”

Brown objected to this approach since “this analysis hinges on how we define pain”. Moreover, it avoided the issue of potentiality versus actuality. Legally, persons are no alike, even if they are in some sense persons. Brown writes:

Legal definitions of personhood, while informed by philosophy and morals, are not bound by the same strictures. We can draw on theories of what counts as a conscious person, but under Constitutional analysis, we must answer a separate question: is this a legal person, endowed with relevant legal (as opposed to philosophical or metaphysical) capacities? The legal rights attached to various persons should necessarily change based upon the context, regardless of their moral or philosophical status as persons. To borrow from Peter Singer, “potential prime ministers obviously do not have the rights of actual prime ministers, so that ‘potential persons’ …can hardly be considered in the same moral category as actual persons, or ‘us’”.

Rather than being a binary construct that applies in all legal settings, legal personhood ought to depend on the legal context and the nature of the right that is at stake. Rather than putting forward an exhaustive list of criteria, (with “ability to feel pain” being a necessary and sufficient condition for all aspects of legal personhood), perhaps we should borrow from the bundle of sticks metaphor from property law analysis. Depending on the legal right that is at stake, you may have “enough” of the sticks in the bundle to be a legal person for this particular context. But we should be very careful not to put forward one stick in the bundle (i.e., ability to feel pain) and use it to argue that this entity is a legal person endowed with greater rights, with associated greater state protection, than the rest of us. The logical extensions of such an approach are far too sweeping to contemplate.

Brown is preparing the groundwork for abandoning a medical definition of personhood, since given the information present in a fetus, science capable of bringing it to term eventually. Thus, to preserve abortion on demand it is  necessary to shift its basis to a purely legal definition of personhood. Advances in technology are eroding the distinction between a fetus and a new born child.

When Roe vs Wade was promulgated, the lower limit of viability was 28 weeks. By the time of Planned Parenthood vs Casey (1992), it had dropped radically. So Planned Parenthood  abandoned time-based viability boundaries in favor of a “undue burden” approach.”

On account of technological developments between 1973 and 1992, viability itself was legally dissociated from the hard line of 28 weeks, leaving the point at which “undue burdens” were permissible variable depending on the technology of the time and the judgment of the state legislatures.

But costs also drop and “undue burdens” change.  Amilla Taylor was born in Florida after a term of only 21 weeks and 6 days.  Eventually that too may no longer serve defend abortion on demand. Bioethicist Dr Alberto Giubilini, an Italian based in Monash university, has signaled that viability and even “undue burden”  are no longer be a defensible line. He pointedly asks, “what is the moral relevance of birth in the times of neonatal intensive care?”

Sandra Day O’Connor was one of the first to anticipate the problem with using viability as a boundary for defining state interest in a life. Slate writes:

Justice Sandra Day O’Connor argued in a 1983 decision that Roe was on a “collision course with itself.” She said that improvements in technology would continually push the point of fetal viability closer to the beginning of the pregnancy, allowing states greater opportunity to regulate the right to an abortion. …

Some medical ethicists and constitutional scholars say that the Supreme Court was wrong to create the pre-viability/post-viability distinction in the first place. Why, they ask, does the fact that a fetus can survive outside the womb with the help of vast medical technology change either of the interests at war in the abortion debate: the fetus’s own claim to “human-ness” and a woman’s right to control her body? Even if viability is an important moral line, is it drawn in the right place? Keeping alive a baby born in the 22nd week costs several hundred thousand dollars and usually fails, regardless of the effort.

Dr Alberto Giubilini runs up the white flag and directly advocates after-birth abortion in his paper “After-birth abortion: why should the baby live?” In it, he completely abandons the distinction between a fetus at any stage and a live baby knowing that science will soon erase it. “The newborn and the fetus are morally equivalent,” he declares. The real issue, Giubilini argues, is not whether they are technically alive but whether society wants them to live.

If criteria such as the costs (social, psychological, economic) for the potential parents are good enough reasons for having an abortion even when the fetus is healthy, if the moral status of the newborn is the same as that of the infant and if neither has any moral value by virtue of being a potential person, then the same reasons which justify abortion should also justify the killing of the potential person when it is at the stage of a newborn.

Ah, now we cut to the chase.

The issue, according to Giubilini, is about cost and should be approached just like euthanasia. “Euthanasia in infants has been proposed by philosophers for children with severe abnormalities whose lives can be expected to be not worth living and who are experiencing unbearable suffering.”

Except in this case the abnormality some babies or fetuses  – they are  equivalent terms according to Giubilini — suffer from is acute sine pecuniam meaning, “the government ain’t got no money”.

Nonetheless, to bring up such children might be an unbearable burden on the family and on society as a whole, when the state economically provides for their care. On these grounds, the fact that a fetus has the potential to become a person who will have an (at least) acceptable life is no reason for prohibiting abortion. Therefore, we argue that, when circumstances occur after birth such that they would have justified abortion, what we call after-birth abortion should be permissible.

Giubilini’s arguments, though horrifying to some, bring an immense clarity to the debate. The problem, plainly put, is money and its handmaidens power and politics. Since babies — infants, fetuses, whatever — don’t vote, but constituency groups in favor of abortion do vote, the rights and wrongs of the matter are less important than the dollars and cents. It boils down to “who sent you”?

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One of the most ironic aspects of the legal debate is that the justification for abortion is anchored on the Fourteenth Amendment‘s right to privacy. Yet the Fourteenth also dealt with another group of legal unpersons. Blacks. “The Citizenship Clause (also known as the Naturalization Clause refers to the first sentence of Section 1 in the Fourteenth Amendment to the United States Constitution. This clause represented Congress’s reversal of that portion of the Dred Scott v. Sandford decision that declared that African Americans were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship.”

Whatever the legal niceties, the political parallels between Dred Scott and Roe vs Wade are bound to be articulated. “If the negro is a man, why then my ancient faith teaches me that `all men are created equal;’ and that there can be no moral right in connection with one man’s making a slave of another.” Lincoln’s words are just waiting to morph into “if the fetus and the newborn are equivalent then my ancient faith …”.

One of the reasons why the horrifying story of Kermit Gosnell’s Philadelphia abortion clinic has been largely ignored the media is that it contains every explosive element of the debate. There’s no Roe. Just the babies of poor black women butchered on an assembly line basis by a corrupt, incompetent and wholly callous “provider” who somehow evaded inspection for years.

fetal remains were stuffed into: ‘cabinets, in the basement, in a freezer, in jars and bags and plastic jugs’. Tiny baby feet, it is claimed, were discovered in specimen jars, lined up in a macabre collection. …

‘(He) regularly and illegally delivered live, viable babies in the third trimester of pregnancy and then murdered these newborns by severing their spinal cords with scissors,’ said a report of the grand jury that investigated Gosnell and his clinic for a year.

According to the report the ‘real’ reason for the Women’s Medical Society: ‘was not health; it was profit’.

‘Gosnell catered to the women who couldn’t get abortions elsewhere – because they were too pregnant.

‘For Dr. Gosnell, they were an opportunity. The bigger the baby, the more he charged.’

Most doctors won’t perform late second-trimester abortions – those in the 20th week of pregnancy, because of the risks involved.

But according to the report, Gosnell specialised in performing abortions well beyond 24 weeks.

The political reality of abortion is somewhat different from its espoused intentions. Gosnell’s clinic was really in the business of infanticide for poor people. We just didn’t want to call it that. Dr. Giubilini would be nodding knowingly. He after all,  claimed it was always about money and after-birth abortion and we had better face up to it.

The restrictions and wise-sounding boundaries were perhaps only ways to simply make the trade of death for money more palatable to social sensibilities but only at the cost of enlarging a legal doctrine that makes personhood dependent on a legal ruling. For if a man is what he costs the state, then of what value are the elderly, the disabled and the African-American?

What the Fourthteenth amendment tried to abolish was the notion of the Half Man. Now it may be used to create the Not-Yet-Man; something  not quite a man until he can be afforded. Can the contradiction be resolved?

A house divided against itself cannot stand. I believe this society cannot endure, permanently, half man and half un-men. I do not expect the society to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing or all the other.

Which thing will it be — ah there’s the rub?

The Three Conjectures at Amazon Kindle for $1.99
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All Comments   (43)
All Comments   (43)
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Abortion supporters always claim the moral high ground (evil always hides its nature, even from itself) by claiming to defend the woman's rights. I agree.
1. A woman has the right to remove herself from a situation in which her virtue is at risk. If she waives that right the takes responsibility for the consequences.
2. A woman has the right to refuse to engage in or limit the extent of affectionate exchanges that lead into procreative activities, she has the right to keep her knickers on and her knees together. If she waives that right she accepts responsibility for the consequences.
3. A woman has the right to obtain and employ any of a wide variety of easily available and readily employable contraceptive devices. If she waives that right she is responsible for the consequences.
1 year ago
1 year ago Link To Comment
There is a principle in Rabinical Law that,
'If you have broken one Law, you have broken all the Law.'
It is thematicaly the same as;
'He who saves one life, saves the world entire.'

Man, who will find an exit where there isn't one, searches out the letter of any law to see if he can't escape, somehow, between the lines.

God, Who is the law, looks at the spirit behind anything man does.
1 year ago
1 year ago Link To Comment
What is a man?
I asked the rabbi
“The image of the living God"

What is a man?
I asked the scientist
"Brother to the worm in the sod."

What is this creature, I asked the lawyer,
Who can love and hate and forgive?
She consulted page 1,289 and said
"Depends on the meaning of 'IS'.”
1 year ago
1 year ago Link To Comment
Lives unworthy of funding is here today. Tomorrow, if this evil continues, it will be designer test tube babies with warranties and returns.
1 year ago
1 year ago Link To Comment
Yes, it is interesting how they keep moving the goalposts. Thirty years ago the question of fetal viability had a lot of importance. I held at the time that life began at conception, so I was "one of THOSE", meaning troglodyte Neaderthal bitter-clingers who rejected science and clung to medieval faith. But at least I got to use my unassailable, show-stopping revelation of truth more in conversations:

Q: "So Cowboy, when do you think a fetus becomes viable?"
A: "When it has a job."

To find a silver lining, all that absurd side-stepping about viability can perhaps be retired, as science has now caught up our original medieval proposition that life does indeed begin at conception (no thanks to those who bore the truth all along, of course).

Yet despite that ray of hope, realities seem to indicate that science, reason, logic, compassion, or whatever else finds employment in carrying the arguments, really has no effective bearing on the situation. The problem is that the modern commitment to feminism simply trumps everything. When we find that we've arrived at the point that outright infanticide is openly advocated today, we must admit that something was wrong yesterday, too, if it led to this today.

We must admit that our culture is standing on top of a mountain of lies, or wrong beliefs and practices not easily removed or dislodged. What may have to happen is that we all come tumbling down off it (descent is always perilous and the worst part).
1 year ago
1 year ago Link To Comment
Those who see no evil in killing babies believe that anything is acceptable because there is nothing beyond their own existence. But they are wrong. Easter Saturday seems a good time to set the matter straight.


The telescope doth wonders show
Of galaxies of billion stars
Backlit by hydrogen aglow
All racing up the red shift bars
Some say the universe was not
That nothing was, had always been
Then nothing suddenly got hot
And into something it did spin
And in that something there arose
Some hydrogen, such tiny things
And that in time the story goes
Gave birth to cabbages and kings
And yet that story gives one pause
Just how did nothing come to be
A something, was it just because
Of accident, or destiny?
One cannot look through telescopes
And think it came about by chance
A higher power gave us hopes
And dreams, and invites to the dance

1 year ago
1 year ago Link To Comment

Of course the debate over abortion has devolved to class warfare and victimology. How is it that components from both the man and the woman become the sole purview of the female? Certainly there is a health related issue but the decision of viability stands on the desires of the woman regardless of any input from the man. She can decide to abort it or sue the male for child support. This system disenfranchises fatherhood and inserts the state into the position of second party and the male into the position of the third party.

Now consider that a person who batters a pregnant woman is now held responsible for the health of the woman and the fetus. How exactly does that work should the woman be involved in a negligent car accident on the way to the abortion clinic? The fact remains is that the line is defined by the interests of one party when in biological fact two parties are involved. It boils down to greed. A woman was endowed with a body that has certain biological traits, bearing children being the greatest of those. The most prominent difference between the man and woman is that man is bigger and stronger and carries the key to genetic mutation.

Suppose a woman reserves the right to use her body in any manner she sees fit to kill an infant, does not a man have domain over his body not have the right by natural law to kill the same? The argument goes that a woman has a womb and can do what she wants with it even though other parties are invested in it. How about a man doing with his what nature has given him? What if it is inconvenient for a man to pay child support for 18 years? Does he have the right to terminate the life of the baby or the mother for that matter? What makes her life so viable if it is not to raise offspring?

If some legal definition of where the line is crossed cannot be reached then the next reasonable step would be to put the state as a licensing body for the womb and disallow its use unless specific requirements are met to the satisfaction of the licensing body. Why should that be a stretch at all? We are told that fat people and those who do not exercise enough pose an undue burden on the public bursar. What right does the individual female have to expose her eggs to a third party’s DNA when the second party of the state bears the greatest burden in its regulation? The state having created this dilemma cannot reasonably foist the full consequences of this decision on the male. With the exception of rape, sex is between a woman and her government and that is where the current burdens must lie.
1 year ago
1 year ago Link To Comment
This is a fundamental difference between the Judaic and Christian traditions. In Christian theology, laws have been seen as reflection of underlying morals. In Judaic tradition, laws formed the morals.

Romans 8:3 For what the law was powerless to do because it was weakened by the flesh, God did by sending his own Son in the likeness of sinful flesh to be a sin offering.And so he condemned sin in the flesh, in order that the righteous requirement of the law might be fully met in us, who do not live according to the flesh but according to the Spirit.

The problem in Christian theology is that, as much as laws are doomed to failure because of human influence, so are morals. We don't do, all the time, what our morals tell us we should.

1 year ago
1 year ago Link To Comment
Romans 7:
24 O wretched man that I am! who shall deliver me from the body of this death?

25 I thank God through Jesus Christ our Lord. So then with the mind I myself serve the law of God; but with the flesh the law of sin.
chapter 8:
1. There is therefore now no condemnation to them which are in Christ Jesus, who walk not after the flesh, but after the Spirit.

2 For the law of the Spirit of life in Christ Jesus hath made me free from the law of sin and death.
1 year ago
1 year ago Link To Comment
Unsk - Simple. Make abortion of a foetus that would be viable if given the chance illegal. This does, of course, mean that the legal age for abortion would move relentlessly downwards as medical technology improves. However, I think there is a limit to that; the point at which a nervous system starts developing might be a usable one.

lgude - That is the point, isn't it? A full-term foetus (pre-birth) is human - possibly excepting such gross non-survivable defects as anencephaly. I, and a great many others, would argue that a single-cell zygote is not. Where to draw the line is the issue - to my way of thinking, the entire issue.
1 year ago
1 year ago Link To Comment
For myself, I find it illuminating to remember that this issue has been struggled with by moral people, and an ancient observation given much credence by past generations is the concept of "Quickening". This is the point at which the foetus/baby begins to move independently inside the mothers womb, and usually occurs in weeks 18 - 20 of the pregnancy.

Blackstone, in his famous treatise on Common Law first published in 1770:

"Life… begins in contemplation of law as soon as an infant is able to stir in the mother's womb. 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 ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor."

Sometime after this the extremists on both sides took over the argument - the religious philosophers who argued life *had* to start at the point of conception or not at all, and those in opposition who hold that it is either at the point of birth or not at all. The great shame of all of this is that our ancestors not only had this argument but figured out the most reasonable and acceptable compromise position, one everyone was able to live with. But we've forgotten all that, because of course we know better than anyone who came before.
1 year ago
1 year ago Link To Comment
I have long thought that the issue of viability was pro-choice's achilles heel.

Exactly how can a legal system based on our Constitution say one individual born at 22 weeks is now guaranteed all the liberties including Life, Liberty and Property granted in the Constitution and another at 22 weeks down the street murdered at some abortion clinic not?

The circumstances are equal; why are not the rights?

To me, this is not a moral or religious issue; it is simply one of honest jurisprudence. To allow the murder of the individual at 22 weeks, when they are now viable, is to deny their rights under the Equal Protection Clause.
1 year ago
1 year ago Link To Comment
Michael Crichton's A Case of Need depicts the pre Roe vs Wade scene in America - specifically Boston. Abortion from competent doctors was certainly available in those days to middle class women with the right connections, and there were certainly 'back street' abortions available with all the attendant risks. It wasn't a satisfactory way to deal with the situations people got themselves into. I'm not for going back to making abortion illegal but I have no patience with any of the arguments about viability. From the moment of conception we are talking about human life - not giraffe or any other kind of life. I don't think women should be forced to bring unwanted babies to term but I think we should save as many of those unwanted babies as we can. Abortion at the rate we are practicing it has demographic consequences too. There are some eye popping lessons to be learned from the abortion rate map of the world.
1 year ago
1 year ago Link To Comment
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