“If prior to Roe, the law had considered fetuses to be persons, there would be no need for abortion laws at all. Instead, abortionists (and women having abortions) would have been tried under existing homocide laws. The existence of abortion laws, distinct from homocide laws, is an obvious admission that fetuses are not legal persons, that their death is not an act of murdering a legal person, but falls into some completely different category.”

Nice try, but no. As medicine improved throughout the nineteenth century, abortion–which to that point was a nearly suicidal act–became less dangerous (although still very dangerous indeed), and thus more common. Lawmakers, alarmed by these developments, crafted tighter laws and punishments to address the issue, and in many cases grouped these laws in the same category as child murder. A completely different category? Seriously? Passing laws against abortion–including the threat of jail time to people who kill the unborn–is itself proof that the victims were not considered human persons? This argument is bewildering. Look, past legislators did not pass such legislation with respect to animals, or rocks, or plants, because they were not human persons. They did with the unborn, because they were considered human persons. Period.

“In fact, the laws did allow doctors to perform legal abortions when medically necessary, which further undermines any claim that they were legal persons. We are not allowed to kill legal persons just because it might improve another person’s health.”

Sure we are, it’s called justifiable homicide. I can kill someone who is threatening my life. It happens quite often. I read of an incident in Cleveland last year where a man killed a 16 year old who was attempting to rob him with a gun. The man was not prosecuted because he felt his life was in danger. Does this mean that the 16 year old was not a person? Of course not.

“Furthermore, the punishments and pursuit of abortionists was nothing like the punishments and pursuit of murders. Why? If the basis for abortion law was that fetuses were legal persons, there would be no difference in the punishments or the intensity of the pursuit of such criminals. The law did not have lesser punishment for the murder of infants or children than it did for adults, nor did the legal process pursue such crimes with less passion and resources – quite the contrary. So why did the law and the law enforcement community have such an entirely different standard in all respects for abortionists and the women who paid them to kill their fetuses?”

I would like to see your evidence for a lot of these claims, as I’m not sure the standards were as different as you are asserting. Women were typically not charged with seeking an abortion because they were seen as the second victim of the crime. Abortion was a dangerous procedure, and the woman who sought it was usually thought to be suicidal, and so the force of the law was brought to bear against the abortionist who did not have the excuse of being in dire straits. And we hand out different punishments all the time considering the variables in each situation. A doctor who aborts out of a misplaced sense of compassion for the struggling woman is not as guilty as the person who murders a business rival out of greed. Punishments can vary along these lines while still affirming that innocent humans have a right to not be killed.

“You seem confused by the rationale some people may have had for passing abortion laws, and what the laws they passed actually state. Some people may indeed have passed laws against abortion because they thought the fetus was a person. But most clearly did not, or they would have made the laws identical to the laws against homocide. Clearly, they did not view fetuscide as the same as homocide, meaning they did not consider the fetus to be the same as a homo, or “legal person”. They clearly considered the fetus to be some much lesser form of life, not a person covered by homocide laws at all. In fact, while it’s clear that abortion laws were meant to protect the fetus, it’s not at all clear that such laws are any different in kind from laws meant to protect the welfare of animals or parkland, but rather merely to prohibit a practice they found either morally repugnant or bad for society in general.”

You are greatly exaggerating the force of this argument. If past legislators did not consider the fetus to be human, they would not have passed any laws giving it the most basic protection humans deserve. Where did they pass similar laws with respect to animals or parkland?

“Now, you are right that a human fetus has a greater developmental potential than a fish. But potential is not the measure by which we make laws. If I destroy a collection of acorns, it is not the same as burning down a forest. Every egg in a woman’s body has the potential to grow into an adult human being. Should we charge any doctor performing an hysterectomy with mass murder? I think not. She we charge every masturbating adolescent boy with mass murder, because each of his sperm has the potential to impregnate an egg and grow into an adult human? I think not.”

No, because in performing a hysterectomy, you are not killing a living human being. You are failing basic embryology here. You, conradg, were never a sperm cell or an egg cell, since those were genetically and functionally parts of your father and mother respectively. You were once a human embryo, or a human being at the embryonic stage of development. Fertilization marks the beginning of each human being as a genetically-distinct member of the human species (please don’t make me bust out the quotes from embryology textbooks). At the embryonic stage of development, you had your own unique DNA, you maintained your organic unity throughout time, and your development was directed by your own genetic template through the embryonic stage, fetal stage, etc. A sperm cell and an egg cell on their own don’t do any of this.

“A fetus is a little further down the road towards a fully developed human being than an egg or a sperm, but not by much. It’s still little more than a small fish. Interrupting its growth at that stage is akin to the killing of a small fish, regardless of its potential. It can easily be replaced with a new fetus, and often is, when the woman is better able to handle the demands of pregnancy and child-rearing.”

Again no. A human fetus is a human being at the fetal stage of development, while an egg cell or a sperm cell is not a human being at any stage of development, making this a difference in kind and not one of degree.

“I understand your desire to extend the protections of the law to fetuses. It’s not that you lack compassion. I simply don’t see the legal divide between a fetus and a born child to be the same as between races or sexes. In the case of races and sexes, there is no developmental distinction between the two. If there were, if women or blacks were the developmental equivalent of animals, then I could understand making a legal distinction. But they are not. Whereas with fetuses there is a clear, and huge, developmental distinction that cannot be ignored.”

I don’t really see the difference between living human beings that allow one to be killed and one to be protected in law. Setting up development (which is another way of saying size) as a qualifier for the right to life is no more arbitrary than setting race, sex, or sexual orientation as a qualifier. By the way, since you seem to think that size is an important marker in personhood, does the right to life accompany it? Do really big people have a stronger claim on the right to life than midgets? That would seem to be logical endpoint of your argument.

I appreciate your views in the last paragraph, and will only state that for human rights and human equality to mean anything, then they need to be extended to all living human beings. If they are not, then it is hard to argue that we as a society take human rights and human equality seriously. We may have approached another end point, so I may sign off for good here. I respect your views, even if I think they are wrong, and again commend you on the civility and thoughtfulness of your arguments.

If prior to Roe, the law had considered fetuses to be persons, there would be no need for abortion laws at all. Instead, abortionists (and women having abortions) would have been tried under existing homocide laws. The existence of abortion laws, distinct from homocide laws, is an obvious admission that fetuses are not legal persons, that their death is not an act of murdering a legal person, but falls into some completely different category. In fact, the laws did allow doctors to perform legal abortions when medically necessary, which further undermines any claim that they were legal persons. We are not allowed to kill legal persons just because it might improve another person’s health.

Furthermore, the punishments and pursuit of abortionists was nothing like the punishments and pursuit of murders. Why? If the basis for abortion law was that fetuses were legal persons, there would be no difference in the punishments or the intensity of the pursuit of such criminals. The law did not have lesser punishment for the murder of infants or children than it did for adults, nor did the legal process pursue such crimes with less passion and resources – quite the contrary. So why did the law and the law enforcement community have such an entirely different standard in all respects for abortionists and the women who paid them to kill their fetuses?

I really don’t see how your position is defensible. I also don’t see why it is necessary. As I’ve said, you can obviously pass laws or constitutional amendments that declare fetuses to be persons, in which case we won’t need any laws to cover abortion, it will be well-covered by existing homocide laws. Or, you can simply pass laws or amendments against abortion, without declaring the fetus a legal person.

You seem confused by the rationale some people may have had for passing abortion laws, and what the laws they passed actually state. Some people may indeed have passed laws against abortion because they thought the fetus was a person. But most clearly did not, or they would have made the laws identical to the laws against homocide. Clearly, they did not view fetuscide as the same as homocide, meaning they did not consider the fetus to be the same as a homo, or “legal person”. They clearly considered the fetus to be some much lesser form of life, not a person covered by homocide laws at all. In fact, while it’s clear that abortion laws were meant to protect the fetus, it’s not at all clear that such laws are any different in kind from laws meant to protect the welfare of animals or parkland, but rather merely to prohibit a practice they found either morally repugnant or bad for society in general.

Now, you are right that a human fetus has a greater developmental potential than a fish. But potential is not the measure by which we make laws. If I destroy a collection of acorns, it is not the same as burning down a forest. Every egg in a woman’s body has the potential to grow into an adult human being. Should we charge any doctor performing an hysterectomy with mass murder? I think not. She we charge every masturbating adolescent boy with mass murder, because each of his sperm has the potential to impregnate an egg and grow into an adult human? I think not.

A fetus is a little further down the road towards a fully developed human being than an egg or a sperm, but not by much. It’s still little more than a small fish. Interrupting its growth at that stage is akin to the killing of a small fish, regardless of its potential. It can easily be replaced with a new fetus, and often is, when the woman is better able to handle the demands of pregnancy and child-rearing.

I understand your desire to extend the protections of the law to fetuses. It’s not that you lack compassion. I simply don’t see the legal divide between a fetus and a born child to be the same as between races or sexes. In the case of races and sexes, there is no developmental distinction between the two. If there were, if women or blacks were the developmental equivalent of animals, then I could understand making a legal distinction. But they are not. Whereas with fetuses there is a clear, and huge, developmental distinction that cannot be ignored.

One really does have to draw a line somewhere, which I assume even you do at the level of unfertilized eggs and sperm. I just draw the line at a different place, a place I think makes plenty of sense in the overall picture. I don’t agree with you that in some biological sense, an egg isn’t “human”. It is certaily alive, it is certainly composed of human flesh, it is a “human being” in that sense of the word, and it has no purpose whatsoever except to grow into a fully developed human being. It exists solely to be fertilized by a sperm and develop its human nature fully into another human being like you or me. Destroying such eggs is to destroy the potential fully developed human being that they would naturally grow into, in not interfered with and given the right conditions. So no, I don’t see any real distinction in potential between an egg and a fetus. Both are merely potential human beings in the developmental sense, but they are certainly human beings in the technical sense. The egg may lack some chromosones, but the fetus lacks a great many things as well. The natural order of things for which both were created was to grow into fully developed human beings, there really isn’t any question about that.

It’s not really relevant to the legal issues, but for what it’s worth I generally agree with the Aristotelian view that “the human person is the unity of a physical body and immaterial soul”. I simply do not believe that this unity is accomplished in the physical process of conception, nor do I think it is accomplished overnight. I think that the soul only very gradually begins to associate with the fetus at a much later stage of its development, in the latter period of its growth in the womb. Furthermore, I believe that God knows which fetuses will mature and be born alive, and that God would very rarely, and then only for specfic reasons, allow a soul to merge with a fetus that is going to die before birth, whether by natural causes or by intentional abortion. Furthermore, I also believe in reincarnation, in that we as souls attach ourselves to many bodies in succession as we learn to develop not only those bodies, but our souls themselves, by God’s Grace. This is legally meaningless, and only partially of moral significance, in that a human fetus is a living thing regardless of whether it has a soul attached to it, just as a fish is, and we should respect all living things as best we can. But I don’t place an absolute moral code on living things either. I’m not a jain, who refrains even from breathing in microbes that it might kill in the process. I consider the deaths of living creatures, including fetuses, to be part of the process of life, and not to be overly valued in the scheme of things in absolute terms. The play of human souls fully attached to human bodies is what this life is about, and much of the rest is merely landscape. I’m sorry if that sounds insensitive or humanly narcissistic, but that’s the way I see things.

The hell with it, I can’t let some of these statements go unanswered, so I’ll reply, even though you probably think I’ve signed off for good.

“Yes, we’re reaching a dead end. I was hoping this wouldn’t degenerate into parsing words, so let me clarify. If you think the issue is better described as a philosophical question rather than a moral one, I will also say that I don’t think the law should reflect personal philosophy any more than it should reflect personal morality when it comes to subjective notions of personhood. That is why the law uses a non-subjective standard – live birth – to legally define personhood. This is not the imposition of some arbitrary personal standard upon the law, it is a simple objective measure that has been relied upon for a very long time, since the begining of human civilization at least, to define a “person”.”

But the idea that the laws restricting or outlawing abortion in all fifty states pre-Roe were all subjective and then objective Roe comes along striking them down is pure nonsense. You think birth is some objective stance to confer personhood because it is empirical. But there is nothing objective about this. Being a living member of the human species was objective enough for legislators throughout the common law and throughout American history to outlaw abortion for hundreds of years. Again, there was no need to define a fetus as a person, because the idea that a living member of the human species was not a person, was simply not the operative philosophy throughout Western Civilization. Passing laws criminalizing abortion was enough to register their thoughts on whether a fetus qualified as a human person. Why would they offer the most basic protection of the law to beings they did not consider persons? The common law and past American legislators never did as much with animals. Even today, in our much more animal-rights oriented culture–pets and strays are routinely euthanized and wild animals are hunted. The only restrictions placed on the killing of animals occurs when they are in danger of extinction, so there is nothing analogous here with abortion law throughout history.

“Prior to birth, the law can protect fetuses, if that is what you wish to do, quite well without resorting to declaring the fetus a person. All you need at this point in the US is a constitutional amendment declaring abortion illegal. It need not specify fetuses as persons in order to do so, just as laws previous to Roe did not specify fetuses to be persons either, regardless of what you believe the philosophical basis of those laws was. It may be your personal philosophical beleif that fetuses are people, and that is fine, but there’s no reason to mess the law up with your personal philosophical beliefs.”

The reason why the laws pre-Roe did not specify fetuses as human persons was because there was no need to. Again, why offer the most basic protection of the law to unborn children if you don’t consider them persons? You earlier replied that it was because they were just legislating their morals. But the moral teaching in question–that unjust killing is wrong–makes no sense if they didn’t think that the fetus was not a human person. Past legislators didn’t pass laws saying you couldn’t destroy rocks or kill cats because they didn’t consider these things human persons. They did with fetuses.

“The law can’t be based on subjective philosophical or moral notions, it has to be grounded in empirical evidence that can be observed by everyone. Since “personhood” as you speak of it cannot be empirically observed, it cannot be the basis for law. Instead, we can continue to define personhood in legal terms simply by birth itself, which can be empirically observed, as has always been the custom in virtually every legal system known to man.”

Blackmun’s ruling was the subjective one, suggesting that living members of the human species did not qualify as persons because of arbitrary characteristics. (I realize that he wrote the “We need not settle the question of when life begins” nonsense, but that was incredibly disingenuous given that he was striking down the laws in all fifty states affording legal protections to the unborn. He was clearly stating as such that life did not begin in the womb.)

Look, you are the one that continually hedges about what constitutes a person, and whose legal preferences do not consistently flow out of your ill-defined philosophical views, so you can’t accuse the other side of being the subjective one. And your repeated statement that birth has been the dividing line between legal persons and those living human beings without rights does not address the fact that abortion was illegal throughout common law and throughout most of American history.

“My personal views, philosophical and moral, are not the same as my legal views, so I don’t see how you can assume that I am imposing them on the law. We could, if enough people desired, outlaw abortion without declaring fetuses persons, just as we can outlaw organ transplants, if we so desire, without declaring the our organs to be legal persons.”

I realize that your legal views are not consistent with your philosophical views, but you really need to stop acting like you are being completely objective about this and everyone else is being subjective. And your organ transplant analogy makes no sense. Organs are not human beings, and a transplant is an attempt to immediately extend the life of someone else–precisely the opposite of what an abortion is attempting to do.

“In fact, your way of outlawing abortion seems even less likely to pass muster with most people than the more direct method. Relatively few people see a fertilized egg as a legal person having the same rights as born human beings. I guess you are one of those few, and have a hard time recognizing what a stretch that is for most people.”

My preferred method is to overturn Roe and let the states decide what sort of abortion policy they want. The Constitution simply does not mention abortion, and the people should be able to find some sort of democratic equilibrium on the issue. This would be infinitely more just than the current imposition of one side’s views on the rest of the country.

“And yes, you are right that my argument about the Constitution is flawed, in that it doesn’t allow for foreign citizens. The general point holds, however, that the legal custom of the time recognized only born human beings as legal entities with rights under the constitution. You can challenge that if you like, by filing suit in court for a fetus’s rights, but I don’t think you will find many legal experts who will support your idea, and judges, well, forget about it.”

But in admitting that the Constitution does not consider illegal immigrants persons, then you are conceding my entire point. We can protect people from unjust killing even if we don’t spell out the fact that the people we are protecting are actually people. It seems bizarre and redundant to actually spell this out, which is why your repeated claim that the unborn were never considered persons under the law makes no sense.

“I do understand that you believe I am justifying the killing of innocent human beings, and I hope you realize that I don’t see undeveloped fetuses as human beings, but rather as potential human beings, and that interrupting that developmental process at an early stage is not the loss of a human being, any more than an unfertilized egg being wasted due to contraception is the loss of a human being, rather than merely a potential human being.”

Look conradg, I know you are arguing in good faith and I don’t consider you some sort of moral monster, I just think your views are wrong. And I am doing my best to set you straight:) With respect to an unfertilized egg, no human being has existed at all, so no injustice can occur. A human embryo on the other hand is a human being at the earliest stage of development. Embryologists do not equivocate on this matter. We can disagree on whether being a living member of the human species is enough to confer human rights, but we shouldn’t confuse being a living human organism and not being one.

“Philosophically, I am not a materialist who identifies either personhood or the soul with physical bodies, nor do I think God sees things that way. That doesn’t mean I see murder as acceptable either, so if I could be convinced that the early stages of pregnancy were just as human as the born life, I could be persuaded to your side of the argument, at least philosophically or morally. But legally, I don’t see any basis for it.”

No I wouldn’t consider you a materialist either (neither am I nor are most pro-lifers). But the materialist position and the dualist position are not the only options. Aristotle’s view, that the human person is the unity of a physical body and immaterial soul is the correct one, and has been the operating view of the human person throughout most of Western Civilization.

“What can be objectively observed about human bodies is that they are a developmental process, the early stages of which are very hit and miss, and highly disposable. Over 70% of all conceptions end in early miscarriage. If we ascribe that to God, we can’t say that God places much importance on the fetus, so why should we? There really isn’t much that we could call human about an early stage fetus, other than DNA. It’s more like a small fish. I’m certainly willing to entertain empirical discussion as to at what stage of the process this creature develops into a genuine human being, and at what point abortion becomes inappropriate, but as for it being the murder of innocents, no, that emotive phrase doesn’t move me.”

But this is a repeat of the naturalistic fallacy that I answered above. Over a hundred thousands people died in the tsunami that struck Indonesia a few years ago, so should we conclude that God doesn’t care about them and that we can kill a few more? And this statement is hard to square with your earlier one claiming that you are not imposing your personal philosophical views on others.

And there’s plenty we can say about the human embryo or human fetus. It has the radical capacity to develop into someone who can laugh, paint, think, and do all the things that make a human being distinct from a small fish. Even having the radical capacity itself is enough to distinguish it from a small fish, since small fish will never develop the ability to do anything distinctively human.

Human embryos and fetuses are unable to do those distinctive things immediately, but neither can infants, and neither can people who are unconscious, or in reversible comas, or who are severely hampered mentally, so it seems arbitrary to deny some human beings the right to life because they cannot immediately exercise their innate capabilities.

Using size, age, and the ability to immediately exercise one’s innate capabilities as a reason for denying a living human being the most basic protection of the law strikes me as unjust, and similar to the cases in history when we used other arbitrary qualifications (race, sex, sexual orientation, etc.) to deny other living human beings the most basic protection of the law.

I don’t know if you’ll even read this, but I had to get it out there.

Prior to birth, the law can protect fetuses, if that is what you wish to do, quite well without resorting to declaring the fetus a person. All you need at this point in the US is a constitutional amendment declaring abortion illegal. It need not specify fetuses as persons in order to do so, just as laws previous to Roe did not specify fetuses to be persons either, regardless of what you believe the philosophical basis of those laws was. It may be your personal philosophical beleif that fetuses are people, and that is fine, but there’s no reason to mess the law up with your personal philosophical beliefs.

The law can’t be based on subjective philosophical or moral notions, it has to be grounded in empirical evidence that can be observed by everyone. Since “personhood” as you speak of it cannot be empirically observed, it cannot be the basis for law. Instead, we can continue to define personhood in legal terms simply by birth itself, which can be empirically observed, as has always been the custom in virtually every legal system known to man.

My personal views, philosophical and moral, are not the same as my legal views, so I don’t see how you can assume that I am imposing them on the law. We could, if enough people desired, outlaw abortion without declaring fetuses persons, just as we can outlaw organ transplants, if we so desire, without declaring the our organs to be legal persons.

In fact, your way of outlawing abortion seems even less likely to pass muster with most people than the more direct method. Relatively few people see a fertilized egg as a legal person having the same rights as born human beings. I guess you are one of those few, and have a hard time recognizing what a stretch that is for most people.

And yes, you are right that my argument about the Constitution is flawed, in that it doesn’t allow for foreign citizens. The general point holds, however, that the legal custom of the time recognized only born human beings as legal entities with rights under the constitution. You can challenge that if you like, by filing suit in court for a fetus’s rights, but I don’t think you will find many legal experts who will support your idea, and judges, well, forget about it.

I do understand that you believe I am justifying the killing of innocent human beings, and I hope you realize that I don’t see undeveloped fetuses as human beings, but rather as potential human beings, and that interrupting that developmental process at an early stage is not the loss of a human being, any more than an unfertilized egg being wasted due to contraception is the loss of a human being, rather than merely a potential human being.

Philosophically, I am not a materialist who identifies either personhood or the soul with physical bodies, nor do I think God sees things that way. That doesn’t mean I see murder as acceptable either, so if I could be convinced that the early stages of pregnancy were just as human as the born life, I could be persuaded to your side of the argument, at least philosophically or morally. But legally, I don’t see any basis for it.

What can be objectively observed about human bodies is that they are a developmental process, the early stages of which are very hit and miss, and highly disposable. Over 70% of all conceptions end in early miscarriage. If we ascribe that to God, we can’t say that God places much importance on the fetus, so why should we? There really isn’t much that we could call human about an early stage fetus, other than DNA. It’s more like a small fish. I’m certainly willing to entertain empirical discussion as to at what stage of the process this creature develops into a genuine human being, and at what point abortion becomes inappropriate, but as for it being the murder of innocents, no, that emotive phrase doesn’t move me.

“Regarding the first argument, about lines in the sand, I thought I had made it clear that I don’t think personal morality should be made into law, so my own personal views about when a fetus becomes a person is not relevant. It’s quite clear that personhood is a developmental matter, and that as one develops the law protects one’s person accordingly, by drawing lines that are not arbitrary, but are not perfect either.”

This is very confused. The question of whether a human fetus qualifies as a person with rights is not a moral question, it is a philosophical one.
In asserting that human fetuses are not persons with rights, you are arguing under a dualistic view of the human person as if it were obviously correct–and it’s not. So you cannot hide behind the notion that you are not imposing any personal views in this debate by dressing up your opponents’ non-dualistic view of the human person as a merely moral or personal view.

From my perspective, your second sentence directly contradicts the first one. Your personal views do not matter at all, but then you immediately define personhood based on the personal view that body/consciousness dualism is the proper way to think about the human person. For example, you write that the law can protect “one’s person,” which strikes me as an odd statement. There are highly debatable philosophical assumptions you are making in these statements. In the abortion debate, you have competing philosophical views of what constitutes a human person, not one side ramming its own morality down the throats of the other side. Given the way your side has resorted to use the courts to thwart any sort of democratic give-and-take on this issue, then it seems to me that it is your side that is imposing its personal philosophical viewpoint on the rest of the country.

“Yes, you are right that the Constitution nowhere states that a fetus is not a legal person. It doesn’t declare that cats and dogs and horses are legal persons either. It doesn’t have to, it relies on the basic definition of a citizen as someone born in the United States, or otherwise naturalized. Since fetuses are by definition unborn, and no naturalization process has been undertaken by them, they are neither persons nor citizens. You can of course pass laws defining fetuses as citizens, but it is not the default position either in law or custom.”

Under this logic, illegal immigrants and permanent legal residents are not persons under the Constitution either, so I guess we can deliberately kill them, right? Again, you are operating under the notion that there is a distinction between a living human being and a human person, a distinction that has gained prominence since Roe. Past legislators and the Founding Fathers did not operate under these assumptions, so when they passed laws protecting the unborn from unjust killing, they did so because they thought the unborn were persons deserving of the most basic protection of the law. The notion that the living human beings could not meet the definition of human persons did not occur to them, which is why they did not define personhood legally. You are imposing a modern legal construct and its philosophical underpinnings on the past to justify a present injustice.

“Past laws against abortion were based on moral attitudes, in the same way that laws against prostitution or drug use are. Legislatures felt no need to declare grand principles at stake, they just passed laws based on moral attitudes, quite common in those days.”

Wow, this is glib. And profoundly wrong-headed. Past laws against abortion were based on “moral attitudes,” specifically the moral attitude that killing innocent human beings is unjust. The only way you can justify lumping abortion into the same category as drug use and prostitution is if you assume that the human fetus is not a person with rights. And again, past legislators did not feel the need to legally define who was a person and who wasn’t, because the notion that a living human being could not qualify as a person with rights was alien to them.

“In case I didn’t make myself clear, the reason a mother is not allowed to kill her born baby, is that we have more than a philosophical attitude to based the baby’s legal personhood on, we have an independently functioning body separate from the mother, breathing its own air, circulating its own blood, eating its own food. So it is not arbitrary to consider that baby a legal person. It has been born, and that fulfills the objective legal definition of a person.”

But that objective legal definition of a person is based on a subjective and arbitrary notion of what constitutes a human person. Not many people think that a human fetus in the ninth month of pregnancy is a not really a human person with any legal rights, yet that is how they are defined legally. And your views on the relative dependence of born human persons are pretty arbitrary. They are no longer receiving nutrients and oxygen from their mothers in the womb, but they are still dependent on their caregivers (usually the mother) for survival. How receiving nutrients from an umbilical cord is enough of a difference from receiving nutrients from breast milk to go from being a human non-person to a human person in the eyes of the law is really quite arbitrary.

I’m not sure how much farther we can take this. I’ll give you credit for expressing your views in a civil manner, but to me you are straining to rationalize the unjust killing of innocent human beings, and since we approach the human person from different perspectives philosophically, I’m not sure there’s much more to be gained from this back and forth.

Cheers.

The first line drawn is at birth, when the fetus legally becomes a person. There have of course been laws against abortion for many years, but none were based on any legal foundation that states that the fetus is a person. Where is such a law written down, in the Constitution or otherwise? As far as I know, there isn’t such a law, or we would be able to declare our fetuses as dependent tax deductions, and that has alwasy been the case, even when there were laws against abortion.

Yes, you are right that the Constitution nowhere states that a fetus is not a legal person. It doesn’t declare that cats and dogs and horses are legal persons either. It doesn’t have to, it relies on the basic definition of a citizen as someone born in the United States, or otherwise naturalized. Since fetuses are by definition unborn, and no naturalization process has been undertaken by them, they are neither persons nor citizens. You can of course pass laws defining fetuses as citizens, but it is not the default position either in law or custom.

The drawing of lines about when abortion is legal are not purely based on notions of legal personhood, because if they were, the only meaningful line would be at birth. Instead, they attempt a compromise based on a number of factors, primarily the ability of the fetus to survive on its own outside the womb. Because this is dependent on changing medical technology, even this is hard to define directly. Again, the basic legal right to life is not the basis of abortion laws, and never was prior to Roe. Abortion can certainly be regulated, even outlawed, without invoking the fetus’ right to life or personhood. Past laws against abortion were based on moral attitudes, in the same way that laws against prostitution or drug use are. Legislatures felt no need to declare grand principles at stake, they just passed laws based on moral attitudes, quite common in those days.

In case I didn’t make myself clear, the reason a mother is not allowed to kill her born baby, is that we have more than a philosophical attitude to based the baby’s legal personhood on, we have an independently functioning body separate from the mother, breathing its own air, circulating its own blood, eating its own food. So it is not arbitrary to consider that baby a legal person. It has been born, and that fulfills the objective legal definition of a person. Of course, if it gets sick and falls into a coma, with no brain waves detectable, the mother does get to kill it, by pulling it off life-support, with full legal protection, because the law no longer considers that baby a “person” anymore. But that’s another issue.

“Because there is a difference between any moral definition of personhood and a legal definition. Roe and Casey attempt to deal with this matter by drawing various lines in the sand to take into account various notions of “personhood”, such as the principle of viability outside the womb used in Casey, which takes precedence over Roe. Legal definitions by their very nature require the drawing of lines in the sand, such as being able to vote on one’s 18th birthday. It’s an arbitrary line, and we can’t say that one is suddenly mature enough to vote on that date. Many people aren’t!

With abortion, we have a general consensus outside of religious theology that a fertilized egg is not a person, and that a live-born infant is. Where the line gets drawn in legal terms between conception and birth may not be the same line you would draw in personal terms. That is why abortion is a complex moral choice, even where it is perfectly legal. WHich is why it should be up to the woman, and not the state, to make that complex moral choice, at least prior to the independent viability of the fetus.”

Again, you’re not answering the question. I fully understand that the legal definition of personhood that pro-choicers prefer does not flow from their philosophical definition of the word (to the extent that they are able to define it.) I fully understand that this results in an arbitrariness with respect to when they define personhood legally. That’s why I am asking you, conradg, why you are not pushing for a legal definition that flows from your philosophical definition of personhood. After all, it’s not as if a baby ceases to depend on its caregiver (the mother in the vast majority of instances) after birth. And if the mother were to undergo some sort of financial reversal in the days after giving birth, and conclude that she would not be able to raise the baby, then why is it that the state is able to tell her that she may not kill her baby? Why shouldn’t she, and not the state, make that decision given that the baby has not achieved personhood by your own definition? In other words, where is the courage of your convictions?

It seems to me that if your legal definition of personhood is freely-acknowledged as arbitrary, then you might want to recalibrate your philosophical definition of the word (or at least stop imposing this arbitrary definition on the entire country through the courts). After all, in denying ten year olds the right to vote, to use your analogy, they are not being treated unjustly, because the right to vote depends on a certain maturity and understanding that a particular age is seen as bestowing. We also deny the right to vote to felons and illegal immigrants, yet most people do not see this as unjust. But it is impossible to deny someone the right to live without treating that person unjustly, as the right is the foundation of all other rights. That’s why the arbitrariness of the legal definition of personhood is much more weighty than any arbitrariness with respect to when we grant the right to vote.

“This simply isn’t true. We have laws against abusing or killing animals, and they are not conferred “personhood” by those laws. Laws against abortion are not, and never have been, based on the notion that the fetus was a person who had legal rights. No such law has ever been passed to my knowledge. There’s a proposed constitutional amendment that would confer personhood at conception, and this would of course not be necessary if it were already the legal precedent. It clearly is not.”

This is simply astonishing. The unborn were not considered persons under the law for most of this country’s existence? Then why were they afforded the most basic legal protection of the law if they were not considered human persons? Why was abortion against the law in every state of the country prior to 1967? The existence of such laws is the legal precedent that you claim has never existed. Blackmun tried, and failed miserably, to show that the unborn were not considered persons under the Constitution, and struck down the democratically-enacted laws in all fifty states giving the unborn the same basic legal protection we give all human persons–the right to not be killed.

“The right to life is conferred only to “persons”, which is defined as born individuals, not fetuses. No signatory to the Declaration of Independence or the Constitution claimed that it conferred personhood on the unborn. So this just has no relevance to the debate on abortion.”

And no signatory of the Declaration of Independence or the Constitution claimed that the unborn were not persons either, so your argument from silence doesn’t get you anywhere. The problem conradg, is that you are foisting your philosophical view of personhood not just on people who disagree with you today, but on people who would find this debate to be surreal decades/centuries ago. You and other pro-choicers make a distinction between living human organisms and human persons entitled to rights as if that distinction is obvious, rational, and the long-standing view of this country. None of this is true. It’s only over the last few decades that this view, and the irrational body/self or body/consciousness dualism that it reflects, has gained prominence thanks to Roe forcing it on the whole country. The Founding Fathers did not think that living human organisms could be separated from the notion of personhood and its attendant rights, which is why they did not bother with legal or Constitutional definitions of personhood. That’s why the laws in this country were tightened as we began to understand fetal development over time, realizing that living human beings were present even before quickening. The current legal definition of personhood is therefore not only a relatively recent legal construct, but it has established a dualistic view of the human person as the operating philosophical view of the human person.

“It appears the problem is that we don’t agree on the meaning of organism. First of all, twins do not have exactly the same DNA (see http://seattlepi.nwsource.com/health/355062_reality17.html). Second of all, while a cell is an important part of an organism, and there are organisms which are composed of a single cell, a cell itself does not make an organism, iirc, so your tumor analogy doesn’t quite work. You still have not explained what makes a post-natal human being of more worth than an unborn one.”

Interesting findings about the DNA of twins. Even so, let’s say that their DNA were exactly the same in every respect – I seriously doubt you would consider them to be the same person, would you? Of course not, because we don’t see personhood as being defined by DNA, but by functional independence. Twins are functionally independent of one another, so they are distinct persons, regarldess of their DNA similarities (even when perfect matches).

Well, that’s exactly the issue with a fetus. As long as it is not functionally independent of the mother, it’s not a distinct person. Personhood is a developmental issue, defined by independence, rather than some a priori matter like DNA. We grow into our personhood, even well past birth obviously. It’s at birth that we become legal persons, achieving a basic functional independence. But even then, our functional dependence on our parents limits our legal independence, until we turn 18.

A fetus begins with zero functional independence, and only very slowly, and relatively late in pregnancy, begins to achieve it. The issue of “worth” is subjective, but to the degree that it is not, it refers to functionality. A blastocyst is of relatively little worth, because it is so utterly undeveloped. It’s worth increases as it develops, like money gathering interest in the bank, although in this case exponentially. Which means for a long time, its value is very low. It increases dramatically towards the end of the cycle, however, as it truly develops the independent functions required of “personhood”.

This is not the same as “moral worth”, however. A woman may treasure her unborn child greatly from the very beginning of this process, and yet, even here I think it is clear that an early miscarriage is not experienced as a severe loss in the same way that a still-born birth would be, much less the loss of a child of five. Worth grows as part of the developmental process, and the formation of attachment by the woman (and father).

My tumor analogy is not meant to be taken seriously, but just as an example of the ridiculousness of trying to define “personhood” by one’s DNA, rather than developed human functionality.

“You assert that personhood is an emergent phenomena that divides human beings with rights from those that don’t. Does this personhood emerge suddenly at birth? How? If personhood, like consciousness, is something that emerges over time, then why isn’t Peter Singer correct? Why not infanticide?”

Because there is a difference between any moral definition of personhood and a legal definition. Roe and Casey attempt to deal with this matter by drawing various lines in the sand to take into account various notions of “personhood”, such as the principle of viability outside the womb used in Casey, which takes precedence over Roe. Legal definitions by their very nature require the drawing of lines in the sand, such as being able to vote on one’s 18th birthday. It’s an arbitrary line, and we can’t say that one is suddenly mature enough to vote on that date. Many people aren’t!

With abortion, we have a general consensus outside of religious theology that a fertilized egg is not a person, and that a live-born infant is. Where the line gets drawn in legal terms between conception and birth may not be the same line you would draw in personal terms. That is why abortion is a complex moral choice, even where it is perfectly legal. WHich is why it should be up to the woman, and not the state, to make that complex moral choice, at least prior to the independent viability of the fetus.

“Secondly, for the vast majority of this country’s history, the law in every state in this country used to acknowledge the personhood of fetuses in that every state used to proscribe abortion. The chief way of acknowledging the personhood of a class of human beings is to pass laws prohibiting their unjust killing. The laws you refer to came about through judicial fiat, and do not have the force that just laws hold.:”

This simply isn’t true. We have laws against abusing or killing animals, and they are not conferred “personhood” by those laws. Laws against abortion are not, and never have been, based on the notion that the fetus was a person who had legal rights. No such law has ever been passed to my knowledge. There’s a proposed constitutional amendment that would confer personhood at conception, and this would of course not be necessary if it were already the legal precedent. It clearly is not.

“Thirdly, the right to life was one of the foundational beliefs of this country, as it is the foundation of every just society and government.”

The right to life is conferred only to “persons”, which is defined as born individuals, not fetuses. No signatory to the Declaration of Independence or the Constitution claimed that it conferred personhood on the unborn. So this just has no relevance to the debate on abortion.

When I studied ethics in school I found the Catholic perspective on reproductive issues to be the most persuasive, i.e. sex and its consequences should not be disconnected by humans (I’m not Catholic by the way). And I am entirely persuaded by those who argue that rights based arguments are not really compatible with christianity. So my question is, do others who think this way really see this as compatible with our constitutional traditions? I can’t see it and I really can’t see how persuasive it could be with society as a whole when its not even persuasive at my church.

Words are cheap. Actions are expensive. Follow the actions (to twist the old saying about follow the money).

It helps if you actually understand the argument the opposing side is making, fyi. Nobody said natural deaths weren’t sad or unfortunate, only that they’re an inevitability of human existence.

A philosophy that says that deaths due to natural causes are not a problem is not one I would admit to, not is it one that carries much logical or ethical gravitas.

No, it is simply another kind of fuzzy thinking. Deaths are deaths. If a blastocyst is a person, then we owe those persons our efforts to reduce the death rate.

On the other hand, if they are not persons, which is in fact how we treat them, then aborting them is not an issue.

Every death, even death at the earliest stages of life, is regrettable. But the distinction between natural death and unjust killing seems lost on you. Many elderly people that I do not know will die naturally today, which is a sad part of life. But if the Supreme Court suddenly invented a Constitutional Right to killing old people, I suspect pro-lifers would react the same way they have to Roe v. Wade. No one is arguing that we need to take every full measure to “save” every person who may die naturally. We are simply arguing that it is unjust to kill innocent people, even if many of their cohorts die of natural causes.

Laws about euthanasia may be mostly about preventing elder abuse. If you call it assisted suicide, then I think the state has no stake in the issue. Who has a stake in the issue are those affected by the death. The dead person is simply dead.

I haven’t read Thompson, but it is quite possible that my path to my current understanding of abortion was affected by her writing. I don’t know who has read what, and I didn’t come to this position without conversation with others.

But I would disagree with her if she says the circumstances are critical to the right. The right is absolute. There may be censure, but the right itself can not be subject to revocation based upon circumstances.

Naturalistic fallacy? Not at all. My point is that if a blastocyst is a person, then we have 10s of millions of accidental blastocyst deaths every year but I hear no outcry to save all those people. It is part and parcel of the fuzzy thinking of anti-abortionists that the logical conclusion of their positions consistently escapes them. Even though blastocysts are spoken of as people, that fact that 2/3s of all blastocysts die troubles no anti-abortionist.