A reader and I are having a discussion about the limits of using laws to legislate morality. I referenced Justice Scalia’s dissent in the Lawrence v. Texas case, where he lamented that we are now at the point that there is no longer any legal basis for the citizenry to legislate moral decisions that don’t have a rational basis; that is, laws now must have a clearly defined, logical reason if they are going to impose on the freedom of the individual.
The reader asked:
“Who decides what counts as logical reason? How is it defined?”
My response was too long to fit into the comments box so I decided to publish it as a post.
The 3 Levels of Scrutiny Applied to a Constitutional Challenge
To answer your question, specifically, requires an understanding of the process. It’s taken the country more than 230 years to work out a system where those issues are not only answered, but there are checks and balances to them.
There are three levels of scrutiny that apply to whether a law is struck down in a constitutional challenge. The level depends, in part, on whether the law imposes on what is known as a legal concept known as a fundamental right. These are special rights that are considered to be inalienable; that is, they either flow from God Himself and belong to every human or they are a basic human right that cannot be violated, depending on your worldview.
[mainbodyad]In the United States, it takes a lot for a right to be recognized as a fundamental right, often requiring centuries of case law building up to it. Some of these rights are listed in the Constitution. Many are not. That is why the founding fathers insisted on the 9th amendment – several of them, Madison among them if I recall correctly, were terrified that in a few generations, someone would argue that a right had to be specifically listed in the Constitution to be considered fundamental.
The right to freedom of speech is a fundamental right. The right to marriage is a fundamental right (your parents can’t arrange your marriage, you can’t be denied a marriage license just because you are a felon or didn’t pay your child support). The right to travel both interstate and intrastate is a fundamental right. The right to procreation is a fundamental right (though there is still some question on this as Buck v. Bell has never been overridden). The right of family relations (living together with the people you want) is a fundamental right. The right to contraceptive is a fundamental right. There are more, but you get the idea.
Each fundamental right has a wide body of cases, decided all the way up to the Supreme Court, that support their recognition. For example, there is a fundamental right to privacy in a marriage relationship, which goes back to a long line of cases from Griswold v. Connecticut to Lawrence v. Texas. That is, your neighbors cannot vote on whether or not you and your husband want to use the birth control pill or engage in oral sex, even though many states have repeatedly passed laws banning both at various times.
The 3 Tests Applied to Strict Scrutiny
Think of a fundamental right as something that your friends, family, neighbors, colleagues, and coworkers can’t take away from you unless they can go before a lot of judges, over many years, and provide a damn good reason for justifying their actions. They have to be able to clearly, and eloquently, demonstrate that it was necessary to do by passing three tests called Strict Scrutiny. If any part of the three-point test is failed, the law is struck down.
- The law must serve a compelling governmental interest. That is, it must specifically do something very clear that serves a purpose such as saving lives, protecting property, etc. The law cannot exist solely to discourage behavior that people find offensive or immoral.
- The law must be narrowly tailored to achieve the compelling governmental interest in the first test. It cannot expand beyond those borders.
- The law must use the least restrictive means possible for achieving that objective.
Strict Scrutiny is also used in cases where a particular disenfranchised group (called a “suspect classification”) has been subject to repeated laws passed against it based on an inherent characteristic (e.g., a law that applied to or that disproportionately hurt black Americans would be subject to Strict Scrutiny).
In some cases, curtailing a fundamental right does pass the Strict Scrutiny tests. For example, in Schenck v. United States, the Supreme Court ruled that “falsely shouting fire in a crowded theater” is not considered protected free speech, and thus not a fundamental right, because the State has a compelling interest in preventing a panic that would cause deaths and property damage as people stampeded toward the door.
The Easiest Test – Rational Basis Review
At the bottom of the chain is the easiest to pass test, known as Rational Basis Review. When a law is challenged on constitutional grounds, the government need only show that the law is “rationally related” or “legitimate” in serving its purposes. Any rational reason for the law, even if it is idiotic, is enough to uphold it. Thurgood Marshall has a famous oft-cited quote on upholding laws under Rational Basis Review when he said, “The Constitution does not prohibit legislatures from enacting stupid laws.”
In between the two – Strict Scrutiny and Rational Basis – is a sort of quasi-heightened review that Justice Kennedy has applied several times.
How a Constitutional Test Is Applied In the Case of a Law That Is Struck Down
To answer your question, “Who decides what is logical?”: At every step along the way, you have multiple people, appointed by both Republicans and Democrats, having served a lifetime looking at legal decisions and frameworks, making that determination based on a level of hierarchy. People do not overstep their boundaries very often because they don’t want to be overturned on appeal, which is bad for a career (it would give you a reputation for shoddy decisions, which means no more promotions or prestige). These people are appointed by the President, confirmed by the Senate, and given lifetime tenure so they are immune from popular vote and don’t have to worry about job security influencing what they think is right or wrong.
This system results in very few terrible rulings – though some certainly do exist – because it has to go through so many people, with their reputation on the line, who have to justify their opinions based on the current legal framework. It’s one of the reasons that the United States has managed to become one of the oldest, most stable democratic republics in the history of the world. Instead of picking up guns, we resolve our conflicts with debates, based on rules that evolved over centuries.
Let’s look at each person, individually, and the various levels that exist above him or her to make sure the decision was the right one.
Level 1: If a person believes a law violates their Constitutional rights, they file a case in Federal court. It goes to a District court, at the local level. In the 50 states, there are currently 89 district courts. Your case would be randomly assigned to a District Judge in the District that had jurisdiction. That judge would examine the evidence, write an opinion, and rule. The District court is where most of the work is done. At the lowest level, the District Court has to rule on what are known as “findings of fact” that are debated in the courtroom level between the two sides and settled. For example, in one famous and contentious lawsuit, you can find the findings of fact beginning on page 54. Assertions are based on court references or cited from existing legal precedent.
Level 2: If you wanted to appeal, your case would then go up the chain to a Court of Appeals. The United States is divided into 13 judicial circuits based on geography. The First Circuit is the smallest, and has 6 judges, the Ninth Circuit is the largest, and has 29 judges (it is twice as big as the next circuit and covers almost 20% of the entire population of the United States, which is why you hear about it on the news so often).
At this point, your case would be assigned to a panel of three judges, who are randomly selected from the circuit, and who hear your case. They vote, and the majority determines the binding decisions, with the opinions written and released as to what the Constitutional merits are. In the case of a Constitutional challenge, the ruling of the Circuit applies to all of the States under its jurisdiction.
Level 3: If you still want to appeal, you can request an En Banc hearing. In this case, all of the judges in a circuit will get together in a huge hearing, and all of them will rehear the case, vote, and write an opinion. This is rarely done and used only in the most important Constitutional challenges. This step can be skipped and you can go to the next step directly.
Level 4: Finally, if you still don’t like the decision, you can appeal all the way to the United States Supreme Court. Here, the arguments are made, and, again, a vote taken with majority ruling. Opinions are written and published, with the final decision applying to the entire country.
The Supreme Court normally only takes Constitutional cases in which several of the underlying circuits have resolved Constitutional challenges differently, relying on different precedent and legal theories.
At this point, the process has taken an average of 5 to 8 years, involved as many as 39 of the most senior, experienced judges in the nation appointed by the duly elected representatives of the people, dozens of lawyers, and well established tests that have evolved organically since long before either your or I were born.
Level 5: If the people do not like a decision, they can pass a law repealing the law in question or use Congress to remove jurisdiction from the courts, making the entire case a moot point.
Level 6: If the people want absolute certainty, they can use the strongest power in their arsenal and pass an amendment to the United States Constitution, overriding the Supreme Court and serving as the final say. This was the final check-and-balance put in place by the founders.
By the time something has become Constitutional precedent for a majority of the country, or the country as a whole, a lot of very intelligent, very educated, very eloquent people have been passionately arguing about it for years, basing their decisions on a particular Constitutional framework. They almost always get it right. If the people, as a whole, don’t like the decision, they always have the ultimate veto in the form of the amendment process.
The courts give very wide latitude to legislatures and executives. It’s rare for a law to get struck down at the higher levels, illustrating just how hard it is to achieve and how much thought goes into it by the many people along the hierarchy who get to cast a ballot with their reputation on the line behind it.
So, in other words: All of us, as a civilization, get to make the determination of what is ultimately logical and rational through the mechanisms that we’ve established and developed for the past quarter of a millennia, a lot of which we, as a nation, borrowed from Ancient Greece and Rome, as well as the European enlightenment.
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Reader Comments (19)
Comments are presented chronologically, with replies indented beneath the comments to which they respond.
Gilvus
August 5, 2013
I hope this doesn't come across as flippant, because I honestly want your opinion: how could such a robust system have gotten to level 6 twice: to pass the prohibition amendment, and then to abolish it?
Joshua Kennon
August 5, 2013
Replying to Gilvus
No joke: I bring this up all the time in conversation when I'm sitting around talking with other history and political geeks. It is so impossible to get the Constitution amended that the fact something like this happened not just once, but twice, staggers the mind.
I think part of it is that those who opposed prohibition became organized and focused on repealing it, while a lot of the ordinary people realized that it didn't actually cut down on alcohol, it just made criminals of regular folks and a lot of very bad gangsters rich. It took 14 years for the repeal proponents to pull it off, which is a very long time if you think about it - 14 years ago, I was still a sophomore in high school. You had this entire time period where all of the promises of prohibition didn't come to pass; there was supposed to be a great reduction in assault, theft, rape, etc., and it didn't do much good at all.
The other thing that amazes me is how rarely the 5th tactic is used - Congress removing jurisdiction from the courts. There is a weird quirk in our constitutional system that says a case can't originate in the Supreme Court, it has to come up through appeal. However, Congress has the constitutional authority to design the court system. Therefore, it can ban the courts from hearing certain cases, which means it could seriously undermine the entire check and balance were it so inclined as it cuts off the citizens from a favorable constitutional court ruling by the high court. The last time I remember it being used was when Congress protected AT&T and Verizon several years ago, banning the courts from hearing lawsuits against the companies in exchange for their help in allowing the the NSA illegally monitor the networks.
Finally, the third, and perhaps most shocking thing to me, is that in so many centuries, we've never used the nuclear switch. The Constitution has a provision that would permit a certain number of the states to convene a Constitutional Convention to completely re-write the entire document, just like the founders did, even if Congress opposes (as a check, Congress gets to set some of the guidelines for it). The last time the nation almost split, we had a civil war; brother killed brother and entire cities were burned. We literally began shooting before we'd pull the constitutional "break in case of emergency" lever. The reason is that once the convention is called, there is no limit to what could be done by the delegates. Sure, the people would still have to ratify it, but they could propose anything from a total ban on gun ownership to a requirement that all citizens must have guns; to a total ban on religion to a requirement that all citizens must follow Shinto. It, rightfully, makes people nervous.
TheLonelyHumanist
August 20, 2013
Replying to Joshua Kennon
"In a democracy, the people get the government they deserve."
When I look at it your way, Joshua, I think the people get a government better than they deserve...
Joe Dias
August 5, 2013
I learn so much from this site. Like me, and many of your readers, you have an unquenchable thirst for knowledge. Unlike me, and many of your readers, you have the time, willpower, freedom, kind heart , and uncanny ability to study these subjects then take the time to share them. Thank you. I wish there were more site like this. I think you've recommended some of the sites you frequent in posts. I will have to go back and look for that post.
Angie
August 5, 2013
Replying to Joe Dias
"you have an unquenchable thirst for knowledge." And that thirst is infectious. That is the best part !
Kelby Umbehr
August 6, 2013
Thank you for the article. Most impressive. It takes me back to my high school days learning about the constitution. I always enjoy learning more about it.
I especially enjoy the mentioning of the fundamental rights we have as persons. You may even be prepared for what I'm about to say. I'd love to hear your response.
Ever since Roe vs Wade 30 years ago, there are those that have claimed that there is a missing fundamental right (per the law) that is transcendent above all other fundamental rights. And that is the right to life. That is, one has the right to not have their life taken from them, from conception to natural death. This includes murder at any age, even in the womb. For without the right to have his/her own life, one would have no other rights as you would cease to exist.
Obviously, there's still work to get this included as a fundamental right. It seems common sense enough to me, even without getting into the theological and philosophical arguments behind it. (Side note: although not a constitutional document, the Declaration of Independence claims the "right to life" as defined by our creator.)
My apologies if I seem to be off topic. I think what I'm trying to say is that our system of government, while the best the world has ever seen, still has some gaping holes in it. A big hole in my mind is that the entire legal system is based upon the people's (judges, lawyers, etc) definitions of morality, ethics, and fundamental rights. Since these tend to change every few hundred years or so, I'd prefer to have a universal standard. Alas, our secular culture is currently in the state of God-ignoring rather than God-centered.
I enjoyed your article, and I'm sure you're correct in the stating of the law. However, it doesn't mean it's always right. Just like it took 85+ years for slavery to end in America, it will take a while for these other issues as well.
Live a life your wife, kids, grand-kids, friends, and even God can be proud you lived. He'll be asking you someday. 😉
Kelby
Ian Francis
August 6, 2013
Replying to Kelby Umbehr
I'm sure you would rather get a response from Josh, but I'd like to put my two cents in.
In regards to right to life, I don't think many if any people would argue that people have the right to life. The problem lies in defining the starting point. You seem to want to define the beginning of life as conception, but not everyone would agree. I find it difficult to say that a single cell, a fertilized egg, has an unquestionable right to life, while that same cell, unfertilized, has none. That isn't to say that other points people have proposed for giving a fetus rights such as the third trimester, or when the fetus feels pain are any better, but the point remains this is not as cut and dry as many people try to make it.
One major issue I have with giving a complete right to life at the point of conception is the unmanageable burden it puts on the parents, especially the mother. Anything the mother did at this point that she knew could cause serious birth defects or miscarriage, like drinking alcohol or smoking, would have to be a crime. Attempted suicide would also be attempted homicide. The morning after pill would likely be banned since there would be the chance you would be killing a fertilized egg.
I think one of the primary issues with trying to define a point where non-life turns into life is there isn't one. Most people see life as a miracle of some kind, completely separate from the rest of the universe, but they aren't separate. Life sprang from non-life, so you can't just draw a line and say this is life, that is not. There is a gray area, which is where the disagreements start. Is a fertilized egg life? Is a non-fertilized egg? is a 20 week-old fetus? 10 weeks? 5? There is no good point to draw the line.
I disagree that our system has gaping holes in it. The fact that the system is based on the opinions of the people is the whole point. How would defining a universal standard right now be better? I could define a set of morals that the majority of the country lives by, but that doesn't mean people will have the same moral code in 200 years. Why should their laws be dictated by my morals? It is their world at that point, not mine. The fact that the country's laws grow and change with the times is what gives us the flexibility to continue to exist without needing a revolt to form a new government that better suits the desires of the populous every couple hundred years. Just think, if the founding fathers had defined a universal standard, we would still have slavery, not just for 85+ years. We would have no way to change and say slavery is wrong, or women can vote. Both slavery and not providing women the right to vote were considered moral (or moral enough) at the time, but just about everyone today would say both of these are highly immoral.
As enlightened as I think I am, I do not want to even attempt to tell people in the future what is moral or not. I am smart enough to know that trying to apply absolute morals to a changing world is a recipe for disaster.
Ian Francis
Kelby Umbehr
August 6, 2013
Replying to Ian Francis
Ian,
The reason that conception is where I draw the line, so to speak, is because that's where the life form of a human begins. I suppose a sperm or an egg could be called "life", but they wouldn't be called a human person. An embryo, on the other hand, is a human, albeit the small beginning of one. Science has defined this, not me or any church, but science. Science has shown that you can call this type of life-form a person at 10 seconds, 10 weeks, 39 weeks, 40 weeks, or 5000 weeks after conception.
This is a particular case of black and white. If you're okay with murdering a human person at 1 week or 20 weeks, why not at 41 weeks or 1000 weeks? The age of the embryo should bear no significance. This is the difference between an egg/sperm or an embryo. An unfertilized egg or sperm will naturally decay, while an embryo will naturally grow into a thinking, breathing, thumbs-using person. This is a case where science has provided the necessary arguments and timelines to support Natural Truth.
As to your argument of burden on the mother: what you see as a burden, most would see as a responsibility. Again science has helped in this area. Science has shown us that drinking/drugs/smoking in the first trimester is a bad idea. This is called responsible parenting: just like feeding your 1-yr old, telling your 10-yr old not to murder, steal, or smoke, taking your sick 15-yr old to the doctor, or telling your 36-yr old that it's time for him to get his own place. It doesn't matter if there's a law saying how to raise your kids or not. If one is informed, it is their duty to be responsible parents.
As for the argument of universal truth: do you need a law to love your baby and take care of him/her? I'd wager most don't. Left to people's own devices, without the influence of our culture or media or even religion, I'd wager that the natural inclination of a parent is to take care of their child until they grow and run off on their own. This is a natural and universal truth.
My apologies if I wasn't clear. The dynamic ability of our constitution is genius and remarkable. I'm not suggesting that the constitution be set in stone, as it's man-made and will be subject to error. That's the genius of it. I am suggesting that we as persons should attempt to follow the universal truths in order to lead ourselves to a higher standard.
Being based upon the opinions of the peoples is not the point of the constitution, though. At that point, people will vote themselves into socialism. This is where I believe the constitution is dependent upon the people in charge, and their associated morals. If the government is full of anti-life people, then our laws will reflect their views (e.g. China). Likewise, if the government is full of pro-life people, then our laws will reflect their views. As on both sides: prior law history be damned even going against the genius of the constitution.
Ian Francis
August 6, 2013
Replying to Kelby Umbehr
Science does not define a fertilized egg as a person. Science shows that, given the proper conditions, that egg will grow into a human, but it in no way defines a fertilized egg as a person. It is a human fetus. You have defined conception as the point life begins because that egg invariably grows into a person, while an unfertilized egg does not. Except that isn't really true. That egg only becomes a person under very specific conditions. Otherwise the mother miscarries, which happens a large percentage of the time. Science in no way makes a black and white distinction between life and not.
Realize that I am not arguing for abortion, I am arguing against laws banning it. There is a difference. I dislike the practice very much, but I do not see how the government can step in and force its will on the people like that.
I am not really sure what you mean when you say an egg will decay, but a fertilized egg will naturally grow into a person. Like I said before, a fertilized egg will only become a person under very specific conditions, otherwise it too, will decay. Under the right conditions, an unfertilized egg will become a person too. The only extra condition needed is interaction with a sperm. There are so many other conditions that must happen at just the right moment or else that egg does not become a person. You cannot put that one condition on a pedestal over all others.
You are picking out the parts of science you like to support your beliefs. If you read more of Josh's blog you would know he talks about this mental model (Your turn Josh, I never remember what they are called).
My point about a burden was that giving all the rights to a single cell as you do a full-grown person puts the state in the position to take LEGAL ACTION against a mother who does anything to hurt her fetus, even unintentionally. I cannot support that. There is no question it is the mother's responsibility to care for her child, but you are walking dangerous ground if you think the state should be controlling the behavior of every pregnant woman in the country.
Of course I don't need a law to love my son. I never said I did. That is neither here nor there. My point again is if you give no leeway for the government to change with time, you are destined for failure. You are saying we should follow some universal truths, but there is no way everyone will agree on those. Just because you say x, y, and z are universal truths does not make them so. And if you say the bible or any other religious text supplies those religious truths then you are creating a theocracy. The only way to have any semblance of order is to allow the will of the people to shape the future.
I dislike socialism, but should I be able to tell every man, woman, and child on Earth that you do not get to choose your government? The genius of the constitution is that with enough support from the people, you can form it into whatever you want. It isn't easy, which is also the point, but if the people, in overwhelming numbers, want socialism, there is nothing some elite minority can do to stop it. We should absolutely not say the will of the people can be overruled by the elite following some "universal truth."
And if you are going to talk about pro-choice people as anti-life, then at least be fair and call the pro-choice people anti-rights.
Ian Francis
Gilvus
August 6, 2013
Replying to Ian Francis
The mental model is confirmation bias.
Kelby Umbehr
August 6, 2013
Replying to Ian Francis
It is not my intention to pick out parts of science to fit my beliefs. Folks other than myself can describe much better why a person begins at conception.
http://www.prolifephysicians.org/lifebegins.htm
You are right in saying that it takes lots of conditions in order to create a person. However, I've never seen how an unfertilized egg can become a person. I'd love to be enlightened on that one. However, to make an embryo you do need a sperm, an egg, mucus, a viable woman, and lots other good stuff. The whole point then is to let these natural interactions take place without intentionally ending the life (or embryo, or fetus, or whatever you want to call it). There is a big difference between a miscarriage and the intentional ending of an embryo. It's a similar difference between the natural death of a 95 year old and euthanasia.
I admit that I have struggled with various aspects of this. Some friends of mine recently had an ectopic pregnancy. The two main options are abortion by medication or removal of the fallopian tube. Both cases save the mother and the child is lost. However, in the first case, the intent is to end the child's life, while the mother's health improvement is a side effect. In the second case, the intent is to remove the diseased organ, while the loss of the child is a side effect. This is the principle of double effect.
http://en.wikipedia.org/wiki/Principle_of_double_effect
I encourage you to read more of St. Thomas Aquinas. Regarding the ectopic pregnancy, it would be hard for me to know that my actions would have the side effect of killing my child. And I would have to live with that for the rest of my life. My guess is that I would spend much more of my prayer life asking God for forgiveness.
Gilvus
August 6, 2013
Replying to Kelby Umbehr
Kelby, you've been a very polite, well-intentioned person so I hope you don't view my post as a personal attack. If you'll spare a moment, I'd like to explain why some of the details you cite are opinions masquerading as scientific fact. I'm no biologist, but I am a scientist by profession and I have a good grasp on the scientific method and the concept of scientific consensus.
The very first sentence of the pro-life physicians' website you cited is grievously wrong: "there is no scientific consensus on where life begins." This 2002 paper from volume 34 of the Origins of Life and Evolution of the Biosphere refutes that claim in the first two sentences. Likewise, this 1985 paper from the Journal of Medical Ethics mentions several different possibilities of where life begins, implying a lack of consensus among scientists. These are just the tip of the iceberg - I found them after a cursory search.
These articles were written by faculty members from reputable institutions, so I think you'll agree that their word carries more weight than the anonymous author who penned the pro-life physicians' website. Furthermore, the website cites textbooks written for schoolchildren, rather than peer-reviewed scientific articles to support its arguments.
So you see, you can find occasional scientific facts that support your arguments, but science as a whole has never, ever defined life in clear terms. If there ever was a consensus, you would find it on the websites of reputable organizations, such as the American Pediatric Association or the World Health Organization. Anything else is simply personal opinion packaged to look like legitimate science.
jerkstores
August 10, 2013
Replying to Ian Francis
I'll jump in. To your point about absolutism, you're right. If there's an absolute right to life then the rare case of life of the mother, or the sadly more common case of rape, would lead to some trouble. If one was to keep it legal for those sorts of cases then false accusations of rape would surely occur by those looking for abortions. I believe that morally one should do no harm and not abort, but legally they should draw the line someplace relatively early while still allowing for abortions to occur legally. Sooner than this 20 week mark that people are debating.
Joshua Kennon
August 6, 2013
Replying to Kelby Umbehr
Roe was an interesting case. I agree with Justice Ginsburg's analysis that it was poorly decided based on a flawed legal framework. That not withstanding, Roe actually did help establish a precedent to the concept that there is a fundamental right to life, although it may seem ridiculous to those who haven't studied the case. (Few people have, surprisingly, despite so many strong opinions on it.) If you read the opinion, and watch this historical archives on Blackmun discussing the majority's opinion (take the 56 minutes to watch the footage, it's worth it), Roe v. Wade actually finds that abortion is only permitted until the point of fetal viability, even if it means the fetus requires medical support to survive outside of the womb. Subsequent decisions clarified that even past the point of viability, you must provide an exception to save the life of the mother.
The late secular humanist Christopher Hitchens, himself an atheist, actually makes a fairly compelling argument that as scientific knowledge advances, the point of viability is going to be pushed closer and closer to the time of conception. He believed that at the moment this had been reached, the fetus should be entitled to the inalienable rights entitled to every human being and that, at that moment, society had an obligation to defend what was now an additional member of humanity.
It's going to be an interesting case, especially given where reproductive technology is going. I have no doubt that, if I survive to at least the average life expectancy of my generation (God willing), based on what is coming out of the labs in the United States and the United Kingdom, reproduction will be radically different by the time I reach my 70's or 80's. For example, I have absolutely no doubt that my grandchildren will live in a world where two men can have a biological child. Reproduction has already been achieved in some cases using DNA material from multiple people (e.g., three parents). This would make it possible for parents with horrible genetic defects to safely have kids, as they could reduce the possibility in the gene sequence that would have caused things such as Lesch-Nyhan syndrome. It will be able to bring rare animal species back from the brink of extinction.
This raises interesting questions: If, for example, a woman who is pregnant wants an abortion, but the fetus could be transferred safely to an incubation tank and born in a growing facility (it will happen someday), I think you'd see a coalition of secular humanists and the religious right joining together to advocate that these fetuses had a fundamental human right to continue development.
I don't believe you will ever see a right to life granted before 12 weeks because the more advanced we get as a society, the more life and death is determined solely by brain function. (The conception argument will never be accepted by a majority of society, even those who are otherwise pro-life, for several reasons. Not only are half of all conceptions flushed out like an ordinary menstrual cycle in a regular pregnancy, but with the new biological reproduction techniques that will become common place, people won't be willing to give those up and they require embryonic creation and destruction. They will want a child, it's a natural urge, perhaps the primary biological urge besides eating, sleeping, and finding shelter. And if it means destroying the surplus embryos to get it, they'll do it. It's human nature. In fact, I don't think it could even happen today because of all the married couples that use in vitro fertilization.)
The bottom line? Were I forced to make a prediction based upon the evidence, I think between the forces that are conspiring now, and the continued improvement in sonogram technology, society will become more and more pro-life (which is evident in the massive statistical drop in abortions, both absolutely and as a percentage of the population over the past few decades - people are more pro-life now than they have been since my great grandparents were alive), especially once life can be easily transferred to non-parental wombs. I think in a few decades, the age of viability will be lowered, but I cannot foresee a world in which the population ever accepts anything less than 12 weeks.
This isn't anything new and seems to be part of the human condition. Even the ancient Jews didn't believe God gave the fetus a spirit until 40 days into the pregnancy and the Torah doesn't consider a pregnancy life equal to a born child (in all of the Old Testament laws, it was an eye for an eye, a life for a life but in Exodus 21:22, hitting a woman and causing a miscarriage was only subject to a fine as the baby wasn't considered an individual person, yet. In fact, God granted a married man the right to force his wife to have a chemical abortion if he believed the baby was not his, with the process spelled out in Numbers 5:21-28. And "born child" wasn't counted as baby's first breath; when God commanded Moses to conduct a census of the tribe of Levi in Numbers 3:15-16, He only considered those 1 month or older to be persons.)
Kelby Umbehr
August 6, 2013
Replying to Joshua Kennon
Wow, those are lots of theories. Thank you for informing me.
So which is right?
This article,
http://www.thesurvivaldoctor.com/2013/02/07/when-does-life-begin-medical-experts-debate-abortion-issue/
,mentions the 4 types of beginnings of human life: genetic, embryologic, neurological, and fetal viability. You can't even get to the last 3 stages without requiring the first and letting nature take its course. True, we don't know exactly when God installs our soul into us and makes us a person. Maybe it's at 1 year, who knows. But we know He will do it at some point and we have to let him do it.
For further rebuttal, I submit St. Augustine:
http://gerardnadal.com/2010/08/28/saint-augustine-biology-abortion/
Kelby Umbehr
August 7, 2013
Gilvus,
Thank you for the kind words. I'm using my best attempt at using valid arguments without allowing emotion. I shall do my best to continue.
There's no scientific consensus on where life begins. Okay. I think we've all established that. But why is this? Yourself and others say that I have a personal opinion to choose conception as the beginning of life. Could it not also be possible for others to choose brain activity as the beginning of life based on their own bias?
Here I shall attempt again to explain the reason for conception and refute the other claims. I shall attempt to do so with reason, logic, a little science, and as little commentary as possible.
Let's start at conception and let's think about what is there before and after. In the before stage, there is an egg and a sperm as separate entities. Each has 23 chromosomes. You and I have 46 chromosomes. Therefore, neither the egg nor the sperm are qualified to be called a human being in and of themselves.
In the after stage of conception, the zygote contains all 46 chromosomes. This provides the blueprint of creating a living body from one cell to 100 trillion. Everything that this zygote will do is because of this, including growing a brain, growing hands and feet, and determining the sex. Everything that makes you "you" is given at the time of conception, at the very least in the physical sense.
One of the commanding biological traits of a living cell is the ability to duplicate itself. A sperm and an egg cannot do this, while the zygote can and will. I think most scientists would classify the egg/sperm and the zygote as separate organisms. Can we agree on that?
Now, for the theory that human life begins when the brain starts functioning. I'll call this the "brain-on" theory. Is the inherent makeup of the organism the same or different before and after this event? I've previously surmised that the inherent makeup of the life-form was provided for at conception.
So what changed when an organ was turned on? How is this different than the heart or any vital organ turning itself on? If the "brain-on" is the exclusive event in making a human being, then it could be said that any animal with a brain is human. And if you say that it's "human brain function" as the starting point, then you've recognizing that the thing was a human before the event took place.
Assuming the "brain-on" theory, what do you call the organism before this event? Either a zygote is alive or it isn't. If it isn't, then what is it?
There are also many examples of somebody having an accident and incurring brain damage. For some, their brain stopped for a length of time and then came back on. For those people, do we say they ceased to be human for that length of time?
And Josh linked us the article that life at viability keeps pushing itself back and back towards conception.
Okay, so those are my arguments. I pray that helps. Please feel free to poke holes in my logic. Anybody.
Gilvus
August 7, 2013
Replying to Kelby Umbehr
Kelby, thanks for responding. I like your arguments. It's clear you have an excellent grasp on biology, but I'm concerned with your statement that "a zygote is alive or it isn't." I'm not disagreeing with you because you're not wrong...but not fully correct either, in my eyes. Instead of poking holes in your logic, I'd like to share three examples that'll help illustrate the "gray area" between life and non-life.
1. Viruses and prions. To this day, researchers don't really agree if they're alive or non-living. They can reproduce and evolve. Some have incredible built-in mechanisms, like the herpes simplex virus that has a very high internal pressure that allows it to literally blast its genetic material into the host cell. But on the other hand, they don't search for food; they just float around until they happen to find the right host cell. And they don't "die." Under the right conditions, viruses and prions last indefinitely (prions can be very difficult to destroy). Alive or non-living? No one knows O_o
2. Suspended animation. The seeds of some plants lay dormant for years, and only spring to life under the right conditions. Some pinecones only open after a forest fire. A 2000-year-old seed from the Judean date palm sprouted in 2005. And it isn't limited to plants: tardigrades can shut down for over 100 years, then spring back to life! When seeds and animals are in a state of suspended animation, are they alive or non-living? No one knows o_O
3. Artificial life. Assuming we haven't blown each other up, drowned under all the melting glaciers, or eaten by Joshua Kennon, we'll eventually create artificial intelligence. What if we create a machine (possibly in our likeness) that can think, see, and feel? Create more of itself? Search for food (fresh batteries)? Feel attachment when someone is kind to it, and feel fear when someone threatens it? Is this machine, which has many of the characteristics of an adult human, alive or non-living? No one knows O_O
See, the most beautiful - and frustrating - thing about science is that it's never just black-and-white. There's always black on one side, white on the other, and a gazillion shades of grey in the middle. For life vs. nonlife, the soil and minerals that we use to grow our crops is definitely on the non-life side. You and I are definitely on the life side. And somewhere in the smooth transition between non-living earth and living adults is the zygote. And that zygote lies somewhere in the vast gray expanse between life and non-life. So you see, it's never as simple as "alive or not."
Whew. I hope that explains the way I see things 🙂
Kelby Umbehr
August 8, 2013
Replying to Gilvus
Gilvus,
Yes, there is almost always grey area in everything we do. You explained rather well about the grey area of other things, but can you explain your grey area of a zygote? A quick google search for for me showed that a zygote is classified as life.
http://academic.wsc.edu/mathsci/hammer_m/life.htm
Maybe there's another grey area you speak of?
Thanks,
Kelby
Gilvus
August 8, 2013
Sorry, that was my mistake. You're right: the grey area I referenced was the area between "human" and "non-human." Somewhere in that grey area lies the zygote, the blastocyst, and the fetus. When you're clearly in the non-human side, it's perfectly okay to kill those cells (one egg naturally dies per menstrual cycle, 300 million sperm die every time a teenager opens a Playboy, etc.) but when you're clearly on the human side, it's not okay at all (most cultures abhor infanticide).
The point of contention here is where to draw the line between human and non-human for political purposes. Drawing the line reduces the issue back into black vs. white. My inner scientist cries every time that happens, but I know that it's the only way to effectively create and enforce laws 🙁