Freethought & Rationalism Archive

Clutch · 11-03-2002, 05:14 AM

Well said, mfaber.

Rick, I don't understand your puzzlement. In a sense, nothing is to stop lawmakers local or federal from passing any law they want, whether it's morally reprehensible or inconsistent with the principles underlying the balance of similar laws already on the books.

My point was straightforward, in the sentence you quoted: by the standards made perfectly explicit in a wide range of laws already in place, and by strongly defensible principles of moral reasoning, there are exceptions to the general presumption that killing a person is morally and legally impermissible.

That's the main point of Judith Jarvis Thomson's classic paper "A defense of abortion". While I think it could have been more persuasively argued than it is, the paper starts by assuming that fetuses are persons, and asks what would follow from this vis a vis the impermissibility of abortion. Her answer is, Not Much.

But at least this much: If fetuses are persons, then in order justifiably to abort you need some special justification against the state's general interest in protecting persons. It is no longer a matter of drawing the veil of privacy around your actions. (Thomson just argues that, in fact, such special justifications almost always apply.)

In any case there is no reason to think that most abortions, if any, involve anything remotely approaching a person. But personhood is a fundamental linchpin for the debate in a way that privacy is not; only within the scope of a negative personhood judgement can privacy be thought to rule out the state's having an interest in regulating abortion.

Dr Rick · 11-03-2002, 08:21 AM

<a href="http://www.crlp.org/pub_bo_roe.html" target="_blank">Roe v Wade and the Right to Privacy</a>

Roe v. Wade established that a woman's right to privacy gives a woman the right to obtain an abortion. The 7-2 majority opinion was given by Justice Blackmun. Although Blackmun began his argument with a history of abortion, the main focus of his concurring opinion revolved around the constitutional right to privacy and the inability to determine when a fetus or an embryo becomes a human life. The majority ruled that even though the Constitution does not explicitly mention any right of privacy, other court cases have recognized a right to personal privacy supported by various amendments such as the First, Fourth, Fifth, Ninth, and Fourteenth. All of these give root to an inherent right to privacy for American citizens.

Blackmun wrote:

Quote:

"The right to privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court has determined in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice is altogether apparent. Specific and direct harm medically diagnosable in even early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider."

However, Roe v. Wade fell short of declaring a woman's absolute right to abortion. The opinion continued,

Quote:

... "[But] the privacy right involved ... cannot be said to be absolute and must be considered against important state interests in regulation ... It is reasonable and appropriate for a State to decide that at some point in time another interest, that of the health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly."

The status of a fetus as a person or human life was not the issue in the decision:

Quote:

"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man�s knowledge, is not in a position to speculate as to the answer."

Rick

[ November 03, 2002: Message edited by: rbochnermd ]

Clutch · 11-03-2002, 01:01 PM

Rick,

Thanks for posting the quotes. But I don't see how "Blackmun said this" resolves any question about the logical relation of the ideas here. (No more than "Scalia said this" resolves the question of whether there should have been a recount in Florida.)

Notice that you say both:

Quote:

Although Blackmun began his argument with a history of abortion, the main focus of his concurring opinion revolved around the constitutional right to privacy and the inability to determine when a fetus or an embryo becomes a human life.

and,

Quote:

The status of a fetus as a person or human life was not the issue in the decision

Your second comment is inaccurate, which explains the tension between your two assertions. That the fetus does not clearly count as a person is exactly what Blackmun is pointing to, in arguing that the state has no interest in the properly private decisions of women. His first sentence below is an unhappy attempt to have things both ways, but the balance of the remark very clearly makes his point: there are no grounds for the state's protecting the rights of lives that do not clearly exist.

Quote:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man�s knowledge, is not in a position to speculate as to the answer.

And hence not in a position to protect the rights of the fetus, its legal/moral status being indeterminate. But if there were grounds to give the fetus the legal/moral status of a person, the court would indeed be in that position. You have just quoted his argument that as it looks more and more like there's a life/person/agent (Blackmun is uncareful with the distinctions), it becomes more reasonable for the state to take an interest in protecting that life/person/agent notwithstanding the woman's privacy rights.

Quote:

... It is reasonable and appropriate for a State to decide that at some point in time another interest, that of the health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

In short, the court clearly justified its permitting abortion on the grounds that there is no medically, philosophically or theologically settled view about whether fetuses have the rights that accrue to persons. And it equally clearly justified its limitations on that permission by alluding to the rough and ready sense that fetuses may come in for those rights as they develop. Privacy was just their way of saying that if there's nobody hurt by it, it's your business whether you do it or not. But this is only relevant if one has decided already that the evidence does not bear out some agent's being directly harmed in abortion.

[ November 03, 2002: Message edited by: Clutch ]

GeoTheo · 11-03-2002, 03:54 PM

Well I agree with clutch. I don't have a problem with the notion that I am an inept debator, but I really don't see how you just can't see how the personhood issue relates, Rick.
If a fetus is a person, privacy counts for zilch.
I guess the burden of proof is on me here to prove a fetus is a person.
Before I get to that though, I would like to comment on the "self defense" or "kidnapping" scenario. This scenario assumes the fetus is a person but with rights secondary to the mother. I don't think it holds water. Unless, as I stated earlier the woman is in direct danger of loosing her life, literally.
Here's why. The baby is innocent. It is there by no decision of it's own. If an unwanted pregnancy occurs though, it is no mystery how it happened.
Therefore there is responsibility on the part of the biological parents to care for it. They have brought a person into a vulnerable situation through their negligence and now are responsible to care for it until birth.
Let us look at an analogy.
Say a woman had an abandoned well(womb) on the womans property. They thought it was boarded up(b.c.) but, unknown to them a storm blew the boards off(b.c. failed). A small child who was playing nearby(fetus) falls into the well. she later discover the child stuck in the well. (woman discovers she's pregnant). She were planning to go on vacation to Bermuda. What a bummer she says.
Well, I have a gun she says. I coould shoot the kid and no one would Know. I'll just throw some lime in there and put the boards back over it. After all it is my Private property(body) and I had taken precautions to prevent this.

You know this wouldn't be justified. She would be responsible for getting the kid out of the well and would perhaps be criminally negligent to a lawsuit even though it was on her property. There are legal precedents for this in the case of swimming pools.

Clutch · 11-03-2002, 05:01 PM

GT, thank you for recognizing that the burden falls on you here. A very honest and helpful step. Without a sound argument that a fetus is a person, this is all for naught.

Still, it's worth mentioning that your analogy, which you propose would come into play if indeed you can produce such an argument, is not a good one.

Thomson's is much closer to the actual state of affairs: Imagine you wake up one day connected by tubes to a famous violinist. The violinist is innocent; this was done without his knowledge. But he has a fatal kidney disorder, and needs to use your kidneys for nine months (you're the only blood-type match) before a transplant can be cloned. (I'm modifying JJT's example a bit.)

Now, this violinist is a person -- a fully fledged and conscious one, too, not just a developing one. But are you legally or morally required to lie there for nine months? Surely not.

We might well think very highly of someone who did. We might think correspondingly less highly of someone who did not (while no doubt recognizing that we might not have, either). But there is neither a legal nor a moral foundation for the State's stepping in to say, "Sorry, that's person. You have to stay hooked up."

What's wrong with Thomson's analogy? Well, being pregnant is not as bad as being bedridden for nine months (though in some cases it can almost amount to that). You can still have a very active life while being pregnant. But is that a decisive difference? If the violinist could survive for a few hours on end without the required processing, and if you could be fitted with a bulky system that stores and allows your body to process blood while you're out and about, which can then be couriered back to the violinist periodically... what then?

Of course, this system will be strapped to your stomach; it'll be heavy, very hard on your back, and will occasion questions and behaviour from nosy neighbours that you may find very oppressive. Plus the extra blood the system contains affects your blood pressure; expect varicose veins, swollen fingers, toes, ankles, feet... Again, we would probably reserve a special moral respect for someone who undertook this gamut of hardships for another person. But no rational law would demand it.

One of the most legally fraught questions today is whether to enact so-called Good Samaritan laws: laws that would make it illegal not to help someone in desperate danger of death or harm, when the costs to you are negligible. The costs are massive in the case of pregnancy, though. An anti-abortion law would be a radically worse idea than Good Samaritan laws, which are already a very bad idea.

In my view, things would be very different if you had undertaken a contractual arrangement with the violinist, by the way. But there is no such argument to be made in the case of sperm and ova. You cannot antecedently make a contract without there being someone with whom to make it; and you cannot make a contract against your will. Since abortions are pretty much by definition performed for women who are not willingly pregnant, there is no reason I can fathom to suppose that, even were a fetus a person, abortion would be impermissible.

Again, though, all this presumes that someone has produced the singing dog: an argument that fetuses are persons.

GeoTheo · 11-03-2002, 05:35 PM

My analogy is better. Waking up with a violinist attached to your kidney is not anything that could be forseen. But having sex likely involves at least the risk of having a child. The same way having an open well involves negligence if someone falls in. If you get sterilized, or fill in the well if you will, you eliminate the risk. Until then you bear responsibility.
The violinist analogy eliminates the element of causality.
I'm sure waking up pregnant might entail a good deal of surprise for a woman taking b.c. but nothing campared with waking up with a violinist attached to your kidney!
I know the sining dog is around here somewhere...

Dr Rick · 11-03-2002, 06:39 PM

Quote:

Originally posted by Clutch:
But I don't see how "Blackmun said this" resolves any question about the logical relation of the ideas here. (No more than "Scalia said this" resolves the question of whether there should have been a recount in Florida.)

It clearly resolves the issue of the reasoning behind the court's decision, which is what you have been debating with me; A person's constitutional right to privacy, far from being a "strawman," as another poster incorrectly assumed, was actually the basis for the decision.

The court made it very clear that it didn't have to get involved with the issue of personhood to make its decision, and was not going to.

The US Supreme Courts decisions do not resolve either the abortion or Florida recount debates, and no one on this thread claimed that they did, but the wording in the former refutes the assertion that:

Quote:

Privacy is almost a red herring, then, as far as the rationale for the decision.

The Supreme Court only affirmed a woman's right to privacy, and held the state may have some interests in protecting the health of the mother and/or a viable fetus, but said nothing about a fetus as a person. The last two terms are not interchangable when interpreting the ruling or in the definitions of most pro-lifers and many pro-choicers. Blackmun made it very clear in his wording that he was not ruling on when "life begins" for a fetus, explicitly or implicitly, when he said the states interests may be balanced against a woman's right to privacy when a fetus reaches viability.

You yourself seem to contradict the importance of personhood that you place on the Roe v Wade decision and the abortion debate as a whole with this:

Quote:

...if there were grounds to give the fetus the legal/moral status of a person, the court would indeed be in that position [to protect the fetus]

but then this:

Quote:

Since abortions are pretty much by definition performed for women who are not willingly pregnant, there is no reason I can fathom to suppose that, even were a fetus a person, abortion would be impermissible.

Rick

[ November 03, 2002: Message edited by: rbochnermd ]

seanie · 11-04-2002, 01:02 AM

Quote:

Originally posted by The Other Michael:

Here's a thought experiment:

Five "persons" are lined up, and you've just been told that you've got to pick the four that will be allowed to live. You have no say in the fact that one will die - if you do or don't make a choice one will be picked at random and killed.

On one end we've got your basic four-celled zygote. Next up is a second trimester fetus, then a small child, an adult in their 30s, and an aged person in their 90s.

Which one are you going to pick, and why?

Great! A quiz! I'll give it a go. But I'll do it in terms of ranking.

I'm afraid I'd put the four-celled zygote up against the wall first.

Then (and I might be courting controversy) I'd shoot the 90 year old.

Then the second trimester fetus gets it.

Lastly I'd shoot the 30 year old leaving the small child standing.

DigitalDruid · 11-04-2002, 01:52 AM

I have a question for either side of this debate.
How's a person being defined?
Is a person a member of the species Homo Sapiens (determined by genetic makeup?
Or, is a person any being with some specific attributes, such as, self-awareness, rational, pleasure-pain awateness etc?
Or, is it both?

seanie · 11-04-2002, 03:23 AM

Quote:

You're not a person till you're in my phone book.

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11-03-2002, 05:14 AM	#151
Clutch Veteran Member Join Date: Oct 2001 Location: Canada Posts: 3,751	Well said, mfaber. Rick, I don't understand your puzzlement. In a sense, nothing is to stop lawmakers local or federal from passing any law they want, whether it's morally reprehensible or inconsistent with the principles underlying the balance of similar laws already on the books. My point was straightforward, in the sentence you quoted: by the standards made perfectly explicit in a wide range of laws already in place, and by strongly defensible principles of moral reasoning, there are exceptions to the general presumption that killing a person is morally and legally impermissible. That's the main point of Judith Jarvis Thomson's classic paper "A defense of abortion". While I think it could have been more persuasively argued than it is, the paper starts by assuming that fetuses are persons, and asks what would follow from this vis a vis the impermissibility of abortion. Her answer is, Not Much. But at least this much: If fetuses are persons, then in order justifiably to abort you need some special justification against the state's general interest in protecting persons. It is no longer a matter of drawing the veil of privacy around your actions. (Thomson just argues that, in fact, such special justifications almost always apply.) In any case there is no reason to think that most abortions, if any, involve anything remotely approaching a person. But personhood is a fundamental linchpin for the debate in a way that privacy is not; only within the scope of a negative personhood judgement can privacy be thought to rule out the state's having an interest in regulating abortion.

11-03-2002, 03:54 PM	#154
GeoTheo Veteran Member Join Date: May 2002 Location: Bemidji Posts: 1,197	Well I agree with clutch. I don't have a problem with the notion that I am an inept debator, but I really don't see how you just can't see how the personhood issue relates, Rick. If a fetus is a person, privacy counts for zilch. I guess the burden of proof is on me here to prove a fetus is a person. Before I get to that though, I would like to comment on the "self defense" or "kidnapping" scenario. This scenario assumes the fetus is a person but with rights secondary to the mother. I don't think it holds water. Unless, as I stated earlier the woman is in direct danger of loosing her life, literally. Here's why. The baby is innocent. It is there by no decision of it's own. If an unwanted pregnancy occurs though, it is no mystery how it happened. Therefore there is responsibility on the part of the biological parents to care for it. They have brought a person into a vulnerable situation through their negligence and now are responsible to care for it until birth. Let us look at an analogy. Say a woman had an abandoned well(womb) on the womans property. They thought it was boarded up(b.c.) but, unknown to them a storm blew the boards off(b.c. failed). A small child who was playing nearby(fetus) falls into the well. she later discover the child stuck in the well. (woman discovers she's pregnant). She were planning to go on vacation to Bermuda. What a bummer she says. Well, I have a gun she says. I coould shoot the kid and no one would Know. I'll just throw some lime in there and put the boards back over it. After all it is my Private property(body) and I had taken precautions to prevent this. You know this wouldn't be justified. She would be responsible for getting the kid out of the well and would perhaps be criminally negligent to a lawsuit even though it was on her property. There are legal precedents for this in the case of swimming pools.

11-03-2002, 05:01 PM	#155
Clutch Veteran Member Join Date: Oct 2001 Location: Canada Posts: 3,751	GT, thank you for recognizing that the burden falls on you here. A very honest and helpful step. Without a sound argument that a fetus is a person, this is all for naught. Still, it's worth mentioning that your analogy, which you propose would come into play if indeed you can produce such an argument, is not a good one. Thomson's is much closer to the actual state of affairs: Imagine you wake up one day connected by tubes to a famous violinist. The violinist is innocent; this was done without his knowledge. But he has a fatal kidney disorder, and needs to use your kidneys for nine months (you're the only blood-type match) before a transplant can be cloned. (I'm modifying JJT's example a bit.) Now, this violinist is a person -- a fully fledged and conscious one, too, not just a developing one. But are you legally or morally required to lie there for nine months? Surely not. We might well think very highly of someone who did. We might think correspondingly less highly of someone who did not (while no doubt recognizing that we might not have, either). But there is neither a legal nor a moral foundation for the State's stepping in to say, "Sorry, that's person. You have to stay hooked up." What's wrong with Thomson's analogy? Well, being pregnant is not as bad as being bedridden for nine months (though in some cases it can almost amount to that). You can still have a very active life while being pregnant. But is that a decisive difference? If the violinist could survive for a few hours on end without the required processing, and if you could be fitted with a bulky system that stores and allows your body to process blood while you're out and about, which can then be couriered back to the violinist periodically... what then? Of course, this system will be strapped to your stomach; it'll be heavy, very hard on your back, and will occasion questions and behaviour from nosy neighbours that you may find very oppressive. Plus the extra blood the system contains affects your blood pressure; expect varicose veins, swollen fingers, toes, ankles, feet... Again, we would probably reserve a special moral respect for someone who undertook this gamut of hardships for another person. But no rational law would demand it. One of the most legally fraught questions today is whether to enact so-called Good Samaritan laws: laws that would make it illegal not to help someone in desperate danger of death or harm, when the costs to you are negligible. The costs are massive in the case of pregnancy, though. An anti-abortion law would be a radically worse idea than Good Samaritan laws, which are already a very bad idea. In my view, things would be very different if you had undertaken a contractual arrangement with the violinist, by the way. But there is no such argument to be made in the case of sperm and ova. You cannot antecedently make a contract without there being someone with whom to make it; and you cannot make a contract against your will. Since abortions are pretty much by definition performed for women who are not willingly pregnant, there is no reason I can fathom to suppose that, even were a fetus a person, abortion would be impermissible. Again, though, all this presumes that someone has produced the singing dog: an argument that fetuses are persons.

11-03-2002, 05:35 PM	#156
GeoTheo Veteran Member Join Date: May 2002 Location: Bemidji Posts: 1,197	My analogy is better. Waking up with a violinist attached to your kidney is not anything that could be forseen. But having sex likely involves at least the risk of having a child. The same way having an open well involves negligence if someone falls in. If you get sterilized, or fill in the well if you will, you eliminate the risk. Until then you bear responsibility. The violinist analogy eliminates the element of causality. I'm sure waking up pregnant might entail a good deal of surprise for a woman taking b.c. but nothing campared with waking up with a violinist attached to your kidney! I know the sining dog is around here somewhere...

11-04-2002, 01:52 AM	#159
DigitalDruid Senior Member Join Date: Aug 2002 Location: Florida Posts: 712	I have a question for either side of this debate. How's a person being defined? Is a person a member of the species Homo Sapiens (determined by genetic makeup? Or, is a person any being with some specific attributes, such as, self-awareness, rational, pleasure-pain awateness etc? Or, is it both?

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