« Our Faith-Based Justices | Main | Faith Based Justices (Again) »

April 20, 2007


Feed You can follow this conversation by subscribing to the comment feed for this post.

Sydney Carton


If legal rights, and specifically, human rights, are a function of consciousness and capacity, would mentially handicapped people have the right to vote? To sign contracts? To own land? Could we expirement on people who are mentally handicapped? Would there be a corresponding reduction of the rights of alzhimers patients as their mental capacity decreases? What about mutiliation of a corpse? Would that be ok?

Joseph Stong

I'm always amazed when academics begin to lecture us about what constitutes a "right" and why "rights" only inhere in human beings when they're awake ("self-aware") or otherwise "useful" to someone else. That many academics believe this or have accepted this as so for years doesn't make it so. Their assertions and their positions of authority alone don't make rights out of thin air and they couldn't take them away either. They could - and do unfortunately - affect rights' vindication, but that's another story.

Perhaps it's their shortsightedness and belief that regardless of their arguments, no one will ever rise up with more power than they and redefine humanity to write them out of protection.

But rights - if they exist at all - cannot inhere in human beings because of accidentals such as "consciousness" or "autonomy". The only basis for believing other individuals of the species homo sapiens have rights at all (as opposed to privileges granted by the strong) is to believe rights come with their very being human and for no other reason.

Hence, that little one cell human being while ACCIDENTALLY (used in the classic philosophical sense) very different from a college professor, is still ESSENTIALLY just as human, no more and no less than he or she is.

Now certainly the humanity and thus rights to be vindicated for a "fertilized egg" as they now claim a human embryo to be pre-implantation or "non-human human" as they claim a fetus to be, is INCONVENIENT - just as the humanity and thus rights of Africans and Jews in ages past was considered highly inconvenient to the powerful. But again, our rights are not privileges granted to us by the powerful. Thus no amount of inconvenience justifies the powerful from failing to vindicate the rights of their fellows out of accidents of size, development, race, refinement, class or other arbitrary "line in the sand" drawn by the powerful.

If they were, then might really would make right. And hence the mighty would answer to no one, or as Al Gore was wont to say "to no governing legal authority" neither on earth nor in heaven, neither now or "in the judgment of history".

Now it's certainly likely that many on the Left truly believe rights are merely privileges seized by power - that was the default belief of humanity until 1776 anyway.

But returning to the default mode is hardly "progress", unless their end game of "social progress" is a return to pre-modern hereditary aristocracies and divine kings who offered sacrifices (their 'non-human human opponents) on bloody altars to assuage the 'nature gods' from impending doom.

Every state that tried to get rid of pesky churches ended up becoming its own self-referencing and self-justifying religion. America is a different breed altogether; no only did we reject might = right on July 4th 1776, but we also did not base our system of laws and human rights understanding on our own system, lawyers, judges, or generals, but on principles knowable (though not always known or understood) by reason and enlightened by faith.



we in the philosophy department have identified physical/physiological autonomy, sensory ability, awareness of one's separateness and consiousness of one's self as distinct from the rest of the object world, memory/identity, all as factors that contribute to individuality worthy of rights. Basic self consiousness. Something, even instinctively, that is aware of itself as a separate being, or that at least once was aware of its separetness or at one point had an identity.

So your 3 month old baby qualifies as it is physically autonymous and conscious enough to know it needs to cry to get food. Same with the mentally impaired.


Mr. Hamilton states that the chemical reactions going on in a fetus might be more complex than those going on in an adult. "Might be"? Perhaps in another universe, but not in this one. Mr. Hamilton's speculation is incorrect. And his statement of fact re the growth rate of brain mass is way, way, too high. Admittedly, we're talking about an ill-defined concept -- complexity. The only way to measure it is with thermodynamic calculations, which would likely be based on caloric consumption. Even then, we could only get upper or lower limits on the rate of complexity generation. But even more important is the fact that structural complexity is the accumulation of metabolic rate -- my brain is a lot more complex than a fetal brain even when I am sleeping, because its complexity is derived not from its instantaneous metabolic rate but from the cumulative result of decades of mental activity.

Mr. BAC, I suggest that you go back and re-read my comments on the difficulty of establishing a bright line.

Mr. Carton, I never wrote the human rights are a function of consciousness and capacity. Since your presumption was incorrect, all of your following questions are irrelevant to my comments. They are interesting questions, to be sure, but I have not addressed them directly or indirectly. And you should re-read my comments on the differentiation between subjective morality and social and legal sanctions.


You were doing so well Eras . . . What good is the jurisprudence of complex chemical reactions if it can't tell us how complex the reactions must be to prevent killing a fetus?

And you complain about the lack of clarity in existing laws . . . tsk, tsk.


"You don't even have any unilemmas, acts that are intrinsically bad."

as you note, eras's description of his position has some logical holes. but since I adhere to the essence of that position, viz, that in distinguishing "good" and "bad" a society pretty much wings it based on its collective judgment at any point in time, let me reverse your challenge: how do you think we should determine which "acts [] are intrinsically bad"?



And, to bring us back to the original question, there is absolutely nothing in the Carhart decision that implies the majority was motivated by Catholocism.

Stone's Catholic conspiracy is pure fiction (much like the jurisprudence of complex chemical reactions). It's like a chapter from a secular humanist's Mein Kempf. Frustrated that the law has not gone his way, Herr Stone throws a fit and blames the Catholics. He may already be polishing his jackboots to take care of this "religion" problem.

Sydney Carton

"I never wrote the human rights are a function of consciousness and capacity..."

What a cop-out. Obviously, you believe it to be the case, since you've been going on and on about chemical reactions distinguished between fetuses & adults. The issue is whether a fetus should be protected as a human would. If you don't think so, then it's because of your cant about chemical reactions. So obviously, you believe that legal & human rights depend on some relationship between the chemical reactions in one's brain. But you're too much of a coward to see the end result of your logical premises, and to answer these inevitible questions.

In general, I find secular materialists very boring. They have no way to say something is beautiful or even true. They have no idea what "love" is - apart from being merely a chemical reaction. What a sad, closed-minded world a materialist must live in. Also depressing. Humans are not special. No one individual is special. Human rights depend on consciousness or certain chemical reactions. All of this paves the path to more tyranny and subjucation of undesireables, aka: Barbarism. And the stupid thing is, secular humanists think that this is called "progress." If there's a "chemical reaction" they have in abundance, it's arrogance.


Mr. Carton, you are laboring under some misconceptions. Your speculations as to my beliefs are incorrect. I have previously written that the creation of a discrimination point for purposes of regulating abortion is a difficult process and that the line is smeared out over a three-month span. I have offered no opinion on where that line should be drawn, but I did note that such decisions are made collectively by society. You really should read my writings more carefully before you criticize them.

Your rant against secular humanists is full of misconceptions. Although I don't consider myself a secular humanist (never having seen a clear definition of the term other than "evil person"), I certainly have a notion of what love is. I do not live in a sad, close-minded world, I live in a rather bright and happy world. Indeed, immediately after posting this response I shall be going outside for a stroll among the spring wildflowers on my land.

Re your suggestion that this paves the way to barbarism is silly: I suggest that you consult my comment of last night at 11:24 PM where I expressly addressed that notion.

Joan A. Conway

Erasmussimo your comments are potent.

And when I own my own personal computer, maybe this summer, I will enter into a discussion with your thoughtful and clever words.

Perhaps you are more detailed than needed in some cases, like The American Indian Wars, and the French, over control of sections of the United States, as it reflects on the Iraq war.

But your data cannot be brushed off that easily, since it brings out the actual expense of our undertaking in Iraq, and why we would do such a mad thing in the first place, when our pocket books are being depleted in the process.

So, I will speak with you later.

Sydney Carton


Re: barbarism. In fact, I read your 11:24 PM post, which basically boils down to the idea that you don't think barbarism is going to happen, but even if it does, it wouldn't matter because the important point is that society not be organized around a false idea that humans are special. Permit me to express the idea that I'd rather have civilization founded on a false idea, than barbarity founded on a "true" idea, the so-called "true" idea that humanity isn't special at all.

Re: secular materialism. I don't care that you choose to piggyback on the mysticism of mankind in enjoying life. But if you didn't want to be a hypocrite, you'd acknowledge that your enjoyment of wildflowers was completlely nonsensical because all you're doing is pretending that a chemical reaction in your brain has any meaning at all.

re: abortion: "I have offered no opinion on where that line should be drawn..." Do you really think you're fooling people? You ARE arrogant.

TM Lutas

Erasmussimo asks "why ickiness should be the standard for deciding law" as if ickiness has no place in our legal codes. It does and in far less momentous questions than abortion.

Ickiness and local perceptions thereof form a significant part of our zoning codes and the procedures for takings. No doubt there are other sections of the law that include it but that one simple leapt up at me when I read the question as a significant body of law that has nothing to do with sex but where ickiness ("blight", "ugliness", "inappropriateness") is not only present but a driving force in how the law is written and applied. I doubt that the anti-ickiness crusaders really want to invalidate that much of our zoning code but feel free to chime in if that's the case...

Soon after, another howler comes "in fundamental terms, it really doesn't matter how the fetus is destroyed". So all those challenges to the method of execution in capital cases should have been dismissed out of hand? Really...

I won't delve into the whole sack of chemicals divergence except to say that it is offensive, unsupportable, and rather hazardous to the health of its proponents as it leaves rather little in the way of protection when one sack of chemicals has its reactions terminated at the whim of another. The only consolation is that anybody arguing on this thread is likely to be dead long before we descend to that particular level of hell.


The tragedy is someone who requires the presence of a theistic God to have meaning in their lives in the first place. They are so powerless as to need to create a source of joy and beauty rather than actually being able to find it themselves. Of those who I have read who truly know beauty, truly know joy, most have found it despite the irratinal teachings of religion. When I want to learn about love, real love, a religious person is the last one I would turn to, that is for sure. Just becasue you don't believe in atheistic god doesn't mean you can't find wonder or beauty in the world, in fact you have more of a chance from whay I've seen.

Save me Jebus. Are all of you God lovers actually U of C graduates? I can't beleiev it. Do you really think God meddles in human affairs? And if so, where has he gone? He used to do so much more meddling!


The majority decision is a disgrace.

For all their talk of respecting precedent, the black robed thugs felt comfortable subjugating the health and welfare of a pregnant woman to their small minded moralism.

Scalia, Thomas, Alito, Roberts and Kennedy shamelessly ignored precedent declaring that the judgment of medical professionals and considerations of the woman's health and safety cannot constitutionally be restricted under the law in review.

The comparisons to Terry Schiavo have yet to be made, but they will and there will be a backlash to this type of ignorant, paternalistic moralizing from a court destined to earn the disgust of America should these misguided rulings persist.

I can honestly say I find this decision repulsive for what it says about the direction this court wants to guide our country.


Mr. Carton, I too would "rather have civilization founded on a false idea, than barbarity founded on a "true" idea. The trick, of course, is that the civilization founded upon reason is likely to be much MORE civilized that a civilization founded on religion. Aztec civilization sacrificed human beings for religion. Islamic civilization wreaked immense pain and suffering in the name of Allah. And Christian civilization -- well, we don't need to go through the long list of barbarities perpetrated in the name of Christ. Let's just acknowledge that religion doesn't make a civilization civilized. Lots of things contribute to it, and religion *can* be a positive influence, but if you read some of the bloodthirsty rants of some of our more extreme Christians, I think you'll agree that religion can be pretty barbaric, too.

I am nonplussed by your statement, "But if you didn't want to be a hypocrite, you'd acknowledge that your enjoyment of wildflowers was completlely nonsensical because all you're doing is pretending that a chemical reaction in your brain has any meaning at all." Was it nonsensical of me to enjoy the wildflowers? Gee, I didn't realize that -- I was too busy enjoying them. I didn't pretend to enjoy them, I felt real enjoyment. Who are you to say I didn't enjoy them -- you weren't there!

Mr. Lutas, you raise an interesting point in equating ickiness with taste. One of the main points of the opinion was that the ickiness of the D&E procedure goes beyond the pale of human moral sensibilities, but you're talking about the application of personal taste at a much lower level. I think it's fair of me to rely upon the same distinction that the majority drew, the distinction between merely distasteful actions and actions that are beyond the pale -- truly "icky" actions.

Nevertheless, you raise an interesting point. Where do we draw the line? Again, in practice we draw the line by majority vote -- UNLESS the line we draw somehow conflicts with another line drawn more fundamentally -- which is what gets us into Constitutional law.

Your equation of the termination of a fetus and the execution of a criminal neglects the obvious fact that the criminal is aware of the method of execution and undeniably suffers pain during the execution. Any pain that the fetus may perceive is of a much lesser magnitude than that perceived by the criminal.

Lastly, you assert that a materialistic philosophy is offensive, unsupportable, and hazardous to the health of the materialist. If you are offended by this belief, tough luck. We live in a society composed of many differing beliefs and if you are offended by other people's beliefs, then that's just too bad for you. Learn to live with others.

Second, you find it unsupportable. My, that's such a contrarian tack to take! You are suggesting that theism IS supportable? I don't think you can support a belief in a deity via objective methods. I don't challenge your faith -- you're welcome to it. But to suggest that my materialism is unsupportable is definitely a case of the pot calling the snow black.

As to the health of the materialistic, you're certainly right that religious people are wont to murder people who don't share their beliefs. And while I admit that I do take some risk, I doubt that you, as a religious person, want to tarnish religion by reminding us of the barbarity of some religious people.


Francis says:

"LAK is making a claim about the nature of rights and its relation to philosophical anthropology. But this is precisely the sort of question that "religious" views answer as well. Now, these answers may not be persuasive to LAK, but they are no less sophisticated and certainly no or more less "religious" than the answers offered by LAK."

How is this? Mine are empirically observable traits in oneself and in others. I am self consious an therefore I can experience my personhood and all those factors that contribute to my personhood, and can witness the same in others. That is definitely non-religious insofar as it relies on observation, not faith.

Now then you go on to say "after all, the case for fetal personhood is typically made by appealing to conclusions that are supported by reasons that are not appeals to sacred scripture or any other religious authority."

Well that is patently false. 98% of the arguments you hear are "jesus said so." (even though he really didn't).

But then your argument boils down to the fact that I and others would have a moral problem with harvesting abrain dead clone for organs.

"It seems to me that the substance view is the account of human personhood that best explains the moral repugnance that one feels when one first appreciates the propect of these activities becoming common place in our society under the rubric of reproductive rights: it is prima facie wrong to destroy the physical structure necessary for the realization of a human being’s basic, natural capacity for the exercisability of a function that is a perfection of its nature. Although this provides moral warrant for the legal prohibition of intentionally producing deformed human beings for an apparently good purpose, it also grounds significant legal restrictions on abortion, a procedure that destroys the physical structure necessary for the realization of a human being’s basic, natural capacity for the exercisability of a function that is a perfection of its nature."

You seize on the moral hesitation I and others would have at doing that. I admit I would have moral hestiation at harvesting a brainless body for organs, jsut as I have mral hestitation about abortions. As a personal matter, as a matter of morality, abortion is worng to me for sure.
But as you so adeptly point out, I'm not quite sure why I would have this problem, or why anyone would feel it wrong to harvest organs froma brainless clone. It has something to do with my mystical and quasi-religiou sensibilities. It has to do not with anything rational, it certainly is NOT a "prima facie" wrong as you suggest.

That being said, you bring up the real issue, where the tire hits the road.

(But first I might point out that even the clone has physical autonomy and the capacity to live on its own with a little help, even without a brain. There is a disticntion right there with fetuses.)

The point is that that moral repugnancy I feel at the thought of harvesting organs froma brainless clone, is, like you say, inpossible to ground rationally, and therefore while I would not ever harvest a brain dead clone for organs myself, I certainly would not prohibit others from doing so unless I had concrete reason, not some vague sense of moral regunancy that pervadesthe thought. I also find sex without love to be morally repugnant too. That is hardly basis for imposing such beliefs as a matter of law on others.

So your argumen really fails badly here. Pointing out that we are moral creatures and that many or most of us have a moral problem is not to address the legal issue.

I hate abortion. I think it is wrong. I would not ever harvest organs from a brainless clone either becuae I have a quasi-religious respect for "life" too. These facts are hardly the basis for determining law though. If I had rational arguments not grounded in my personal faith to advance about why harvesting a brainless clone for organs is wrong, I would be more comfortabe about pohibitions against it, and abortion. But the fact is I have neitehr and so the mere existence of such moral concern dopes noting to support the argument that s a legal matter, such harvesting should be illegal (outside of identifying the fact that this brainless clone is physically autonomous can still "live" on it's own if it is fed, which is a compelling distinction betwene it and a fetus.)

Again Francis, to reiterate, you miss the point. I don't dispute the moral discomfort I have for harvesting clones or aborting fetuses. Those are hardly reasons to imose such beliefs, ultimately grounded in less than rational faith, on others as a matter of law.

That is Justcie Brennan's whole point. There needs to be a bright line here that stops at reason and rational argument. I can beleiev one thing but imposing it on everyone else is an entirely different matter.



And then take into account the fact that fetuses are attached to and depend on the lives of the women who carry them. Add that factor into the moral equation and I certainly do not have enough to justify telling a woman how to live her life and what to do with her body. Your invocation of my discomfort at the brainless clone notwithstanding. The brainless clone is a much easier issue to me for precisely that reason.

(i won't address your use of the word "perfection" which I find problematic.)

But I hope you see how your argument doesn't help us at all. The fact that we do have a moral inclination is all well and good, but such inclinations shouldn't be law unless you can pinpoint the rational and universally justifiable reasons why.

Jack D.

My wife, a graduate of the University of Chicago Law School, asked me take a look at this discussion. I am a neonatologist, with 15 years experience in a large, metropolitan children's hospital. It might interesting to add to this discussion the following:

IDX (or "partial birth abortion", if you will) is performed almost exclusively in late term pregnancies (usually would not be performed any earlier than the 20th week of gestation).

By approximately the 17th week of gestation, the fetus responds to light, sound, temperature, pain, and touch. The fetus can cry, become stressed and overstimulated, and can comfort itself by sucking on its hand. The fetus will recoil from a needle, and will cover its eyes from a bright light. The fetus will grab your finger if placed in its palm. The fetus can distinguish the voice of its mother (and other familiar voices) from others. The fetus dreams, and there is some indication that the fetus remembers. By approximately the 20th week, depending on state-of-the-art, the fetus may be viable outside the womb.

On a more personal note, I have witnessed that, depending on the personality of the fetus (and from my experience, they have personalities), they will fight to survive, and can be motivated and encouraged by external stimulus (most especially by familiar voices, smells and human touch).

Draw what conclusions you will from this. As for me, I have concluded that a fetus, regardless of its status as "human" or its "rights", deserves to be protected. And its life and its future potential are more valuable than the desires of another to have a second chance at a decision they already freely made (assuming capacity and lack of coercion). I do not think society is asking too much in requesting that people engage in potentially procreative activities responsibly and accept the consequences of their decisions.

The appropriateness of abortion where there is diminished capacity or coercion is debatable, but I believe it is appropriate in some instances. I am not sure I agree wiht the holding at issue here - partly because I do not agree with the holding in Roe v. Wade and believe the entire line of cases on abortion since have been wrong, and the holding in this case, in the end, will not save a fetus. Additionally, IDX may be appropriate in many instances, for example when the fetus is micro or anacephalic or hydrocephalic and late term, has Edwards Syndrome or in instances when the mother's health is in serious jeopardy. I do not know if the law as presently crafted adquately addresses the issues.

Hopefully this post is helpful and sheds some light on why this issue is so complicated and not as simple as proponents of either side sometimes make it out to be.


Point of order but where do you get this information? How would you know if a fetus can feel "pain" or is "comforting" itself if it should suck its thumb? Recoil from needle? Are you claiming the fetus understands what a needle is and recoils from its sight or are you claiming it respons to being stuck with a needle? It will cover its eyes from light? What light? A flashlight you stick up there? Dreaming? How would you demonstrate that? Intra uterine brain scans?

just curious about these claims. I only doubt some of them, but admittedly have no basis for my skepticism other than knowing fetuses don't often see much light and dit would eb next to imposible to determine if a fetus dreams. (About what might a fetus dream I wonder without ever having experienced any stimulus outside the womb?)


LAK, Jack D.'s information is based on a lot of research. Note that he has, for the most part, phrased his information very carefully. He didn't say that the fetus can feel pain, he wrote that it responds to pain. He did go a bit nontechnical with the assertion that the fetus dreams. There's definitely brain activity in fetal brain quite early, but labeling that activity as dreaming is speculative. In the broadest possible sense, yes, it is dreaming, but not at all like the dreaming done by adults. It's more like 'experimental neural activity', in which the brain is test-firing neurons to establish all the basic connections. After all, if a baby at birth is able to cry, it's got to have some neural circuitry in place to control those muscles. There isn't much circuitry in place when the baby is born, but there is some, and that circuitry is developed through brain activity while still in the womb.

As to the question, can a fetus feel pain, we really can't answer it directly because we can't ask the fetus, "Does that hurt?" We can note that the fetus responds to some painful stimuli in a manner that reduces the magnitude of the stimulus -- the fetus avoids pain. This is a bit more than a Pavlovian response -- but not much more.

As to indirect evidence, the most important point is that the fetus has not yet developed all the higher-order consciousness factors that go into adult pain. We know that the fetus experiences Type I pain; I don't know what current research has revealed about the experience of Type II pain in the fetus. You will note that the child's experience of pain is qualitatively very different from the adult's experience of pain. These differences suggest -- and I emphasize: SUGGEST -- that the fetal experience of pain is considerably less than the adult experience of pain.


right on the pain. But dreams? It makes little sense. Dreams require consciusness, they require context in the object world. Neural activity of a fetus granted.

Hell houseplants "react" to needles, and they react to light. And cattle dream too and react to light and pain as well. What's the point?

Jack D.

A fetus at around 17 weeks (every fetus is different) will demonstrate REM sleep and nonreflexive movement during REM sleep, which is characteristic of active dreaming. I have no idea what a fetus would dream about.

A fetus at around that gestation will cry, demonstrate an elevated heart rate and respiration, tense its muscles and recoil when pricked with a needle. A fetus will grope for its hand with its mouth, and its heart rate and respiration will return to normal when the fetus begins sucking the hand. A fetus will also cry absent such stimulus (I have no idea why. Like a baby, sometimes they cry for seemingly no reason). I can tell you this - nothing upsets a fetus faster than being cold. They hate that.

A fetus at 17-24 weeks does not open its eyes (generally) - I should have been more clear on "recoiling." The fetus only recoils once the fetus is pricked. The fetus will generally not see the needle, and if it did, would not understand it. And it would probably be upset already anyway (changes in amniotic pressure also upset the fetus).

As to the light - the fetus will respond both to a direct flashlight and light through the womb. It actually is not completely dark in there, some light gets in during the late stages of pregnancy, if you press a light up to the abodomen. Interestingly, some fetuses will turn to the light, while others will cover their eyes or turn away.

And, to make clear, a fetus at 20 weeks is potentially viable (recall that it is at 20 weeks that IDX is usually performed). I have held hundreds of fetuses at 20-24 weeks, who cry and, when placed in their mothers hands, I watch them turn to the warmth of their mother and fall asleep. So much of the basis for your skepticism seems to be based on the false assumption that there is no such thing as a 20 week old fetus that lives outside of its mother's womb. There are thousands - and many of them fight for their lives harder than any adult I have ever seen. Incidentally, functional neuroimaging of 24 week old fetuses who have been born (very rare, as most are in too fragile a state to undergo the procedure, so the data is not good) have demonstrated dreaming and brain activity consistent with "thinking."

I have personally tickled the foot of many 20+ week old fetuses, and watched them throw their heads back and tense up. I cannot prove it, but I'm convinced the response suggests they're ticklish.

Certainly reasonable people can disagree on the "human" status of an embryo, but when it comes to fetuses at around 20 weeks, the difference between that fetus and a full term baby is nil, and even less so when the 20 week fetus is asleep in a crib next to its mother's rocking chair. And the difference in the level of dependence on its mother (or someone else in that role) between a fetus and a new born is minimal, and for practical purposes, insignificant. A 20 week fetus and 20 day old baby will both die very quickly if no one is there to help.

If we're basing "personhood" or determining rights based on how dependent a particular being is on someone else, or upon technology and science, to stay alive, then we're all in big trouble.

Perhaps my examples above do not quite reach the philosphical level of "basic self consciousness." But I don't think anyone can prove the contrary. In such a case, I would tend to favor a policy that errs on the side of preserving the possibly self-conscious life.

Just seems to me that, absent any consideration of religion, and acknowledging that no one can prove when "human life" begins, we might as well err on the side of protecting human life, just in case all the crying, and wiggling, and (maybe) dreaming and thinking actually means we're dealing with a little person. I think that in very few instances will society be wrong if it errs on the side of choosing policies which preserve and protect, to the greatest extent possible, human life and makes the decision which will keep the most people, and potential people, alive.


I would tend to agree if it wasn't for the fact that so many unwanted children lead less than fully human lives and women's equality and freedom were not implicated by this desire to protect all life. Women are poorly represented on this board, and at any moment I will defer to a living woman's interests before the interests of a speculatively viable fetus. Death is a part of life, and my guess is that cattle and pigs suffer far more than any fetus does, and probably have consiousness closer to that than an adult human than does a fetus. But I ain't gunna stop eating bacon and beef either.

Perhaps what is needed is much more free speech about the horrors of abortion, about the potential life it is snuffing out, and less hijacking of the law to impose one faith based view over women's equality and basic reedom to determine what she does with her body. There are alternatives to across the board prhibitions that limit a women's personal freedom. Not only do you not have to have an abortion if you do not want one, partia; birth or not, you can talk to others too and try to spread your message! It is the beauty of this country. But you're going to have to give me a lot more than responding to needles and light and other autonomous nervous responses before that fetus can be considered worthy of legal protection over the freedom and interests of the mother to which it is attached.


The evidence you present, Jack D, certainly suggests that 20 weeks makes a good cutoff date for abortions in the absence of other factors. As I have written many times, I think our best approach is to treat this democratically: pick a date that represents an acceptable compromise between the extreme positions. I'm happy with any reasonable compromise, and your evidence suggests that 20 weeks would be a good date to pick. I've seen other numbers from other doctors, and your number seems to comport with those other numbers.

My only problem with all this is the possibility of it conflicting with other elements of the Constitution; that's why I'd prefer to see it done as a Constitutional amendment so that we can resolve all the questions.

So, whaddya say, exponents of both sides: do you think that we can work out a compromise at 20 weeks and then tell the die-hards on both sides to go to hell?

Francis Beckwith

LAK writes:

"98% of the arguments you hear are "jesus said so." (even though he really didn't)."

Well, 100% of my forthcoming doesn't do that, and neither do virtually most prolifers who offer public arguments on the question. The most sophisticated defenders of the prolife position--Robert P. George and Patrick Lee, for example--offer philosophical arguments coupled with scientific data.

LAK writes:
"How is this? Mine are empirically observable traits in oneself and in others. I am self consious an therefore I can experience my personhood and all those factors that contribute to my personhood, and can witness the same in others. That is definitely non-religious insofar as it relies on observation, not faith."

First, self-consciousness is not an empirically observable trait. It is the result of introspection, which is not something known through the senses. My self-awareness is a necessary condition for empirical knowledge and thus not the result of it.

Second, you are assuming that empiricism is the correct view of knowledge. But that can't be, since you are defending a right to abortion, which by its very nature is not empirical. Rights are not observed and thus do not depend on observation. For example, the claim that a person has a right not to be tortured for fun is a universal claim applicable to all persons. If it were an empirical claim it would be the sort of thing that could be disproven by some empirical evidence, like the claim "there is milk in the refrigirator."

That I am conscious of my own existence is an incorrigible belief. Empirical beliefs are not incorrigible, since they can always be wrong. I can mistaken as to whether my wife is standing behind me, but I cannot be mistaken that I am self-aware that I could be mistaken about my empirical beliefs.

Third, the fact that a claim cannot be justified empirically does not mean that it is "faith" or cannot be defended rationally. Your equating of empiricism with rationality has not been demonstrated. In fact, if you were to demonstrate it, you would, ironically, be sawing off the limb you're sitting on. For to offer an argument that shows that rationality and empiricism are conceptually equivalent is to demonstrate a non-empirical truth about the relationship between two concepts.

LAK writes:
"And then take into account the fact that fetuses are attached to and depend on the lives of the women who carry them. Add that factor into the moral equation and I certainly do not have enough to justify telling a woman how to live her life and what to do with her body. Your invocation of my discomfort at the brainless clone notwithstanding. The brainless clone is a much easier issue to me for precisely that reason."

I think you're missing my point. I am not arguing from an emotive reaction to brainless children to the moral wrongness of purposely creating them. I am arguing that our moral repugnance (which need not be emotional) is best accounted for by an understanding of human persons that entails that abortion is prima facie unjustified homicide.

You seem to be doing something very similar in defense of your own position. You are appealing to your own lack of knowledge as justification for permitting pregnant women to destroy human beings that are uniquely dependent on them and who, in most cases, came into being because of the pregnant woman's voluntary act that has consequences naturally-ordered (not to mention, forseeable) to the creation of such vulnerable and dependent beings.

LAK writes:
"But I hope you see how your argument doesn't help us at all. The fact that we do have a moral inclination is all well and good, but such inclinations shouldn't be law unless you can pinpoint the rational and universally justifiable reasons why."

But the view that the fetus is not a person is in fact reflected in our laws, even though the claim is not universally justifiable and something that reason requires.

Thank you for comments, LAK, and giving me an opportunity to hone my arguments. I really do appreciate your pointed inquiries and important questions.


The comments to this entry are closed.