Thursday, February 23, 2006

Testing Abortion

For those of you who haven't heard, South Dakota is basically just a governor's signature away from outlawing abortion. The proposed law declares that "life begins at conception, a conclusion confirmed by scientific advances since the 1973 decision of Roe v. Wade..." Such a legislative finding strikes at the heart of Roe v. Wade because in that case the Court said (or seemed to say) two things: first, that they were not determining when life began, and second, that if it could be conclusively proved that life began at conception, then the State's interest in protecting life would be stronger than the woman's claim to abortion. I confess that whether or not this is an accurate interpretation of Roe is a disputable point.

But such a reading seems consistent with Roe. And it also seems consistent with Casey, the Court's main follow-up to Roe. In Casey the court stressed the point of viability as the point at which the state's interest in protecting life was compelling enough to trump the woman's right to an abortion. It really seems the relevant question, whether the Court is directly addressing it or not, is when does life begin?

Regardless of this interpretation's accuracy, it seems this is the interpretation motivating South Dakota lawmakers. With this bill, South Dakota is attempting to set up a court battle in which, unlike in Roe, the Court actually gets to the question of when life begins.

[Just a final note: I think this may be a bit premature. Until there's another liberal/moderate Justice replaced on the Court, there are still 5 Justices who would likely uphold abortion rights, whether under principles of stare decisis or because they think it's the right thing to do. Remember, Kennedy went w/ the majority in Casey, affirming abortion rights.]

No more mystery meat.
No more gym. No more gym. No more gym. No more gym!


emnovak said...

A goofy movie. Great movie. Great music. Unfortunately about the abortion thing, I have a feeling women's rights is still going to be a huge issue. I know it is on my campus, and we're 50% catholic. And I think you'd be surprised at how many Catholics who go here are pro-choice.

Matthew B. Novak said...

I don't think I'd be too surprised. I was in pretty close proximity to St. Ben's after all... And SJU has it's own liberal flair. Oh, and there's Georgetown Law, which, despite being Catholic, is overwhelmed with individuals who are pro-choice.

But also, I think women's rights should be a huge issue. I mean, women do, and should have a right to do what they want with their bodies. That right just shouldn't trump the right to life. And since I believe whole-heartedly that life begins at conception, I see a need for laws which protect life before birth. It's not that I'm anti-choice, I just see something more important that needs protection.

emnovak said...

I agree. I think that because life does begin at conception, when women have abortions, they are not just doing something to their own bodies, they are doing something to the body of another person, and they do not have that right.

Given that women's rights are important, do you think that the Catholic Church is right to condemn the use of birth control (condemn is a strong word, but I couldn't think of any other offhand)? Is that the choice of the woman that should be left up to her, or is that a separate issue?

Although, not all birth control woman-centered, so I guess that would enter into another arena.

Ben said...

Too soon, South Dakota. Too soon. The current court will uphold Roe and now you'll have even more precedent against you.

Matthew B. Novak said...

Emily - I think the birth control thing, at least as regards the Church's position, is a seperate issue.

Ben - It might be too soon. But it might not. By the time it gets to the Court, there might be another new Justice. And the Court might not even take it, if they don't feel it's appropriate.

And, as someone who's going to be an attorney, I'd think you'd know that a new case on the same topic can either be "more precedent" or "a modification/dimunition of precedent". If there's a new ruling, if they deal with the case differently than they did Roe, if there's a strong dissent, later on down the road those could all be interpreted as modifying or mitigating Roe's holding, and actually undercutting the precedent. Or they could be viewed as strengthening Roe. It's all how you look at it/interpret it. Compare the majority and dissent in Casey, where one is saying "trimesters weren't essential to the holding of Roe" and the dissent says "trimester were essential to the holding". Why do they bother with that? Because they know the importance that might have in future interpretations. Scalia was trying to undercut the precedential effect of Casey.

Jeff said...

Confirmed by what scientific advances? Hell, I don't think science can say boo about whether someone is "alive" enough to be considered human and thus endowed with the right to life. Unless someone invents the "soulometer" or something.

When life begins is still very much a gray area in our society, defined in most people's minds by religious beliefs or by sheer conjecture. (Judaism, for example, puts the beginnings of life at when the heart starts beating, roughly 40 days. I put the beginning at the presence of a functioning brain.) This is a question for the philosophers, and it always will be. For the Court to rule on this, a state would have to pass a law stating that legal life begins at conception.

(Incidentally, this law would open up a whole new can of worms. Could the mother of a miscarried baby be charged with involuntary manslaughter? Could a pregnant mom be charged with child abuse - or with distributing alcohol to a minor - for drinking while pregnant? Would people get to drink at 20 and 3 mos.? And so on...)

the marvelous patric said...

"Soulometer"... sounds like something Egon Spengler would use.

I am totally working that into my vocabulary.

Oh, and I've thought about it, and i've decided to merge two issues and be against Gay Abortions.

Matthew B. Novak said...

Jeff -

I don't know what specific evidence SD is pointing to, but I'm sure they have something they think is relevant. I agree, that philosophy is the key to determining when life begins. But I think science is important too, because you need it to identify when the essential philosophical markers of life begin.

But ultimately I think what SD is trying to posit - that human life begins at conception and therefore legal life begins as conception, hence going directly to your point (and one of the points of Roe).

Anyways, as regards philosophical views, I'd recommend you check out my "Treatise on the Beginning of Life": It's a long read, but I think you'll find it interesting.

Jeff said...

Read your treatise. I found it very convincing, except for at two related points: where you claim that definitions are universal, and where you express aversion to drawing "arbitrary" lines.

A square is a square for those who have the same concept of geometry as us. For those who see the world differently, a square may not be a square if you rotate it 45 degrees. Or something that's slightly rectangular may be a square. It may be something else completely. After all, the only thing we did to turn a square into a rectangle was stretch it by a thousandth of an inch. There's a line there. We - our culture - drew it.

So it is with life. Let's say a culture considers a beating heart a critical aspect of life. Then life would begin when the heart starts beating. Within that definitional framework, that follows logically.

Arbitrary lines, yes, but human cultures are full of arbitrary lines. At 11:59pm on October 6th, 2002, I was deemed by my culture to be unable to handle the responsibilities implicit in the consumption of alcohol. One minute later, all that had changed. I had crossed some line somewhere that our culture had set out for us. What happened in that minute? Save my celebratory partaking of a shot of peach Schnapps, nothing. And, at the same time, everything, because our culture said it did.

Hell, even the existence of a single line is culturally dependent. There may be cultures that have other categories - alive, partly alive, potentially alive, mostly dead (for you Princess Bride fans out there), etc. And there may be cultures that refuse to split it into categories, who think that there's an asymptotic life curve as opposed to the step-function we use. (Also, there are the Tralfamadorians, who don't see life and death as separate. So it goes.) But we in the West like our step function, so I'll accept that.

Incidentally, "Asymptotic Life Curve" is now the name of my new rock band.

So with regards to the issue at hand, let us take a look at the definitional minefield we have set in front of ourselves. We must not only determine a) what the essential characteristics of life are and b) when an embryo/fetus first displays these characteristics and is therefore alive. We must also determine c) what characteristics are essential to humanity, and thus d) when the fetus becomes human and e) when the fetus becomes endowed with the right to life. That's a lot of lines to draw.