pageok
pageok
pageok
Murder of Unborn Children as Capital Crime?

Flores v. State (Tex. App. Jan. 24, 2007), upholds a life sentence for a father's capital murder of his unborn twins. (Flores had admitted that "in the seven days prior to her delivery [he] stepped on her abdomen on two different occasions.")

Flores argued that the statute "violates the Establishment Clause of the United States Constitution because defining life as beginning 'at conception is religious, not medical or legal'"; that was properly rejected under Harris v. McRae. But what if he had been sentenced to death? Would that have been precluded by Coker v. Georgia -- which held that the death penalty for rape was unconstitutional, and which many have read as generally foreclosing the death penalty for crimes short of murder (but which the Lousiana Supreme Court has interpreted, controversially, as allowing the death penalty for rape of children)? Would it matter how old the fetuses were, and were would the constitutional line be drawn on that?

Jerome Cole (mail) (www):
I just don't see how treating a fetus as the moral equivalent of an adult or older child makes any sense. A fetus or even a young baby does not have a well developed personality or even a sense of self. What is the value to clinging to a legal fiction that they are just as important as a fully developed human being?
1.26.2007 7:08pm
Paddy O. (mail):
"What is the value to clinging to a legal fiction that they are just as important as a fully developed human being?"

Because I know a lot of adults without a well developed personality and sense of self.

"Fully developed" is a tricky phrase. It just moves the value judgment over a few yards without making anything more clear.
1.26.2007 7:12pm
Evan H (mail) (www):
Jerome, I disagree with evaluating a life's value based on the development of it's personality. I personally like the idea that if the fetus is at a stage of development where it is reasonably assumed that the child could survive on its own without artifical help then the law can treat it as any other human.
1.26.2007 7:19pm
Steve:
I have my doubts that Coker would be decided the same way today. Given that, I would tend to limit its holding to the narrow issue presented, and reject the conventional wisdom that it precludes the death penalty for all crimes short of murder.

Either way, this was in fact capital murder under state law. The murder statute, as it pertains to unborn children, properly makes an exception for a lawful abortion or for any conduct by the mother.

Is there an argument that a state may not treat the killing of an unborn child as murder, so long as the right to an abortion is not interfered with? After all, homicide of an adult human is sometimes criminal and sometimes not. Certainly, if the statute were limited to post-viability killings then I wouldn't see the constitutional problem.
1.26.2007 7:20pm
liesel:
Certainly this is a distrubing case from many angles. I find myself wondering what other charges have been brought against Flores, if any. A cursory web search does not reveal any others, but looking through the judgement, it seems that there may be grounds for domestic violence charges.

I think that Texas' abortion parental notification law might have stood in the way of a more humane ending to this story. I am happy that we defeated a parental notification initiative in Oregon last fall.
1.26.2007 7:25pm
Enoch:
I just don't see how treating a fetus as the moral equivalent of an adult or older child makes any sense. A fetus or even a young baby does not have a well developed personality or even a sense of self.

Thus speaks someone who obviously has no children.

Capital punishment would not be out of order here.
1.26.2007 7:55pm
Fub:
Steve wrote:
Is there an argument that a state may not treat the killing of an unborn child as murder, so long as the right to an abortion is not interfered with? After all, homicide of an adult human is sometimes criminal and sometimes not. Certainly, if the statute were limited to post-viability killings then I wouldn't see the constitutional problem.
Absent a statutory provision, the California Supreme Court so held in Keeler v. Superior Court of Amador County (1970) 2 Cal.3d 619. See the case for the argument.

In response to Keeler, the California legislature added the words "or a fetus" to PC Section 187(a): "Murder is the unlawful killing of a human being or a fetus with malice aforethought."
1.26.2007 7:55pm
Thorley Winston (mail) (www):
Capital punishment would not be out of order here.


Agreed.
1.26.2007 7:58pm
Kovarsky (mail):
There are a couple of analytic steps here:

(1) does coker state a narrow rule (no cap punishment for rape) or a broader one (cap punishment murder only).

(2) under the broad rule, does state law supply the elements of "murder."

(3) does the constitution impose an outer limit on what the state can define as murder.

I disagree with steve in the sense that I don't think the court will opt for the narrowist interpretation of Coker. I don't think that's a fair reading of the decision, and I don't think the Court wants to get in the business of parsing the constitutionality of subjecting every state offense to capital punishment.

But I agree with steve in the sense that I do think the court would cabin Coker by allowing states to define the operative content of the murder offense. There's nothing all that radical about the idea that there is some constitutional limit on the definition of a defense under state law. An example from the capital punishment context, in fact, is mental retardation. Atkins does not set forth a single standard for retardation, but leaves that for the states to define. But states are obviously not free to define retardation so narrowly that Atkins is rendered moot. In the noncapital context, a number of constitutional limits on takings of "property" exist, where property is to be defined by state law. And, again, presumably a state is not free to define properly so narrowly as to eviscerate the constitutional protection.
1.26.2007 8:06pm
Ryan Waxx (mail):

Either way, this was in fact capital murder under state law. The murder statute, as it pertains to unborn children, properly makes an exception for a lawful abortion or for any conduct by the mother.


Ah. So if the mother does it it's just peachy, and if the father does it, it's a life sentence? And no one so much as blinks an eye at that 'logic'?

Seems to me, that this case has more to do with men being second-class citizens in the eyes of the law, with no legal way to deal with an unwanted pregnancy short of shutting up and paying out, rather than parental notification considerations.
1.26.2007 8:17pm
JB:
IANAL, but...

If a fetus is as viable were it to be born immediately as a full-term fetus, I have no problem with the law declaring it a person and its death murder. (Is anyone seriously arguing for the legality of 35th-week abortions anymore, anyhow?)
1.26.2007 8:28pm
Kovarsky (mail):
Fub,

Absent a statutory provision, the California Supreme Court [held that a state may not treat the killing of an unborn child as murder] in Keeler v. Superior Court of Amador County (1970) 2 Cal.3d 619. See the case for the argument.

I think you're missing steve's point a bit. When he asked if a State "may not treat the killing of an unborn child as murder," I take him to be asking, literally, if the state can do it. I don't think the answer that the state can do it statutorily really answers the thrust of his question. He's asking whether there's a constitutional limit the 8th amendment imposes via the 14th.
1.26.2007 8:30pm
Kovarsky (mail):
Ryan,

Seems to me, that this case has more to do with men being second-class citizens in the eyes of the law, with no legal way to deal with an unwanted pregnancy short of shutting up and paying out, rather than parental notification considerations.

Huh, doesn't it make "an exception for a lawful abortion OR for any conduct by the mother?" I don't think the statute means that fathers who help their lady friends get abortions are to be punished; I think it means that fathers who "abort" fetuses by stomping on the mother's stomach are "second class citizens."
1.26.2007 8:41pm
Owen Hutchins (mail):
Abortion is not and never has been about the right to kill, but rather the right to control one's own body and what happens to it.
1.26.2007 8:42pm
Cornellian (mail):
Is really going to be able to attack a statute defining human life as beginning at conception if he's coming to the table with a fact pattern involving him killing his twins just 7 days before their birth?
1.26.2007 8:45pm
Kovarsky (mail):
The first time I read and quoted this, I didn't realize how profoundly ridiculous it sounded:

Seems to me, that this case has more to do with men being second-class citizens in the eyes of the law, with no legal way to deal with an unwanted pregnancy short of shutting up and paying out, rather than parental notification considerations.

Uh, yeah, poor men. So victimized by the matriarchy.
1.26.2007 8:46pm
Ryan Waxx (mail):
Excuse me. I was simply taking the person I quoted at his word.


The murder statute, as it pertains to unborn children, properly makes an exception... for any conduct by the mother.
1.26.2007 8:48pm
Kovarsky (mail):
Ryan,

You've selectively edited the quote, which actually reads:

makes an exception for a lawful abortion or for any conduct by the mother.

Come on, dude.
1.26.2007 8:51pm
Ryan Waxx (mail):
Unless the english usage of the word "or" has changed in the last five minutes, it is YOU who is guilty of not parsing the sentence correctly, not I.
1.26.2007 8:54pm
liesel:
Mr. Waxx, I must take issue with your statements on more than one point. First, take a look at the ruling. Both parties had to acknowledge domestic violence perpetrated by Mr. Flores against Ms. Basoria. The presence of domestic violence strongly indicates that the power to make decisions was not equally shared by both partners.

Also, who would freely choose to stomp on their partner rather than go to a clinic? You have to me one sick person, and/or fear the consequences of getting outside help.

Regardless, as a woman, I would never claim to be a second class citizen, and I don't think it's becoming for men to claim that status either.
1.26.2007 8:54pm
Ryan Waxx (mail):

Also, who would freely choose to stomp on their partner rather than go to a clinic?


Which of course assumes that a father has a choice to go to the clinic. Which is an artful dodge indeed.

Sometimes people under the iron fist of government extortion do crazy things, like leaving their kids in the dumpster... oh wait, that was the explanation of why we needed "safe harbor" laws. That's the thing about double standards, it's a little hard to keep your story straight sometimes.
1.26.2007 8:58pm
Kovarsky (mail):
Ryan,

Please explain what you mean, I don't understand.

Men can help their partners get abortions, men can perform abortions, etc.
1.26.2007 8:58pm
Ryan Waxx (mail):
Only with the woman's persmission. Forget that little detail, did we?
1.26.2007 9:01pm
Kovarsky (mail):
Ryan,

Never mind. I'll pass on your take.
1.26.2007 9:02pm
liesel:
Right, Mr. Wax.
I am a modern day Eve, indeed. Out to trick you, steal what's rightfully yours, et cetera.

Soon I'll post my P.O. box so you can just send all the feminsts your wallet.
1.26.2007 9:06pm
Kovarsky (mail):
Ryan,

Just to be clear, your point is that men are second class citizens because they cannot subject women to involuntary abortions, right?

Wow.
1.26.2007 9:08pm
Ryan Waxx (mail):
Silly girl, why do that when you can have police do it all for you?
1.26.2007 9:08pm
Ryan Waxx (mail):

Just to be clear, your point is that men are second class citizens because they cannot subject women to involuntary abortions, right?


Nice demonization. I'm impressed. Of course, you could also say that making parenthood a unilateral decision by the woman only, and the power to use state force to compel the other party to comply is a little tyrranical. But that might be too evenhanded a treatment of the issue, right?
1.26.2007 9:11pm
Fub:
Kovarsky wrote:
I think you're missing steve's point a bit. ... He's asking whether there's a constitutional limit the 8th amendment imposes via the 14th.
I think you're right. Don't tell anybody, but I missed it because I could answer the obvious part.

Open mouth on the deeper question, doubt removal about foolishness, and all that.
1.26.2007 9:13pm
Steve:
Is really going to be able to attack a statute defining human life as beginning at conception if he's coming to the table with a fact pattern involving him killing his twins just 7 days before their birth?

The case actually doesn't make clear what stage of pregnancy the mother was at, only that the twins were ultimately born "prematurely." So it's clear they weren't killed a week prior to her due date, but it's not clear how much earlier they were killed. I think the question is easier if we stick with post-viability scenarios.

As to Ryan's point about men being "second-class citizens," I can only say it illustrates my property professor's argument that the law is all about whose ox is being gored.
1.26.2007 9:13pm
Ryan Waxx (mail):

As to Ryan's point about men being "second-class citizens," I can only say it illustrates my property professor's argument that the law is all about whose ox is being gored.


If by that you mean who has the power to stick it to the other person, does - then your professor is a very wise man and you should listen to him more often.
1.26.2007 9:15pm
Kovarsky (mail):
Fub,

I can't tell if your post is meant to be polite or rude, but I think it's the former. Now THAT is my failure to comprehend things well, but I'm a little overwhelmed by Ryan's Ted Nugent impersonation.
1.26.2007 9:18pm
Kovarsky (mail):
Ryan,

Of course, you could also say that making parenthood a unilateral decision by the woman only,

Men can terminate paternal rights.
1.26.2007 9:23pm
Ryan Waxx (mail):
But only one sex can terminate parental obligations. Come on, you can't have had NO clue that I was talking about the negative side of parenting? Is it really that difficult to debate without distorting?
1.26.2007 9:28pm
Kovarsky (mail):
Ryan,

Not that you deserve anything resembling a conciliatory gesture, but is it fair to say that we can agree on the following: whatever the unfairness you perceive in the way society delegates decisions involving abortion, its correction does not require that the state in any way excuse a man unilaterally and barbarically aborting a fetus by stomping on the mother's stomach.
1.26.2007 9:37pm
liesel:
In the interests of decorum, it's inappropriate to refer to someone you've never met as a "girl."

Of course, one of the major flaws in your process involves the outcomes: as a social worker who spends her time with single moms, I can say with perfect certainty that my clients aren't getting rich off of the fathers' of their kids. In fact, since most of my clients are victims of domestic violence, they generally petition the state to drop child support cases because they are afraid of the father of their children. They live on almost nothing, trying to hold a job and pay for childcare with no help from their kids' dads.

Come to think of it, regardless of whatever alleged wrongs are perpetrated against men, men still hold a considerable economic advantage over women. So apparently those feminists aren't actually doing much with your wallet.
1.26.2007 9:50pm
Daniel Chapman (mail):
While Ryan seems to be generally not worth responding to, I agree that an exception to the law for a WOMAN who intentionally kills her "fetus" in the 9th month of pregnancy is political correctness run amok. I'm not sure it's proper to argue that because the woman gets a free pass here the man shoudl as well (It's actually kind of creepy), but I don't think it's at all unreasonable to expect the fetal murder statute to apply equally to both sexes.

[snark] What do you want to bet we'd see a condition known as "pre-partum syndrome" cropping up if that were the case? [/snark]
1.26.2007 10:13pm
eric (mail):
So what if the female consented to this action? (I remember a case about this with adolescents, I think, only the man was punished). A death sentence for the unauthorized practice of medicine? What if he performed, as a layperson, a successful partial birth abortion post-viability?

This (if both parties consent) is a serious logical inconsistency if you support, or believe the Constitution mandates, the right to have an abortion post-viability. If this is murder (which I believe it to be), then the mother getting a post-viability abortion is consenting to the murder of her children and that abortionist is a murder.

Otherwise, it would logically only be an assault.
1.26.2007 10:13pm
eric (mail):
BTW, I think Ryan is off-topic. His complaint, giving him a generous reading, is about the state holding a man to be financially responsible for a child without holding the mother to the same situation. The laws are generally biased. Parents not in custody of children cannot disclaim financial responsibility for a child. Most often this is a man, so the discrimination appears to be sex based. It may well be, but it is off-topic. Also there is a great argument that the state has an interest in the welfare of children that might override even strict scrutiny in this legal issue.

As always, that topic brings out the anger of "its for the children" liberals, "its for the children (and us oppressed women)" feminists, and "be responsible for your children" conservatives. If only those groups could get along on other issues.
1.26.2007 10:22pm
Kovarsky (mail):
Daniel,

I think your point about the gender inequality is fair, to a point. But a couple of points:

(1) "Women" don't get a free pass as a gender. The mother does. All other persons, men or women, fathers or not, are subject to criminal liability.

(2) The decision not to impose an equal penalty on women could be less of a judgment about the culpability of a mother who does the act than it is an evidentiary concession involving the difficulty of proving it. Does deliberate heroin abuse count as murder? Alcoholism? It might be more of a line-drawing problem than a substantive judgment that mothers are somehow less blameworthy.

(3) I don't know the Texas law on this, but it's likely that the mother's behavior is still punishable under another statute, just not murder. The line-drawing problem in (2) would indeed be less of a concern if women were subject to lesser criminal liability for the act. We're much more comfortable equating offenses committed recklessly with those committed deliberately when the relevant offense is not murder.

Cheers,
Lee
1.26.2007 10:28pm
Fub:
Kovarsky wrote:
I can't tell if your post is meant to be polite or rude, but I think it's the former.
I didn't realize I wrote with such ambiguous tone. Insofar as I know myself, had I intended rudeness we would both have known it unequivocally and instantly.

I'll shut my mouth now before it grows more feet.
1.26.2007 10:35pm
Kovarsky (mail):
Eric,

I don't see the logical inconsistency. Here's the statutory catalogue of exceptions:

This chapter does not apply to the death of an unborn child if the conduct charged is:

(1) conduct committed by the mother of the unborn child;

(2) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent, if the death of the unborn child was the intended result of the procedure;

(3) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent as part of an assisted reproduction as defined by Section 160.102, Family Code;

or

(4) the dispensation of a drug in accordance with law or administration of a drug prescribed in accordance with law.


Assuming that state abortion laws are not unconstitutional (and that they therefore permit whatever-phase abortion you think the federal law requires), then if an abortion is "lawful" under state law then it is necessarily "lawful" under the constitution. as long as you are a doctor and you are not violating state law, then you are a "physician performing a lawful abortion" under the statute.
1.26.2007 10:42pm
Steve:
While Ryan seems to be generally not worth responding to, I agree that an exception to the law for a WOMAN who intentionally kills her "fetus" in the 9th month of pregnancy is political correctness run amok.

It's only an exception to the capital murder law. Since you can't legally abort your child in the 9th month (absent some medical emergency), she'd presumably be guilty of something.

Only a small minority of people consider an unlawful abortion to be criminally equivalent to murder, in the sense that the mother should go to jail for life over it.
1.26.2007 11:17pm
eric (mail):
Assuming that state abortion laws are not unconstitutional (and that they therefore permit whatever-phase abortion you think the federal law requires), then if an abortion is "lawful" under state law then it is necessarily "lawful" under the constitution. as long as you are a doctor and you are not violating state law, then you are a "physician performing a lawful abortion" under the statute.

The inconsistency I am referring to is written into the law. It treats the unauthorized abortionst as a murderer despite any consent by the mother. The status of the fetus is static. Consent, in my hypo, would be static. The status of the person performing the abortion (mother, doctor, other person) triggers the criminality.

I agree with the result in this case, but I do see a problem when, as has or will surely happen, the mother consents to the father giving her an abortion by some physical means. (Poor couple, bad judgment, no money.) The man will be carted off to jail for murder, and the mother will not. The abortion doctor down the street will perform the same act on the same level of viability fetus and get paid.

Now, the man that induces his wife to abort is surely guilty of the unauthorized practice of medicine (or whatever applicable statute applies to giving abortions with a medical license) but he does not seem to be any more guilty of murder than the abortion doctor.

Of course, this statute says otherwise. I do not think the statute could fall to a Constitutional challenge, but I do think the logic underlying it is inconsistent.
1.26.2007 11:18pm
eric (mail):
Steve said:

Only a small minority of people consider an unlawful abortion to be criminally equivalent to murder, in the sense that the mother should go to jail for life over it.


I would not be so sure of that. Ask people if you think a man, with a woman's consent, by standing on her stomach to induce an abortion in a 5 month old fetus is murder. I am not so sure the answer would be the same. As for the punishment for the woman, I think you are right about public opinion there.
1.26.2007 11:20pm
Just me:
I'm not saying I disagree with this result (quite the opposite) but from a purely legal point of view what about this: (from the link posted by Guest12345):


Dubay told me that he feels he was shut out. "She was given the right to have an abortion, keep the child, put the child up for adoption, and whatever she chooses, I have to go along with....Under our laws, our constitution, that doesn't seem right to me."



From a purely legal point of view, how is that the right result? Pregnant mothers can chose if they want to carry the baby to term. "Pregnant fathers" (for LOBW) cannot make the same choice.

As much as I would personally like to see Roe overturned, I do think men aren't given equal rights when it comes to the decision to procreate the way the laws are now.

Thoughts anyone?
1.27.2007 1:09am
Cornellian (mail):
From a purely legal point of view, how is that the right result? Pregnant mothers can chose if they want to carry the baby to term. "Pregnant fathers" (for LOBW) cannot make the same choice.

As much as I would personally like to see Roe overturned, I do think men aren't given equal rights when it comes to the decision to procreate the way the laws are now.

Thoughts anyone?


Well he's always got the option of keeping his zipper up in the first place or, if sex is that important to him, he can always get a vasectomy.
1.27.2007 3:22am
eric (mail):
Well he's always got the option of keeping his zipper up in the first place or, if sex is that important to him, he can always get a vasectomy.

So do the vast majority of women who abort, excluding those who were raped.

Just me

It does not make sense. It is simply one of the effects of the court inventing new rights. The convergence of family law and constitutional law is most likely unexplainable. However, it follows the pattern of giving women more rights, even at the expense of men.
1.27.2007 3:41am
Brian G (mail) (www):

I just don't see how treating a fetus as the moral equivalent of an adult or older child makes any sense. A fetus or even a young baby does not have a well developed personality or even a sense of self. What is the value to clinging to a legal fiction that they are just as important as a fully developed human being?



Jerome, please tell me you are being facetious. All human beings are important. And, aren't we supposed to protect the most vulnerable of our society? Who is more vulnerable that defenseless babies? And, yes, they are babies, even if they are unborn.

As for this case, a life sentence was not enough for what this murderer did. I think some people need to put abortion in its proper perspective. The sad-devotion to keeping abortion legal at all costs has caused many to lose some serious moral bearing. We all know the legal arguments made in cases like this are really geared towards future abortion cases, which should not be in the courts to begin with. oe v. Wade should be overtunred, and each state should be allowed its own laws. I'd be willing to bet that no more than 4 or 5 states would ban it. And, those who don't want to live in a state that bans abortion can easily move, just as I did to get away from the oppressive taxes of a blue tax-and-spend state a few years ago.
1.27.2007 3:59am
Ron Hardin (mail) (www):
It's sort of legal mission-creep, like what you get in software, where have to figure out how to minimize the damage from the guy who wants the feature against the guy who has to maintain the software for, it will turn out, future mission creep.

As to fetus/baby, you need a bright line, say birth ; it doesn't matter where, but it has to be bright.

The fetus/baby has a soul if the parents have plans for it as a baby, and not, if not. This is a remark not about the baby but about the grammar of the word soul. It's a good idea not to stray far from the way the word in fact works.

Say, by going theoretical on it.

The baby acquires non-parental soul when it begins relating to others, and they then have an interest in it too.

So the legal system needs to get involved with the soul business somewhere ; the cleanest idea is that society has an interest when the baby is born, and only the parents do before that, if they do.
1.27.2007 7:51am
Steve:
As much as I would personally like to see Roe overturned, I do think men aren't given equal rights when it comes to the decision to procreate the way the laws are now.

Of course they aren't. They aren't given equal responsibilities either, an issue you'll need to take up with God. Personally, I think we get by far the better end of the deal, but apparently that view is not unanimous!
1.27.2007 8:05am
3llen:
"So what if the female consented to this action? (I remember a case about this with adolescents, I think, only the man was punished). A death sentence for the unauthorized practice of medicine? What if he performed, as a layperson, a successful partial birth abortion post-viability?"

Yep. That was the case of Law and Order, Episode 30-3. (In all serious, I don't know the episode number, but I'm dead serious about it being an episode.)

A life sentence or the death penalty is entirely appropriate in this case. Any concern with the mother of the children not being punished if she had done the same thing says more about the craziness of our abortion laws than the injustice in prosecuting this murderer.
1.27.2007 8:40am
Ron Hardin (mail) (www):
Has anybody noticed that the parties implicitly granted the interest of the state in the baby/fetus's welfare after birth? So they acted before?

It seems everybody agrees on that bright line.

One side _wants you to see_ the fetus as a human being : they can see it that way. But all you have is fetus as human (as opposed to wolf), not a human.

Every argument will present the baby/fetus as cute or appealing, to invoke your interest in its welfare ; in particular where you have no actual interest. As if the baby/fetus had been born and were lying in front of you.

I offer those arguments as evidence that the word soul works the way I said it works - it depends everywhere on your interest, not on the baby/fetus.

On the other side, the woman has a right to her body, etc., aim to show her lack of interest in the baby/fetus, drawing on that fact about the concept of soul.

It's always an argument about soul, disguised as facts about the baby/fetus, where it's always in fact about the interests of third parties.

Soul is what relates us to others. That's point of grammar about the word soul, not a fact about the possessor of the soul. One should quote ``possessor'' to indicate that nothing is possessed, but on the other hand that stretch is internal to the word already, and gives it its use.
1.27.2007 8:59am
Mike Keenan:
It is legal in the state of Texas to abort 5 month old babies. This man at the urging of the mother performed an abortion. And this is a capital murder case? Can someone better explain the logic of that.

Yes, I know the law only allows licensed physicians to do it, but surely that is for the safety of the mother -- not the babies. If Flores were an unlicensed physician (instead of a panicked 18 y/o with a 16 y/o girlfriend), would he be getting life in prison for performing unlicensed abortions?

Yes, what he did is disgusting and shocks the conscience. But should he be held to the same standard as a guy blowing away a cop in a robbery (for example).
1.27.2007 10:09am
David Chesler (mail) (www):
In the first comment, Jerome said
I just don't see how treating a fetus as the moral equivalent of an adult or older child makes any sense. A fetus or even a young baby does not have a well developed personality or even a sense of self.

Enoch said this indicates Jerome doesn't have children.

I have three children. For the second and third, I spent the first six months sleeping in a recliner chair with the baby on my chest — I found that that was easier than having to get out of bed for middle-of-the-night requirements. That's a lot of parenting for a dude. And I think the Korean tradition that 100 days marks a transition point makes a lot of sense. There just isn't that much personhood in there in the first few months of life. (I also believe that there is enough similarity to our idea of what a person is that its life is not without value even in the months before birth, on a sliding scale.)
1.27.2007 10:54am
David Chesler (mail) (www):
Compare that case with this story.

An 18-year-old took Misoprostol that she had obtained without a prescription to induce labor and delivered a 24-week fetus, which was born alive as a one-pound girl and taken into state custody, but died 4 days later. She has been charged with the felony of procuring a miscarriage.

I'm not familiar with the elements of "procuring a miscarriage" but it seems like the young mother did everything right. She did not harm the fetus, but merely ejected it from her body, and turned it over to the care of a hospital, as required under the state's Safe Harbor laws.
1.27.2007 11:02am
Bpbatista (mail):
When is a human being a "person"? Might as well ask how many angels can dance on the head of a pin. Just another example of the manifest absurdities flowing from the "logic" of Roe v. Wade and the pro-abortion position.
1.27.2007 11:04am
jrose:
A life sentence or the death penalty is entirely appropriate in this case. Any concern with the mother of the children not being punished if she had done the same thing says more about the craziness of our abortion laws than the injustice in prosecuting this murderer.
Maybe that craziness violates Equal Protection? Sure, the father can be punished for performing a medical procedure without a license, but can the state punish one person for murder when it does not punish another at all in an identical situation?
1.27.2007 11:52am
Norman:
I just don't see how treating a fetus as the moral equivalent of an adult or older child makes any sense. A fetus or even a young baby does not have a well developed personality or even a sense of self.

I'm surprised to see infanticide advocates on this board. Only those with a well-developed personality deserve life? How does one make that determination? I think most angst-filled teenagers would fail this test.
1.27.2007 12:40pm
Jeremy T:
Some simple answers to cut through the fog:

Men should have just as much right to terminate parental obligations as women do.

Killing a fetus at any point after conception should be a capital crime.
1.27.2007 12:47pm
Just Dropping By (mail):
"Just another example of the manifest absurdities flowing from the 'logic' of Roe v. Wade and the pro-abortion position."

Or just another example of the manifest absurdities flowing from the "logic" of the anti-abortion position that believes a single-celled organism with no more neurological functionality than a paramecium is possessed of "rights".
1.27.2007 12:52pm
Kovarsky (mail):
what does "pro-abortion" even mean?
1.27.2007 12:53pm
Norman:
Just Dropping By,

The example were talking about here is a post-viability unborn entity. I admit it's hard to see that a one-celled organism is a human being, but let's set aside that debate for another day. Why does it make sense for a post-viability unborn entity and a post-viability premature baby to have different rights depending on their geographical location inside or outside a womb?
1.27.2007 1:00pm
Dick King:
Mr. Dubay has a point, although Roe V Wade isn't quite the right analogy.

In most states, mothers can deliver their babies to a hospital or fire station within [usually] three days of birth. If they do that, they have no responsibilities to the baby and no legal consequences what-so-ever. Usually, it's anonymous. In California she gets a code number and has thirty days to change her mind.

I believe that fathers, within three days of getting notice of pregnancy or existence of the child, should have three days to abdicate paternity with no legal consequences, with a few exceptions such as actual fathers married to the mother. In cases where the parents are not married, such notice can be delivered before, during or after birth. [If the parents are living together such notice can be deemed to be delivered at birth]. I would not mind a presumption that the fathers have received notice at say the third month in the case of married parents living together where the husband is the actual father [or there is a sperm donation with the father's consent].

Currently some mothers living apart from the fathers delay notice in order to prevent fathers from meaningfully demanding a relationship with the child. If the mother doesn't tell the father about the child until it's about four or five years old she gets child support but judges are very reluctant to order regular parenting time. I consider this technique to be reprehensible and my proposal would make it unworkable.

-dk
1.27.2007 1:04pm
jrose:
Why does it make sense for a post-viability unborn entity and a post-viability premature baby to have different rights depending on their geographical location inside or outside a womb?
Because we may decide a woman's right to control her body is an important consideration?
1.27.2007 1:13pm
Norman:
jrose,

Good. As long as we're on the same page as to the fact that the unborn entity is not substantially different from a baby outside the womb, then we're getting somewhere. Now, the discussion can begin as to why a woman should have the right to kill the human entity while it is in her body, but not the right to kill the human entity when it is outside her body.
1.27.2007 1:57pm
jrose:
Good. As long as we're on the same page as to the fact that the unborn entity is not substantially different from a baby outside the womb, then we're getting somewhere.
That is a matter of opinion, not fact - and opinions vary all over the map.
1.27.2007 3:00pm
David M. Nieporent (www):
Because we may decide a woman's right to control her body is an important consideration?
Unless, of course, she wants to use her body to work for less than minimum wage, in which case we want to criminalize it.
1.27.2007 4:08pm
Mike Keenan:
Some 91% to 93% of downs syndrome babies are electively aborted. If one of the twins had downs syndrome, an abortionist may have terminated the pregnancy (and certainly would if it were a single pregnancy). Such abortions take place routinely at 5 months (since amnio results are not available until then -- although more risky test results are available). I do not see an extreme moral distinction between the licensed abortionist and this 18 year old.
1.27.2007 4:37pm
Owen Hutchins (mail):

Because we may decide a woman's right to control her body is an important consideration?

Unless, of course, she wants to use her body to work for less than minimum wage, in which case we want to criminalize it.



Or put recreational drugs in it, as long as we're politicizing this.
1.27.2007 4:43pm
jrose:
Because we may decide a woman's right to control her body is an important consideration?

Unless, of course, she wants to use her body to work for less than minimum wage, in which case we want to criminalize it.
We may decide the right to control one's body in reproductive decisions deserves greater consideration that the right to control one's body in economic decisions.
1.27.2007 4:48pm
whit:
i am pro-choice, but the argument by "my side" about abortion merely being about the right of the woman to control her own body is absurd.

there is no such right. if there was such a right, women would also (and men, i assume) have the right to do whatever drugs they wanted to, sell their organs, enter into prostitution, etc.

and that argument also ignores the fact that the fetus is not "her own body". it is a discrete, yet dependant organism. it has a different genetic code, blood type, etc.

i hate it when people on my side, so to speak, make these same illogical arguments over and over again
1.27.2007 5:34pm
jrose:
i am pro-choice, but the argument by "my side" about abortion merely being about the right of the woman to control her own body is absurd.
I distinguished the right to control one's body in reproductive decisions from a general right to control one's body in my 4:48 post. That being said, if you reject that argument, why are you pro-choice?
1.27.2007 5:59pm
Ron Hardin (mail) (www):
Right to own body : you could look at Marge Piercy's ``Right to Life'' which ends

I will choose what enters me, what becomes
flesh of my flesh. Without choice, no politics,
no ethics lives. I am not your cornfield,
not your uranium mine, not your calf
for fattening, not your cow for milking.
You may not use me as your factory.
Priests and legislators do not hold
shares in my womb or my mind.
This is my body. If I give it to you
I want it back. My life
is a non-negotiable demand.

(_The Moon Is Always Female_ p.97)

That's the objection you have to meet, from that side.
1.27.2007 6:02pm
Norman:
Good. As long as we're on the same page as to the fact that the unborn entity is not substantially different from a baby outside the womb, then we're getting somewhere.
That is a matter of opinion, not fact - and opinions vary all over the map.


jrose,
I'm just trying to figure out what your position is. I think you disapprove of killing a premature baby while supporting abortion of a post-viability unborn entity. I'm pretty confident in saying that the entity outside the womb is the same as an entity inside the womb, and that's a matter of fact, not opinion - the only thing distinguishing the two is geography. There may be a reason for terminating one and not the other (because of a women's right to control her body and what is inside her body, or social considerations, or some other reason), but it is important to acknowledge the nature of the entity in the womb.
1.27.2007 6:19pm
whit:
i am pro-choice because i believe a woman should be able to abort a fetus

frankly, i DO think people should have the right to do what they will with their body- ie use drugs, enter into prostitution, etc., but it is clearly not a right that society recognizes - stupid pro-choice arguments aside

again, i believe a woman should be able to abort a fetus. it does not follow that this is an issue of her merely controlling her own body. it is an issue of aborting a fetus, a dependant organism WITHIN her body that is not her body.

note that this says nothing about roe v. wade. that's an argument about whether there is a constitutional right to abortion, not whether women should have the right to abort (the latter is a policy decision, assuming that it is not a constitutional right)
\
1.27.2007 6:31pm
jrose:
i am pro-choice because i believe a woman should be able to abort a fetus
That's conclusory. Why do you hold that belief?
1.27.2007 6:33pm
whit:
because i don't think she should be forced to carry it all the way to birth

iow, i think her authority to abort it outweighs the fetus' "right" not to be aborted.

i think this should be the case for the first trimester.

it's a matter of balancing. does the mother's desire to abort the fetus outweigh the fetus' continued existence? i say yes

but i cannot stand when pro-choicers take the ridiculous position that this is merely about women controlling their own body. it's not. that is true of birth control, but not abortion

also, the same who say that this is about women's right to control her own body are rarely willing to extend that to drug use, prostitution, etc. it's logically inconsistent.

plastic surgery, as another example, is a procedure that entails a degree of risk to health, but does not involve anybody or anything else (like abortion does), and thus should be the (adult ) woman's decision
1.27.2007 6:42pm
Seamus (mail):

I just don't see how treating a fetus as the moral equivalent of an adult or older child makes any sense. A fetus or even a young baby does not have a well developed personality or even a sense of self. What is the value to clinging to a legal fiction that they are just as important as a fully developed human being?


Wow. Mr. Cole apparently believes, not only that it was wrong to impose the death penalty in this case, but also that it would have been wrong to impose the death penalty on Flores if he had waited until the twins were born live, then smashed their skulls in with a sledge hammer.
1.27.2007 6:42pm
jrose:
I'm pretty confident in saying that the entity outside the womb is the same as an entity inside the womb, and that's a matter of fact, not opinion
Does this only become a fact the moment the fetus is viable? How can it be a fact (rather than opinion) that viability instantly transforms the fetus into somthing which is indistinguishable from a newborn, and thus a person in the eyes of the law.

For the record, I support the legislation offered as a complete substitute to the Partial Birth Abortion ban, which would have criminalized abortions of viable fetuses except when the woman's life or grevious health were implicated.
1.27.2007 6:49pm
jrose:
because i don't think she should be forced to carry it all the way to birth. iow, i think her authority to abort it outweighs the fetus' "right" not to be aborted.
That still is conclusory. If not a right to control her body in reproductive decisions, where does her authority not to be forced derive from?
1.27.2007 7:18pm
whit:
one does not have to have an "authority not to be forced"

the point is - should the state have the authority to PREVENT her from aborting the fetus. i say, for first trimester, NO

because i think a woman's desire to abort a 1st trimester fetus outweighs it's "right" to live, with the understandign that its continued existence requires her supporting it for the next 8 months.

this pro-choice argument that it's about "reprodoctive decisions" is absurd, because there is a massive difference between contraception and abortion and trying to conflate the two hurts the argument.

it's a ridiculous thing to say its just about her body. cause it is not. there is a fetus present. the fetus is many things, but it is not the woman's body.

being pro-choice does not mean denying the existence of a fetus
1.27.2007 7:25pm
Norman:
jrose,

A thought experiment. Take a post-viability unborn entity. Remove it from a womb (because it's born prematurely, for example). I can see no difference between the post-viability unborn entity in the womb and the post-viability entity outside the womb, besides geography. Scientifically, the entities look the same, same level of development, etc. As commenter "whit" is doing, it's important to acknowledge that as a fact.

Now, you may have an opinion as to what entity should have rights. Maybe the unborn entity's rights should be subordinate to that of the mother. I happen to think that just a premature baby has a right not to be terminated, so do I think that a post-viability unborn entity has a right not to be terminated, regardless of the rights of the mother.
1.27.2007 7:59pm
Mark Field (mail):

A thought experiment. Take a post-viability unborn entity. Remove it from a womb (because it's born prematurely, for example). I can see no difference between the post-viability unborn entity in the womb and the post-viability entity outside the womb, besides geography.


Out of curiousity, does your thought experiment lead you to the opposite conclusion with respect to pre-viability, i.e., that since it can't survive outside the womb, "geography" determines that there is no requirement to keep it alive?
1.27.2007 8:16pm
Norman:
Mark,
No. Ability to live outside the womb (ie, viability) is a good indication that the entity is a human being that has a right to life. However, I believe that rights are not derived from what an entity is capable of doing... I happen to believe that the right to life is not derived from an entity's ability to live outside a womb, but is derived from the fact that an entity happens to be a human being (regardless of its level of development and its abilities). In short, rights are derived from what a thing is, not from what a thing can do (even though, what a thing can do is oftentimes a good indication of what a thing is.)
1.27.2007 8:31pm
jrose:
Norman,

If it is a fact that the viable fetus and the newborn are not different, then doesn't it follow that both must have the same legal status? And yet they don't. And therefore in the opinion of the law, they are different. And thus, you are stating an opinion, not a fact, about them not being different.

Do you believe a fetus, at any stage of development, should have 14th Amendment rights as a person?
1.27.2007 9:39pm
Waldensian (mail):

Well he's always got the option of keeping his zipper up in the first place or, if sex is that important to him, he can always get a vasectomy.

Would your answer change in cases of admitted contraception fraud by the woman, or cases of "stolen sperm"? Serpico wasn't just famous for being a detective.....
1.27.2007 10:29pm
ReaderY:
The United States has the death penalty for crimes committed against a foreigner outside U.S. territory, including crimes committed against the enemy in time of war. See Johnson v. Eisentrager (term "person" as used in Bill of Rights lacks "extra-territorial application"); compare Roe v. Wade (term person as used in Bill of Rights lacks "prenatal application".) The term "person" having no more application to an extraterritorial enemy combatant than to a viable fetus, if a death penalty were unconstitutional with respect to one, it would seem equally unconstitutional with respect to the other. Likewise, if prohibiting the killing of one period represents an establishment of religion, it would seem the killing of other would, too.
1.28.2007 12:11am
ReaderY:
In the law of war, if a person kills a foreigner while wearing a uniform, it's legal, but if not wearing a uniform, it isn't legal. This distinction has always struck me as wierder and much harder to take seriously or defend morally than any distinction involved in abortion. Likewise, I don't understand how a human which can be lawfully killed without thought in combat suddenly allegedly acquires a penalpy of rights simply by virtue of being taken prisoner. What's so special about simply holding a terminee for a brief period prior to performing a termination procedure?
1.28.2007 12:19am
Norman:
If it is a fact that the viable fetus and the newborn are not different, then doesn't it follow that both must have the same legal status? And yet they don't. And therefore in the opinion of the law, they are different. And thus, you are stating an opinion, not a fact, about them not being different.

jrose,
Yes, of course there is a legal difference between the viable foetus and the premature newborn. Our courts, rightly or wrongly, recognize a legal difference. But as a matter of scientific fact or biology, there is no difference. (See the thought experiment.) So to explain why there is a legal difference between the two, biological science cannot give the answer as there is no difference from a scientific standpoint; instead, the difference must be based on other considerations of social policy, rights of the mother, liberty/privacy interests that trump the interests of the foetus, etc. (An example of this is that there is no difference scientifically between my life and the life of an attacker. If I am required to defend myself with lethal force, however, there is certainly a legal difference between us and our respective rights to life.)

As for whether the foetus should be given 14th Amd rights/protections as a person: Yes, I believe that the foetus should have those rights and protections given to 14th Amd persons. In my opinion, rights are derived from what a thing is, not what a thing does. So, because a foetus at any stage of development is a human entity (scientifically undisputed because of it having human DNA, etc.), I believe that it should have the rights that other human entities normally enjoy, like the right to not be killed.

(Note: this sets aside the discussion as to whether the 14th Amd should be currently interpreted to protect foetuses. I don't like to liberally read the Constitution, so I'm under no illusions that the Founding Fathers intended foetuses to be "persons" under the Constitution. What I'm saying is that those rights that are protected under the Constitution for "persons" are extended to persons because they are human beings, and that since I believe a foetus is just as much a human being as I am, a foetus should enjoy similar protections through appropriate legislation.)
1.28.2007 12:21am
BruceM (mail) (www):
If Texas starts counting the 9 months a person spends in utero towards their age for purposes of being allowed to buy alcohol (i.e. a person 20 years and 3 months old is legally 21) then I won't complain about the hypocrisy.
1.28.2007 1:41am
JamesWN (mail):

Well he's always got the option of keeping his zipper up in the first place or, if sex is that important to him, he can always get a vasectomy.


So you're essentially arguing that the man only has the reproductive right not to engage in intercourse, while the woman has a broader right to engage in intercourse and abort,for any reason including economic convenience.

If that's so, we should reconsider why abortion is necessary in the first place.
Is the abortion right based on the right to engage in sexual intercourse without having to bring a child to term? Or do we only allow the killing of a fetus because it's incidental to the protection of life or health of the woman?









Suppose that the at one point in the future, advances in reproductive technology makes it possible to save any fetus at every stage of gestation even against the wishess of the mother.

Now, if engaging in intercourse equals assumption of responsibility, and the fetus can be saved without any threat to life or health of the mother,it is unlikely that society should or would let the mother kill even a nonviable fetus just for the reason that she didn't want to assume responsibility for the child.
1.28.2007 5:43am
Rosooki:
Norman,

So it is DNA that makes a human a human and therefore sacrosanct, eh? What about those born with some mutations? Are they fair game? How many genes do we have to change before someone stops being human? A chimp shares 98-99% of a humans genes. When we say 'life is sacred' what are we talking about exactly?
1.28.2007 6:38am
jrose:
Norman,

If the legal difference between a viable fetus and a premature newborn was solely explained by comparative liberty interests, then a woman would have the right to kill the newborn if her health was at risk. Since she cannot, the law sees the newborn, in and of itself, differently than the fetus, which does not square with the supposed biological fact that they are identical.

Let's take your thought experiment further. You claim it is a fact there is no difference between the viable fetus 1 millisecond before delivery and the newborn. How about the viable fetus 1 millisecond before delivery and 2 milliseconds before delivery? Or 2 milliseconds and 3 milliseconds, and so on? We can roll that tape back 1 millisecond at a time and conclude the newborn is biologically identical to a zygote - and of course that is not true.

Accepting that a fetus is given personhood rights under the 14th, how should the law treat a woman who has an abortion? Doesn't the Equal Protection clause require that she be treated the same as a woman who hires a doctor to kill her newborn?
1.28.2007 9:52am
Bpbatista (mail):
Biologically, a one celled fetus is a human being of the species homo sapien. If we are not sure if a fetus is a "human being" at the moment of conception or thereafter, should we not err on the side of caution? Instead, there are people on this board who advocate the killing of weeks or months old infants because the do not have a "sense of self." Claiming that abortion is about the right to control one's body is mere sophistry -- it is a separate person that is killed in an abortion, not the mother. It is the child that is literally ripped limb from limb in an abortion -- not the mother. The mother made her "choice" when she had sex (rape is another issue, but even then, since when is it appropriate to execute an innocent child for another's crime?). The pro-abortion position is founded upon sophistry and depends upon euphamisms to disguise its grisly implications.
1.28.2007 11:37am
jrose:
Bpbatista,

Accepting that a fetus is separate person entitled to personhood rights under the 14th, how should the law treat a woman who has an abortion? Doesn't the Equal Protection clause require that she be treated the same as a woman who hires a doctor to kill her newborn?
1.28.2007 12:36pm
Mike G in Corvallis (mail):
Without trying to take sides in the whole pro-life/pro-choice argument ... I would be astonished at the inconsistency of a pro-choice person who took the position that "abortion isn't murder because a fetus isn't a person" yet at the same time claimed that "fetal murder" statutes were justifiable.

Serious question: Are there such people here?

(BTW, I think that jrose's question is a good one.)
1.28.2007 5:17pm
Norman:
jrose,

You're starting to come up to the logical inconsistencies Roe v Wade jurisprudence. Our courts see a difference between a 8-month premature newborn and a 9-month unborn entity: the 9-month can be terminated while the 8-month cannot. I've said that when considering the newborn and the unborn, I can see no biological reason to explain why our courts see them as entities with different rights. I've suggested that maybe one could argue based on liberty, or privacy, or danger to one's health, but I don't think those principles are persuasive. So what do you believe is the principle that creates a legal difference between the two?

Your modification of the thought experiment is right on, and if you take it to its logical conclusion, yes, the zygote is the same type of thing as the newborn. Yes, I don't see any essential difference between the entity after delivery and the entity before delivery, and you can take this, millisecond by millisecond to the zygote. Now, over this 9-month period for the entity, clearly there is a difference in time and a difference in development. But I believe that what the thing is (ie, a human entity) doesn't change over the 9 months; instead, what changes over the 9 months is what the entity can do. (Similarly, I think a 21-year old, fully developed adult is the same type of thing, ie., a human entity, as a 1-year old. Certainly, the 21 year-old and the 1-year old look differently and have different abilities. But what a thing is and what a thing can do are distinct considerations.) One might argue that at a certain stage of development (like start of a heartbeat, or start of brainwaves) the entity changes from one type of thing to another type of thing, but I don't find that persuasive, just as I don't see the onset of puberty to be the point of change from one type of thing to another type of thing.

You say that a zygote is clearly different from a newborn: the zygote is a tough example, because it doesn't look like a newborn and it doesn't act like a newborn. But I still think the zygote is a human entity, albeit a human entity at an early stage of development. So let me ask you: if you think the zygote is not a human entity, and yet a newborn is a human entity, at what point does it change from one type of thing to another type of thing, from a non-human entity to a human entity?

And finally, in answer to your last question, yes, if we lived in a world that recognized the unborn human entity to have the same personhood rights as a newborn, I would expect that the law would treat those who killed both entities in a similar fashion.
1.28.2007 10:09pm
Norman:
Rosooki,

I'm a lawyer, not a biologist or geneticist, and I don't know enough about this topic, so here's my limited understanding: yes, it is DNA that makes something to be a particular thing: human DNA makes a thing to be a human being and chimp DNA makes a thing to be a chimp. I couldn't say what genes or how many genes would have to be modified to change human DNA to chimp DNA. Small changes in human DNA, like a mutation, however, doesn't change the DNA to non-human DNA; instead, it's human DNA with some defect. So, I would say that those entities with human DNA (even those with defective human DNA) are human entities and, accordingly, have human rights including the right to life; while those entities with non-human DNA are non-humans.
1.28.2007 10:41pm
jrose:
So what do you believe is the principle that creates a legal difference between the two
As the millisecond-by-millisecond thought experiment shows, there is no way to draw a line based on first principles except at conception. Which means those of us who draw the line (or should I say lines) elsewhere are doomed to advancing a morally-fuzzy position.

However, the only morally-principled line leads to a conclusion that very few can accept (although you appear do so): a woman who has an abortion must be prosecuted as a first-degree murderer. The near-universal rejection of that consequence demonstrates that morally-fuzzy positions can be (and I suspect often are) superior to morally-clear ones. Life is usually lived on a slippery slope that we never slide down.

For the record, I see the zygote/embryo/fetus always as a human entity, but never a person. It's moral and legal status grows continuously as it develops. At first it's liberty interest is dominated by a woman's right to reproductive freedom. But eventually (post viability), its interests outweigh her rights, but not the point where she must put her health in danger.
1.28.2007 10:45pm
JBC:
"For the record, I see the zygote/embryo/fetus always as a human entity, but never a person. It's moral and legal status grows continuously as it develops. At first it's liberty interest is dominated by a woman's right to reproductive freedom. But eventually (post viability), its interests outweigh her rights,"

But isn't a post-birth baby at 1 month just as unviable as a baby at 8,7,6 etc months in the womb? If someone doesn't feed/shelter this child, it will die. In fact, this is true for most people right up to age 5 or 6, at the least (and most likely more). So by this logic, the post-birth child still isn't a person, because it requires the support of others to live. And it won't be a person for a few years yet. That's why this logic will lead to infanticide; it's just most people won't follow it all the way there (yet). See the infamous Peter Singer for one who has drawn these conclusions and is roundly condemned for it.

I do find it amusing that you called the pro-life position espoused by Norman as the "only morally-principled". Did you mean this, or was that a slip of the tongue, so to speak? Either way, you're now on record as espousing the non-morally principled position. You can take comfort in that if you like, or you can re-examine your morally ambiguous position.
1.28.2007 11:55pm
jrose:
I do find it amusing that you called the pro-life position espoused by Norman as the "only morally-principled". Did you mean this, or was that a slip of the tongue, so to speak?
I meant it. The only morally-principled position is that personhood begins at conception and we prosecute a woman who has an abortion as a first-degree murderer. But, this position is anathema to virtually everyone (Norman apparently excepted), and thus pro-life and pro-choice alike have staked out morally-fuzzy positions.

It is a fiction that this debate is about morality. This debate is about different practical choices that each leave us on a slippery slope. The fallacy of the slippery slope argument (e.g., arbitrary designation of personhood necessarily leads to infants not being persons) is we do not always slide down the slope. Logical inconsistencies are a routine by-product of practicality.
1.29.2007 9:33am
Norman:
jrose,

You understand my position correctly, and I think I now understand you, also. By my logic, I am compelled to say that rights of human persons (ie, right to life, etc.) are tied to what a thing is, regardless of what it looks like and what it can do. Thus, a human entity, regardless of its size or development stage, is entitled to a right to life; and thus, abortion is murder. There are no lines to be drawn from conception onwards.

Your position, as I understand it, is that rights increase with the human entity as it develops. I suppose, in your view, that rights are tied to what a thing can do: an entity with a beating heart, an entity capable of bodily movement, an entity capable of surviving outside a womb (ie, is viable), an entity capable human language skills, an entity capable of philosophical thought; these would all be increasing levels of human existence, with a greater set of rights.

The next question for your position would be what JBC is getting at: in your theory, how can you argue against someone who chooses a different level of human development as the point at which the human entity becomes a person? What can you say to someone who says that the ability to be self-conscious (at the age of 5 or 6) is the mark of personhood, and before then, human entities don't have a right to life?

Further, even your chosen point of development of viability seems to me to be too fuzzy for my comfort. Over the history of science, the point of viability has dramatically changed to earlier stages of human development. And as JBC points out, viability is a strange term, because newborns are just as dependent on their mothers for nourishment as unborn entities.

By the way, thanks for the reasonable discussion. These discussions usually turn into opposing sides blowing the other side off without listening, and I'm pleased that this hasn't happened here.
1.29.2007 9:48am
Norman:
jrose,
Just cross-posted with you. Sorry.

The only morally-principled position is that personhood begins at conception and we prosecute a woman who has an abortion as a first-degree murderer. But, this position is anathema to virtually everyone (Norman apparently excepted), and thus pro-life and pro-choice alike have staked out morally-fuzzy positions.

My one thought on this point, is that most people have not thought the logic out to its conclusion. As I said before, the zygote doesn't look like a person and doesn't act like a person, and so it's easy to dismiss it and early-term abortions as being fine. But you're right to observe that this is a fuzzy position, and (I believe) an illogical position for my side of the abortion debate. I guess I would say that though the zygote case is a hard one to wrap one's mind around, it's easier to understand the anti-abortion position with post-viable unborn entities; and that the debate can at least begin with the easier post-viable unborn case, with the zygote debate being set aside for the time being.
1.29.2007 9:59am
jrose:
the debate can at least begin with the easier post-viable unborn case, with the zygote debate being set aside for the time being.
Sounds like you want to debate a sub-case without considering the logical consequences of a slippery slope to another sub-case. Aren't you guilty of the same thing you criticize the other side of doing?
1.29.2007 11:30am
David Chesler (mail) (www):
I've been happy for a while with bright lines, and "it would lead to bad things".

There is no difference between an 18-year-old and an individual one millisecond before he turns 18. No difference between stolen goods worth $99.99 and stolen goods worth $100. We make bright lines. If there is one direction where errors are clearly more costly, we draw the line at a point in the other direction.

First you've got prove that murder is a bad thing. The classic example is painlessly killing a hermit while he is asleep.

Assume we've proven that murdering adults is bad. Murdering children is bad for the same reasons. And it's so bad, that we discourage murdering newborns, and late prenates, because if that gets too easy, we start to take life cheaply, and murders of adults increase.

The viability issue comes up because if it's viable, the owner of the host uterus can say "OK, now you take care of it. It is no longer dependent on me, as the only person on the planet capable, for its survival, so if I stop caring for it and allow someone else to do so, I haven't guaranteed its demise." But this limits the rights of the owner of the host uterus to literally rip it limb from limb, as bpbatista says. Like any other trespasser, it must be given the option to leave more harmlessly. But if a trespasser won't leave, sometimes you've got to Taser your grandmother-in-law. And if the trespasser insists on ripping you apart on its way out, you might similarly have to take more drastic measures. (But I do like the argument that you had months to eject it when doing so was easier.)

And again I'll note Amber Abreu, currently charged with felony procuring a miscarriage, for inducing labor in herself and giving birth a premature infant who lived only three days.
1.29.2007 11:51am
Norman:
jrose,

I'm not afraid of the logical consequences of my position, and I'm not going to use fuzzy anti-logic to deny the hard position that a zygote is a human being. However, in debating abortion, I realize that I have start with those examples which are most clear and that are most easily acknowledged by those with whom I'm debating. So, in debating you, because I don't think you support infanticide (a la Peter Singer) I've started with the premise that a newborn should have a right to life, which I think we can agree on. From that premise, I've moved on to post-viable unborn entities. Yes, my logic goes right to the zygote, and I'm not afraid to go there, but I can only get there by small steps from premises shared by the one who I'm debating. That's the cardinal rule of debating: start from a common premise.

Furthermore, any small step is a victory in my mind. If I can convince someone of the inappropriateness of post-viability late-term abortion, then that's a success in its own right, regardless of what he or she thinks of zygotes.
1.29.2007 12:12pm
Norman:
David,
One argument I see against the "trespassing" argument is that the foetus is an innocent person who you "invited" onto the property through your own actions, and who can't get off later when you want it to.
1.29.2007 12:33pm
jrose:
Norman,

Are you calling for a woman who has a first-trimester abortion to be prosecuted as a first-degree murderer?

I am already convinced that an abortion of a viable fetus should be outlawed when neither the life nor health of the mother is at risk.
1.29.2007 1:08pm
Norman:
jrose,

No, I'm not calling for that. Such prosecutions are not appropriate in the current legal world that we live in.

Whether something should be prosecuted or not is a whole other debate that we have to work up to. There are plenty of "bad things" that I don't think should be prosecuted because of the negative social effects from such prosecutions. One example of this is adultery; I don't think it should be prosecuted, but I still think that it is a bad thing that should be discouraged.

Furthermore, with abortion right now, I doubt that anyone procuring an abortion has the requisite knowledge and mens rea of what is actually happening. The fact that we're having this debate shows society's uncertainty as to what the thing being aborted exactly is.

Having said all this, my unequivocal position is that a first-trimester foetus/embryo is a human person with a right to life. Whether to prosecute or not is a prudential debate that we can't get to as of yet, because we haven't yet gotten to the debate as to whether first-trimester abortions should be simply prohibited.

In addition, I note that even though you think late-term abortion should be outlawed except for the life and health of the mother, under current Roe v Wade/Doe v Bolton jurisprudence, "health" includes psychological health, and this exception has effectively swallowed the rule. I wonder what you think "health of the mother" covers. It is my position that ending the life of a human entity for any reason less than to protect the life of the mother (ie, ectopic pregnancy) cannot be justified.
1.29.2007 2:18pm
jrose:
Whether to prosecute or not is a prudential debate that we can't get to as of yet, because we haven't yet gotten to the debate as to whether first-trimester abortions should be simply prohibited.
Then, let's begin that debate. Your argument for prohibiting first-trimester abortions is that the fetus is a 14th Amendment person. That argument requires the woman to be prosecuted as a first-degree murderer, right?

I support the legislation offered as a complete substitute to the Partial Birth Abortion ban, which would have criminalized abortions of viable fetuses except when the woman's life or grevious health (as defined in the proposed statute) were implicated.
1.29.2007 2:35pm
Norman:
jrose,

Fair enough. Let's begin. As a preliminary matter, the Partial Birth Abortion Ban legislation obviously authorizes criminal sanctions against doctors performing PBAs. Does it also authorize criminal sanctions against mothers seeking this procedure? I ask because I don't know the answer, and because I can see prudential considerations for not prosecuting mothers, while still prosecuting doctors.

Similarly, I would support legislation authorizing criminal sanctions against doctors performing first-trimester abortions, as it is my belief that first-trimester human entities are human entities deserving of all the rights of a human person, including the right to life. Again, I hesitate to also authorize criminal sanctions against the mother, as I wonder whether prudence dictates against prosecuting a mother who feels compelled to have an abortion.

Why make this distinction between mother and doctor? Because mothers seeking an abortion may be people who are not acting willingly, but feel compelled to have an abortion under duress. They may not have the full knowledge of what their seeking. We, as a society, might not find that the opprobrium related to criminal sanctions is not an appropriate way to achieve the ends of justice in the mother's case, or that criminal punishment (for purposes of retribution or rehabilitation) is not appropriate against a mother who who feels compelled to seek an abortion. (No woman wants to have an abortion; instead, a woman generally believes that there is no other possible alternative for her.) In short, a woman has many excuses for her actions... while a doctor has full knowledge of the procedure, is not compelled to perform the operation, and can choose not to do the operation if he or she show desires, and thus has no excuses.

Furthermore, another purpose of criminal sanctions is to deter certain actions. Thus, if we are trying to prevent first-semester entities from being killed, sanctions against doctors is the way to achieve this deterrence; while sanctions against mothers will not have the same deterring effect.
1.29.2007 4:34pm
David Chesler (mail) (www):
One argument I see against the "trespassing" argument is that the foetus is an innocent person who you "invited" onto the property through your own actions, and who can't get off later when you want it to.

How invited?

If I leave the door to my house unlocked (maybe just for the minutes it takes me to get the mail, or the seconds it takes me to pass through the doorway), and someone walks in and plugs his life-support machine into my outlet, how long must I allow him to stay? If he becomes 500 pounds obese, and if he gets any bigger then to leave the fire department is going to have to knock out a wall, does that change my obligations?

And how innocent? If this fellow who walked in through my unlocked door keeps raiding my refrigerator and kicking me and leaning on my bladder, is he still innocent? Is a fetus capable of guilt? I'd think not, but then it is also not capable of innocence.

And it is circular to state that the fetus is a person at all.

I agree with you that there are things which are bad which should not be prosecuted. (Very few people are actually "pro-abortion". Most people who have been anywhere near abortion or childbirth think it is not a decision to be taken lightly, especially later in the term.)
1.29.2007 5:48pm
jrose:
Norman,

The PBA ban explcitly says the woman cannot be punished.

The duress argument is lame. A woman who has an abortion is just as clear-minded as a woman who hires a doctor to kill her newborn. If there is an insanity or other affirmative defense, let the jury sort it out applying the same standards in both cases.

Moreover, the distinction in all likelihood violates the Equal Protection clause. If the state chooses to protect one class of persons more than another by only punishing the hitman in one case, while punishing both the hitman and the person who hired him in another case, the state probably must overcome strict scrutiny to do so.

Until you can support punishing the woman as a first-degree murderer, you are not treating the fetus as a person - and your argument against abortion is every bit as morally fuzzy as mine in favor of abortion rights.
1.29.2007 7:01pm
Norman:
David,

Invited, because the couple had sex and in so doing, invited the possibility of getting pregnant. It's not the foetus's "fault" that he's in existence; it's the parents's fault.

And innocent because the foetus can't help itself and can't leave the body when asked. I see the situation to be akin to one where I invite a little child into my home and take responsibility for the child; if I get tired with the child as it grows, I can't simply ask the helpless child to leave the home... if I take on the responsibility of having sex and getting pregnant, then I can't blame anyone else but me when I start feeling the effects of being pregnant.

Not sure why it is circular to say that the foetus is a person. I say that human beings should be afforded the rights of personhood because they are human beings. A foetus is a human being, and thus, should have the rights of personhood.
1.29.2007 9:42pm
Norman:
jrose,

I'm ready to say that a woman who has an abortion at any stage of development is murdering her child. I have no problem at all in stating that she has killed a human being. No moral fuzziness here.

I only hesitate when considering what criminal sanctions should be extended against mothers, because I sympathize with the many women who feel pressured into having an abortion. As I said before, no woman wants to have an abortion. What sanctions are appropriate for what crime is necessarily something that depends on the circumstances. Furthermore, different sanctions might be appropriate for the same crime, depending on the particular society and its social/moral beliefs of the time. (Another example of a crime that used to have criminal sanctions, but what I think should not be prosecuted nowadays because I sympathize with the infringer, is the offense of attempted suicide.) If we lived in a society where everyone recognized the personhood of foetuses, then yes, I would have no problem with criminal sanctions against aborting mothers. But we don't live in such a society; instead we live in a society where fearful single mothers feel pressured to have an abortion, thinking that there is no other option to them, after being told that an abortion is no big deal because it's just a blob of tissue.
1.29.2007 10:49pm
David Chesler (mail) (www):
Norman, that's not what invited means.
If a burglar breaks down my door I didn't invite him in, even though the fact that I have a door rather than a wall there made it more likely that he would get in.
1.29.2007 11:56pm
Norman:
David,

I know the analogy is not perfect; I'm just using it as an example. But I think it's apt because the person having sex is taking an affirmative action that might result in pregnancy... kind of like opening one's door and putting a sign out that says "children welcome". No child might take up the invitation, but there is always the off-chance that the child does take the invitation, and once he or she does, then one can't really just kick the child out into the cold later.

The burglar analogy is not apt, because in that analogy, the homeowner is not taking any affirmative action to permit the burglar entry... instead, the homeowner has done all he or she can to prevent the burglary. But sex (no matter how careful) necessarily involves the possibility of pregnancy, and sex is similar to an affirmative action permitting entry. If a homeowner took an affirmative action to permit entry of burglars (like opening one's door and putting out a "Burglars welcome" sign), well then the homeowner is at least partially to blame when a burglar actually comes into the home.
1.30.2007 9:26am
David Chesler (mail) (www):
Sex allows that conception could occur.
Having a door allows that a burglar could get in.

Having sex and using contraception or contra-implantation is like having a lock on the door. It might be a simple latch (coitus interruptus, simple calendar rhythm, hope and prayer) or it might be a steel door with a four-point lock (better methods) but burglars sometimes get in.

Again, invite is not the same as taking an action that could be one in a chain of actions that results in an unwanted outcome.

If a homeowner took an affirmative action to permit entry of burglars (like opening one's door and putting out a "Burglars welcome" sign), well then the homeowner is at least partially to blame when a burglar actually comes into the home.

We're not talking about blame, we're talking about the right to eject the burglar.

Heck, sometimes I hear somebody at the door and I'm expecting someone and I say "Come in, it's open" -- but if it's not whom I expected, or if it is but the visit turns sour, I can eject the visitor.
1.30.2007 10:01am
Norman:
The way to prevent getting pregnant is to not have sex; I know, that's difficult for some, but that's the way Mother Nature made us... having sex often leads to pregnancy.

But, ok, let's move on. So an unwanted visitor has come into your home. You said: We're not talking about blame, we're talking about the right to eject the burglar.

If this burglar or unwanted visitor is not threatening you with lethal force, and ejecting him from your home would result in the visitor's death, generally the law does not permit ejection. Do you think you can eject a visitor/burglar, who is not threatening your life and who will die if you eject him from your home?

(I note that abortion is more than mere ejectment of a visitor from someone's body... it's an ending of the life of the human entity in the womb, and then removal of the entity's body. The better analogy would be if the homeowner actually killed the non-lethal-threat burglar and then threw the body outside.)
1.30.2007 10:59am
David Chesler (mail) (www):
The way to prevent getting pregnant is to not have sex; I know, that's difficult for some, but that's the way Mother Nature made us... having sex often leads to pregnancy.

I've had sex hundreds of times, and fathered 3 children. That's a stretch for "often". And in all those hundreds of times I've realized that there are positive benefits to sex, such that not having sex is not without cost. Some of these benefits, such as strengthening my marriage, accrue to the children as well.

If this burglar or unwanted visitor is not threatening you with lethal force, and ejecting him from your home would result in the visitor's death, generally the law does not permit ejection. Do you think you can eject a visitor/burglar, who is not threatening your life and who will die if you eject him from your home?

Yes I do. It depends on how reasonably he relied on me for getting there, and how much threat he poses to me. If there is only enough food (or water, or oxygen) for one, and he is consuming some of it, making it more likely that I will run out of food before we're rescued, if I have a superior claim to both the food and the place, out he goes. It's not a move to take lightly, but if it is necessary, or reasonably necessary, to preserve my life, it is permissible. And if the only way to get this unwanted visitor, who is consuming my limited resource, to stop doing so, is to kill him, rather than to eject him (which will likely lead to his death anyway), that is also permissible, and some would say better.


I note that abortion is more than mere ejectment of a visitor from someone's body... it's an ending of the life of the human entity in the womb, and then removal of the entity's body.

This is not universally the case, such as an induced miscarriage.

Not sure why it is circular to say that the foetus is a person. I say that human beings should be afforded the rights of personhood because they are human beings. A foetus is a human being, and thus, should have the rights of personhood.

The circularity is in defining a fetus as a human being. How is it a human being, with the rights attendant in that, in a way that a zygote or a skin cell line or a transplanted heart is not, and in a way that both identical twins, an individual with a trisomy or other genetic abnormality, or an individual with two chimeric cell lines is? Is it equally human from the moment of conception through birth?
1.30.2007 4:30pm
Norman:
David, you said: It's not a move to take lightly, but if it is necessary, or reasonably necessary, to preserve my life, it is permissible.

Ah, but I don't have a problem when the life of the mother is at stake (ie, ectopic pregnancy). If your visitor is endangering your life, lethal means to defend yourself is permissible.

You must admit, however, that abortion is legal in cases for the woman's health (including "psychological" health pursuant to Doe v. Bolton), and that the overwhelming majority of abortions fall into the "health" exception. And that's where the problem comes in. Generally, the homeowner is not allowed to kill the visitor who is not endangering your life. Similarly, a mother should not be permitted to kill the human entity growing within her, that is not endangering her life.

Why is a fetus a human entity (or human being)? You'll have to scroll above to my thought experiment with jrose, where I set out my argument. You must admit that a newborn is a human entity, and I see no logical distinction between it and the being that 1 minute before was in the mother's uterus... can you? Take the thought experiment step by step to the zygote, which is the first instance of an individual entity, with distinct human DNA characteristics, that is capable of its own development (which is my definition of human entity). Thus, a skin cell line or heart transplant are not human entities: they are made up of human tissue, but they are not individual entities capable of their own development into an adult human being. Individuals with trisomy fit the definition of human entity: they are individual entities with a distinct human DNA structure (albeit defective DNA structure - but still unquestionably human), capable of development. And yes, it is human from conception through birth. Every biologist will concede that the zygote and embryo are things that have unique human DNA structures.

What is your definition of a human being? In your mind, what qualifies as a human being?
1.30.2007 5:34pm
David Chesler (mail) (www):
I reject Zeno's paradox.
I'm going to go with a "I know it when I see it," but a big part of it is the sentient mind, and erring on the side of caution for things that seem awfully close to that.
Between conception and birth it's a sliding scale, and goes into a balancing test.
1.30.2007 6:13pm
David Chesler (mail) (www):
Having seen the party I impregnated carry three pregnancies to term, it's clear that each one left her health a little worse, and of course there are risks in pregnancies and delivery.

Gametes have unique human DNA, but they are not human beings. It is not the case that every sperm is sacred.

A baby with Tay Sach's or Progeria is not capable of development into an adult. An identical twin does not have unique DNA.

Conception is a fairly bright line, but so are implantation, quickening, birth, and first breath.
1.30.2007 9:32pm
Norman:
Oh, a sliding scale. Do you mean to say that something becomes more a human being the more it develops? The problem with birth as a boundary for "fully human" and "not-fully human" is that birth happens at different times. How can you say that the 7-month premature born baby is more human than the 8 1/2 month unborn entity? Why is there a right to kill the 8 1/2 month but not the 7 month?

A thing may grow, change size, and get new abilities, but that doesn't change what a thing is. So, a newborn grows into a toddler, a toddler begins to speak, a child gets the ability to self-reflect, a child hits puberty and sexual maturity and continues to grow, etc. These are all changes that happen to the human being, but the changes in appearance and ability as the thing develops don't transform the baby into a different type of thing (into a dog, for example). No, the baby and the adult are the same type of thing, namely, a human being. So, a baby undergoes many changes in its life, but it never changes into a different type of thing; it always remains a human being.

So, if puberty or self-reflection or ability to speak or whatever change in appearance or change in ability doesn't transform the baby from one type of thing into another, I don't see that birth, or the development of fingers, or whatever other fetal development is the change from one type of thing to another. At every stage of fetal development, it is still one type of thing, a human being, an entity with individual DNA that is capable of development.

A gamete is not the type of thing that will develop into a human being. Only the zygote is the type of thing that will develop into a human being. A baby with Tay Sach's is still the type of thing that will develop into a human being... it doesn't reach adulthood because it's damagaged or sick, but that doesn't make it any less of a human (just as someone being born blind is not any less of a human even though he will never develop sight). Identical twins, though they have same DNA, are individual entities with human DNA capable of development.

So, in short, your theory that a human comes into being at some middle boundary of development, such as sentient mind, cannot argue against a proposal of any other boundary of development: for example, why isn't puberty when something qualifies as a human being, and so younger entities can be killed with no concern? Your theory has no basis to counter that position.

Furthermore, your theory does not explain what the thing is before your development boundary: what is the thing the minute before it becomes a human being? It has human DNA, and it is an entity which is growing and developing, so what is it? Is it a different type of thing, or the same type of thing that is simply at an earlier stage of development?
1.30.2007 10:31pm
David Chesler (mail) (www):
Oh, a sliding scale. Do you mean to say that something becomes more a human being the more it develops?

Yes. I give no thought to the loss of an unfertilized ovum, or a failure to implant that doesn't even yield a missed period. Except for the maternal risk, a Morning After pill or a very early abortion carries about the same moral weight as swatting a fly or setting a mousetrap. (This is not zero -- I prefer to carry non-pest insects outside, and sustained a bite trying to release a mouse from a glue trap.) Mid-term it carries more moral weight, like putting down a pet. Late-term,it's getting closer to killing a burglar in self-defense.
The right to kill the 8.5 month fetus is highly limited. Using birth or first breath as a bright line is about as useless as using conception, although I'd use it as the difference between killing the burglar who has a knife at a householder's throat and killing the burglar who is jumping out your window with your iPod in his hand.

A thing may grow, change size, and get new abilities, but that doesn't change what a thing is.

You mean I've got to dig up Grandpa?

A gamete is not the type of thing that will develop into a human being.

All an ovum needs is a minuscule addition to become a zygote. And then it needs all sorts of other chemicals to keep developing.

A baby with Tay Sach's is still the type of thing that will develop into a human being... it doesn't reach adulthood because it's damagaged or sick, but that doesn't make it any less of a human

What about the "capable of developing" requirement?
To make it easier, what about a fetus that has deformities such that it will not live once the umbilical cord is cut. What is it capable of developing into?

Identical twins, though they have same DNA, are individual entities with human DNA capable of development.

So does a sperm have human DNA.

So, in short, your theory that a human comes into being at some middle boundary of development, such as sentient mind, cannot argue against a proposal of any other boundary of development: for example, why isn't puberty when something qualifies as a human being, and so younger entities can be killed with no concern? Your theory has no basis to counter that position.

Because there is a very easy slope between killing toddlers and killing adults.

Furthermore, your theory does not explain what the thing is before your development boundary: what is the thing the minute before it becomes a human being? It has human DNA, and it is an entity which is growing and developing, so what is it? Is it a different type of thing, or the same type of thing that is simply at an earlier stage of development?

What is an ovum the minute before conception? It also has human DNA etc.

Things can be the same type of thing on one dimension, and different types of things in other dimensions. Men and women are both humans, a psychoactive plant and a non-psychoactive plant are both plants.
1.31.2007 10:59am
Norman:
David,
The right to kill the 8.5 month fetus is highly limited.
Ok, so if you grant a highly limited right to kill a 8.5 month fetus, what about the 7 month premature born baby? Do you recognize an even greater right to kill the 7 month infant? Logically, that follows, because the 7 month hasn't developed as much as the 8.5 month. Are you in favor of repealing the laws on infanticide for babies born prematurely?

You mean I've got to dig up Grandpa?
Human beings are things that are living. The moment Grandpa dies, he is no longer a human being, he's a corpse. The type of thing he is has changed.

All an ovum needs is a minuscule addition to become a zygote.
A gamete and ovum are distinguishable from a zygote. A zygote has all the DNA necessary to grow into an adult human being and has a living principle that enables it to grow as long as it is properly nourished. A gamete and ovum do not.
In a similar fashion, a child has a living principle that enables it to grow into an adult, provided it is properly nourished. A corpse does not have the living principle, and no matter how many cheeseburgers you put into its stomach, it won't grow.

Tay-Sachs, and What about the "capable of developing" requirement?
You're misunderstanding what I mean by "capable of developing". I mean that the entity is the type of thing that would develop into an adult human if it wasn't sick or injured. It doesn't matter that this particular individual won't develop into an adult human, because that doesn't change what type of thing the individual is. Take the example of being born blind, or being born with no legs, or having Down Syndrome, or whatever. These individuals have human DNA, they are living, and they are the type of thing that grows into an adult if healthy. Human adults are able to see, have two legs, and have full mental capacities. Now, even though this individual will never see, walk, or reason philosophically, it is still the type of thing that sees, walks, and reasons, as it is still a human being. Do you think that people born blind, without legs, and with Down's are less of a human being because they can't do what human beings do, and so we should have limited rights to kill them?

what about a fetus that has deformities such that it will not live once the umbilical cord is cut. What is it capable of developing into?
What about an infant born with a heart problem such that it will not live if it is not operated on? What is it capable of developing into?

So does a sperm have human DNA.
Similar to what I said about gametes: Sperm, though having human DNA, don't have a principle of life which enables them to develop into an adult human being.

Because there is a very easy slope between killing toddlers and killing adults.
The slope may be obvious at the moment, but there is a growing ethical movement to permit killing toddlers (see Peter Singer's work). And your theory has no principled way of countering a theory in favor of killing toddlers.

What is an ovum the minute before conception? It also has human DNA etc.
Yes, but like the sperm and gamete examples above, an ovum does not have a living principle which enables it to grow into an adult human being. The moment of conception changes the type of thing: it used to be an organism with no chance of living and growing into an adult human being and now it is an organism that is living and will grow into an adult human being. The type of thing it is has changed.

I realize that I talk about "types of things" so here are some examples of what I mean:
-dog and cat: 2 different types of things
-human being and dog: 2 different types of things
-toddler and adult are 1 type of thing (namely, a human being at different stages of development)
-adult blind from birth and adult who can see: 1 type of thing
-child in coma and adult who is sentient: 1 type of thing
1.31.2007 12:47pm
David Chesler (mail) (www):
You are picking and choosing the differences that are relevant to arrive at the result you want.

A sperm is alive, it just needs a host ovum, just as the zygote needs a host. (Of course it's "natural" that the overwhelming majority of sperm don't find host ova and die within days.)

Ok, so if you grant a highly limited right to kill a 8.5 month fetus, what about the 7 month premature born baby? Do you recognize an even greater right to kill the 7 month infant?

Comparable, although a premie ex-utero is less likely to endanger anyone.
1.31.2007 1:16pm
Norman:
A sperm is alive, it just needs a host ovum, just as the zygote needs a host.
That's simply incorrect biologically. A sperm does not have all the DNA necessary and the life principle that would enable it to grow into an adult human being. A zygote does have the full complement of DNA, and its DNA is identical to the fetus's DNA and the adult's DNA. My DNA right now is identical to the DNA when I was a fetus right down to a zygot. My DNA now is not identical to that of the sperm I came from.
1.31.2007 1:23pm
Norman:
Ok, so if you grant a highly limited right to kill a 8.5 month fetus, what about the 7 month premature born baby? Do you recognize an even greater right to kill the 7 month infant?

Comparable, although a premie ex-utero is less likely to endanger anyone.


Ok, so, in your theory, if it's not birth that gives a human entity full status as a human being with all the rights of personhood, when is someone fully a human being? 9 months old? 10 months old? 1 year old? When someone starts talking? Puberty?
1.31.2007 1:36pm
David Chesler (mail) (www):
What do you mean by "fully a human being"? What are the consequences, rights, responsibilities?

I am less concerned with the definition of "fully a human being" than the rights and responsibilities of entities as they interact with each other in various situations.
1.31.2007 2:29pm
Norman:
By "fully a human being" I mean a human person with full rights as protected by our laws and legal system. Intentional killing of a premature baby would still legally be murder, as I understand it. Your position, however, seems to be that intentional killing of a premature baby should be permitted in highly limited circumstances because a 7 month old hasn't yet reached some level of "human being" on your sliding scale. I'm curious at what point on your sliding scale do you consider an entity to be a human being with all the human rights that you and I currently have.
1.31.2007 4:06pm
David Chesler (mail) (www):
35 years old. Younger than that and you can't be President.
1.31.2007 4:29pm
Norman:
Now you're being facetious.

I'll have to remember to not bring my children over to your house next time I come to visit... I wouldn't want you to put your theory in practice with my kids who might not be old enough in your opinion to have developed an inalienable right to life.
1.31.2007 5:11pm
David Chesler (mail) (www):
There is no inalienable right to life, as in the example of the burglar.

If the question is when is it OK to kill something between conception and one year past conception, it depends. Within the first trimester, it's as different from a human as an insect, and may be treated that way.

Getting past quickening and viability, it's close enough to a human that you don't take its life lightly. Ex utero I can't think of a reason, except for mercy or rare cases of conjoined twins, that justifies killing it. Unborn it can still do damage on the way out, and there are circumstances that make killing it more justifiable. If it's not going to be stillborn or not live more than minutes after birth, I'm a lot less concerned.
1.31.2007 5:22pm
David Chesler (mail) (www):
I'll have to remember to not bring my children over to your house

Is this your fear, that there is a slippery slope between allowing late abortions for reasons short of imminent death or serious health risk, and killing independent born humans who are not putting me at risk?
1.31.2007 5:49pm