Tuesday, March 21, 2006

A Question of Viability

Today I realized a huge implication of our country's current abortion jurisprudence: it's set up so that eventually the Constitution will not protect any abortions!

The fact that I hadn't yet realized this made me feel a little obtuse, but hey, better late then never, right? I am personally convinced that life begins at conception, and therefore in the abortion debate I've centered my thoughts around this idea. This means that I'm usually arguing against the current abortion regime, which uses viability as the relevant point in determining whether or not the state has an interest in protecting the fetus. The Supreme Court has said that prior to viability there is a right to an abortion, while after viability that right can be restricted by the state.

In arguing that life begins at conception, I've always pointed out the reasons why viability is an unsuitable alternative. The general gist of my argument against viability is that it is unstable; the better the technology available in a particular time and location, the earlier the fetus will be considered viable. As our technology gets better, fetuses are viable at a younger age. Yet, "When does life begin?" is not the type of question that should have a transient answer. The answer should be fixed and consistent.

Today it finally occurred to me that using viability as a relevant criteria in the debate is a problem for pro-choice advocates as well. Think about it: as technology progresses, viability happens at a younger and younger age. Not only that, but we are able to sustain - and even create - new life outside of the womb. Presumably someday medical science will progress to the point that a fetus can be conceived and nurtured completely outside of the womb.

When technology advances to that point, viability will be coterminous with conception. The natural conclusion is that when medical science advances far enough, states will be allowed to outlaw all abortions. The rule will be the same - after viability all abortions can be outlawed - but the practical effect will be very different. I don't know how many pro-choice advocates are aware of the issue, but someday they may hate the same legal regime they now hail.


It's so hard to see streets on a country road


Jeff said...

I'm still not with you that the need for a non-transient answer to the question of when life begins implies that life begins at conception. It could begin at any number of points, none of which are any more arbitrary than conception. The distinction, as I wrote on your earlier post, is cultural.

Nor do I know why the question demands a non-transient answer. Since no one has invented the lifeometer yet, the answer is necessarily a matter of conjecture.

(Scientifically speaking, both egg and sperm cells are "alive." I assume that we are referring to when a life can be considered a human life...)

Matthew B. Novak said...

Jeff - I don't really want to get into the debate too much here (and my thoughts are fairly outlined in that earlier post, thus I'll re-refer you to that, regarding why conception is a non-arbitrary answer to the question, and why the other points fail the arbitrariness test).

I just want to comment briefly on one idea you threw out: that no on has invented the lifeometer, so that what is and is not a life is a matter of conjecture.

The response is quite easy: do I qualify? Do you? Can we say with certainty that you and I and everyone reading this blog is alive? Yes. There would be no dispute. We don't need a "lifeometer" and it's not a question open to conjecture.

What is a life, and what is not, is a definitional question, and therefore must be the same in every instance. Thus, it must be a non-transient answer.

Ben said...

At some point I want to blog my "abortion magnum opus" in which argue that conception is the only non-arbitrary point to which to pin down the beginning of human life. Then I want to use later posts to explore the implications of that idea and whether it truly leads to opposing abortion in all instances, what it says about issues like stem cells, whither the mother's rights enter the picture, and whether and how protection of life extends beyond the womb. I may have to draw upon many of Matthew's arguments. BUT that's not what Matt wants to post about here.

You make an interesting legal point. When Casey took us from Roe's trimester system to the viability system it didn't seem like that big a deal. The bigger deals of Casey seemed to be (1) upholding Roe's central holding, and (2) switching from Strict Scrutiny of abortion restrictions to the "Undue Burden" test.

But as technology has changed, it's moved viability earlier and earlier...and thus the power of the government to regulate and even outlaw abortions (subject to some restrictions) earlier and earlier.

So if a fetus is viable outside the womb from Day 1, that does seem to imply prohibition/regulation can happen from Day 1.

The likely result? At that point, it looks like both pro-choicers and pro-lifers will be calling for a change in the legal regime. The Court will probably have to rexamine the issue at a much more fundamental level than it's been willing to do since Casey.

Pro-choicers will argue that the constitutional policy underlying the viability system would support drawing the line somewhere else....somewhere where the health of the mother comes into play, perhaps. Pro-lifers will either defend the viability system (perhaps as the philosophically accurate place to say a potential life has become a life) or seek an all out reconsideration of the issue and the overthrow of abortion as a constitutional right. Really, by that point, it may be more smart to stick with the system.

Still, all this is premised on future technology, and I certainly can't claim to know anything about that. All the same, I'm amazed I've never heard your argument before.

the marvelous patric said...

here is a related goofy post... suppose a vampire has bitten someone, and we'll use the Buffy-verse rules, they have sucked back. now, can we abort the undead to be before they unlive, or do they have the right to death? or undeath?

blew your mind, didn't i?

Zhubin said...

I'm pretty sure O'Connor discussed this exact problem with the viability construct somewhere in a concurrence. Regardless, there's definitely been plenty of ink spilled about how technology will impact it.

If you ask me, the proper answer is to eliminate viability as a concept and remove Roe's unfortunate elucidation of a state interest in the "life potential" of a fetus. This way, the state will have no power to intervene in a woman's substantive liberty interest in her body. Everyone's happy!

Matthew B. Novak said...

Zhubin - surely you agree that people's liberty interest can be restricted when they use their bodies to kill another person? Whether that be through the firing of a gun or the intoxicated driving of a motor vehicle. If the State is allowed to restrict people's actions because of the harm they cause to others, don't we need to answer the quetion of whether or not the state has an interest? You can't just eliminate the viability standard and therefore say "no interest". Wouldn't the court be forced to actually re-answer the question of when the state's life interest starts? When would you say it starts?

Ben said...

I think Zhubin may have been acting a bit tongue-in-cheek (rim shot) (and I'm sure that only Vandy grads got that) in his comments. Certainly in the "everybody's happy" comment.

From the pro-choice POV, it makes sense to say that there's no state interest in protecting "life potential" because that would mean maximal freedom for the mother to choose whether to have an abortion free of government regulation.

I, personally, was pissed that Roe expressed it in terms of a State interest instead of the rights of the fetus. Calling it a state interest makes it just another case of individual vs. the big bad state...same as in, say, free speech cases. I think of abortion as balancing competing (indeed, practically opposite) individual rights.

Zhubin's solution is not likely to happen any time soon. Too extreme. So's my solution on the complete opposite end of the spectrum - full protection of the fetus as a "person" under the 14th Amendment. (Screw throwing it back to the states.) Yeah....that's not gonna happen any time soon....or ever.

Zhubin's solution - that there is no state interest in protecting life potential - is pretty much the same as saying the fetus is not a human being until birth. After all, if the fetus is at least somewhat human, it deserves some protection (even if that protection is phrased as a state interest). My solution is, of course, a full legal acknowledgment that a fetus is a human being at conception.

Overall, though, I think my point still holds. If technology continues as Matt predicts, then the viability system will be challenged and likely replaced. What will it be replaced with? Well, that's the interesting part.

Ben said...

Zhubin, did O'Connor write a concurrence? I thought she wrote the plurality opinion. Gotta brush up on my Conlaw history.

Matthew B. Novak said...

Ben - For starters, yes, I was aware that Zhubin was being sarcastic. My questions to him were just to try to push the thinking further. It's easy enough to say that pro-choice people want abortion to be legal, and so would oppose this regime of viability when technology advances far enough. It's a much more difficult task for them to articulate why the State has no interest in the fetus prior to viability (or prior to birth, depending on the pro-choice advocate). Once viability is coterminous with conception, pro-choice people are going to have to come up with a new rationale for abortion, and to do that, they should answer the question of what interest the state really has. So I mean to ask pro-choice advocates: when do you think the state's interest in life is significant enough that it can restrict people's actions to protect that life? If the answer is birth, why at birth?

Furthermore, I also agree that the 14th should extend to fetuses, and that their individual right to life should be considered relevant. I think there is also a definite state interest, and so in my mind both the fetus's individual right to life and the state's interest in protecting life trump the woman's freedom to these particular actions.

Zhubin said...

Oh, I didn't mean a specific opinion of hers. I just remember one of her opinions threw out a comment about how technology would eventually make the viability construct untenable.

I don't want to rehash the abortion debate, so I'll be brief. Regardless of whether the fetus is a life, I don't see it as a human being, at least not early in the pregnancy when it's a mass of cells. That is the critical distinction with me. The Constitution does not protect life, it protects persons. Nor, for that matter, does it protect pre-persons. As such, I have no respect for the idea that the state has any interest in the "potential" for life, much less an interest comparable to the woman's interest in her body, as Roe claims.

This begs the question of when a fetus becomes a human being, I know. Certainly at birth. Before then, I have no idea, nor do I particularly care. That issue seems to me to involve religious issues (ensoulment and the like), which necessarily precludes any valid consensus on the matter. As such, considering that the mother is the one who must carry the pregnancy to term, I'd prefer that she be the one to decide for herself whether she is terminating a fetus or killing a child, not the state.

(Also, I know that if you define "human being" at birth, then you get into the messy issue of "inches" and such. That's fine. That kind of gray around the perimeter is unavoidable.)

Matthew B. Novak said...

"Before [birth], I have no idea [if this life is a human being], nor do I particularly care."

- This strikes me as a particularly interesting view. And frankly, it's one I'm surprised you hold. After all, if fetus is a human being, then the abortion is homicide. Your apathy to this point is astonishing.

In fact, it's so astonishing that I'm gonna throw out a parallel. Back in the day, when slavery was legal, a whole lot of people thought blacks were not full human beings. This was even inscribed in our laws with the 3/5th bit. If you were to say "certainly white folks are human beings, but as regards other people I have no idea, and I don't particularly care", then that would be an awful position. Such a position would help justify treating blacks as property, and not as people. That's a horrible thing.

Likewise, if you just punt on the question of whether or not a fetus is a human being, you're opening the door for all sorts of things.

In my mind you must deal with this question. I can understand an argument which says fetuses aren't human beings, but I can't accept a position which doesn't open the inquiry.

Jeff said...

Matt - "life potential"? Is this a Lennard-Jones potential? Or a simple square-well potential? i.e. one that exists on a continuum (L-J) or one with a sudden jump from "no life" to "life" (SW)? Something tells me that you're a squarewell kind of guy. That's okay - it's easier to code a square-well simulation. I think I prefer a truncated Lennard-Jones potential - one that asymptotically approaches life. It should probably be truncated at birth.

Yes, I'm a geek. Why do you ask?

So when does life begin? Day 42.

Personally, I think abortion should be legal... until age 60. That way, we could abort Karl Rove.

Sorry, I'm kind of in a silly mood.

Matthew B. Novak said...

Jeff - As regards the abortion question I think Zhubin hit the nail on the head when he said the relevant inquiry isn't just potential life, but rather human life. (I'd argue that potential human life has some value as well, and is certainly worth some amount of protection). I mean, I've got no problem with eating animals and plants and such. Or with swatting mosquitos for that matter.

So to answer your question, I'd say that there are two things going on. First, there's the question of whether or not something is a life. That's an on/off switch, an SW if you will. Either something is alive, or it's not. As regards whether or not something is a human, that's a different question. Perhaps there is a spectrum here - after all, animals can certainly be more or less human (compare a chimp and a worm). So there's an element of the L-J continuum there. At the same time, there's a certain threshold beyond which something is, without a doubt, human. I would say that threshold is DNA. If something has human genetic code, then it is human. Thus, in my mind, at conception, you've got a human. Life begins at conception (biologically, that's a life.) Likewise, I'd say human life begins at conception, because the relevant feature is the genetic identity.

Jeff said...

Still, I could take the DNA from one of your blood cells and transform it into an E. coli cell, but that doesn't make that cell human. From a strict taxonomic perspective you may be correct, but there's gotta be something else at work here.

Matthew B. Novak said...

Wait, you can transform human DNA into some other DNA? I don't know the science here, but if you turned a human DNA strand into e coli, wouldn't that be non-human DNA now?

Also, there's a huge difference between an individual human cell (like a blood cell in the hypothetical you posit) and the entire human being. But I'm not really clear on what you're saying though, so I'll have to reserve further comment.

Jeff said...

"Transform" = "put DNA into a cell." So it'd basically be an E. coli cell with human DNA inside instead of E. coli DNA. Biotech-speak, my bad.

"Also, there's a huge difference between an individual human cell (like a blood cell in the hypothetical you posit) and the entire human being."

...isn't this basically my point vis-a-vis conception?

Matthew B. Novak said...

Maybe that was your point - again, I wasn't really clear with what you were saying - I take it that your basic challenge is "hey look, we've got a single cell that has human DNA but surely you wouldn't say that it is a human life. Furthemore, there's no way to differentiate this single cell with human DNA (of blood or E.Coli) from the single cell that exists after conception.

I have argued that the hallmark of something's humanity is it's human DNA, which, without substantial interference, is unique to humans. You're now telling us that we can interefere, and human DNA can be in clearly non-human entities. I don't know that much about that, and I'm not inclined to take your assertion on blind faith (sorry, you just haven't earned that level of trust with me yet). Also, I've got questions with implications for the discussion: I presume that E. Coli has it's own E.Coli DNA, right? So if you replace that with human DNA, does the E. Coli still operate as E.Coli? Or is it somehow different? Will that E. Coli reproduce as more E. Coli with human DNA? Or, because it has human DNA will it reproduce into a human? I think these answer would be relevant to the inquiry.

Regardless of the answer to these questions, I think we may be able to differentiate the blood cell/E. coli set from the recently-concieved fetus.

1. A fetus is unique (as in, no other organism has that cell's DNA). This uniqueness is key - it helps differentiate the recently concieved entity from the cells of the mother or father. Even the "human DNA E. Coli" doesn't have unique human DNA.

2. If I understand the science, that recently concieved cell is both pluripotent and totipotent. (Something that I believe is unique to embryos). The basic idea here is that the recently concieved entity will become more than that single cell, and will reproduce to become the entire working set of cells needed in a human being. So that would significantly differentiate it from say, a blood cell, (or the E. Coli strain) which despite having human DNA, is not a human being in itself. The fact that the "whole package" exists in the recently concieved entity seems to be pretty relevant to me.

3. Yes, there's more to being a life than merely DNA. In my earlier post I wrote "Any challenge must be based on the claim that a newly-fertilized egg does not possess all the qualities of a life. But what qualities could it possibly lack? It can grow, develop, it has a unique genetic structure, etc." There's more to whether or not something is a life than the genetic structure it posesses - DNA is just one piece of the puzzle. This may suffice to distinguish from the E. coli strain w/ human DNA (and a blood cell), which, despite having human DNA doesn't have the rest of qualifying attributes, i.e. it won't continue to grow and develop as would a human.

I just sort of wrote here, and it's all a jumble to me. I'm still a bit unclear on your challenge. Maybe that's because I don't really understand what putting human DNA into something else would entail, and what the result would be. As I understand it, DNA tells a cell how to act, and informs a growing, living organism what kind of cells to produce, and how those cells should interact. If you create a single-celled organism with human DNA and it is unable to listen to that DNA, then it's not a human. I have to imagine that the e. coli doesn't react to the DNA like a fetus does, (or like an adult human does). And, if it doesn't act like the DNA is telling it to act, then it doesn't really matter that it has human DNA - that DNA is more like a DNA mask than actual DNA. Now, if that E. Coli goes off and start producing a liver and a heart and a brain capable of reason, etc., then maybe we can talk a little more about it. But until I understand that, well, I'm confused.

Also, I'd put the question to you: when does a life become a human life in your mind?

Jeff said...

I generally think of the beginning of brain activity as being the beginning of human life, since our brain activity is our most essentially human trait. Also, Western medicine considers a person dead when their brain stops functioning, so it's a nice little symmetry there.

I think we're divided on the importance of capacity here. You say that the zygote cell is human because it has the capacity to develop into something more universally recognizable as human life. I just don't buy the idea that because something has the capacity to become something else that it is that something else. A caterpillar can become a butterfly, but that doesn't mean it's a butterfly yet. Sure, from a taxonomic perspective it's the same species. But it's still not a butterfly. It's a bug. To me, it won't be a butterfly until it develop that trait which is the essence of butterfly - its wings.

Aside: Essence of Butterfly is a great name for a rock band. Or a cologne.

As for the science-y stuff, I don't know about whether or not a human DNA could function right inside an E. coli cell. It'd need a bunch of different enzymes, cofactors, a nucleus (of which our prokaryotic friend is devoid), etc. However, it is (at least theoretically) possible for someone to take a human egg cell and replace the half-genome therein with a full genome. That can be implanted into a woman and, barring rejection (which is unlikely), develop into a baby. That's the cloning process that gets so much press. (Incidentally, the same egg, if not implanted and allowed to grow for a bit, becomes a stem cell line.)

(Parentheses are fun.)

The product of such a process won't have a unique genetic structure, but then neither do identical twins.

Matthew B. Novak said...

First off, while Western medicine acknowledges brain death as the end of a human life it does so with an eye towards total brain death, and not only higher brain death. It isn't just "brain activity [that] is our most essntially human trait" but rather higher brain activity. Thus, a human vegetable is still alive, though incapable of performing rational thought and such.

I'm curious as to whether you read the link I posted, going back to my treatise on the begining of life. Sorry, I can't recall... But in it I wrote:

"Perhaps it would be objected that while inside a womb a fetus is hooked directly to the mother and so it is only when the umbilical cord is severed that life begins. The problem with this objection is that it fails to recognize that the fetus is capable of independence, even while still connected to the mother. The natural response is that it is not enough for something to be capable of independence - that the definition of life requires that the fetus must at some point actually be independent. This, of course, would mean that any dependence defeats the definition, and thus no one actually becomes a life until they carve, completely unaided, from existence their own sustenance. If this is the case, there are very few of us who are truly alive. More importantly, however, is the way in which this fails as a definitional argument. If we look at a parallel we can see why requiring actual independence is a fruitless requirement. If we consider the definition of "human" we see that certain characteristics are required. Aristotle famously listed "rationality" as a distinctly human trait. Thus, to be a "human" there must be an element of "rationality" present. If we use the logic of the birth argument that something must actually be independent we would require that before something can be a human it must first actually exercise rationality. The capacity for rationality is not enough to make a being human. Thus, until an infant becomes a child who reasons, it is some other species than it's parents, than the rest of humanity. This seems clearly absurd. If independence is to be considered part of the definition of life (which I do not dispute) it must be enough for the fetus to be capable of independence to satisfy the definitional aspect."

You say capacity is not enough, and you give a very strange argument to say it. You tell us that you won't call a catipillar a butterfly until it actually sprouts wings. The capacity for being a butterfly is not enough. However, you gloss over the fact that the two different objects of discussion are, in fact, the exact same being. This is a significant point. When the catipillar becoms a butterfly it is still the same being, all that has happened is a growth, and the attachment of a new name.

What is interesting here is that "butterfly" and "catipillar" are just two stages in the growth of the same being. The parallel isn't "human" and "non-human", but rather something like "adolescent" and "adult". Both an adolescent and and adult are human beings. Both a butterfly and catipillar are whatever species. Just because we slap a different name on different stages doesn't mean they're any different.

Likewise, neither does the focus on the ability. A butterfly is a lot more capable of flight than a catipillar. My argument doesn't say you have to call the catipillar a butterfly, only that you have to acknowledge that they are the same species. Likewise, an adult is capable of things which an adolescent is not (i.e. reproduction, solid rational thought). I've got no problem with saying "adults are different from kids". But I have a huge problem with saying "kids aren't human beings because they're not all the way to being adults yet". The fact that they have the capacity for becoming adults is enough for us to know that they're human beings. The exact same principle applies with the zygote.

Do you understand why I see your example as flawed? The issue isn't differentiating between different stages of the same species, it's differentiating between species themselves.

If you're gonna win this argument, you need to convince me that a catipillar, despite the fact that it has the capacity for becoming a butterfly, and despite the fact that it has the same DNA as a butterfly, and despite the fact that if things operate naturally it will become a butterfly, is a totally different species from the butterfly.

Matthew B. Novak said...

I want to say a few more things, as a quick summation of that last statement. Basically, I think you've landed on a distinction which, at least in some contexts, makes some sense. Yes, we should differentiate between adults and infants/adolescents/zygotes when it comes to certain things. In my mind infants, adolescents, and zygotes can't exercise the necessary foresight and rationality that should be required to vote. There's a distinction that makes some sense.

But I think two things are important:
1. The burden should certainly be on those wishing to make the distinction. Why should we treat a zygote differently than an adult (or an infant for that matter) when it comes to protecting their life? You've gotta put forth a valid argument here, not just one that posits "because it's not yet an infant/adult/etc.". To posit only that it isn't yet at that stage, and therefore shouldn't be protected is circular reasoning.

2. In my mind, the moral worth of an individual is immutable. Every life has value, and more importantly, every life has the same value. That worth attaches at conception, and does not fluctuate with a person's stage of development, age, intelligence, beauty, wealth, race, gender, sexual orientation, athletic ability, number of limbs, etc. Life has value. Period. So while sometimes a distinction between the born and unborn may make sense, it can never make sense with regard to determining the value of that life. Else, the value of life changes with reference to the person, and then questions of intelligence, beauty, race, gender, etc. are all fair game. I refuse to accept that. Life is valuable without reference to individual.