Our Faith-Based Justices

In Gonzales v. Carhart, the Supreme Court, in a five-to-four decision, upheld the constitutionality of a federal law prohibiting so-called “partial birth abortions” (properly described as “intact dilation and evacuation” or “intact D & E”) despite the absence of an exception to protect the health of the woman. Gonzales reversed an earlier decision, Stenberg v. Carhart, in which the Court had held a virtually identical state law unconstitutional, primarily because it failed to include an exception to protect the health of the woman.

In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation. The majority accepted  those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.

Among Congress’s clearly erroneous “findings” were its assertions that no medical schools provide instruction on intact D & E, that intact D & E is never necessary to safeguard the health of the woman, and that intact D & E is less safe than alternative procedures. Each of these “findings” was and is false. In fact, many laws schools, including Chicago, Northwestern, Yale, Columbia, teach intact D & E; there is a clear medical consensus that in particular circumstances intact D & E is necessary to protect the heath of the woman; and there is a clear medical consensus that in particular circumstances intact D & E is safer than the alternative procedures.

It is not unusual for the Supreme Court to give deference even to implausible legislative findings. But the findings must at least be rational and, when a law restricts a fundamental constitutional right, the findings must be almost unimpeachable. In this instance, every federal court that reviewed these congressional findings rightly described them unreasonable, unbalanced, polemical, and unsupported by the facts.

The five justices in the majority in Gonzales have put at risk the health of women who suffer from heart disease, uterine scarring, bleeding disorders, compromised immune systems, and certain pregnancy-related conditions, such as placenta previa and accreta, as well as those women carrying fetuses with certain abnormalities, such as severe hydocephalus. In all of these circumstances, and many others, the use of the intact D & E is necessary to ensure the health of the woman.

It is important to note that the prohibition of intact D & E has nothing to do with preserving the life of a fetus. The “partial birth abortion” law does not prohibit any abortions. Rather, it prohibits only a particular means of performing abortions. If the woman is willing to undergo a greater than necessary risk to her health, she may terminate her pregnancy by other, less safe, methods. She may, for example, have the fetus terminated by injection prior to extraction, or removed by cesarean, or extracted by non-intact D & E (which involves dismembering the fetus in utero).

What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is “immoral” and may be prohibited even without a clear statutory exception to protect the health of the woman.

By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman “to determine her life’s course” is at stake, it is not for the state -- or for the justices of the Supreme Court -- to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith.

In 1972-73, I had the privilege of serving as a law clerk to Justice William Brennan, then the Court’s only Catholic justice. It was in that year the Court decided Roe v. Wade. Justice Brennan struggled in that case, as he struggled in earlier cases involving such issues as school prayers, to separate his personal religious views from his views as a justice. He joined the decision in Roe because he believed in the separation of church and state and because he was convinced that his religious views must be irrelevant to his responsibilities as a justice.

As the Court observed fifteen years ago, “Some of us as individuals find abortion offensive to our most basic principles of morality, but than cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example.

Comments

[Erasmussimo]

Mr. Dursse, some refinement of your statement is in order. You write, "over half the country is opposed to abortion." It is true that a solid majority of Americans are opposed to the D&E abortions; however, it is also true that a solid majority of Americans are in favor of abortion under a broad range of circumstances, including early stage abortions, cases of rape or incest, or when the mother's life or health are threatened. The exact breakdown of opinions is a multi-dimensional issue.

[UofCMD]

In response to Erasmussimo:
1. Nitpick #1 - you are flatly wrong. Unless you consider Buddhism not to be a religion, atheism is a religion. I suggest that you read Buddhist, Jain, and Carvaka philosophies. That atheism is a "faith" is underscored by its principal primitive or axiom - it, with certainty, denies the existence of God (as opposed to agnosticism).
Furthermore, you are digging into a deeper logical pit - "objective value system" - what exactly is that? That is an oxymoron. Value systems cannot be objective. Values have no basis other than our feelings. My point is that secular values are as unfounded as religious values.
2. Nitpick #2 - I chose the term "secular humanism" perhaps in error, but mot of the prominent proponents of Prof Stone's views (the separation of church and state crowd) are indeed of this school. The term "secularist" is more correct in retrospect. And I do not see anything at all wrong with that term. "Materialist" is also appropriate - these are the sorts of people who concoct (to use your term) the notion that there is such a thing as an "objective value system." Perhaps what such people mean is that their beliefs are couched in the notion of perception of occurrences in the natural world, i.e., empirical detection (using charged words like subjective to characterize religion and objective to characterize the counter-view is in my opinion completely inappropriate). This is of course central to the performance of science, and I personally BELIEVE in it. But again, that too is an axiom, for which there CANNOT exist a logical basis.

[I know this is getting far afield of the matter at hand, but...
Here is a disturbing problem for the so-called objectivist/empiricist/materialist (word of your choosing) worldview. How are differences in perception explained? There are people who most of classify as mentally ill (specifically delusional), who in their minds perceive occurrences differently from the majority of us. Does that make those people wrong? Whose perception is right? The pragmatic answer is to invoke democracy, namely that the majority perception of events is that which is taken to be true. This is in fact an example where most religious persons are in a position of strength, because they invoke a reality whose frame of reference is in some measure external to humanity, namely God. The truth to the religious person is revealed or articulated by God, and is thus unwavering. Our scientific truths are entirely dependent upon our perceptions of the world, and this results in tumultous revolutions in science. Thus, brilliant scientists' theories have been "empirically falsified", but the LOGIC is generally not what has been wrong, but rather it is the AXIOMS which are wrong (when I mean wrong, I can of course only mean this in the context of assuming the validity of empirical testability, which is itself a belief).]

[Francis Beckwith]

KC writes:

"Yet, by Carhart II and in regard to partial birth abortions, Catholic doctrine is made the law of the land, even where the principal facts of record do not support that outcome."

It's not clear why that is necessarily wrong, if there are good arguments for the doctrine that need not rely on church or scriptural authority. For example, the Unitarian/Universality Church supports Roe v. Wade as vigorously as the Catholic Church opposes partial-birth abortion. Is the current law under Roe making Unitarian doctrine the law of the land? Of course it is. But so what? People have arguments for a variety of policy judgments that happen to align with theological traditions. Unless you think that theological claims of religious traditions in-principle can never be rationally supported (which seems to be a completely outrageous claim), then your comments reveal an anti-Catholic bigotry.

[UofCMD]

An error: what I meant to quote was "objective foundation for such value system." There can be no such thing, although from what you wrote, it is conceivable that you do not personally believe in the quoted notion.

[Erasmussimo]

UofCMD, I believe that you are ferociously attacking shadows. You declare me "flatly wrong" in saying that the term 'religion' is commonly interpreted to refer to a belief in a god. Well, OK, we could argue about the difference between 'commonly interpreted' and 'absolutely correct', or whatever your meaning is. But I consider such an argument specious.

On the matter of the 'objective foundation for such value systems': Perhaps you should go back and re-read my comment. If you check the last sentence in the first paragraph, you will find that you are in furious agreement with me.

The remainder of your discussion seems interesting but I see no relevance to my comments or the topic at hand. Correct me if I'm wrong, but you seem to be suggesting that the axioms used by a religious person are somehow "better" (and I really don't understand what that would mean here) than the axioms used by an atheist. My point (and perhaps once again we are in violent agreement) is that there is no objective foundation for either set of axioms.

[UofCMD]

To Erasmussimo:
Just to clarify, I agree with your characterization of what I had written, with the exception of the phrase that you used re: objective bases for value systems - but this is an important distinction. A: there is no such thing. B: it seemed to me that you believe that there is, based on the fact that you wrote it. My brief post after my 2nd post does indicate that if in fact you cite this as a concept without in fact believing in it, then we are totally in "violent agreement" as you put it. As you state, this is nitpickery. Getting back to the main point though, what caused me to post in the first place (I was linked from National Review, if that gives you any idea of my leanings) was Prof. Stone's insinuations that secular beliefs are somehow superior to religious beliefs, at least with respect to their influence on the law. I not only hold, as I think we can agree on, that beliefs are beliefs (no rational basis for choosing between them, excepting maintenance of consistency with other beliefs held), but I do think that belief systems do constitute religion, even in the absence of a Supreme Being. While the common understanding of religion may include God (although this may come as news to several hundred million Buddhists), that does not make it correct. Not that Wikipedia is a great authority, but religion is defined as follows: "A religion is a set of beliefs and practices generally held by a community, involving adherence to codified beliefs and rituals and study of ancestral or cultural traditions, writings, history, and mythology, as well as personal faith and mystic experience. The term "religion" refers to both the personal practices related to communal faith and to group rituals and communication stemming from shared conviction."

I don't claim that any axiomatic system is better. It is in specific instances where some seem to be more workable than others - practically speaking. The example I cited is a deep problem with materialist philosophies. However, religion carries with it the problem of practical uselessness (excluding emotional well-being). There are no empirically testable predictions of religious "theories" - that said, testability has nothing to do with truth per se. With respect to the law, both belief systems can be problematic. In fact, it is most religions whose definitions of "life" are more narrow and at odds with the pro-life movement - it is in fact biology which is most in its favor (although in Hinduism is fairly clear even in the Vedas that fertilization initiates human life).

My big problem with people like Prof. Stone is their cocksure confidence in the superiority of their beliefs, without any real thought behing this confidence. It makes me wonder whether such people have even a nodding acquaintance with philosophy or logic. A little humility is in order on all of our parts with respect to the beliefs that we hold so dear. If you look at human history, since there is no rational method for choosing beliefs, it is unsurprising that the way in which we tend to choose as societies, at least on big issues, is by killing each other in wars. In more civilized locales, we've got political systems that express majority views, although those too have their flaws. At the end of the day, and I happen to be fervently pro-life, these are all matters of deep-seated belief, not high level legal ratiocination. I will say however, signing off, that the vast majority of those who hold so-called pro-choice (anti-life might be more accurate) beliefs, if they took such beliefs to their logical ends, would reach very unsavory conclusions.

[TM Lutas]

Kimball Corson - It is an outright anti-catholic libel to say that this judicial decision enshrines the Catholic view of abortion even with respect to partial birth abortion. It most certainly does not. Catholics seeking to establish their religion would not have ruled on such narrow grounds, nor would they have left any room for reversal on grounds not argued in this particular case.

Erasmussimo - I did not overlook your point about how our ancestors supposedly never felt their babies kick inside the womb and didn't imagine that they were alive when they were unborn. I simply judged it too stupid to waste my time addressing unless you compounded the error by actually defending the point. And there you go...

Babies kick, turn, and you can hear them sometimes before they emerge. No woman is unaware of the internal activity and dads often are privileged to see and feel fetal movement. That you think that ancient man would have all this evidence and conclude something other than "it's alive" beggars belief. Tell me you're joking.

LAK - Nice to see that know-nothingism is preserved in academia. Does the U of C keep a pet phrenologist in the freak show as well?

[Erasmussimo]

UofCMD, it appears that we are indeed very close in our beliefs here. I'll offer another minor disagreement: I think that there is a distinction to be made -- albeit a very fine one -- between belief systems and the logical treatment of them that is carried out in legal analysis. Thus, the determination of when a fetus is given legal status is part of a belief system, but the logical analysis of precisely how that status applies in particular cases must follow accepted principles of objective logic. I think that this was the point that Mr. Stone was driving at, although I think he failed to express the point with clarity, bringing in some associations that are all wrong. But again, I see nothing in your comments averse to this point and I suspect we are in agreement here as well.

This may surprise you, but I also agree (with some important qualifications) with your final statement. Yes, a total denial of fetal humanity right up to the moment of birth does raise some unsavory possibilities. But I suspect that there are few people who hold to such an extreme view. Most people, even pro-choice people, acknowledge a gray area during the third trimester, with a spectrum of opinion on fetal humanity. And when we talk about the first trimester, it's difficult to imagine unsavory consequences of denying fetal humanity.

Mr. Lutas, you seem to have a penchant for phrasing yourself in ugly ways. Yes, I will defend my point. Until quite recently, the medical arts presented humankind with a simple logical truism: before birth, the fetus was unviable. If the fetus was brought into the world before birth, it died. Therefore, most cultures simply did not assign any humanity to a fetus.

I do recall reading somewhere that a few cultures using criminal systems akin to the old German weregild system did assign some value to a fetus: harming the mother in such a way as to cause her to spontaneously abort the pregnancy did require some payment. However, the payment was made to the father and was much less than the payment made for killing a child.

There were also plenty of cultures that did not assign any humanity to a newborn infant until after some interval. The Romans, for example, permitted the father to reject the infant for any reason, in which case the child was left to die. The Spartans went even further: any child judged to have any flaw was automatically killed. Many cultures differentiated between the birth of the infant and the acceptance of the infant into society as a human being, this distinction normally being expressed in a naming ritual. The assignment of the name is what made the infant a protected member of the community, not the fact of birth. We still see a faint echo of this practice in the ritual of baptism.

[UofCMD]

To Erasmussimo:
I think we are in the main in agreement, and I agree wholeheartedly with the notion that logical treatment of belief systems is what is necessary in the domain of law. That said, this is precisely why I think that the pro-choice crowd is on logically weak ground, and I happen to think (and will attempt to show) that any viewpoint that denies human rights to the zygote onwards (i.e., any stage post-fertilization) is not merely on a moral slippery slope, but rather on the edge of a precipice. As you yourself state, most people on the pro-choice side of the issue inhabit a gray zone. As a medical matter, this business of trimesters is a total concoction of medically untrained people, and is totally arbitrary. In fact, there are perhaps biologically better timepoints, which are not in use in the legal system.

Let's begin as follows:
1. First "pro-choice" argument - the zygote/embryo/fetus is not life. This is just plain false based upon what we currently accept as the definition of life in biology. So, this moves us to:
2. Second argument - well, prenatal life may be life, but this is a human LIFE but not a human BEING. Why is that? Well, at least prior to 8 weeks, organogenesis is not complete, so how could a developing life be treated as a full-fledged human if it does not even have the requisite "parts"? OK, but let us then take this argument to its logical conclusion. If this is the case, then any human being with even a single developed but dysfunctional organ - most people in a hospital (e.g., in my line of work, someone in heart failure in need of mechanical circulatory support or heart transplantation) should not be treated as a human being. [Such patients, if taken care of by taxpayer-funded insurance, could then be arbitrarily denied treatment as they are not human.] Why should a non-functional developed organ be treated any differently from a non-developed organ, biologically speaking? OK, says the pro-choicer, but the person with organ system dysfunction is an independently viable entity, in contrast to in utero life. This brings us to:
3. Third argument - the most popular one, because the other 2 usually fail to pass muster for the above reasons. This is all about viability. If a life A is dependent upon life B, then life B may do as it wishes with respect to life A (the common example being the man arteriovenously connected to a famous musician in renal failure, serving as his dialysis circuit) without recrimination. Why is this a problem? At least two reasons. a) The definition of dependency to be in utero is obviously arbitrary. Babies are incapable of caring for themselves, and require nourishment ex utero just as they do in utero. The pro-choice retort I will discuss in 4. b) If one uses this argument, again, some troubling logical conclusions are reached. Our friend in heart failure may in fact require cardiovascular support with drugs or mechanical assistance. Suppose the hospital is tight on beds, and the ICU physician wants to bring someone else in. What do you think about the physician arbitrarily shutting off the drugs or machines keeping our friend alive? I mean, this patient is simply dependent upon the care of the ICU physician. And this is only one example. Using viability as a criterion for assignment of status or rights is dangerous, and I believe wrong. c) The state of viability, with medical advances, is in continuous flux, with earlier and earlier successes. Until recently, 24 weeks was accepted as a developmental ex utero viability timepoint. Yet, it is an absolute fact that "micro-preemies" younger than this age have been successfully delivered. All one needs is a single counter-example to falsify an argument. Based on this, any abortion performed prior to the earliest recorded time a micro-preemie has ever been delivered is unjustifiable to the pro-choicer invoking a viability argument. Basing an argument upon a shifting criterion is hardly sensible.
4. Retort to 3a, as the pro-choice argument continues to paint itself into a logical corner: The fetus is uniquely dependent upon the mother (i.e., upon the mother alone, who is irreplaceable), whereas the caregiver for a delivered baby could be anyone. Even this is in question, based on current medicine. In vitro fertilized embryos can be implanted into a non-biological mother female carrier (surrogate). So where is the pro-abortion argument left? Nowhere as far as I can see.

I cannot think of any logical way to justify pro-choice thinking unless one accepts some very disturbing conclusions, which I do not think even most pro-choicers would not want to. And if they are unwilling to do so, they are in the logical wrong. Now, this is not to say that people on my side are not without problems. But here I can only think of one, and that is the issue of life created by non-consensual intercourse is treated. Most pro-life politicians claim that abortion should be allowed in instances of rape. But the life created by rape is obviously biologically indistinct from that created by consensual intercourse. So to be consistent, we have to (and I do) accept that abortion must not be permissible even under such circumstances. And I have to be consistent; this too is troubling to me, as it may punish the victim of a crime.

I am no legal scholar, but it seems to me that abortion law is based on a horrifically shoddy understanding of elementary biology and medicine by those in the legal profession. As such, we are left with opinions like Prof. Stone's.

[Erasmussimo]

UofCMD, I don't think you've hit upon the most important pro-choice argument: that the creature inside the womb is not fully human in the sense that it has no consciousness, no language, no moral sense, and no emotional relationships with others. Yes, it has precursors to all of these -- but nowhere near the full function. Functionally speaking, it is no different from, say, a chicken. (In fact, I once juxtaposed images of a chicken fetus and a human fetus, and asked, "Which of these has an immortal soul and which makes tasty McNuggets?" Not many people could tell them apart.) Unless you want to grant inalienable rights to chickens, you've got a problem here.

Actually, we all have a problem here. We don't grant special rights to dogs, yet dogs are clearly more advanced creatures that human fetuses up to, what, maybe six months? A dog can interact with you emotionally at a much richer level than a fetus. A dog has feelings far more subtle than a fetus. So, if we're going to save fetuses, why shouldn't we make killing a dog a form of murder?

I am using the example of the dog to illustrate the many inconsistencies in our thinking. For example, anybody raising chimpanzees for meat, and treating them the way we treat chickens, would surely garner universal ire. Yet we have no legal basis for stopping them. Or how about the people who eat live monkey brains by sawing off the top of the skull, fixing the monkey in a frame, and digging in with a spoon? We find that profoundly disgusting, yet it's done in at least one Asian culture. Could we outlaw it here without also outlawing all forms of abortion?

If a single-celled fertilized egg is sacred and must not be killed, then isn't washing your hands with antibacterial soap a form of mass murder? What should we do with the rejects from in-vitro fertilization? Right now we flush them down the drain. Is that a crime?

The problem, as you point out, is that there simply is no clear dividing line. Right up until a century ago, there was a clear dividing line: birth. But that dividing line has been blurred right out of existence. There is a continuously smooth gradation from zygote to newborn infant. Perhaps we should modify our laws to reflect the different gradations of humanness in the various stages of development. But again, we run into a problem: if a six-month old fetus deserves protection, then shouldn't a chimpanzee deserve even more protection?

The other factor here is that the burden of gestation is imposed upon the woman. I would therefore propose that, if we are indeed to impose that burden upon an unwilling woman, then we should pay that woman an appropriate fee for her gestational services. We simply take the current going rate for gestational services and pay EVERY woman who asks for an abortion that fee. If the woman accepts the fee, she loses all rights to the infant.

I have no idea how pro-life people will react to raising their taxes in this way. I think it only fair, however, to demand that people put their money where their mouths are.

[UofCMD]

Erasmussimo, Item #2 is precisely the view which you are articulating, namely that a fetus is a human life form but not a full-fledged human being. My point in essence is that the distinction is somewhat arbitrary, and that, more importantly, if this distinction is made, then there are some important and I think dangerous sequelae. You raise a very valid point in rejoinder - not to cast aspersions, but this happens to be the argument of Peter Singer. Let me reply as follows: I happen to be a strict vegetarian, and believe in the concept of animal rights and the minimization of harm to animals (we call this ahimsa in Hinduism, a term originally from the Jain religion - in fact, Gandhi's motto was ahimsa paramo dharmah - non-harm is the supreme righteousness). And in fact, our society does confer limited rights upon animals as you mention. As someone engaged in medical research, I do think that there are ethical ways in which to perform animal research, and to minimize not only killing, but also suffering. Also, motives are key here. We do animal research out of necessity, to save human lives. I would never support animal research if there were a viable alternative, nor would most people, because that is wanton killing - getting off on killing animals. That is why I do not believe in the wanton taking of life - fur coats, meat, etc.. Do I believe in ES cell research etc. then? No. You may fairly ask why not, and my answer is simple, which is that different species are different - while non-human animal life is valuable, human animal life can and should be treated differently - we are unique. What abortion raises as a moral question is the treatment of different human lives differently. By the way, I do think that flushing IVF embryos down the drain is wrong for the aforementioned reasons.

All species treat their own distinctly from others. Comparing an adult chicken to a zygote, certainly a chicken has a sensorium that is more advanced than that of the zygote, but the zygote, as you would concede, has all of these materials codified but not in production yet. In other words, we are dealing with lives with potential, rather than potential lives.

Using anti-bacterial soap is "mass murder" in fact, but there is a fallacy in that analogy - the bacteria in question pose threats to us, and it is that which drives antibacterial soap use. I do not believe in going around and randomly killing living things, and neither I suspect does any other sane person. The only subgroup of abortions appropriate for that analogy are those performed in the case of maternal endangerment, which nearly everyone, including me, thinks is a moral exception (even the Catholic church I think).

So then this brings us to your comments about burdens of pregnancy etc.. This is where I find the matter most disturbing on the pro-choice side. It is estimated that 90% or more of all abortions are purely elective, which is a nice way of saying that that the mother does not want to have a baby, whatever the reasons might be. In these 90%, the burden you mention is SELF-IMPOSED; if these women did not want to have children, they ought not to have gotten pregnant. Particularly in an era where non-abortifacient contraception is easily and cheaply available, unwanted pregnancy is just plain irresponsible. And in cases of contraception failure, well, all activities have risks, what these women want is to render sex risk/consequence-free. Weighing the values of different stages of life should not be an issue in the overwhelming majority of abortions, thus, because on the side of the fetus is a right to exist, and on the side of the mother is what...her right to have a good time without consequences? Hardly seems a fair comparison.

As to compensation, I do think this appropriate in the case of FORCED, not self-imposed, gestation, i.e. rape victims.

[Erasmussimo]

First, I congratulate you on the consistency of your ethics. It certainly bothers me to encounter someone who talks about the sanctity of life while munching on a hamburger. I suppose this makes *me* consistent in my bloodthirstiness -- but I won't follow up the concept.

I'd like to offer an interesting thought experiment to help our discussion. Let us imagine the day when medical science is able to completely replace the female uterus. From the moment of conception forward, we can at any time provide artificial support for the developing zygote, blastosphere, fetus, etc all the way to birth-maturity. In other words, viability is assured from the moment of conception. Surely we can all admit the technological feasibility of such a device.

What would such a technology mean for our abortion debate? If we add the assumption that extraction of the developing creature from the womb is safe and easy, then there is simply no longer any justification for abortion. The mother might object that she doesn't want to have any loose progeny running around, but I think that objection can readily be dismissed.

This thought experiment suggests a possible strategy: in any case where the fetus is viable, then abortion must be replaced by extraction. Unfortunately, this raises a new problem: what happens if (as is likely) extraction is more dangerous to the mother than abortion? What calculus of probabilities controls our decision-making? Is a 10% risk to the mother low enough to justify an extraction that has only a 50% chance of success? Do we take the course of action that yields the highest expectation value for the number of human lives? What if extraction of the fetus creates a high probability of death for the mother? Can we truly tell the mother that her life is not as valuable as the fetus'?

Our current thinking, as I understand it, is that the health of the mother trumps the health of the fetus. If the pregnancy poses any threat to the health of the mother, we approve of abortion. But if we declare that the fetus is just as much a human as the mother, as you would have us do, then we must abandon this calculus.

Moving along, I find your judgemental approach towards the woman's pregnancy inappropriate. Whether she's a saint or a slut doesn't really matter. If we can deny abortion to a woman because she had a choice not to get pregnant, why shouldn't we deny treatment to an injured car occupant who wasn't wearing his seat belt?

Moreover, it takes two to tango, so, if we want to get moralistic about this, the man bears just as much responsibility as the woman. Perhaps *he* should be made to pay half the assigned cost of the pregnancy. And what if he can't pay? Do we shrug our shoulders and tell the woman, "Tough luck, you should have had sex with a richer man"?

I'm not sure of the answers to these questions. I enjoy discussing them with you, even when we don't arrive at conclusions. I disagree with some of your assertions, but the larger discussion is, I think, more important.

[Dana]

Erasmussimo wrote:

This thought experiment suggests a possible strategy: in any case where the fetus is viable, then abortion must be replaced by extraction. Unfortunately, this raises a new problem: what happens if (as is likely) extraction is more dangerous to the mother than abortion? What calculus of probabilities controls our decision-making? Is a 10% risk to the mother low enough to justify an extraction that has only a 50% chance of success? Do we take the course of action that yields the highest expectation value for the number of human lives? What if extraction of the fetus creates a high probability of death for the mother? Can we truly tell the mother that her life is not as valuable as the fetus'?

At that point, we must tell the mother that her convenience does not outweigh the life of the unborn child. She has a decision to take: is remaining pregnant (something which will eventually end, naturally) for the few months between a "risky" extraction" and normal delivery sufficiently bothersome to her that she is willing to risk the greater odds of death for herself?

Our current thinking, as I understand it, is that the health of the mother trumps the health of the fetus. If the pregnancy poses any threat to the health of the mother, we approve of abortion. But if we declare that the fetus is just as much a human as the mother, as you would have us do, then we must abandon this calculus.

But that isn't our current thinking. Right now, the wishes of the mother trump the life of the unborn child. If she wishes to have an abortion, for any reason that strikes her, whether serious or frivolous, she may have the abortion -- and the life of the child does not count.

[David Lund]

Thanks to Prof. Stone for putting on clear, public display the last acceptable prejudice in America. Another proof that insular academia is one of the last bastions of shameless bigotry in the culture.

[Kimball Corson]

And Catholics are not bigoted or prejudiced? Am I right? They only want it to be their way or -- not the highway -- but rather, Hell, if you disagree. Catholic apologetics is all about why you must think as they do or be a failed outcast, condemned to eternal damnation. What could be more bigoted or prejudiced than that? Think as I do or you are forever lost and will burn in Hell. It makes Nazi propaganda look progressive and liberal. At least the Nazis where up front about their views. Around intelligent progressives, Catholics soft-peddle their dogma and pull their punches as best they can, but among themselves it is hard-line apologetics all the way. Worse, as is clearly shown here, they don’t see the irony of their position or why anybody might oppose it.

(P.S. I found a cove for a day where I just happen to have wi-fi)

[anon]

Not to mention some of the biggest drunk and violent bigots and racist I have ever met, and ironically some of the biggest womanizing sexist pigs I've ever met are practicing Catholics from Beverly/ the S. side.

[Erasmussimo]

I must protest characterizations of Catholics. While I have no problem accepting broad generalizations that are well-documented, I think it extremely imprudent to make group generalizations that do not have strong evidence in their support.

[Den Activist]

Geof, I haven't read everyone's response but I believe you are mistaken to believe that the reason the decision was ONLY made due for 'religious' or faith-based reasons. I am female and politically pro-choice, but morally pro-life.

1. I believe we should all consider that there are other abortive options for females that does not expose the fetus to guaranteed protection by the state.

2. They sought to determine WHEN a fetus/unborn child have RIGHTS, INDEPENDENT of what the woman determines how she should handle an unwanted pregnancy. --Here the court has determined that a fetus, in a particular gestational stage, while having part of his/her body exposed OUTSIDE the mother's womb is ENTITLED to protection by the state under the doctrine of Parens Patriae.

3. The court with this ruling has made a determination that a a) fetus in the 2 trimester b) who has been exposed outside the womb, c) is a human-being, d) is entitled to unalienable rights, and e) is due protection by the state.

If you had carefully read the statement giving the unborn child that is handled outside the womb, you'd understand the rationale behind this act.

What Bush has done has been to throw a bone at pro-lifers the very same way Clinton threw a bone at homosexuals in re to gays in the military. Bush hasn't moved to stop abortions, he has moved to define when life begins and protect that life as we entrust our government to protect our life and the life of those whom we love.

It has long been my position that the right of a woman to terminate the life of the fetus is only a tool used by insecure men to get away from their responsibility and to further denigrate women. --But that is neither here nor there in terms of the topic at hand.

Attorneys have been designated to be advocates of justice in keeping with strict ethical standards and the law of the land, The US Constitution. Therefore to deny the right of the innocent means that we as a society are in deep trouble.

One would think attorneys would look beyond the politics of the day and evaluate any piece of legislation based on its merit and the effect it will have on society as a whole.

[Den Activist]

One more issue that should merit mention--we have laws protecting laboratory animals, yet this act has sparked all sorts of unnecessary debate about the reason why it was passed has been due to faith-based agendas.

It is incredible that such so-called intelligent people miss the point that positive morals values CAN be held by those without a religious disposition, or no?

[Kimball Corson]

TM Lutas suggests I read "How the Catholic Church Built Western Civilization" by Thomas Woods. I have, and within the last two years. Woods' book is very naive and defines western civilization far too narrowly. It does not really address the modern era or indeed the postmodern era either, at all effectively. It is like programs in philosophy in Catholic universities and colleges: where is Nietzsche or anyone important after 1870, except possibly Heiddiger, and then as a Christian apologist with heretical views. Also, were is modern art and literature in Woods' view. Typical Catholic apologetics and propaganda, I say.

Western Civilization has developed secularly and almost wholly independently of the Church since the Rennaissance which was a major point of that movement and era. Since then the Church has largely been left in the dust and does not understand the modern or postmodern era. The Church is stuck in the mud and has largely played only a reactive and defensive role, I do believe.

[Den Activist]

Kim, I see what you mean but I disagree with the church not playing an active role in politics today. It is not in the gov't best interest to be associated with religious organizations because of what it may appear to the populace.

The church is still very much important today because we find in it usefulness--networking.

[Nic Cruickshank]

wow a lot of religion haters debating religion instead of the issues ... pathetic. the church stopped having as direct an influence in the 1800's that much is correct. But churches in general like the anglicans and catholics had a direct impact on setting up early education and health care. If thats not helping with a society's devlopment I don't know what is. Two of the most important issues every election are health care and education both owing their formation to the church. Ultimately the main point regardless of how you debate semantics is how accurate or justifiable Stone's "attack" on catholics was. It was an attack -- it is unnnecessary, but unlike we Canadians you have actual freedom of speech so carry on in your isolationist American bubble allowing your own society to decay while others try and fail to live up to the ideals you have set out before you. Pointless debaters almost as useless as your politicians.

[Den Activist]

LOL Nic, I like how you come in and criticize those overlooking the REAL issue and discussing religion instead and then you talk about religion yourself. Something about calling the cattle black and what not.

But you are right about one thing, Stone's poor choice of topic to slam the religion.

I hope U of C teaches its law students how to carry a philosophical LEGAL argument as it does debating by using fallacies or the more PC term, rhetorical technique.

[Anty Ep]

Professor Stone is Jewish and he runs down the Catholics. Simple tribal loyalty going on here. Isnt that right Professor Stone?