Comments for the Scientific Fundamentalism Post:

Please post them here; please keep them on-topic, substantive, and polite. (Because of a glitch, I couldn't add them to the original post.)

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Dilan Esper (mail) (www):
While the author of the slate piece may be too deterministic about the ability of science to deal with the moral issues posed by abortion, it seems to me that there is a perfectly plausible reading of his point that does not suffer from scientific fundamentalism. That is, that knowledge of when a fetus attains consciousness may eventually change the legal standard of when abortions may be regulated and/or the public's acceptance of some post-viability abortions. Indeed, it may be likely to do so.

Professor Volokh's argument about potential life is perfectly valid, but it's important to understand that the objection to post-viability abortions is usually stated in terms of an unwillingness to take actual life, not potential life. Indeed, it is often supporters of unrestricted abortion rights who argue that the life at that stage is only potential.

Of course, greater knowledge of when a fetus attains consciousness is not going to change the mind of someone who believes that life begins at conception, or someone who believes that legalized abortion is an affront to traditional gender roles. But it could very well influence those who are in the "mushy middle" on this issue, who believe that early term abortions should be permitted and late term abortions banned. It could also influence courts that have drawn the line at fetal viability based on the same balancing of interests.
6.14.2005 7:51pm
Steve R (mail):
In addition to "Scientific Fundamentalism", I see poor science, since there is a true continuity of life both before and after conception. All the new data does is provide information to hang one's pet theory on. Both the sperm and the egg are vibrantly alive and seeking like all life to assure the continuity of their genes. True the success ratio is very low (especially for sperm) but that is their entire purpose. Observationally speaking there is a continuum of increasing structural complexity up through sometime post puberty, presumably the consciousness function will also progress on some sort of continuum as the structures that promote it develop.

I agree that the question of when that life has rights and when its continuity and success is at the whim of its host is a purely moral question - for it only exists as a question once you have a moral framework to ask the question. There are religious tenets which hold male masturbation and ejaculation outside of procreative intercourse (that was hard to phrase clearly and discreetly!) to be tantamount to murder. At least one religion (Judaism) holds both the above view and that the mother's life outweighs the baby's until the baby is halfway delivered.
6.14.2005 7:56pm
ScottMagee (mail):
I agree with Dilan Esper that the scientific question of consciousness is really more about informing our application of whatever legal standard we decide on. For example, if we decide that viability is the line to draw between when abortion is permissible and when it is not, or at least when it can be burdened in some manner, viability is a scientific, not moral conclusion. Similarly, if we decide that consciousness is the appropriate dividing line, science will inform that application of law to fact. Of course, how we set the legal standard is by and large a moral choice. However, I would like to propose several scenarios that may or may not confound the morally-determined standard of when life begins or when abortion is permissible.

First, any good biologist would be able to go into a lab and culture some cells and make them beat. Would that constitute life under a moral standard that says it is wrong to destroy a fetus any time after conception? Second, to make the point more concrete, what about in vitro fertilization? In that case, not only are we considering a group of cells, but we are considering a group of human cells, albeit not in a womb. In vitro fertilization occurs daily and produces many more zygotes than are ever used, and therefore many of them are discarded. Of course we've heard this argument in the stem cell debate from time to time (and I personally think it is not discussed enough). Many opponents of abortion at any stage of life have not expressed any outrage at the fact that many embryos created by in vitro fertilization are discarded. If someone makes the moral decision that a human embryo ought to be preserved in all cases, I find it difficult to discern a principled distinction between in vitro fertilized embryos and in vivo fertilized embryos. For me, this lack of consistency in the conception-is-the-beginning-of-life philosophy militates in favor of a scientific approach to when life begins (i.e. viability) and at which abortion rights can or may be burdened.

Although it is true that scientific criteria are not in and of themselves determinative of when life begins, I find them to be less arbitrary than moral distinctions based on the principles I've outlined above. Moreover, the law is not compelled to protect the rights of a life or potential life based on religious doctrine (e.g. should masturbation be forbidden on the theory that each sperm represents potential life). Likewise, the law is not compelled to protect certain stages of life and not others solely on scientific justifications. However, I find scientific and empirical justifications to be much more articulable and persuasive.
6.14.2005 8:35pm
Brian Larry (www):
Here's another hypothetical. Let's say (hypothetically) that a new device demonstrates a vibrant conciousness present in a fetus--as early as 4 weeks into the pregnancy.

What then?

Do pro-choicers change their stance? Do we reverse Roe v. Wade?

I suspect the news would have little impact on the opinions of either pro-choicers in general or the majority opinion of the supreme court. In fact, as pro-lifers seized and promoted the new data I suspect the pro-choicers would either shift their arguments to encompass the new data or would dismiss the findings altogether.

As the years have passed, the age of viability has dropped from over 30 weeks to 20 weeks. Surely we're not going to believe medical science won't progress further? Yet this has had little impact on the abortion issue--or at least not the impact one would expect--because, of course, the population grows more pro-choice by the day. And this is not just debatable scientific data, I know these numbers because of my sister's personal experiences.

I agree that philosophical questions and conclusions should dictate the application of the scientific knowledge. I submit, though, that pro-choicers are as likely as (or more likely than) pro-lifers to change their philosophy to maneuver around or ignore any scientific data that does not support their position.

Science, in the end, is hardly relevant to the masses because neither side will accept any data (or at least accept that it is significant) if it tends to support the other side.

Finally, given the viability of a 20-week old fetus--how can the 26 week guesstimate from the original article prove true?
6.14.2005 9:29pm
jrdroll (mail):

a fetus doesn't possess enough neural structure to harbor consciousness until about 26 weeks, when it first seems to react to pain. Before that, the fetal neural structure is about as sophisticated as that of a sea slug and its EEG as flat and unorganized as that of someone brain-dead.

So consciousness is now define by the author as the ability to flinch? As far as sea slugs, the sophistication of their neural structure permits them to roam the ocean, eat and copulate. Try building one at home. How can an EEG be both "flat and unorganized" . If its flat its flat. If its unorganized it is not flat. And using the brain-dead as a comparison is stupid. Give the fetus another 26 weeks and you most likely get a functioning human baby.

And one last thing concerning this measuring device.What happens in ten years when a more sophisticated device is developed and the demarcation line becomes 19 weeks instead of 23? Does this mean mass murder has been committed? I appologize for this disjointed post. Its just that folks who use science for a shield to blunt the need to discuss morality steam my sea slugs.
6.14.2005 9:52pm
Tom Tildrum:
Scott, I'm afraid I disagree with your assessment a bit. Viability may be a scientifically identifiable point, but so is conception. The question "have a sperm and an egg fused into an embryo?" is just as scientific as "is this fetus viable?" The recognition of one point as the beginning of life is as much a philosophical and moral issue when viability is chosen as when conception is, and the attachment of legal rights (if any) at either point is equally a legal and political question. Indeed, viability is probably a more troublesome standard scientifically, since there is no way of actually determining viability short of removing the fetus and seeing whether it survives. Use of the third-trimester standard is a good proxy, but it is only an estimate, and it poses marginal under- and over-inclusiveness issues. Conception, by contrast, is directly verifiable.

The fact that some people may not be consistent in their handling of the moral questions posed by a life-begins-at-conception belief seems to me at most a failure of philosophy, not science. Such inconsistency does not make the identification of the point of conception any less scientific, or the assignment of legal rights at the point of viability any more so. It may also be that the people holding those views perceive themselves as philosophically consistent and have identified what they believe to be principles to justify the distinctions they draw, even if those principles appear unsound to you or me. Finally, there are some people who do object to the discarding of unused embryos generated in fertility treatment as the wrongful taking of a life. The apparent consistency of their views does not, as I see it, render their belief any more or less scientific than anyone else's.
6.14.2005 10:07pm
Anthony (www):
Brian Larry - I think the answer to your first hypothetical is "yes, some do". If consciousness was demonstrated to start earlier than currently believed, some subset of pro-choice moderates would shift their belief of where the line should be drawn accordingly. And some would not. If democratic processes were allowed to make the law regarding abortion, the law might change.

Lastly, I don't see a logical contradiction between viability and lack of consciousness. I think eventually, we will be able to incubate babies from fertilization to term artificially. But those artificially gestated fetuses won't be conscious any earlier in the process than naturally gestated ones are now.
6.14.2005 10:19pm
Jonathan, a scientist:
I agree, science is not a replacement for moral systems.

Consider Icelandic Society during the time of the Icelandic Sagas. It was not against the law to murder people. It was, however, against the law to murder someone and not make people aware that you had done it--with specific provisions as to how far from the scene you could travel before informing people of what you had done.

Science cannot tell us whether we should accept that moral system. (This is a point that the moral relativists get right.) There is no natural moral system per se. Instead there is tradition, experience, and consensus.

Whether something is a constitutional question versus a political question is also unrelated. All questions are really political questions but we support a system that makes the answers to certain questions strongly biased in favor of tradition (i.e., that is what it means for something to be a constitutional question).

Thus, Science, in itself though, neither answers what questions biased toward tradition nor how political questions should be resolved. In contrast, _Logic_ can help us determine whether our answers are consistent.
6.14.2005 10:44pm
frank cross (mail):
As always, I think Eugene is right from a strictly linguistic, formalist analysis. However, I think the Slate article is substantially right from a practical perspective. For example, the anti-abortion folks obviously think it is very important to make the fetus appear more human. You see this in the video Silent Scream, and in the pictures of tiny hinds, and in Tom Delay's metaphorical "dismembering." For a considerable number of Americans lying in the middle of the spectrum, these scientific facts seem highly relevant to the moral assessment of the fetus. And I think those are the folks who ultimately determine policy here. Science doesn't resolve moral questions, but it informs their answers
6.14.2005 10:55pm
Tim (mail):
Tom,conception is not so directly verifiable,implantation is.Implantation causes various hormone changes including hCG, the hormone typically measured in the initial stages of pregnacy. Conception isn't a descrete event that has a single timepoint for assignment of moral distinction (is it when the male and female pronuclei fuse, or when the head of the sperm is inside the zona pellucida, or when the cell first divides, or...).
The article seems to have an unexamined assumption of consciousness as life, but that doesn't make it fundamentalism. If the standard consciousness equals life is not up for discussion that is more of a fundamentalism. It is unclear why the moniker "scientific" should modify that brand of fundamentalism.
6.14.2005 11:07pm
Henry Woodbury (mail):
I'm with Brian Larry. Consider a situation in which the consciousness test has passed into law (or just become widely accepted as an ethical standard). A woman in her second trimester goes to take the test. Outside the clinic a pro-life protester holds up a sign: "Can't you just wait a week?" After all, a fetus may have the brain of a sea slug. But not forever.

My point being, in the attempt to sway public opinion the evidence of science may cut both ways.

A consciousness test may actually make the pro-choice position less tenable. Right now the most ferocious abortion arguments are about third trimester abortions. A consciousness test could simply grant this fight to the pro-life side and move the point of ferocious argument back to the 25th week.
6.14.2005 11:53pm
SupremacyClaus (mail):
Over the past 30 years, good survival rates after delivery in the third trimester, and the unshakeable absence of survival after delivery in the first or second trimester, have set a fixed landmark. Although neonatal medicine has rapidly evolved, that trimester border crossing has yet to be pierced by medicine.

Nature is saying, before 6 months, the fetus is maternal tissue, subject to privacy and Fourth Amendment rights of the mother. In the third trimester, nature is saying, the fetus is viable and should be accorded substantive due process rights of its own. It is saying, let the neonatologist mess all they want. There is no escaping that rigid boundary.

This is the compromise that settles the debate, once the dumbass absolutist lawyer is removed from the Supreme Court. Then this nation may forget this subject, with only fringe elements still interested in this divisive question.

The consciometer is silly, when the landmark border is so firm. Perhaps college students may enjoy debating its merits in their dorms at midnight. To those college students, I have one thing to say. Stop it. Get back to studying.

Also, ask your neurologist friends about the reliability and scientific validity of this gizmo, people who actually try to work with this bogus technology. Raw brain waves from the outer 1 centimeter of brain are massaged and transformed by inscrutable computer programs. Even in a brain dead patient, with clear access to the head, clinical assessment is advised.
6.15.2005 12:30am
Doc Rampage (mail) (www):
Eugene is right about science not being able to answer questions about morality, but his is a bit to quick to accept the premise that science can answer questions about consciousness. Like anything else in science, the process of measurement idealizes the object being measured into something different from what they are trying to measure.

Consider temperature. Before the thermometer, there was the idea of warmth, of coolness, of heat and cold. Scientists observed a correlation between these ideas and the pressure of gasses. So they used the pressure of gasses to "define" what is meant by warmth, coolness, heat, and cold. They found a way to precisely measure what had been an imprecise idea.

But in the process, they threw out everything about warmth and coolness and heat and cold that could not be measured with a thermometer. They have tried to correct for this with wind-chill factors, comfort factors, body temperature, and other things, but they still really haven't measured exactly what it is to be warm or cool or hot or cold.

The point is that although they certainly managed to measure something (and something very important), they didn't manage to measure the imprecise feeling that inspired the measurement in the first place.

Attempts to measure consciousness are even less likely to be successful because there is no way to know whether something is conscious if it cannot speak to you. They have no data upon which to create a scale. They can say that human consciousness is associated with a particular sort of electrical activity, but they have no way to determine that less activity is associated with less consciousness. It's an assumption. Completely untestable.
6.15.2005 1:06am
Maniakes (mail) (www):
I've long favored something similar to a consciousness test. My argument has been that since we define death by the irreversible cessation of higher brain activity, it makes sense to define the beginning of life by the first initiation of higher brain activity.

Most of the information I've seen suggests this happens late in the first trimester.

If I'm reading correctly, the consciometer test uses a similar standard, but with a higher bar; the brain activity must be nearly as organized and as intense as a functioning adult human.

As Prof. Volokh points out, the decision of what standard is a non-empirical moral question, while the application of that standard may involve empirical measurements.

As a tangential side note, Chimpanzees, Gorillas, Elephants, and African Grey Parrots have demonstrated intelligent behavior equivilent in many ways to a 3-5 year old human child (in terms of painting, recognizing themselves in the mirror, language use, etc). And yet we (most of us, anyway) consider them no more worthy of legal rights than any other animals, while making no such claim about preschool-aged children. If current level of sentience is to be the sole arbiter of whether someone has rights, the discrepentcy is troubling.
6.15.2005 2:21am
NickM (mail) (www):
The author of the original piece demonstrates clear problems with his scientific knowledge, as previously discussed by jrdroll.

Acting as if bad science answers moral theory and political theory questions is very dangerous to policymaking.

On another point, Supremacy Claus has absolutely no idea what he is talking about. The end of the second trimester occurs during the 26th week of pregnancy. Survival after birth 23 to 25 weeks into pregnancy is common (with a number of studies indicating that a majority of infants survive by 24 weeks gestation), and survival has been found after as few as 19 weeks of pregnancy.
6.15.2005 3:46am
Neil Reinhardt (mail):

Jeeze, all this talk about when human life begins and other such drival.

We humans are only ONE of millions of life forms and other life forms communicate,
"do art", use team work, have intelligence and emotions.

The ONLY thing which gives us the power to "rule" is the arrangement of our fingers and thumb which allows us to draw, paint, write and build from simple to complex tools!

No one can give me ONE logical, rational and intelligent reason why we humans have MORE right to life than does ANY other living things!

(Including plants.)

Since no religion is logical or rational or even intelligent, any of the reasons they give are not valid. Neither are any other emotional reasons.

We KILL other life forms to eat, to build things and for other reasons.

So all this stuff about the human "right to life' is total crap! We do it because we have the power. Power does NOT make right.

So unless you plan on eating rocks (even then you are killing itty bitty living things) stop making such a big thing about abortion.
6.15.2005 4:12am
SupremacyClaus (mail):
Nick: Without diverting this thread off subject, how was gestational age established in the survival of a fetus after delivery at 19 weeks? Which is more likely, a miracle or an error in gestational age calculation? More than the recall of the last period would be necessary in such an extraordinary claim. Did the baby leave the hospital alive? What was the condition on followup, the hospital bill (out of curiosity)? If you provide a link to the report, we may judge ourselves. If this is an 1 in a million case, it proves the point by its rarity.

In this OB's hands, no baby survived delivered before 25 weeks, as of 2004.
6.15.2005 9:41am
Neil Reinhart is channeling Peter Singer. It's pretty jarring to see how easily convenient terminology (truncating "human life" to "life") blinds us to the real facts - we have take life constantly to feed ourselves. Most of us choose to take intelligent life, although fewer and fewer care to participate in the killing part. I guess we now do both meat and war while looking the other way.

The real substance of Roe v. Wade is the balancing of the mother's and fetus' rights. Viability (and consciousness as a rough substitute) is a red herring, properly left by Roe to the states.
6.15.2005 10:07am
SupremacyClaus (mail):
Nick: Eugene is the most scientifically savvy lawyer lawyer I know of (as opposed to engineer lawyer, or doctor lawyer). He is more sophisticated than Posner. I read his book (bought new, OK, Eugene?).

He still has no awareness of his self-evident Scholasticist indoctrination and outlook; but, then not even the engineer lawyers or the doctor lawyers do. I understand. It will take time. I see good lawyers, and not just the public, as victims of a cult.

This cult has erased all of high school social studies from their memories. When you use Latin, core doctrines from the Church of 1600 AD, cathedral architecture for the court, Dominican order garb for the judge, a canonical bench, clerical pomposity and self-seriousness to scare the serfs, inscrutable gibberish for mystery, any high school kid can tell you. You are violating the First Amendment Establishment Clause.

I will really be impressed by the first lawyer that grasps that.
6.15.2005 10:15am
Paul Gowder (mail):
I hate to say this (as a liberal pro-choicer), but I agree with the antecedent post to this. There's a disturbing trend in recent legal and other discussion of subordinating values choices to some purportedly scientific calculus and declaring the question over. It's not just liberal pro-choicers, but conservatives too. For example, the Law and Economics crowd all too often thinks that merely by demonstrating the scientific economic validity of some of its proposals (i.e. that people empirically really do act in x or y fashion and have the consequent preferences) it permits them to infer that the results are to be valued without further analysis.

Science must serve philosophy, not the other way around.
6.15.2005 1:21pm
cathyf (mail):
"...the unshakeable absence of survival after delivery in the first or second trimester..."

I'm sorry, but "unshakeable absence of survival" of babies born between 22-25 weeks gestation is the delusion of a fundamentalist.

Yes, the odds are terrible at 22 weeks, but they improve quite steeply and survival rates are well into the double-digits before the end of the second trimester.

link which gives a nice description of the available data

Right now 22 weeks seems to be a pretty sharp division. (My brother has 2 nephews who survived just fine after birth at 23 weeks and 24 weeks respectively. The 23-weeker has mild cerebral palsey, but this has meant little more than that once he got to be about 7 or so he was no longer able to be the best soccer player on his team.) It's not at all implausible that the next couple of decades will see some technological advance that pushes the limit of viability back further into the 2nd trimester.

It is not uncommon for babies born in the middle month of the second trmester (roughly 17-22 weeks) to live for a few hours. In America, typical hospital policy has been to provide hospice care for these babies — usually this means wrapping the baby for warmth and giving the parents a quiet private space to hold the baby until it dies. What are the legal and moral implications of killing (through exposure to cold, or suffocation, or bashing it over the head) a living non-viable baby instead of waiting for the baby to die naturally?

Ultimately, Justice O'Connor is right -- the whole trimester system is on a collision course with itself.

cathy :-)
6.15.2005 1:30pm
Dick King:
Sooner or later doctors will be able to keep preemies who are born in the first trimester alive, to the great joy of the parents involved -- and the great sorrow of pro-choice folks. It's hard, but medical science routinely figures out how to do hard things. For that reason the pro-choice forces had better find some standard other than viability.

-dk, who is pro choice but who never did like Roe V Wade for many reasons
6.15.2005 2:23pm
paulhager (mail) (www):
I discussed the idea of a "consciometer" -- or rather a test for the ability of a brain to run its "person program" -- in connection with the Schiavo case (see Schiavo Case Gedanken Experiment and Gendanken Experiment addendum). While I agree that science is largely a tool that one can use only AFTER ascribing a value to something -- in this instance, human life -- I think that science CAN inform us about what may or may not be moral. In fact, science is essential.

A simple example is that sociobiology tells us there is an evolutionary basis for what could be termed "moral" behavior". This was a very controversial idea when proposed -- I certainty resisted it early on and attributed most human behavior to the nuture side in the nature-nurture debate (my undergraduate degree is sociology, 1973). Science can inform us as to which questions are morally legimate, by which I mean science can either ratify a moral issue as having a basis in human evolution/survival or not. For example, some of the Ten Commandments -- not murdering, not lying/bearing false witness (functionally committing fraud or falsely accusing someone) -- are legitmate moral issues. Most of the Ten Commandments, however -- for example, worshipping only one god, keeping the sabbath -- are not.

A legitmate moral issue is one that may be appropriate for the legal system to address -- life/consciousness and abortion fall into that category. Things like marriage laws (gay marriage and the like) are borderline legitimate. This derives from the fact unless humans procreate, we go extinct, so pronatalist laws can have a legitmate moral basis. Viewed in this way, laws that favor heterosexuals who want to form families and reproduce are objectively "moral". I'm not making any claim that homosexuals shouldn't be allowed to marry. However, objectively, if the state wants to raise the female fertility rate then benefits, including a category called marriage that is available to only heterosexuals (including, BTW, all of the various forms of heterosexual polygamy), is rational and defensible. [Note: obviously technology can make it possible for homosexuals to reproduce asexually (e.g., cloning) and rational state pronatalism should take that into account.]

From my perspective as an agnostic, any religious basis for a "moral" argument is illegitimate. For years, I actually refused to use various forms of the word "moral" unless it was preceded with a form of the word "religion". And if one rejects religion as a basis for morality, what's left? Science is the answer.

For me, and I don't think I'm alone in this, divorcing science from an understanding of what is moral is illegitimate.
6.15.2005 2:25pm
Brian Larry (www):

Nature is saying (emphasis added), before 6 months, the fetus is maternal tissue... In the third trimester, nature is saying...It is saying, let the... There is no escaping that rigid boundary.

This is the compromise that settles the debate...

Nature is an inefficient and unkind trial and error machine (think Red Queen principle) and should not be trusted for much moral guidance. One of man's gifts is to have some influence on the amoral system that created him.
6.15.2005 2:33pm
SupremacyClaus (mail):
Here is a recent review on survival by gestational age and weight by a non-partisan source. Short of a woman's keeping a written menses diary, I am interested in learning how these ages can be reliable.

So far, all examples, except the 19 weeks one, support the compromise view. The landmark, wherever it is, is likely to still be there awaiting the fatigue of the extremists on both sides, and their appalling lawyer collaborators on the SC.

Once a certain natural landmark is passed, wherever it is located, then a consciometer could only support one conclusion. If this age landmark is not passed, and the consciometer reads an active mental life, pro-choice people have a dilemna. You feminists, when you talk about superb soccer players and wonderful human beings born too early you are arguing for ... ?

Are such babies part of the woman's body, covered by the Fourth Amendment, or people with rights covered by Fifth Amendment substantive due process? The dumbass lawyers on the SC say the answer is simple. It is not.

The lawyer does not care, anyway, having no accountability, and being crazed by cult indoctrination. To them there is no confusion or doubt about, let's kill millions of viable babies, with a 90% chance of survival on their own, or with a little oxygen to freshen up, a little heat lamp for a nice tan, etc. Let's really drop the fecundity of the responsible middle class female, so our population gets completely filled by only wild, parasitic, future, lawyer customers. Yes, Rent Seeking explains Roe v Wade. It is not an exception to this Grand Unifying Theory of Appellate Decisions, the promulgation of criminal cult enterprise, rapacious power hunger and money greed, backed by Army Airborne.

It is the unusual doc that can suppress nausea enough to perform a third trimester abortion, except in the service of some higher moral cause than the convenience and laziness of a low class hussy. The latter is good customer to the rent seeking lawyer, in multiple specialties.

I demand a consciometer reading on all Justices of the Supreme Court. As taxpayer: the results are public. Does criminal cult indoctrination affect evoked potentials? What is the consciometer reading on a dumbass?
6.15.2005 8:14pm
I never understood personhood as being connected to biological functions. In Johnson v. Eisentrager, the Supreme Court held that the Bill of Rights lacked "extraterritorial applicability" based on an historical analysis of the class of human beings to which the Bill was intended to aply. In Roe v. Wade, the Court used an essentially identical historical analysis to hold that the Bill lacks "prenatal applicability."

So long as Eisentrager remains law, one could argue that fetuses and extraterritorial enemy combatants -- and civilians who happen to be in the way of a bullet or a bomb -- are legally more or less in the same boat. The justification for regarding both as non-persons is remarkably similar. In both cases, non-members of society can be regarded as expendable for reasons of sovereignty, integrity and self-determination -- national in one case, personal in the other.

The analogy between a parent's and a nation's soveriegn powers over human life has always struck me as a fair one. The morality of war -- and the things we do in war -- has always struck me as appropriately tempering the abortion debate. For in both cases, we deal with biological human beings who are no more legally persons than a sack of potatoes. In both cases, the Constitution imposes no obligations on us to respect the humanity of those who we regard as outsiders interfering with our existence. We may choose to do so voluntarily in war, through law or treaty. But the bases of our choice, in questions both of war and abortion, comes from moral rather than scientific principles.

Is there a scientific basis for the view that prisoners of war should be regarded as having rights, or that torture should be regarded as being wrong? Would our views on these subjects by changed by any number of hypothetical scientific discoveries -- a gene for sadism, for example? If torture were discovered to be biologically or genetically natural or normal, would that make it right? Would it make those who would continue to object to it "scientific fundamentalists?"
6.15.2005 9:09pm
M. Simon (mail) (www):
How about an economic test?

At what point do restrictions on abortion create a significant black market?

My thinking on this comes from the diffuculties of drug prohibition which has not eliminated drug use. It has merely shifted who makes the market.

i.e. criminals vs drug stores.

The economic impacts should form part of the moral equation. Do we want a regulated market or an unregulated one?

I'm reminded of the Government's position in Raich. In that case the government explicitly stated that its prefrence was for an unregulated black market. We have a Republican government stating that it prefers a Soviet style black market, at least in the case of certain drugs. Astounding but true.

Communism dead? Who says?

M. Simon
6.16.2005 2:01am
Eugene Volokh (www):
I appreciate SupremacyClaus's pointer to an article discussing survivability by gestational age. The article, however, suggests that SupremacyClaus's original statement about "the unshakeable absence of survival after delivery in the first or second trimester" (equated to "before 6 months") is mistaken. 6 months is about 182 days, or 26 weeks. The cited article reports:

* 21 weeks or less: 0% survival rate

* 22 weeks: 0--10% survival rate

* 23 weeks: 10--35% survival rate

* 24 weeks: 40--70% survival rate

* 25 weeks: 50--80% survival rate

* 26 weeks: 80--90% survival rate

* 27 weeks: greater than 90% survival rate

6.16.2005 2:12am
M. Simon (mail) (www):
The idea that the decision (in law) ought to be made in favor of more children because children are a benefit to the state indicates that the state has some ownership interest in the mother's womb, the inhabitant(s) there of, and her time. Not to mention the cost of raising a child.

Doesn't that represent a taking if gestation is not wholly voluntary?

Then of course you run into the moral hazard of a woman saying: provide support for me and my child or I will abort.

My ideal solution?

Don't want an abortion? Don't have one. The state is indifferent until delivery.
6.16.2005 2:20am
M. Simon (mail) (www):
If life begins at conception, then an acorn is a tree.

Can I recover the value of the trees lost if a kid fills his pockets with acorns from my property?
6.16.2005 2:42am
M. Simon,

This week there was a unanimous Supreme Court decision opining that a law describing what happened at the end of the clinical research process required the FDA to regulate what happened at the beginning.

Is it truly irrational for the state to regulate based on potential?

What about education? If a rational state truly only has an interest in informed voters and skilled workers when voting and work are actualities, rather than mere potential, how can a state interest in education be justified? As an example, if what happens in the potential stage is truly legally irrelevant to what happens at the outcome, how can Brown v. Board of Education, which leaned heavily on the role education plays in people's ability to be effective in society, be rational?

Indeed, how can a state justify an interest in fire departments in the absence of fires, sanitation laws in the absence of cholera, and virtually everything else that government does -- all designed to facilitate or prevent a desired or undesired future based on mere present potential?

It is doubtful that a society whose government was unable to concern itself with the future, or consider future potentials in dealing with the present, could long survive.
6.16.2005 1:03pm
I'm one of those who does condition a right not to be killed on consciousness, though I generally define consciousness to include an awareness of the self-other distinction (even if only to solopsistically reject it) and some ability to communicate and thus pierce this boundary. This definition would generally push the point of investiture of rights back to infancy and, I believe, render the stance defensible under either natural law or social contract theories.

That established, I personally have no problem answering "yes" to Eugene's hypothetical, because I don't think the lurking monster - the possibility that in the absence of consciousness, an individual's corpse, and thus potential for further life will be destroyed - is really that big of a threat.

There already exist guidelines for the administration of property, bodies included, in the absence of consciousness, we call it probate law. Generally, the recorded wishes of the no longer conscious as to the disposition of this property is respected. In the absence of clear intentions, we fall back on general guidelines believed to represent reasonable and commonly held desires; I see no reason why the default rule in this situation could not be the maintenance of the corpse. In living wills we already have an example of the successful analogizing of probate law to situations of unconsciousness, it should seem a simple matter to incorporate such future possibilties.

In such a manner, I don't think the absence of a legal right against killing should make us fear for the unconscious' bodily integrity any more than the American lack of droit moral should make us fear for the destruction of his art collection.
6.16.2005 8:28pm
SupremacyClaus (mail):
Prof. Volokh: You got me. If you wish to limit abortion to before the 22nd week, I support that. Let's give the woman a 2 week error in the recall of the last menses, and push it back to the 20 weeks landmark for a presumption of viability offered the new arrivee. One person mentioned 19 weeks, without a citation. I would support that as a compromise landmark.

The legal argument is simple. "Part of the woman's body," thus subject to the Fourth Amendment vs "viable", thus subject to the Fifth Amendment. A line is there. Feel free to place it where it makes sense from real world experience.

I am flexible. Let the experts set the landmark, with yearly prematurity survival adjustments (PSA's) written into state statutes.

Actually, I don't care about abortion, although I care a little about the off the cliff drop in the fecundity of middle class woman vis a vis that of the brazen hussy.

What angers is the arrogant presumption of cult mentally crippled dumbasses that they may legislate repeatedly, with no recourse, no accountability. And, the executive branch does nothing about it. It refuses to do its duty to arrest them for insurrection against the Constitution's Article I Section I. The only explanation is fear of the real master of both branches, the Congress (OK, us). The SC is its dog, retrieving soaking dead animals from the bog.

Honestly, wasn't Roe v Wade above the pay grade of the SC? If anyone can agree to that, hope to end this torment is viable, if premature.
6.16.2005 10:24pm