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Judge Friendly's Abortion Opinion:

Judge Raymond Randolph delivered this year's Barbara Olson lecture at the Federalist Society's National Lawyers' Convention Friday night. The speech centered on Judge Henry Friendly's opinion in a suit challenging New York's abortion prohibition in 1970 -- an opinion that Judge Friendly drafted but that was never published because New York amended its law before the case was decided. Had it been issued, it would have been the first federal court opinion on the constitutionality of a state abortion law. Judge Randolph was one of Friendly's clerks at the time, and kept a copy of the never-issued draft.

According to the draft, Judge Friendly would have upheld the law, not because he was anti-abortion, but because the law was a constitutional exercise of state power -- and that many of the inherently arbitrary policy judgments about abortion should or should not be permissible are better made by elected legislatures than a panel of federal judges. As described by Randolph, the decision anticipated many of the subsequent questions about the legitimacy of non-prohibitory abortion regulations that would follow in the wake of Roe.

Judge Randolph's speech was, to my knowledge, the first time the existence of the never-issued draft was revealed. Perhaps it will now be published somewhere for scholarly scrutiny. As described by Judge Randolph, it sounded like an interesting and insightful opinion -- just what one would have expected from Judge Friendly.

Justin (mail):
::sigh::

This of course ignores that Circuit Judges are constrained by (not only the votes of their brethren but) the concept of permissive following of precedent, i.e., they should NOT rule something unconstitutional unless Supreme Court precedent clearly precludes the law.

In other words, taking Friendly's decision as a rejection of Roe is sbsurd. At best, Friendly does not believe that Roe is REQUIRED by Griswald, which is hardly a groundbreaking viewpoint.
11.12.2005 11:30am
Janice Nix:
I have nothing but respect for Judge Randolph, but why was it OK for him to reveal the existence of a never-issued draft of an opinion by a federal judge? Isn't he getting into Eddie Lazarus territory? Did Judge Friendly give him permission to discuss this draft in public?
11.12.2005 11:32am
DJ (mail):
Er, Janice, Henry Friendly's been dead for nearly 20 years. And the issue (as I understand it) with Lazarus's perfidy was revealing the behind-the-scenes negotiations and discussions regarding the drafting of opinions. Draft opinions themselves--like Judge Friendly's--are commonly retained in public and private collections. And that's what Judge Randolph was relying on here. Absolutely nothing improper about it.
11.12.2005 12:39pm
Cordell Walker:
Well, Justin, taking Friendly's decision as a repudiation of Roe is absurd because it was written before Roe. That's the thrust of the speech and the post recounting it.

The fashionable talking points about returning abortion to the states are pathetic. People that are against abortion--like I am--should have the courage to claim outright that abortions are unconstitutional because they take a life without due process. The obfuscation isn't nearly as bad as that of the throngs advocating "choice" without daring to have the word "abortion" cross their lips (for them, even hearing someone else say the word approximates Linda Blair's reaction to holy water) but it's close.
11.12.2005 12:54pm
maurile (mail) (www):
People that are against abortion--like I am--should have the courage to claim outright that abortions are unconstitutional because they take a life without due process.

Where's the state action?
11.12.2005 1:37pm
Q.:
Why the silence over the Graham Amendment?
11.12.2005 2:03pm
Evelyn Blaine:


This of course ignores that Circuit Judges are constrained by (not only the votes of their brethren but) the concept of permissive following of precedent, i.e., they should NOT rule something unconstitutional unless Supreme Court precedent clearly precludes the law.



Can you give specific authority for this proposition? A priori, I would think that, if confronted with a case of first instance, lower-court judges should apply the Constitution and the totality of binding precedent as best they can, and deliver whatever result that analysis yields, not adopt a more deferential standard of review simply because they're lower court judges.
11.12.2005 2:37pm
Cornellian (mail):
I also thought it a bit odd that he was releasing a draft opinion that would have been confidential at the time it was written. Of course given enough time, everything is public. No one would object to releasing a draft version of Marbury v Madison but is there some rule governing this kind of disclosure? Is it purely the passage of time, or does the judge who wrote it have to be retired or dead?
11.12.2005 3:15pm
Tom Anger (mail) (www):
maurile, in the case of abortion, isn't the "state action" the state's failure to prevent and/or punish the taking of life? From the viewpoint of those who see abortion as murder, the state's effective stance is that abortion isn't murder (at least within certain broad limits), which therefore amounts to state sponsorship of murder.
11.12.2005 3:21pm
Cornellian (mail):
maurile, in the case of abortion, isn't the "state action" the state's failure to prevent and/or punish the taking of life? From the viewpoint of those who see abortion as murder, the state's effective stance is that abortion isn't murder (at least within certain broad limits), which therefore amounts to state sponsorship of murder.

Are you seriously suggesting that state inaction constitutes state action?
11.12.2005 3:36pm
CrazyTrain (mail):
isn't the "state action" the state's failure to prevent and/or punish the taking of life? From the viewpoint of those who see abortion as murder, the state's effective stance is that abortion isn't murder (at least within certain broad limits), which therefore amounts to state sponsorship of murder.

Under well-established precedent, the state's failure to outlaw something cannot be considered "state action" — the state has no duty to outlaw any behavior (except slavery under the 13th amendment, and there may be some others). If, however, it were accepted that a fetus is a human being just like all other human beings (which I do not accept because the proposition is absurd) then the failure to outlaw the killing of this class of human beings would almost certainly be a denial of the equal protection of the laws given that the state's failure to outlaw the murder would be totally arbitrary. To use an easy example, let's say the state of California decided to repeal all unlawful homicide statutes as applied to the killing of persons between the age of 30 and 35. That would be a denial of the equal protection of the laws to those between 30 and 35.

11.12.2005 3:39pm
CTW (mail):
" ... [those] advocating 'choice' without daring to have the word 'abortion' cross their lips ..."

while this clearly is just venting, it's worth answering the implicit challenge: why don't opponents of abortion bans label themselves "pro-abortion"?

those who label themselves "anti-abortion" without qualifiers presumably are for minimizing the number of abortions with a goal of having no pregnancies terminated by abortion, an extreme (in a non-perjorative sense) position. then by symmetry, those on the other side of the issue who could correspondingly be fairly labeled "pro-abortion" would have the opposite extreme position of being for maximizing the number of abortions.

but of course, noone holds that position. every reasonable person wants to minimize the number of abortions ("legal, safe, rare"). the essential disagreements are how much minimization is acceptable and how it is effected. so, although labeling oneself "pro-choice" rather than "pro-abortion" is obviously strategically wise, it is also logically sound and more accurate.
11.12.2005 3:52pm
WB:
Before this devolves into the simian feces-flinging fest typical of comment threads, can I ask if anyone knows if there is an available transcript of the speech?

I'm interested in what else Randolph had to say about this, and whatever additional context he might have provided.
11.12.2005 3:54pm
Steve:
It would seem really, really difficult to argue that "all persons born or naturalized in the United States" includes persons who have been neither born nor naturalized.
11.12.2005 3:58pm
Lab:
Sound exactly like all the million other pro-judicial-restraint arguments.
11.12.2005 4:29pm
David M. Nieporent (www):
Are you seriously suggesting that state inaction constitutes state action?
At first blush, that sounds wrong... but consider this hypothetical statute: "Homicide shall consist of the killing of a white person with malice aforethought..."

Or, in the alternative, consider the situation where we have a facially neutral homicide statute, but law enforcement and prosecutors take the position that they will only enforce the law when a white is killed. Would either of those be a denial of equal protection? I would think the answer would be obvious.

---

It would seem really, really difficult to argue that "all persons born or naturalized in the United States" includes persons who have been neither born nor naturalized.
Steve, it would be difficult to argue that... but you're confusing different parts of the 14th amendment. What you've quoted is the definition of citizen. But the 14th amendment requires equal protection for all persons, not all citizens. Only the Privileges or Immunities clause distinguishes between persons and citizens.
11.12.2005 4:45pm
Per Son:
For those suggesting that state inaction is action: that can now make the state responsible for a whole lot . . . think Deshaney v. Winnebago. Would the state have an affirmative responsibility to protect people who have stalkers . . . thus every time someone who should be under a restraining order attacks . . . the state/municipality is open to 1983 liability.
11.12.2005 5:55pm
BruceM (mail) (www):
When young adults who are 20 years and 3 months old can buy beer in a state with a drinking age of 21 without "pro-life" Christians screaming about minors buying alcohol, I'll consider listening to their idiotic, hypocritical views on abortion being murder.

Clearly, though, the law treats people who have been BORN quite differently than a fetus that has not been born. If we're going to start making idiotic arguments about equal protection and due process, then I propose that it violates equal protection for you to treat a fetus as being a human being before it's been born but not to consider the 9 months' gestation in calculating age for purposes of government benefits or privileges (such as drinking, buying cigarettes, voting, and running for president) because you are giving feti benefits under the law that living people don't get, that is, the treatment of their in utero gestation as being "alive". Furthermore, I contend that it violates due process as well.
11.12.2005 6:19pm
Erick:
That's just nonsensical. Age is measured from birth, not "life" so complaining about not counting the 9 month gestation period really doesn't make any sense.
11.12.2005 6:45pm
Daniel Chapman (mail):
"I'll consider listening to their idiotic, hypocritical views..."

He wasn't looking for a response. Don't bother.
11.12.2005 7:10pm
BruceM (mail) (www):
Ok, strike the word "idiotic" from my last post; I should have kept that to myself. I stand by the word "hypocritical" though.

What's nonsensical is claiming that someone is a living human being before they are born. Yes, age is measured from birth, and according to the pro-life people, life begins at conception, therefore you are born when the sperm meets the egg; actually coming out of your mother's womb is a non-event in the life of a human being in the eyes of someone like, say, Gary Bauer (who goes to funerals of stillborn feti). Is there any other way for them to see it? Put on a christian fundamentalist hat and try to tell me why the 9 months that a living human being spends in utero doesn't count towards his or her age.
11.12.2005 8:56pm
Daniel Chapman (mail):
Life DOES begin at conception. That is an indisputable fact of biology. PERSONHOOD in the legal sense, does not. Could you please point me to one person... it can be from the most radical pro-life webpage you can find... who claims that "you are born when the sperm meets the egg?"

In response to your dare (I won't call it a question) at the end of your post, I'd say the reason we don't "count" the 9 months in the womb is because age is a proxy for experience, and you're not really absorbing any worldly experience while you're in the womb. Beyond that, it's an arbitrary line, just like the age requirement to buy alcohol. Perhaps if you stopped assuming the worst about "christian fundamentalists" and actually thought about their arguments, it wouldn't seem so absurd to you.

You usually make more sense than this, but I suppose this topic brings out the worse in people.
11.12.2005 9:14pm
BruceM (mail) (www):
If human life truly began at conception, then:

1) every stillborn baby would have a funeral

2) abortion one day after conception would be murder

3) social security numbers and other government benefits and recognition would be doled out upon a positive pregnancy test

4) we'd celebrate conceptiondays rather than birthdays

and none of these would sound like the nutty fringe positions that they are.

All age requirements are by definition arbitrary and have absolutely nothing to do with wordly experience.

If "pro-life" people are going to claim aborting a fetus is murder, it's necessarily because they believe the fetus is a living human being. I don't think anyone disputes this fact. A logical extension of that belief is the truism that we all have approximately 9 months added onto our age, since our "birthday" doesn't accurately reflect how long we've been ALIVE.

If we have a self-proclaimed "pro-life" president in office when I reach 9 months short of my retirement age, he'll be hearing from me. No reason I should have to wait 9 months AFTER my retirement age to start getting retirement benefits.

The bottom line is abortion, or more accurately the position against it, is grounded in two things that no anti-abortionist wants to admit: (1) racial bigotry and (2) inreased tax revenue. But I'll save that discussion for email or, at the very least, another thread.
11.12.2005 9:42pm
Daniel Chapman (mail):
I think everything in your post was wrong. It's really not worth my time to argue with someone who a) doesn't understand the difference between biological life and legal personhood and b) keeps using cultural traditions as scientific arguments.

I find it rather amusing that religious dogma has adapted to incorporate new scientific knowledge and now teach that life is precious from the moment it begins. It's not like they get their definition of life from the old testament... quite the opposite, in fact. At the same time, liberals who are usually pro-science and anti-tradition are willing to abandon scientific definitions and cling to a traditional belief that life begins at "birth," when no one has really believed that since the middle ages. Even in the 1600s, it was understood that life began at "quickening."
11.12.2005 10:29pm
fred (mail):
BruceM:

Your logic is unbeatable.

As you suggest, we will change the law and count from conception. No one will be able to buy liquor until 21 years and 9 months.

Based on what you've said, after that change you will have no objection to outlawing abortion.

You win. We will change the age laws, and then we will outlaw abortion.
11.12.2005 11:14pm
Cornellian (mail):
Life DOES begin at conception. That is an indisputable fact of biology. PERSONHOOD in the legal sense, does not. Could you please point me to one person... it can be from the most radical pro-life webpage you can find... who claims that "you are born when the sperm meets the egg?"

Why conception? Aren't eggs and sperm alive even before conception?
11.12.2005 11:23pm
DJ (mail):
This is all very silly. The due process argument fails because of the state action doctrine. See DeShaney. The hypothetical regarding the repeal of murder laws as applied to a specific class of people based on their age likewise fails because, under contemporary 14th Amendment jurisprudence, age is decidedly not a suspect classification and, hence, any differential treatment of persons based on age is subject to minimal judicial scrutiny. If the classification is reasonable, it's constitutional. Allowing pre-term persons to be murdered may be morally wrong, but there are so many public interests that can plausibly be extended to support the practice (mothers' health, reproductive choice, even eugenics)--and, therfore, no court would invalidate the practice on equal protection grounds.
11.12.2005 11:34pm
Matt Tievsky (mail):
DJ:

You've addressed the suspect class inquiry under Equal Protection, but what about the fundamental right inquiry? To be honest, I don't know if it's possible to find a threat to one's fundamental rights on the basis of state INaction, under Equal Protection jurisprudence. But if it is, then we're talking about the right to enjoy state protection against having one's life snuffed out...surely that's sufficiently "fundamental" to subject legalized abortion to strict scrutiny.

Think of it this way. By your logic, legalizing the murder of minors is almost certainly constitutional (continuing under the assumption that fetuses are legal persons). That's problematic.


I wouldn't reach this issue, though. I'm skeptical of the view that fetuses are persons under the Constitution view for the same reason I'm skeptical of the view that the Constitution precludes legally recognizing a fetus's interest in remaining alive. There's too little legal authority for courts to rule, one way or another, on an issue of such moral complexity.
11.13.2005 12:08am
DJ (mail):
"To be honest, I don't know if it's possible to find a threat to one's fundamental rights on the basis of state INaction, under Equal Protection jurisprudence." It's not. The EP fundamental rights doctrine really only applies to three unenumerated constitutional rights: the rights to vote,to travel, and (more or less) to marry. No court that I've heard of has ever extended this doctrine to other substantive rights (especially rights that are already specifically delineated in the text of the Constitution--like "life!"), and I'd submit that most people would think that using the fundamental rights component of the 14th Amendment to read an anti-abortion clause into the Constitution would be as over-reaching and illegitimate as, well, Roe v. Wade.

"Think of it this way. By your logic, legalizing the murder of minors is almost certainly constitutional (continuing under the assumption that fetuses are legal persons). That's problematic." Maybe problematic to you, Matt. Just not unconstitutional under any contemporary constitutional theory.
11.13.2005 1:13am
Dave T (mail):
Not to add fuel to the "count from conception" fire, but some cultures DO count age from (roughly) conception. It's purely a matter of convinience how to count AGE and should not affect how we consider PERSONHOOD. The two issues are entirely seperate. Our society has chosen to count age from birth since it's a pretty clear event that's easy to prove. Others (eg, traditional Chinese age system) count from (roughly) conception. Of course, that's a lot harder to prove, suggesting a good reason not to use that method.

Some people count Sunday as the first day of the week, some count it as the last. That shouldn't affect your opinion of whether you have to work on Sunday or not.
11.13.2005 2:12am
Frank Drackmann (mail):
Fetus rights aren't protected just as African American and Indian rights weren't protected before the civil war ammendments.
11.13.2005 9:57am
CTW (mail):
"please point me to one person... who claims that you are born when the sperm meets the egg"

well, perhaps not "born", but it certainly seems a reasonable inference from the unqualified statement "abortion is murder" that the speaker believes that at that point (or maybe even earlier) the "human life" acquires enough "personhood" to be murderable. if they don't believe that, then I don't understand their unqualified opposition to abortion. since presumably any reasonable pro-choice person will accept some limit on how late in term an abortion is acceptable, it would then be only a dispute about where to set that limit.

so what am I missing?

"liberals ... are willing to abandon scientific definitions and cling to a traditional belief that life begins at 'birth'"

this is wrong on multiple levels. first, neither you nor anyone else knows what "liberals" collectively believe. second, it's too ridiculous an idea to have warranted discussion, but I nonetheless feel confident that none of my "liberal" friends believes this. finally, ones belief as to when life begins, which as you correctly suggest can be impacted by scientific knowledge, has nothing to do with whether or not one believes that "life is precious", a religious concept as you suggest. eg, I try to tailor my beliefs to be in accord with scientific knowledge, believe in legal protections of "persons" (however legally defined) for obvious practical reasons, but do not believe life to be "precious" in any religious sense.

and I quote, "You usually make more sense than this".
11.13.2005 11:51am
book_lover (mail):
As a scientist (and not a lawyer) I find this discussion inane. If we take a scientific approach, there woudl be some hope for a resolution to the "clash of ansolutes. Just as we accept the notion of "brain death", why not accept the notion of "brain life"? All that makes us "human" depends on cortical functioning, the cortex begins firing at roughly 6 months ironically enough. Once the cortex starts firing in a way that seems like that of a new born baby 9detectible by wireless eeg), then the fetus has significant rights (basically to be protected unless the mothers physical health is at significant risk), prior to that times, it doesn't.


Think of it as the scientific equivalent of the religious notion of "ensoulment", no cortex, no soul. No soul, no humanness....
11.13.2005 12:52pm
BruceM (mail) (www):
I didn't mean for my argument to be serious, read my first post which I felt was in response to another dumb argument:

"If we're going to start making idiotic arguments about equal protection and due process, then I propose that it violates equal protection for you to treat a fetus as being a human being before it's been born but not to consider the 9 months' gestation...."

But constitutional arguments aside, I do find it hypocritical for a "feti are living human beings" pro-lifer to not count the 9 months gestation period in calculating a person's age. Maybe a few fringe-group pro-lifers like Gary Bauer actually do.

If abortion is legal and available on demand, it will be a luxury for the rich. Poor minority groups won't be able to afford abortions, and their populations will increase much faster than those of white people. This is why abortion suddenly became an issue around the late 1800's. Once the income tax was passed, the government joined the racists in wanting to outlaw abortion because each abortion is the destruction of a future taxpayer. It's in Roe v. Wade - when they say "the state has an interest in a viable fetus" what do you think they are talking about? What interest, other than taxpayer revenue, could that possibly mean? Yeh, yeh, people will respond by saying "the state has an interest in life!" but that's a meaningless aphorism which can be proved untrue by watching an hour of CNN on any given day. It's true only to the extent that (American) life means a taxpayer. Personally I find it sickening to say the "state has an interest" in anything inside your body. Seriously, when I read that I get nauseated. "We're not going to let you prevent a future taxpayer from coming into fruition."

The roots of the abortion debate are so misanthropic that it's utterly sickening. Note that abortion was never an issue when whites owned blacks and there was no income tax. Note that there are not tens of thousands of years (or 6 thousand years for the religious folk) debate on abortion. No, not until the 20th century did various interest groups want to 'ban' it. In none of their debates did Abe Lincoln and Stephen Douglas mention abortion.
11.13.2005 1:54pm
fred (mail):
As a lawyer, and not a scientist, all I can say is you guys were telling us one thing when Roe v Wade was decided, and now you're telling us something completely different today.

And the confusion over scientific conclusions continues:

Big article in the NYT a couple of months ago: Scientists say fetus can feel no pain before the 29th week. This was immediately contested by other doctors and scientists, who said they routinely operate on babies at 23 weeks and they see the babies flinch.

From a nurse who works in an preemie ward:


The research [that babies don't feel pain before 29 weeks] wouldn't boggle my mind so much if I didn't care for infants younger than that! There is no doubt, no doubt, in my mind that the babies in the NICU under 29 weeks feel pain. Why else, when we're sticking them with needles or doing any other variety of painful or uncomfortable procedures would they grimace and try to pull away? Why would we give them PAIN MEDICATION and why would the pain medication WORK at alleviating the signs of pain if these micro-preemies did not experience pain?! If the researchers had set the date for being able to experience pain at even 22 weeks, I would not be able to refute their claims on the basis of personal experience, but as it is, I am here to tell you that I've seen babies at 24 weeks gestation clearly demonstrate that they are in pain.


And there is a fetal pain researcher who believes that babies in the womb can feel pain at 20 weeks:


Kanwaljeet Anand -- a fetal pain researcher at the University of Arkansas for Medical Sciences, who believes fetuses can feel pain at 20 weeks' gestation


And then there is this study of babies supposedly crying in the womb at 28 weeks.

The scientific evidence that we need is just not there, so your six months / cortex rule will not work. We don't really know enough yet.

But let's assume that all the scientists agree that there is no nervous system development in the 3rd month. Should it be OK to do an abortion then?

Doing an abortion at 3 months should still be an uncomfortable thought. The baby is, after all, well on the track to becoming a fully functioning human being. Built into it is a distinct personality that will develop, and which will be extinguished if it is aborted. In a sense, from the moment of conception the fetus has been pre-programmed to develop into a singular, distinct person with a personality that no other human being has - it is an individual. That personality will be forever extinguished if it is aborted.

To assume it is merely another lump of tissue is a stretch. To blythely get rid of it for mere convenience should be fraught with moral problems.
11.13.2005 2:13pm
Sam:
BruceM: "Note that there are not tens of thousands of years (or 6 thousand years for the religious folk) debate on abortion."

I'm pretty sure Hippocrates and the Pythagoreans sought to ban abortion. The Hippocratic Oath states "I will not give to a woman an abortive remedy." I'm pretty sure that established several thousand years of debate on the subject (though even a cursory knowledge of world history would make "tens of thousands of years" worth of abortion debate impossible).
11.13.2005 2:26pm
fred (mail):
BruceM said:


If abortion is legal and available on demand, it will be a luxury for the rich. Poor minority groups won't be able to afford abortions, and their populations will increase much faster than those of white people.


Abortion is legal, and it is available on demand. Is it now a luxury for the rich? In fact, poor minority groups have abortions at a rate 3 times higher than whites. As a result, their numbers and presumably their political power has proportionately declined at the ballot box. So legal abortion must really be a plot by right wing "racists" to insure supremacy.

Why did abortion became an issue in the late 1800's,if the income tax was not passed until 1916? I suggest that the rise of modern medicine around that time was a much bigger imfluence than any need to "produce taxpayers". Anesthesia was invented then, which made most operating procedures possible.


"Note that abortion was never an issue when whites owned blacks and there was no income tax. Note that there are not tens of thousands of years (or 6 thousand years for the religious folk) debate on abortion. No, not until the 20th century did various interest groups want to 'ban' it. In none of their debates did Abe Lincoln and Stephen Douglas mention abortion.


Before the 20th century there were very few democracies in the world around to ban anything. The institutions that did exist disapproved of abortion. "Interest groups" did not exist until democracies. Kings had little to say on the subject, and the church of course did condemn it.

From a law review article:


In the early 1800s it was discovered that human life did not begin when she "felt life," but rather at fertilization. As a direct result of this, the British Parliament in 1869 passed the "Offenses Against the Persons Act," eliminating the above bifid punishment and dropping the felony punishment back to fertilization. One by one, across the middle years of the 19th century, every then-present state passed its own law against abortion. By 1860, 85% of the population lived in states which had prohibited abortion with new laws. These laws, preceding and following the British example, moved the felony punishment from quickening back to conception. J. Dellapenna, The History of Abortion: Technology, Morality, and Law, University of Pittsburgh Law Review, 1979 Quay, Justifiable Abortion-Medical and Legal Foundations, Georgetown Univ., Law Review, 1960-1961
11.13.2005 2:55pm
Daniel Chapman (mail):
Amusing that you left out one word from my quote... it kind of changes the meaning.

Here's what I actually said: "liberals who are usually pro-science and anti-tradition are willing to abandon scientific definitions and cling to a traditional belief..."

Here's how you quoted me: "liberals ... are willing to abandon scientific definitions and cling to a traditional belief that life begins at 'birth'"

Funny how you didn't even save yourself any keystrokes, but now there's no other way to read the quote except to be a blanket statement on the views of all liberals. You could be Maureen Dowd's understudy.

"Inane" was an accurate description of this thread...
11.13.2005 4:29pm
book_lover (mail):
I am unaware of any reputable neonatologist who says a fetus feels pain in the human sense prior to the formation of the cortex. (Actually, this is almost a tautology: to a scientist all that makes us human is bound up in cortical function, without cortical functioning, we are not human, period.)


Yes, fetuses show responses to "painful" stimuli prior to the formation and firing of the cortex but a brain dead individual will also flinch in response to certain stimuli. In sum, while the fetus may, in fact, develop into a functioning human being (although most fertilized eggs, don't) and thus the decision by the women to abort must not be made casually (but does any women abort casually?), until there is cortical function, there can be no humanness. If you don't accept this you leave the realm of science and move to mysticism, do you not accept the cortex is what makes us human and not say a beating heart (medieval notions at best). Response to pinprick stimulation (available in certain brain dead formerly human entities) is a red herring.


If you deny the cortex is what makes us human, what does make us human? Do we keep the shell of the body alive forever if that technology becomes available after cortical functions cease??
11.13.2005 6:02pm
Ira B. Matetsky:
I won't comment on the merits of the abortion issue, but regarding the ethics of disseminating Judge Friendly's draft opinion, Friendly's papers are in the manuscript division of the Harvard Law Library. If the opinion is in there and the papers are open for research, then it's a public document. Even if the papers technically aren't open yet, presumably they someday will be. Moreover, the opinion is presumably also to be found in the files of the other judges who were on the panel with Friendly in that case, if they have survived.
11.13.2005 8:30pm
therut (mail):
As a physician I see a difference in a brain dead person that is brain dead from stroke, trauma etc. and a fetus which is developing normally and will continue to do so unless disease,trauma or the great trauma of physical intervention of a physician intervenes and stops that development. The brain death discussed above and the developing brain that is a normal process of living are not the same. One is the end of life the other is only a stage in the normal development or growing up of a human person. Whether the Law says so or not. The Law is that just a law. It is not science based or morally based. It is completely human based. On what I don't know except the whims of the times we live.
11.13.2005 9:25pm
therut (mail):
Was it Mark Twain that said "The law is an ass". With that I tend to agree.
11.13.2005 9:27pm
Eugene Volokh (www):
Judge Randolph said in his speech that -- as Ira Matetsky pointed out -- Judge Friendly's opinion was in the papers that he gave to Harvard (presumably on his death).

By the way, I first met Ira Matetsky in 1979, when we were both in math summer camp together. It's not a small world, it's a small bourgeois clique (and a small Jewish conspiracy).
11.13.2005 10:02pm
Janice Nix:
OK, Eugene, thank you for clearing that up. JNOV's post certainly made it sound as though Friendly's opinion was not public; see, e.g., JNOV's remarks that Judge Randolph kept a copy of the draft and that this was the first time the existence of the draft had been revealed. I am glad that this was *not* the case. I strongly disagree with the assertions by DJ and others that it is OK for clerks to discuss unreleased drafts if the judges who authored them are dead, or because drafts aren't confidential. A clerk's duty of confidentiality doesn't disappear when the judge dies, and unreleased draft opinions are every bit as confidential as "the behind-the-scenes negotiations and discussions regarding the drafting of opinions" documented in Eddie Lazarus's book.
11.13.2005 11:03pm
Jason Jonas (mail):
> "When young adults who are 20 years and 3 months old can buy beer in a state with a drinking age of 21 without "pro-life" Christians screaming about minors buying alcohol, I'll consider listening to their idiotic, hypocritical views on abortion being murder.

Where I live, the drinking age is 18. These age cutoffs are almost as arbitrary as the trimester scheme that Rep. Bingham wrote into the Ninth Amendment. The difference between "you cannot drink alcohol less than 21 years after your body exited your mother's womb" and "you cannot drink alcohol less than 21 years and 9 months after the presumed date when your father impregnated your mother", is purely formal, a matter of drafting. (Plus a birth is witnessed and certified by independent third parties: a conception is not).

It's like having a sign in the library that says "(1) Dogs not allowed. (2) This does not include guide dogs for the visually impaired." Now and then someone excitable starts jumping up and down saying that the legislature is trying to say that guide dogs aren't "dogs", as if this was on a par with defining pi as 3.00.

This sophomoric "Hey, if unborns are 'persons' then those en ventra sa mere of pregnant inmates are being denied habeas corpus" gotcha has got to be one of the dumbest pro-abortion arguments ever put forward. It's depressing that even The New Republic ran a piece, circa 1989, running this line.

> It would seem really, really difficult to argue that "all persons born or naturalized in the United States" includes persons who have been neither born nor naturalized.

Fine. Unborn persons don't become citizens until they are born. But "no denial of life, liberty or property without due process" is not limited to citizens (unless you're after a Bush appointment to a military tribunal?). "Born", like "naturalized", qualifies -- not describes - "persons". You can have non-naturalised "persons" (eg, Jacques Chirac). And so too can you have unborn "persons".

There was a time, as recently as the 1960s, when liberals like Charles Black were jumping up and down in fury arguing that of course a State was "denying... protection of the law" if it allowed lynch mobs to take human life at private whim. But now some are quoting deShaney (and Gonzalez v Castle Rock) to say, hey, as long as the State merely declines to punish private individuals who murder, that's not unconstitutional: it's only when a State employee executes Ted Bundy or Tim McVeigh that we'll get agitated. To paraphrase Shrek: Doesn't it bother you that you have to rely on a SC decision that let homicidal abuse of a (born) child go unpunished, to protect the Sacred Right to do likewise to unborn children? Mightn't that start to indicate that your moral compass is a bit off?
11.13.2005 11:18pm
Ira B. Matetsky:
Eugene, good to see that you remembered me after all these years. You may have missed my memories of our summer at HCSSiM in the "Volokhs come to America anniversary" thread a couple of weeks ago, q.v.

Back on topic, it's interesting to speculate that if Judge Friendly's opinion had come down and been the law of the Second Circuit, then Judge Jon O. Newman (then of the District of Connecticut) would not have written Abele v. Markel, which has been considered one of the leading lower-court precursors to Roe.
11.14.2005 2:32am
chsw (mail):
Isn't this similar to what Scalia has said? (paraphrase) If a state legislature legalizes an abortion framework, there is no Federal question if Roe v. Wade is overturned.
11.14.2005 9:49am
corngrower:
A person does not exist until birth? So all those persons in jail for wrongful death if a non-existant thing in utero? Are there because? Drunk pregnant woman runs a stop sign and lose a baby? Guess who's going to jail?

BTW If a City can ban the ownership of guns, Why cant the same city ban Abortions
11.14.2005 10:35am
James Kabala (mail):
The argument about Social Security numbers is the silliest of all. SSN are a bureaucratic convenience, not a "Congratulations, you're alive!" certificate from the government. When Social Security was created, you didn't get a number until you had a job, and persons in professions ineligible for the program (e.g., teachers, goverment employees in general, domestic servants) did not receive a number. That doesn't mean that the government considered such people non-persons. The change to issuance at birth came several decades later.
11.14.2005 12:48pm
Aaron:
Corny, no one is in jail for wrongful death. That is a civil claim.

I'm still trying to wrap my brain around "wrongful life" suits...
11.14.2005 3:19pm
B. B.:
Is it just me, or does anyone, when they hear his name, picture Judge Friendly as a robed figure with a giant yellow smiley face in place of his head?
11.14.2005 8:10pm
fred (mail):

"until there is cortical function, there can be no humanness"


I think this is the heart of the matter. I think this is where the disagreement lies.

By my reckoning, there is humanness - lots of it, in a developing baby, whether it is in the first month, or the ninth month. As I said before: This is not just some bunch of tissue that has the same value as any other mass of tissue in the woman's body.

To claim that it has absolutely no humanness seems going way too far.

It seems to me that we are confusing consciousness with humanness. I think this is a gross oversimplification.

The fetus is not the same as any other mass of cells in the woman's body. It will become a very specific, unique individual.

That individual, once born, will have a very specific personality. When conception occurs, it does not create a undifferentiated, clone-style human - it creates a very distinct human being. It creates a singular personality. It may not be ready for life outside the woman's body yet, but it is genetically complete - it is pre-programmed and will inevitably become a distinct and separate human being. All the genetic coding that creates its individuality, it's personality, is there. It just needs to ripen on the vine, so to speak. This is that individual's one chance to live. If aborted, that individual will never become alive. Ever. Period. It has been brought into existence only to be eliminated.

Since we brought an individual into existence, we owe it that existence.

At the point of conception, a complete new human has been created. The stages of its "ripening" are irrelevent.

Because of its uniqueness as a human being - there is none other like it in the world, or ever will be - it has attained "humanness". What makes a human is not brain waves. What makes a human is the fact that it it is unique, that it is separate and distinct from the mass of humanity. That separateness and individuality create someone who is capable of having experiences and thoughts that no one else has ever had or ever will have.

It does not matter whether it can feel pain, or create brain waves. None of the those physical milestones matter. The attempt to confuse consciousness with humanness is misplaced. Its right to live arises not from the fact that we should not kill things that realize they are alive; it comes from the fact that we have created a unique human being, and once created, that unique human being has a right to live.

Using your criteria of consciousness,(or even worse - brain waves)the philosopher Peter Singer has rationally concluded that it is OK for parents of deformed babies to kill them within 30 days of being born. The absurdity of this logical conclusion shows that the consciousness rationale is wrong from the start.

Conception completes the final step in the creation of that individual. Once that egg meets that sperm, the individual's characteristics have been fixed. A very particular new human has been formed. All of the building blocks to create that unique human being have been put in place. It just needs to grow a while.

Abortion takes away the right of that individual to live. To say that it's OK to do away with it before it realizes it's alive is merely saying it's merciful to do away with someone painlessly. But we are still doing away with someONE.

To my mind, the idea that it is not human until it has brain waves is as medieval as the notion that it's not human until the "quickening". Why not kill a baby that has cortical function? If it's basic, simple cortical function it may not be actual consiousness. It may be something less. Both "quickening" and "cortical function" are simply efforts to fix a point in time where we will graciously offer full humanity to something that has already had its full humanity fixed.
11.14.2005 10:02pm
book_lover (mail):
Fred is right, the definition of humanness is the issue. I think humanness resides in the cortex, he thinks it resides in potentiality.


But the trouble with Fred's argument is the majority of fertilized eggs never develop into human beings, would he have all women examine their menstrual flow under a high powered microscope to see if a fertilized egg was found, and if so bury it according to the laws disposing of human remains? Does he accept that most fertilized eggs do not develop into human beings? If so doesn't that provide a reductio to his argument that uniqueness of genetic programming makes us human?


Also, it is possible for an egg to split (temporarily forming twins) and then reconstitute (so only a single entity remains), if this happens did an individual die, if so how do we know, since this happens transparantly to us?


Also, by Fred's argument we should never shut off life support because an individual still "exists" since the unique genetic blueprint exists in each of the living cells of the brain dead individual. The argument that it is acceptable to shut off life support from an entity with only brain stem function is acceptable precisely because we accept that all that makes us human is no longer there once the cortex stops functioning. Similarly, until the cortex is firing what makes us human is not there either. The ancients with their notion of ensoulment, in this sense, had a point: there is something that makes us human ("a soul") and it resides in a functioning cerebral cortex (brain life and brain death, symmetrical--and scientific). A potentially unique shell isn't human, it's just a shell that cold "house" a human - the humanness comes in the cortex, not the shell.

Finally, while Singer surely goes overboard, the fact is that ancephelics are allowed to die - which they inevitably do.
11.14.2005 10:31pm
corngrower:
Someone please define Humaness? Oh and you dont get to use religion.
11.15.2005 11:20am
fred (mail):
You make some excellent points, booklover.

First: I think the arguments for the end of life are completely different, and best dealt with some other day. The two situations are similar in some ways, but very different in others. In sum, I would be very, very cautious before terminating a living person with a disability. If the person is truly brain DEAD, with no possibility of comeback, then I think everyone can agree they are dead. But Terri Schiavo-like situations should be handled with much more care than that one was. There certainly was a family of people who were convinced she was still very human. And there was no clear and convincing evidence of her wishes, despite what the court said.

As to abortion: What I laid out was the general rule, under which almost all abortions should become illegal. I would allow exceptions, if there were truly exceptional. There are very few things on which you can be an absolute absolutist. What I was doing is laying out the case for making abortion the exception, rather than the easily procured rule.

And yes, there is a bit of logical inconsistency in my position, since I still would allow some abortions, while believing that each abortion killed a human being. But remember logical consistency is what got Peter Singer to the point where he was ready to kill 30 day old babies. The world does not run strictly according to logic. Logic is merely the tool by which we try to assemble some order out of the chaos. Each step in the logical chain assumes a world of things, some of which may not be true. So its probably more reason to be suspect of someone who is completely logically consistent.

Despite the general rule I outlined, I currently lean towards allowing abortions in cases of rape and, of course, to save the life of the mother. However, it appears there are a number of people who have been conceived by rape who are very happy to be around, and mothers who are happy they had the baby:

Julie Makimaa: ""Julie, who lives with her husband in Springfield, Ill., does not wish she had never been born. Her mother has no regrets about giving birth to the child of a rapist. Both women testify to being psychologically well-adjusted and normal in every way."

There are numerous others: Kathlee DeZeeuw, Jennifer Speltz,

In any event, I think when we abort such fetuses we need to come to grips with the fact that we are terminating a life, not ignore it. It's not just a bunch of cells. Even in the exceptional cases, we need to carefully weigh the value of that human life before acting.

Under the cortex activity theory, there is virtually NO value placed on human life before five or six months. I think that is the wrong approach. It pretends something that is not true: It pretends that the fetus is just another bit of tissue, it pretends that it is not human at all, and it pretends that a woman should think nothing at all of aborting before that time. I think that bit of absolutism is unwarranted. I think most people can agree it's not that simple. Even if you don't believe it is fully human, I think most would agree it had some degree of humanness, even before 5 months. And it therefore should be accorded more consideration than a potted plant.
11.15.2005 4:43pm
book_lover (mail):
I don't dispute that a fetus prior to cortical functioning has life, what we are disputing is (1)Is it "human" life and (2)Regardless of what kind of life it is what is the value society should place on protecting its life over and above the women's wishes, who after all must carry it at a risk to her life and health.
However, I believe very strongly that prior to some cortical firing which happens at 5 or 6 months (and detectable by wireless eeg easily enough with modern technology), there is no human being there "yet", ergo that living thing has no significant rights. In particular, I'm not willing to allow the state to interfere in any way with the women's right to choose prior to that point. After that point I am because my definition of humanness requires a functioning cortex and not just a brain stem functioning. It is, if you will, my notion of ensoulment. Alas, this is not something a scientist can convince you of, I can convince you that there is no cortical function when there is not (since that is a verifiable scientific fact), I can't convince you to assign as much weight to it or as little weight to brain stem function only as I do.


As far as Schiavo goes the autopsy clearly showed no cortical functions whatsoever. At the time the feeding tube was removed the autopsy clearly showed that all that made her human had long since vanished ergo from my point fo view she was no more human than a wax model at Madame Toussaud.
As far as Peter Singer's argument goes, since I believe any fetus or child with cortical functions has rights, I would only allow abortion after that point to save the life or to prevent serious harm to the mother as certified by an independent team of physicians.

I also feel that letting an ancephelic die by not say inserting a feeding tube or taking any measures whatsoever is in no way wrong.
11.15.2005 10:00pm