An excellent student note by Shannon K. Calt, forthcoming in the Lewis & Clark Law Review, explains the case of A. B. & C. v. Ireland, currently pending before the Grand Chamber of the European Court of Human Rights. The case challenges the Eighth Amendment of the Irish Constitution, which prohibits abortion under almost all circumstances. The Amendment was added by the Irish people in order to prevent the judicial creation of a right to abortion, as in Roe v. Wade. As the note explains, subsequent case law had held that the Irish government cannot forbid Irish women from traveling to England to obtain legal abortions there. The note predicts two possible outcomes for the A., B. & C. case: 1. the ECHR will require Ireland to provide better post-abortion medical care to Irish women who need medical services after obtaining an English abortion. OR 2. The ECHR will create a right to abortion. The latter decision, suggests the note, would be predicated on the ECHR characterizing Ireland’s interest in its constitutional amendment as merely involving “morals,” rather than the protection of innocent life. A decision of the Grand Chamber (17 members, en banc) is binding on all nations which have signed the European Convention on Human Rights.
Repeal 16-17 says:
What would likely be Ireland’s reaction to a decision recognizing a right to abortion, Ireland’s Eighth Amendment notwithstanding? Would it comply, resist or withdraw from the ECHR’s jurisdiction?
February 22, 2010, 3:46 pmruufles says:
What are the criminal penalties for abortion in Ireland? If their constitution equals a fetus to a human being, wouldn’t it make sense for them to prosecute for murder?
February 22, 2010, 4:00 pmHouston Lawyer says:
I echo the first comment. Will the Irish courts feel bound by such a decision?
February 22, 2010, 4:02 pmShelbyC says:
If the European Convention on Human Rights has a withdrawal provision, the Irish Consitituion might require Ireland to exercise it.
February 22, 2010, 4:09 pmDangerMouse says:
Does the Convention on Human Rights talk about abortion at all? If Ireland signed it under the understanding that they remained free to protect unborn life, and that they wouldn’t be obligated to promote destroying unborn life, then certainly Ireland should tell the so-called Grand Chamber to @%%^ off.
The latter decision, suggests the note, would be predicated on the ECHR characterizing Ireland’s interest in its constitutional amendment as merely involving “morals,” rather than the protection of innocent life.
It’s 1984 all over again. I suppose murder statutes don’t involve protection of innocent life, but just involve “morals” also.
February 22, 2010, 4:09 pmChris Travers says:
Withdrawal as an alternative to abortion….. Queue the dirty puns….
February 22, 2010, 4:15 pmtroll_dc2 says:
I am completely in favor of a woman’s right to choose, but I am totally opposed to having the European Court of Human Rights override the Irish Constitution.
February 22, 2010, 4:16 pmShelbyC says:
You think the withdrawal might happen too late to affect this case?
February 22, 2010, 4:19 pmJohnF says:
Are there any penalties for not obeying a “binding” decision of the ECHR? Perhaps some one here could say. Without any consequences, the notion that something is “binding” is pretty empty.
February 22, 2010, 4:22 pmD.R.M. says:
Well, ECHR compliance is a condition of EU membership. The question becomes, would the EU try to enforce it? And if the EU did, could Ireland possibly resist, given its economic position?
February 22, 2010, 4:48 pmMatt says:
Of course, criminal prohibitions against murder involve both “morals” and the protection of innocent life. And “life,” so defined in criminal statutes, does not include within its ambit fetuses, DangerMouse.
I hope (and predict) that the ECHR will do the right thing and invalidate Ireland’s disgustingly paternalistic and discriminatory Eight Amendment. Welcome to the 21st century, Ireland! You can no longer control the autonomy of your female citizens!
February 22, 2010, 4:48 pmRepeal 16-17 says:
However, that brings us back to enforcement. What if Ireland refuses to obey the ECHR?
February 22, 2010, 4:51 pmShelbyC says:
I also wonder to what extent their constitution requires them to refuse to obey it.
February 22, 2010, 4:55 pmMichael B. says:
Roe v. Wade prevents U.S. govt. entities from including unborn human beings in certain, not all, criminal statutes.
I wonder if there is an example of an nonpaternalistic criminal statute.
February 22, 2010, 4:59 pmDNJ says:
My sense, as someone who follows ECHR case-law quite a bit, is that the Court is likely to conclude that Ireland’s almost blanket ban on abortion engages Article 8 (the right to family and private life) and is disproportionate, even allowing for a substantial margin of appreciation.
This would certainly put the Irish Government in a difficult position. I suppose they would have to promote an amendment to the Constitution to comply with the ruling. Denouncing the Convention would involve withdrawal from the Council of Europe. The EU also requires all new member states to be members of the Council of Europe and parties to the ECHR. The EU almost certainly cannot expel existing members, but there would probably be a lot of pressure put on Ireland not to withdraw from the Convention. The EU would likely make life difficult for Ireland if it did withdraw.
February 22, 2010, 5:12 pmMatt says:
Well, Michael B., I think that criminal statutes that don’t differentially burden one sex could be considered non-paternalistic.
February 22, 2010, 5:12 pmDNJ says:
Any criminal law that prohibits conduct that harms others (e.g. murder, rape, theft) rather than just harming the person who does it or doesn’t harm anyone but is prohibited because of moral disapproval. See J.S. Mill, On Liberty.
February 22, 2010, 5:15 pmDNJ says:
Of course, it’s anyone’s guess how the Irish public would vote in a referendum on a Constitutional amendment to comply with the ECHR ruling.
February 22, 2010, 5:17 pmJon Rowe says:
Does the ECHR tribunal have the binding precedential common law like affect that SCOTUS decisions do?
Remember its Great Britain and her former colonies that have common law legal structures where decisions have precedential authority.
The rest of Europe has a civil law heritage that gives courts less power to make binding policy decisions as they decide cases and controversies.
Is this issue at play at all?
February 22, 2010, 5:18 pmDNJ says:
No, I can’t remember the names of the cases, but the Supreme Court of Ireland has clearly held that the Constitution prevails over the ECHR in the event of any inconsistency. Therefore a Constitutional amendment would be necessary to comply with the decision.
February 22, 2010, 5:22 pmDNJ says:
The ECtHR doesn’t, strictly speaking, have a doctrine of precedent (though it usually follows its earlier decisions, particularly decisions of the Grand Chamber), but its judgments are binding on the parties, so the Republic of Ireland would have to comply with the ruling.
February 22, 2010, 5:25 pmDNJ says:
There is a Council of Europe Committee of Ministers that supervises compliance with decisions of the ECtHR. If, after being warned, the State continues to fail to comply with a decision, I think the Committee can refer the matter to the Parliamentary Assembly of the Council of Europe, which I believe has powers (perhaps in conjunction with the Committee of Ministers) that include suspending member states.
February 22, 2010, 5:29 pmHouston Lawyer says:
With regard to the status of the fetus, I believe that many states provide for criminal sanctions for killing a fetus without the mother’s approval. Hence, I believe that Scott Peterson was convicted not only of killing his wife, Lacy, but their unborn child as well.
February 22, 2010, 5:30 pmDNJ says:
Well, it wouldn’t override the Irish Constitution. They exist on different legal planes: one is an instument of domestic law; one of international law. As a matter of Irish law, the Constitution would prevail. As a matter of international law, the Irish Constitution would be no defence to Ireland’s breach of its obligations under the Convention, since a rule of domestic law cannot be pleaded as a defence to a violation of international law (unless the international law specifically allows for this).
February 22, 2010, 5:33 pmDangerMouse says:
It is idiotic to say that Ireland’s Constitutional amendment doesn’t involve the protection of innocent life and only involves “morals”. Of course it protects innocent life. All laws involve, at some level, a moral choice. Why is it illegal to employ children in factories? Because we made the moral choice, as a society, to protect children from such labor.
Molech-worshippers, of course, feel no qualms about splitting hairs and making any idiotic justification to murder as many babies as necessary so that they can continue to have sex with anyone/thing with abandon. It’s the 1st, I mean, the 21st century, after all.
February 22, 2010, 5:33 pmDangerMouse says:
I hope (and predict) that the ECHR will do the right thing and invalidate Ireland’s disgustingly paternalistic and discriminatory Eight Amendment. Welcome to the 21st century, Ireland! You can no longer control the autonomy of your female citizens!
What is paternalistic and discriminatory in protecting all innocent babies? They’re not only protecting male babies. All babies are protected. I fail to see how protecting unborn life from murder is any more paternalistic than any other law against murder.
February 22, 2010, 5:36 pmPatHMV says:
DNJ… what happens if Ireland pulls an Andrew Jackson and just ignores it? In other words, assume Ireland loses the case. Despite the loss, the police force arrests a doctor for performing an abortion, he is convicted, and the Irish police put him in jail, maintained by the Irish department of corrections. Does the ECHR have marshals who have lawful jurisdiction to enter Ireland and forcibly obtain the release of the jailed doctor? Or would enforcement require the political branches of the EU to undertake censure actions designed to compel Ireland to comply with the ECHR judgment?
If Ireland refuses to acknowledge the validity of an adverse ECHR judgment on this issue, what are the actual, practical consequences?
February 22, 2010, 5:43 pmDNJ says:
It is inaccurate and misleading to frame the question as whether the ECtHR will “create a right to abortion”. I can understand people saying that SCOTUS in Roe v. Wade created a right to abortion, though I think it is more accurate to say that they found a violation of a women’s right to privacy, which is an aspect of the liberty protected by the Due Process Clause of the Fourteenth Amendment. But ECtHR will be dealing with enumerated rights. It is surely hardly a stretch to say that the decision of whether to bear a child comes within the ambit of the right to private and family life. Thus the court’s decision would not create a right to abortion, it would hold that Ireland’s almost blanket ban on abortion was a violation of an enumerated right in the Convention, presumably the right to private and family life.
February 22, 2010, 5:44 pmDNJ says:
It is inaccurate and misleading to frame the question as whether the ECtHR will “create a right to abortion”. I can understand people saying that SCOTUS in Roe v. Wade created a right to abortion, though I think it is more accurate to say that they found a violation of a women’s right to privacy, which is an aspect of the liberty protected by the Due Process Clause of the Fourteenth Amendment. But ECtHR will be dealing with enumerated rights. It is surely hardly a stretch to say that the decision of whether to bear a child comes within the ambit of the right to private and family life. Thus the court’s decision would not create a right to abortion; it would hold that Ireland’s almost blanket ban on abortion was a violation of an enumerated right in the Convention, presumably the right to private and family life.
February 22, 2010, 5:44 pmMatt says:
DangerMouse is pretty funny. I can’t take him seriously with respect to any legal or policy issues, but he’s pretty amusing.
February 22, 2010, 5:46 pmDNJ says:
No, the ECtHR doesn’t have marshals and it certainly couldn’t compel compliance by force. The consequences of ignoring its rulings would probably be suspension from the Council of Europe and a hell of a lot of diplomatic pressure from the EU and other members thereof.
February 22, 2010, 5:48 pmShelbyC says:
So are you. :-).
February 22, 2010, 5:48 pmMatt says:
Well, ShelbyC, perhaps if I referred to both embryo and fetus as “babies,” (as DangerMouse does) you would take me more seriously.
February 22, 2010, 5:52 pmtroll_dc2 says:
He is also more substantive than you, it appears.
February 22, 2010, 5:52 pmShelbyC says:
Or if you weren’t just cheerleading for one side of the debate. Then you want to smack DM around for cheerleading the other side.
February 22, 2010, 5:56 pmBerkeleyBeetle says:
Being unable to comprehend the viewpoints of others is not at all a manifestation of my inability to think abstractly, or of my ignorance. It actually just means I’m superior.
February 22, 2010, 5:59 pmBerkeleyBeetle says:
More on topic, while there may be a mechanism by which the EU can bring pressure on Ireland, do the Europeans have the political will and commitment to the EU to do so?
February 22, 2010, 6:01 pmLaura(southernxyl) says:
I agree with DangerMouse. So I suppose Matt can be doubly amused now.
Fetus is the specific term we use to refer to a baby that is still in the womb. There’s no magical transformation that occurs at birth. My daughter was born 3 weeks before her due date. She was the same creature during those three weeks that she would have been had she not been early.
Nobody freaks out if you call an 18-month-old a baby rather than a toddler.
February 22, 2010, 6:02 pmEvilDave says:
Under EU guidelines, if the Irish people vote incorrectly, they will just have to vote again … and again … and again.
February 22, 2010, 6:08 pmDangerMouse says:
But ECtHR will be dealing with enumerated rights. It is surely hardly a stretch to say that the decision of whether to bear a child comes within the ambit of the right to private and family life. Thus the court’s decision would not create a right to abortion; it would hold that Ireland’s almost blanket ban on abortion was a violation of an enumerated right in the Convention, presumably the right to private and family life.
DNJ: Does the Convention require abortion to be protected under law? If that was the understanding of the meaning of the Convention when it was created, why avoid the word? It’s not like Europeans have a problem with delinating the things they want in their laws: the EU Constitution was a monstrosity of legalese.
I have no doubt that, full of libs, the so-called Grand Chamber will come down against Ireland. They’ll say anything in order to protect abortion. It’s interesting, however, if the Convention didn’t actually mention it. I wonder if the EU Constitution mentions it. Or are they treating it like slavery was treated in the US Constitution – implied but never explicitly stated?
February 22, 2010, 6:08 pmtroll_dc2 says:
EvilDave, what happens in the meantime (and meantime and meantime)?
February 22, 2010, 6:09 pmMatt says:
Laura: I was just pointing out the rhetorical nonsense DangerMouse was employing in describing abortions as the murder of babies. I frankly find people with the kind of views and demagoguery DangerMouse employs to be pretty disgusting and unworthy of intelligent debate.
February 22, 2010, 6:13 pmtroll_dc2 says:
Matt, but you’re giving us unintelligent debate.
February 22, 2010, 6:15 pmCrunchy Frog says:
Then you have written off a good half, if not more, of the US population.
Congratulations. Say hi to Pauline Kael for us.
February 22, 2010, 6:17 pmMatt says:
I’m arguing that calling abortion the murder of “babies” displays a striking disregard of intelligence and civil debate and I’m the one getting attacked? This is hilarious.
February 22, 2010, 6:18 pmLaura(southernxyl) says:
Matt, can you put forth a coherent pro-life argument, even though you don’t agree with it?
February 22, 2010, 6:22 pmShelbyC says:
Do you find women who say they can feel the “baby” kicking disgusting too? Refering to a fetus as a baby isn’t all that uncommon, is it?
February 22, 2010, 6:24 pmtroll_dc2 says:
Matt, you don’t get it. You don’t regard abortion as the murder of babies, and I don’t either. But a lot of people do. They see things differently from you and me. I think that they are wrong; I view abortion as the termination of the possibility of a baby because it terminates the fetus. But I do not understand how their viewpoint “displays a striking disregard of intelligence and civil debate.” Your statement makes you appear to be cruising at 40,000 feet as you drop rhetorical bombs on the hostile populace underneath.
February 22, 2010, 6:26 pmLaura(southernxyl) says:
Also, this:
is a pretty funny contradiction.
To spell it out, Matt – is calling someone’s argument a “striking disregard of intelligence” an element of “civil debate” just because you disagree with it?
February 22, 2010, 6:29 pmlgm says:
We don’t know how the court will rule. But if it rules that abortion is legal in Ireland, that will force the Irish to make a difficult choice. Do they want to be part of the European community, with all its economic benefits it has brought them, or do they want to continue to force women to carry unwanted pregnancies to term?
My guess is that even if a majority of the Irish want to keep abortion illegal today (don’t know whether they do), they will soon come around to the general European view. That’s what happened in the US with respect to gays in the military, and blacks in the military before that.
February 22, 2010, 6:31 pmdevoman says:
There’s no magical transformation that occurs at birth. My daughter was born 3 weeks before her due date. She was the same creature during those three weeks that she would have been had she not been early.
I am highly reluctant to disagree with a mother on this topic. So I’ll just offer my own experience and opinions.
During the birth of our child, I was particularly interested in exactly what happens as the baby passes from the inner world of the womb to the outer world we live in, so I paid particularly close attention to those moments. For a very brief moment, the baby was physically out in this world yet inanimate as though she were still in the inner world. Then, suddenly she came to life: breathing, screaming, kicking! It was just as if a switch were thrown. It was very magical!
Coincidentally, she was also born 3 weeks early. And I would say she was a very different creature during those 3 weeks. She lived on her own systems rather than on the life support systems of her mother.
I don’t think these differences are besides the point; I think they are exactly the differences at the heart of this debate.
February 22, 2010, 6:33 pmMCM says:
As soon as I saw this post I was compelled to click on it and and Control-F “dangermouse”. I found the appellation “Molech-worshipper” wickedly delightful.
February 22, 2010, 6:36 pmLaura(southernxyl) says:
devoman, my daughter kicked quite a bit before she was born. And she was born screaming. I’m not kidding. Her head popped out, the doctor suctioned the mucus, and after that it was Katy bar the door.
Do you think there would have been a moral difference between terminating your daughter during those three weeks after she was born, and terminating her had she not come early?
February 22, 2010, 6:39 pmEvilDave says:
Why don’t you tell us what you think that word means ?
February 22, 2010, 6:39 pmAnd why you think it is some “super-duper” insult?
troll_dc2 says:
Laura, I think I know where you are going with your question, but there are few people who support the right to an abortion who are comfortable with third-trimester abortions.
Actually, my support for the right to an abortion is sort of a default position; I just do not want the government involved in this sort of question.
February 22, 2010, 6:42 pmEvilDave says:
Well as long as the science is settled.
February 22, 2010, 6:42 pmLaura(southernxyl) says:
Where I’m going, troll, is that calling a “fetus” a “baby” is not that outrageous.
I know that among pro-choicers there is a very wide range of opinions as to when abortion is acceptable, as well as whether under X circumstances it’s perfectly OK, or somewhat distressing.
February 22, 2010, 6:45 pmMCM says:
Actually, there is. It’s called being born.
There’s nothing magical about the due date. She was born on the day she was born.
So when a woman miscarries in her second week, can she sue her boss for wrongful death, blaming the draconian work schedule and management practices? I suppose you’d argue the mother always had the choice to quit. So maybe we should prosecute her, or allow the father to sue her for wrongful death? What if a boyfriend abandons his pregnant girlfriend, and she later miscarries?
The policy implications of giving every conceived embryo full rights going forward are mind-boggling, and that’s reflected in the fact that hardly anybody favors doing so. The miscarriage rate is something like 8-25%. We don’t actually know what it is because women miscarry without even knowing they were pregnant! That doesn’t make it any less tragic, but it does suggest that a live, delivered baby is not quite equal to a 2-week old embryo. But sure, if you want to “protect life”, I guess we should have coroner looking in every toilet flush to make sure there isn’t a fertilized embryo going down, mistaken for a heavy monthly flow.
Have fun with your bright-line rule about life at conception, and your emotional estrogenic arguments. I have some Molech-worship to get back to.
February 22, 2010, 6:52 pmtroll_dc2 says:
Laura, there are fetuses and fetuses. In my opinion, one that is viable is different from one that is not. I think that calling a viable fetus a baby is not outrageous (even though at common law it would have had to have been born to have legal protection).
February 22, 2010, 6:53 pmLaura(southernxyl) says:
Well, you enjoy that.
February 22, 2010, 6:55 pmLaura(southernxyl) says:
Troll, one difficulty with determining viability is that different fetuses reach that point at different times. Some babies born at 30 weeks’ gestation have multiple problems, some don’t make it; others, like my nephew, are just fine. I don’t think it’s possible to mark a gestational period and say that the fetus is viable after and nonviable before.
February 22, 2010, 6:58 pmdevoman says:
Do you think there would have been a moral difference between terminating your daughter during those three weeks after she was born, and terminating her had she not come early?
Under most circumstances no. I could imagine circumstances where the answer would be yes. For example, if I had been told that my wife’s life would be in jeopardy if she tried to deliver the baby. But for the most part, I agree with you at regarding this point in the pregnancy.
But if you asked me the same question about 6 months earlier in the pregnancy, I would give you an unqualified yes.
February 22, 2010, 6:58 pmChris Travers says:
As a Norse neopagan, I am going to take the opposite extreme and say that there is nothing wrong with most ancient practices of infanticide. Maybe we can bring back the old ways and legalize abortion up through the 8th day following birth (said mostly in jest, of course).
February 22, 2010, 7:11 pmAnym_Avey says:
So when a woman miscarries in her second week, can she sue her boss for wrongful death, blaming the draconian work schedule and management practices? I suppose you’d argue the mother always had the choice to quit. So maybe we should prosecute her, or allow the father to sue her for wrongful death? What if a boyfriend abandons his pregnant girlfriend, and she later miscarries?
Those examples would probably be remanded to a civil court for the parties to hash out their differences.
However, in many states, a third party who causes an unintended miscarriage through negligence or battery against the mother can, in fact, be charged with manslaughter.
February 22, 2010, 7:22 pmLaura(southernxyl) says:
That’s my point about no magical transformation.
Well, the baby will come out. A C-section is the usual solution to the problem of danger in conventional childbirth. But delivery will happen, one way or another.
February 22, 2010, 7:25 pmAnthony says:
There’s actually a fair number of important changes which occur at birth, since you’re shifting from a situation of external life support to internal life support, and the baby starts learning about the exterior world. There are, of course, a lot of things that don’t change, but given that a dividing line is needed, birth is certainly a highly significant milestone.
February 22, 2010, 7:26 pmLaura(southernxyl) says:
Anthony, I know all that. I’ve been there. Well, I don’t remember going through it myself, but I saw it with my daughter.
Is my point that hard to understand? You don’t transform from an amorphous clump of cells to a person with arms and legs and fingers and toes, at birth. You don’t transform from a kitten or a puppy or possibly a turtle to a human being, at birth. You go from inside to outside, but you’re still the same person.
February 22, 2010, 7:32 pmEMB says:
Paternalistic != Patriarchal.
February 22, 2010, 7:32 pmGuest14 says:
This is less significant than it might seem. The criminal law has broad latitude to prohibit undesirable behaviors, and it often uses bizarre fictions to accomplish this.
A classic example is the deemed ineffectiveness of the consent of a minor to sex–in certain circumtances (e.g., perhaps still effective when given to other minors). It has nothing to do with whether minors can or cannot actually consent to things in any real way. It simply represents a judgment that certain people shouldn’t have sex with certain other people, and it bolts this judgment on to the existing consent-based framework of sex crimes.
Homicide of the unborn can be seen in the same way. There is already a framework for prohibiting killings, and laws prohibiting killing the unborn can be seen simply creating a legal fiction that, for some purposes, fetuses are people.
February 22, 2010, 7:34 pmOren Kir says:
Of course, if you believe that fetuses are people, you don’t need to view it as a legal fiction.
February 22, 2010, 7:40 pmAnthony says:
Your point is perfectly understandable, I just happen to disagree. I don’t consider arms and legs and fingers and toes to be marks of personhood, I consider personhood to be a property acquired by experiencing and interacting with the world, and is fundamentally attached to the mind. As such, an unborn baby, or a fetus before roughly week 30 (when interaction becomes possible; before that the brain isn’t hooked to the senses) lacks personhood.
February 22, 2010, 7:43 pmShelbyC says:
Wow. It looks like somebody made a smart-ass comment on the “I’m not Oren” thread and forgot to change their handle back.
February 22, 2010, 7:44 pmDangerMouse says:
I consider personhood to be a property acquired by experiencing and interacting with the world, and is fundamentally attached to the mind. As such, an unborn baby, or a fetus before roughly week 30 (when interaction becomes possible; before that the brain isn’t hooked to the senses) lacks personhood.
Does your definition apply to a child 1 second after birth? Or can they be murdered too?
February 22, 2010, 7:53 pmLaura(southernxyl) says:
Anthony, my daughter reacted to sounds before she was born. And she recognized my voice when she heard it, moments after she was born. She stopped her continuous screaming and tried to open her eyes.
I’m seeing a continuum and you’re seeing a quantum change. I think we’ll have to agree to disagree here.
February 22, 2010, 7:56 pmMatt says:
And it is even more accurate to say that the decision was not based on any particular amendment, but rather the Constitution’s “penumbras”.
February 22, 2010, 7:59 pmRepeal 16-17 says:
More specifically, “emanations” from those “penumbras”. In other words, the Court made it up.
February 22, 2010, 8:09 pmDNJ says:
The ECtHR does not adopt an originalist approach to interpreting the Convention; it regards it as evolving as society changes and progresses. This has been reaffirmed frequently and is uncontroversial in European legal circles; there are few who disagree with it.
February 22, 2010, 8:09 pmMatt says:
Thought experiment: let’s say a senior citizen’s senility or dementia causes the world to be fundamentally detached from his or her mind. Thus, this senior lacks “personhood.” What then? Does he or she lose any legal rights?
And, let’s further assume that another person has adopted this senior citizen, and is otherwise legally bound to caring for him or her. Can the absence of the senior’s personhood permit the legally-bound indivdiual to choose to kill the senior? Could there by any circumstances in which another person could kill the senior? If not, why not?
February 22, 2010, 8:13 pmAnym_Avey says:
Homicide of the unborn can be seen in the same way. There is already a framework for prohibiting killings, and laws prohibiting killing the unborn can be seen simply creating a legal fiction that, for some purposes, fetuses are people.
The manslaughter charge is more consistent with historical legal treatment of the unborn subject. The legal fictions have been created by Roe and subsequent case law. It is these that draw arbitrary lines around a continuum of growth and development, rather much like the rights of minors and statutory adulthood as you just referenced.
February 22, 2010, 8:13 pmDNJ says:
That’s an interesting question. Come to think of it, there are some EU countries that are anti-abortion (for instance, Poland and maybe Italy). But in most countries abortion is not a political issue and strong majorities the public (and politicians) support it. So I’m guessing most EU Governments wouldn’t be upset by such a ruling.
There is another reason why countries would probably want to ensure that the judgment is enforced. The Court and the Council of Europe has been having a lot of trouble at getting Russia to comply with its judgments and change its laws and practices to bring them into compliance with the Convention. If Ireland was able to ignore a judgment, the Russians could complain about a double standard and the Council of Europe’s and EU’s efforts to promote human rights in Russia would be hindered.
February 22, 2010, 8:16 pmDNJ says:
As a secular utilitarian, I don’t find infanticide morally troubling when done with the consent of the parents and in a painless way. Of course, there may be good reasons not to legalise it because of slippery slope/line drawing/enforcement concerns.
February 22, 2010, 8:18 pmJosh says:
There was a recent study finding that newborns cry with their mother’s accents, having already picked them up from their time in the womb. Which at least argues against 3rd trimester abortions if the definition of personhood is having a brain capable of interacting with the outside world.
February 22, 2010, 8:19 pmMatthew Carberry says:
I’m not sure that legal abortion under the current right to privacy basis couldn’t have been established under current state homicide laws.
From a positivist viewpoint the purpose of laws is both to ensure rights and express public morality. Polls seem to indicate that almost all Americans support legal abortion in cases of risk to the life of the mother, which would fall neatly under justifiable homicide. Also almost uniform are support for exceptions in cases of rape and incest and, to a lesser degree, underage girls. That could be codified under excusable homicide.
What has much less support nationwide is abortion strictly for the purpose of birth control by adult women and for late-term abortions in general. Again, such situations could be legal per SCOTUS (which established a standard of viability) under excusable homicide with whatever conditions may apply. Abortions by unlicensed medical providers would still be criminal and current laws about criminal murder/negligence of a fetus would be maintained and in fact more consistent.
Privacy issues are already handled in cases of minors and rape victims by shield laws, there’s no reason that same system cannot be used for abortion. A presumption of legality would be made for licensed doctors operating per established protocols and such cases would be noted (allowing better tracking and study) but sealed.
Thus the right to Privacy and the right to abortion would be maintained, but the people of a state would be allowed to express the apparent general moral concensus that, however you define human “life” the taking of it is serious business and that importance needs to be recognized, not hand-waved.
Anyway, that’s my take in a nutshell.
February 22, 2010, 8:19 pmJosh says:
DNJ: does the newborn’s utility get factored into the maximization calculus? If not, why? If it does and you are still in favor of infanticide, could you elaborate on how the utility is maximized?
February 22, 2010, 8:21 pmEurope’s Roe v. Wade? | Liberal Whoppers says:
[...] more: Europe’s Roe v. Wade? [...]
February 22, 2010, 8:21 pmMalvolio says:
Wow, an abortion thread on the Internet! I’ve never seen one of those before. I wonder how it will turn out.
February 22, 2010, 8:21 pmAnthony says:
If by ‘fundamentally detached’, you mean ‘persistent vegetative state’, I would say that he or she no longer has the legal rights of a human being, though lesser levels of rights are possible.
February 22, 2010, 8:28 pmShelbyC says:
Yeah, you Europeans.
February 22, 2010, 8:32 pmq says:
An infant has the same mental capacity as a dog, perhaps? (This is not meant to be inflammatory). We could easily discount its utility like we do with dogs, but perhaps augment it due to expected future utility. Still, infanticide could be excused under this utilitarian rubric in certain cases where the mother is at extreme levels of mental distress.
February 22, 2010, 8:56 pmThomas Brownback says:
Some wonder about the binding nature of these decisions.
I should say up front that I’m fairly rusty on European Law, but this is what I recall. Hopefully someone will put me in my place by pointing out all my errors.
I believe Germany has opted out of certain EC regs due to a national belief in certain “grundnorms,” or basic moral principles, firmly instilled in their populace after WWII. The ECJ censured Germany for this, but no ultimate action was really taken.
It’s became tacitly understood that an EC member can ignore certain obligations by appeal to basic moral principles. The member will likely be criticized for it, but for many types of regulations, no concrete penalty will ultimately be applied. This option is frowned upon, a bit socially enforced. That may seem like no enforcement at all, but nations do not widely ignore regulations. Perhaps overreliance on the opt-out would discredit a nation in future treaty negotiations. A socially enforced reg in a diplomatic environment can measure up to very meaningful consequences.
However, this issue might be different. Previous cases involve states refusing to carry out certain actions they deem objectionable (like engaging in monitoring requirements for welfare recipients), this is a bit unique in that it would involve a state engaging in an extra prohibition over what the EC deems permitted.
As I warned, my understanding of European law is well out of practice, so take this with a grain of salt.
February 22, 2010, 9:35 pmSuperSkeptic says:
Interesting thoughts, but isn’t all of this pre-empted and therefore obsolete now under Roe?
February 22, 2010, 9:40 pmOrenNotKerr says:
Thread winner, close it down.
February 22, 2010, 9:59 pmCornellian says:
As the note explains, subsequent case law had held that the Irish government cannot forbid Irish women from traveling to England to obtain legal abortions there.
The case has been brought by women who had already had legal abortions in England. I don’t see why such a case “squarely” presents a Roe v. Wade type of issue. Even if you think the government is free to prohibit abortions in all or nearly all circumstances, it doesn’t follow that you also think a government can prohibit women from leaving the country in order to have an abortion in some jurisdiction where it is legal.
February 22, 2010, 10:57 pmOperationCounterstrike says:
I normally agree the central courts should be less powerful than they are. But in the case of right-to-lifism, the right-to-lifer shows himself incapable of governing just by being a right-to-lifer. So the court needs to step in and set matters right.
February 22, 2010, 11:05 pmMatthew Carberry says:
SuperSkeptic,
I think so, unfortunately. Not sure why it couldn’t happen, so long as the end result was the same as the status quo.
To my mind, there’s “rule of law” value in adding consistency and instrumentality to the process. Reduces the sense that it is heavy-handed judicial fiat rather than procedural evolution.
Since it’s my thesis for a Philosophy of Law class, I should probably start the research phase. =)
February 22, 2010, 11:08 pmMatthew Carberry says:
Don’t we do that all the time? Punish people for actions that are not necessarily illegal in the country in which they occur once they return to the States? I’m thinking some of the sex tourism and child porn/abuse statutes.
Aside from the inconvenience (which is/was often conflated to an equal access issue) of having to cross state lines to get an abortion prior to Roe, wasn’t a major problem women being prosecuted by their home state for leaving it to get a legal abortion elsewhere then returning?
February 22, 2010, 11:13 pmBorris says:
Yeah read Bob Woodward’s The Brethren: Inside the Supreme Court any respect you had, as a lawyer, for Roe will be gone.
Basically, Woodward’s sources say that the Justices all agree the law in question was Constitutional but that they didn’t want to go home to their wives and daughters if they upheld the law. So, they started pulling in evidence not previously presented to prop up what was a decision made based on family politics.
I don’t have a big problem with abortion (or relatively quick infanticide for that matter) but I do have a huge problem with the fact that Roe took away our right to vote on the matter.
February 22, 2010, 11:16 pmEvery other Anglo-Saxon country but Ireland (heavily Catholic) has voted to legalize abortion. I have no doubt we wouldn’t have been any different had the SCOTUS allowed democracy to run its course.
ii says:
The use of the word fetus to separate unborn babies from their humanity by reducing their existences to sterile medical terminology is too transparent for any reasonable English speaker to take seriously. A fetus is just a baby in a specific developmental stage. Imagine a world where all teenagers were always called “adolescents”; all elderly people called “-generians”, etc., and not only that, but if you dared to actually call a teenager a teenager, some self-righteous simp bent on defending the integrity of a random political movement or establishment will call you out for it and demand you correct your language lest your use of synonyms confuse voters or judges into rethinking that simp’s favored policy.
I always wonder what these people say around pregnant women. Do they refuse to call the baby inside “the baby”? Do they put their hands on pregnant stomachs and say, “ah, I sense that the fetus inside you has kicked!” Ridiculous.
February 22, 2010, 11:45 pmRandy says:
Laura: “Fetus is the specific term we use to refer to a baby that is still in the womb. There’s no magical transformation that occurs at birth.”
Interestingly, the church has changed its position on this over the years. For instance, in 380 AD, it issued an edict that abortion is allowed if done early enough in the pregnancy, and before it took ‘human shape.’ (On the theory that the soul had entered the fetus by the time it takes on said shape.) St. Augustine agreed, saying it isn’t murder if the fetus has no soul yet.
Pope Innocent III in the 13th century said that abortion is not murder if done before ‘quickening’ or the animation of the fetus. The soul entered the fetus when it first becomes animated, and animation is evidenced when the mother feels it moving for the first time. Therefore abortion wasn’t a serious sin because it only terminated a potential person, not an actual one.
Pope Sixtus in 1588 held that any abortion, no matter how early, deserves excommunication and the death penalty.
But wait! Pope Gregory in 1591 reversed that and reinstated the quickening test.
It wasn’t until Pope Pius in 1869 that dropped the distinctions and said that the soul enters at the time of conception.
So, during the middle ages and up to 1869 there WAS a sort of magical transformation, when the soul entered the fetus, and when exactly that happened changed over the years. But after 1869, the soul started entering the fetus at the time of conception.
This is of course a medical fact and beyond dispute.
February 22, 2010, 11:52 pmRandy says:
ii: “The use of the word fetus to separate unborn babies from their humanity by reducing their existences to sterile medical terminology is too transparent for any reasonable English speaker to take seriously. ”
I would argue that anyone who uses the word ‘baby’ to indicate an embryo that resembles nothing more than a cluster of cells can’t be taken seriously either.
February 22, 2010, 11:55 pmRandy says:
borris: “I don’t have a big problem with abortion (or relatively quick infanticide for that matter) but I do have a huge problem with the fact that Roe took away our right to vote on the matter.”
But why should that matter? As the law stands now, if you want an abortion, you can probably get one. If you don’t want an abortion, there is no requirement that you get one. The only issue that appears to be contentious is whether you can prevent *someone else* from having an abortion.
On this matter, most Americans agree that abortion very late term, when the fetus appears more like an actual baby, abortion should be restricted to some degree, but on the other hand, if the closer you get to conception and the less it resembles a human being, the less restriction should be allowed.
In other words, most people are following the church’s original stance on abortion.
February 23, 2010, 12:00 amRicardo says:
Interestingly, as Steven Pinker pointed out, there isn’t even any “moment” of conception. It actually takes a few hours between when a sperm cell first penetrates the cell membrane of the ovum and when its DNA is successfully merged with that of the ovum. And a lot can go wrong between this process as we are starting to find out. Nature appears to ruthlessly discard many embryos without would-be mothers even knowing.
February 23, 2010, 12:33 amMatthew Carberry says:
That’s why, personally, I think a better bright line is uteral implantation. It is signalled by concrete changes in women’s blood chemistry so it is fairly easy to check. Implantation is what a lot of birth control prevents so it keeps birth control explicitly legal and some cellular division has occurred prior so the embryo has, to a point, proved out (I believe most miscarriages occur prior to implantation and are simply not noted). If it implants elsewhere in the body it cannot grow properly and thus can be aborted simply for the safety of the mother.
As the embryo is not yet actively drawing support from the mother prior to implantation it cannot be “poisoned” by BAC and such so that justification for societal intervention doesn’t yet apply.
Lack of implantation means no actual pregnancy has occured. If part of the standard is to be viability or the potential to become a fully actualized human life that’s when the process directly starts.
This also differentiates between frozen ova, sperm or embryos and “real” potential human life for legal reasons.
February 23, 2010, 12:48 amShelbyC says:
Boy are you the last guy I’d figger to make that type of appeal to authority :-).
February 23, 2010, 12:54 amleo marvin says:
If the worst thing anyone ever did here was call a fetus a baby (or a baby a fetus, for that matter) this place would be a nirvana. I hate to pile on, Matt, but of all the things to pick on Danger Mouse for, I think you chose an odd one.
February 23, 2010, 12:58 amJames N. Gibson says:
It would be interesting if we could look beyond the basic discussion of what this would do to Ireland and when does a fetus become a person. I think the bigger question is what other EU members have either Anti-Abortion laws or limitations on when an abortion can be performed. Considering Ireland’s high Catholic population I would expect Italy, Spain and even Portugal would also have some limitations on Abortion that might also be over ridden by this pending ruling. Given the economic situation with the Euro this might create more pressure to actually dissolve the EU.
February 23, 2010, 1:02 amDNJ says:
I’m from New Zealand. And I would guess the proportion of New Zealanders who share my views on infanticide is about the same as the proportion of Americans: in both cases, very low.
February 23, 2010, 1:35 amEluchil says:
Taking a look at Wikipedia I would say that only Poland and Spain are likely to see their own laws conflict with a pro-abortion ruling unless the court were to find a right to late-term abortion on demand which seems unlikely to me. I also note that English law is actually quite restrictive in theory though not in practice. I don’t really know how the decision will play in Ireland, but I am sure that a broad ruling will be furiously denounced in Poland and I wouldn’t be surprised to see groups like “Law and Justice” (second largest political party and rather eurosceptic) call for a withdrawal from the EU though I have no idea if Poland would go that far to preserve its autonomy on abortion.
Eluchil
February 23, 2010, 1:35 amwho is deliberately focusing on the legal and political issues raised by the ruling and ignoring the discussion of the morality of abortion as a non-productive time sink.
Randy says:
Shelby: “Boy are you the last guy I’d figger to make that type of appeal to authority :-).”
On matters of when the soul enters the fetus, I must demure to those who know.
February 23, 2010, 1:43 amSam says:
I’ve read that the US practice of applying US laws to actions of US citizens (and corporations) committed in other jurisdictions is unusual.
February 23, 2010, 2:41 amDNJ says:
The US does it more than most countries, and it pisses off some other countries. Whether or not it violates international law (in some instances), it is often regarded as something of an affront to the sovereignty of other countries over their territories and inconsisent with the idea of comity.
February 23, 2010, 3:02 amMatej says:
Two small comments to the original post:
- don’t wish to (and can’t after merely a glance) proclaim on the overall quality of the student note in question, but I believe that because of the close interconnection between the Council of Europe and EU mechanisms of judicial review, it should also include a discussion on the “Irish abortion issue” within the EU, which it now seems to completely ignore (such as the Grogan case of the European Court of Justice, but also going beyond it);
- the European Court of Human Rights has 47 judges (actually, currently 46, since the Ukranian seat is vacant), one per each Member State ; if I understand correctly what “en banc” is used to mean in the US terminology, the Grand Chamber of 17 judges is not an “en banc” hearing of ECtHR.
February 23, 2010, 3:24 amreadery says:
Does the European Convention on Human Rights also contain a right to be Judenfried? Does the European Court of Human Rights have discretion to find such a right by looking to European legal history to determine that Jews haven’t historically been considered persons?
Such a decision would be would be as unassailably impeccable. After all, from the point of view of European legal history, Jews historically haven’t been. Treating them otherwise has arguably been too recent, and too intermittant, to represent a real change in core human rights law and to justify interfering with Europeans’ historical autonomy to make their own choices in Jewish matters.
The European Convention on Human Rights protects religion, but the English courts have already held that Judaism isn’t a religion, it is a form of racism. Surely considering Jews to be subhuman is inevitable in such an environment. Given this decision, if the European Court on Human rights holds that it has the right to use historical conceptions of what is an is not fully human to prohibit member states from providing protection to those it regards as subhumans, further stripping of protection from Jews is probably unavoidable.
February 23, 2010, 6:45 amreadery says:
As to the legal issues, this represents a classic case of a court going well beyond what the signatory states plainly intended, given that the Convention never mentions abortion and multiple signatory states had and have abortion laws. The EU is far more fragile than the American Union, so courts can’t simply take its continuation regardless of their decisions for granted.
February 23, 2010, 6:50 amLaura(southernxyl) says:
Randy, your history of the church is interesting, but it is irrelevant to me. I arrived at my view by my own reasoning, not from anyone else telling me what I was supposed to think. Did you assume otherwise? If so, why?
February 23, 2010, 8:35 amegd says:
Unfortunately, like in the United States and the rest of Europe, the Irish government can still control the autonomy of the rest of its citizens.
Not to provoke too much debate, but what’s so damn special about Europe? Why is it a good thing to follow what a bunch of people on the smallest continent deem good? Why not turn to Asia for our moral guidance, or Africa?
I just don’t see the obsession with Europe, and why anything Europe does is automatically good.
February 23, 2010, 8:47 amGopher says:
I’m not sure if this has been mentioned, but if the Court reaches the conclusion that the Amendment is invalid, it would also invalidate German law.
February 23, 2010, 9:29 amShelbyC says:
Huh. Well, I remember in Europe I ran into that view quite a bit more often, especially with respect to folks with downs syndrome and the like.
February 23, 2010, 9:41 amShelbyC says:
You seem to be suggesting that the question of where to draw the line has no clear answer. Some folks want to draw it earlier, others later, and still others, like DNJ, would draw it later than I’m personally comfortable with. Does this mean we should be open to both “pro-life” and “pro-choice” points of view as reasonable places to draw the line?
February 23, 2010, 9:54 amAndyM says:
I’m sure it will be full of deep legal discussion, as befits a law-oriented blog. Possibly from a libertarian perspective, as befits a libertarian-leaning blog.
Fight the cynicism! You can be positive rather than snarky! (ok, I mostly can’t, but maybe you can).
February 23, 2010, 9:55 amSarcastro says:
[So then who are you to impose your view upon other women?
The abortion debate is especially interesting to observe, since it often seems to essentially turn into a question as to who should be making the decision about abortion, the woman, the state or the nation. Layer that wonkiness on top of an axiomatic moral debate and the contrast makes for an ever-shifting coutour of the argument as compared to more one-note stuff like torture or how evil Obama's evil is.]
February 23, 2010, 10:20 amLaura(southernxyl) says:
[Sarcastro, do you want to have that discussion? It's really OT here but I feel that you are flinging down a gauntlet.]
February 23, 2010, 10:24 amSarcastro says:
[heh. The off-topic ship has sailed, but I'm willing to save the discussion for the inevitable next abortion-related derailed thread if you are.]
February 23, 2010, 10:39 amJoe says:
As to the use of the term “en banc,” the note:
It is also important that this case is being heard by 17 judges of the Grand Chamber of the Court rather than the usual chamber of seven judges.
I don’t know how the term is used in that context, but this seems comparable to the U.S. 9th Cir. where “en banc” is not all the larger than usual panel acting, but more than the usual three.
The note also discusses the breadth of the Irish law. For instance, “to prevent counselors from telling women where to find an abortion clinic or helping them travel” [internal quotes omitted]. Likewise, “treating the life of the unborn as equal to the right to life of the mother” means only threats to the girl/woman’s life would allow abortion, including credible threats of suicide. Thus, not only rape but threats to health (including serious ones not life threatening) are not enough. This includes abortions for the first week of pregnancy. Also, “the intrauterine device and the morning-after pill” appears also to be illegal.
Suffice to say that Texas in 1970 would have violated these terms, including in looking the other way when women had early abortions when raped and respecting in their basic inaction (the Irish amendment obligates some positive action on the part of the state) against abortion.
Poland is too lax as well: “Unlike Irish law, Polish law
February 23, 2010, 10:40 amabrogates criminal sanctions in limited circumstances including where there is a danger to the health of
the mother.”
Randy says:
Laura: “Randy, your history of the church is interesting, but it is irrelevant to me. I arrived at my view by my own reasoning, not from anyone else telling me what I was supposed to think. Did you assume otherwise? If so, why?”
Not at all! In fact, I raised the issue in support of your reasoning. You mentioned a magical moment (and being a man, I suppose I won’t ever experience that!), and I think I understand your point. Many women have told me about some similar experience. I just bring up the church history for a few reasons:
1. To show that there once was a point where they too believed there was just such a magical moment, or something similar.
2. To show that after 2000 years, no one really knows when a clump of cells transforms into a human being.
3. To show that the church actually does change its doctrine from time to time, and this issue of life begins at conception is a fairly modern viewpoint.
I’m glad that you think for yourself, and certainly encourage that. I only wish other people would similarly defer to their own experiences rather than rely upon dogma or what other people tell them to think.
February 23, 2010, 11:06 amRandy says:
Shelby: “You seem to be suggesting that the question of where to draw the line has no clear answer. Some folks want to draw it earlier, others later, and still others, like DNJ, would draw it later than I’m personally comfortable with. Does this mean we should be open to both “pro-life” and “pro-choice” points of view as reasonable places to draw the line?”
Perhaps. I don’t know. The question of when a soul enters a human is a good one, but fact is that no one knows. I would prefer a church that admits that basic fact rather than try to come up with clear cut answers, but that’s just me.
As to when you draw the line between calling it a human being or not, again, I don’t know. Even if we could, not all fetuses/babies/clumps of cells gestate at exactly the same rate. So from a practical matter, I wouldn’t even try to draw a line.
However, from a legal standpoint, I understand we might have to draw a line, if the state insists on restricting abortion for those who want it. That’s an issue I just don’t feel competent to weigh in on. I think each person has their own belief on the matter, and it’s not for me to tell them they are right or wrong.
What I would prefer to focus on something far more productive and that is to reduce the number of unwanted pregnancies to begin with. On this matter, I’m sure we can all agree.
February 23, 2010, 11:19 amLaura(southernxyl) says:
But Randy, I specifically said that birth is NOT a magical moment transforming a non-person into a person.
Seems to me that if you don’t know when a clump of cells transforms into a human, you have a choice to make. You can choose to err on the side of possibly killing humans, or you can choose to err on the side of possibly protecting non-human clumps of cells. (Let me point out that at any point you choose on the continuum of embryonic or fetal development, those cells will develop into a human, and nothing else, if left alone to do what they naturally do.) I understand that you may err on the side of protecting clumps of cells over giving women autonomy of their bodies. That’s where the crux lies. We don’t permit women to leave their three-month-olds in their cribs to starve; we require them to either feed the babies or turn them over to someone who will, both of which are positive actions the women must undertake. So I suppose it’s a philosophical issue that everyone must work out for himself or herself, whether the duty a woman has to preserve life for her child extends to the period of time the child is in her womb (remembering that we all start out that way, it’s a universal and essential part of the human experience) or whether it only picks up at some point before or after birth. And at what stage the law conceives itself to have some kind of stake in the child’s right to life, because that is an issue we have to come to some sort of consensus about.
February 23, 2010, 11:31 amsardonic_sob says:
On two occasions I have been asked,—”Pray, Mr. Babbage, if you put into the machine wrong figures, will the right answers come out?” … I am not able rightly to apprehend the kind of confusion of ideas that could provoke such a question.
February 23, 2010, 11:37 amDangerMouse says:
To show that the church actually does change its doctrine from time to time, and this issue of life begins at conception is a fairly modern viewpoint.
On this, you are wrong, but it’s understandable that you’d make a classic mistake. The Church has not ever said that the destruction of an innocent unborn life is ok, and it has not changed its doctrine over what constitutes murder. It has said that it has refined its understanding of when an innocent unborn life occurs. That is why you see references to ensoulment, etc. There was a mistaken understanding that ensoulment occurred at some point in time. Given greater scientific knowledge about conception and gestation, that incorrect view has been disgarded. This is not a change in “doctrine.” A change in doctrine would be saying something like “Thou Shalt Not Kill doesn’t apply to unborn babies.” But the Church has never ever once said that.
The only reason why you’re bringing this up is to try to slam the Church and Catholics who use it for moral guidance. But all you’re doing is making yourself look perfectly foolish by claiming it’s a change in doctrine.
February 23, 2010, 11:41 amsardonic_sob says:
I prefer the Roman method, where the head of the household had the right to perform an abortion up until the 93rd trimester.
February 23, 2010, 11:42 amsardonic_sob says:
If you ever want to see a devout Roman Catholic go all funny, ask them if all the people who bought Indulgences suddenly found themselves in Hell when the Church decided that you couldn’t really buy your way into Heaven after all.
February 23, 2010, 11:47 amGopher says:
Right, they seem almost as discombobulated and hypocritical as those that find no qualms in asserting that fully developed 1-celled anaerobic organisms are alive but 1-celled developing embryos are not.
February 23, 2010, 12:20 pmSarcastro says:
And thus killing them must be murder! Why, armed only with the immune system God gave me, I have slaughtered multitudes! I am such a badass.
February 23, 2010, 12:29 pmShannon Calt says:
Hello,
Wanted to say thank you to everyone who is participating in this string. I hope you found the paper useful or interesting.
lol -it was nice to see my downloads double in 6 hours.
I’m afraid that my duties keep me from actively participating or answering questions here, but again, thank you for your interest. Many of your comments have given me ideas for my final revision before publication.
If you have any questions, comments, or advice, please don’t hesitate to contact me at calt@lclawreview.com
Shannon Calt
February 23, 2010, 12:30 pmManaging Editor
Lewis & Clark Law Review
Gopher says:
No, Sarcasto, you are just guilty of being confused and sarcastic. It is quite clear that one cannot murder anything that is alive (See, MPC below). One can only murder a living human. The point is that defining those organisms as having “life” is inconsistent with defining developing fetus’s as having “not life.”
MPC
[2] “Murder” – The common law definition of “murder” is “the killing of a human being by another human being with malice aforethought.”
A minority of states now treat a viable – or, at times, even nonviable – fetus as a human being under the homicide statute.
February 23, 2010, 1:03 pmSuperSkeptic says:
Well Gopher, even if “those organisms” have “life” but are not “a living human” such that Sarcastro has not “murder[ed]” them, we still do not allow people to kill animals with impunity. Thus, since the organisms in question (fetus, baby, embryo – whatever your preferred nomenclature) are clearly more important than dogs or cats or cattle, we still have the same problem of the so-called “balancing of interests”, i.e., when the “life” of the “organisms” in question may be terminated legally.
February 23, 2010, 1:11 pmSuperSkeptic says:
Although, arguably equally (if not more) important legally is who decides when. This is the part that I am struggling with.
February 23, 2010, 1:18 pmBlue says:
If you don’t think a, say, seven month old “fetus” is a baby then you are delusional.
February 23, 2010, 2:05 pmRandy says:
Dangermouse: “There was a mistaken understanding that ensoulment occurred at some point in time. Given greater scientific knowledge about conception and gestation, that incorrect view has been disgarded.”
If that’s true, then it’s great that the Church updates it’s views with regards to scientific knowledge. I only wish they would do the same regarding their views on gay people, as the science has moved conclusively to show that one’s sexual orientation is innate and unchanging.
Laura: I agree totally with you, even though I misread your original comment. As I said, I’m not competent to decide when and if there is a magic moment. What I DO know, however, is that if a woman wants an abortion, it should be done as safely as possible, and that if abortion is illegal it is unlikely to stop abortions. It seems to me that abortion is an age old problem and what ever the law or morality is, it never seems to go away. In other words, there are no easy answers to any of these questions, and nothing that will satisfy everyone in all situations.
February 23, 2010, 2:25 pmRandy says:
Gopher: “ight, they seem almost as discombobulated and hypocritical as those that find no qualms in asserting that fully developed 1-celled anaerobic organisms are alive but 1-celled developing embryos are not.”
Well, that’s a red herring! I’ve never heard anyone argue that embryos are not alive. So it would not discombobulate anyone, even the most pro-choice person on the planet.
February 23, 2010, 2:29 pmLaura(southernxyl) says:
Randy, that’s true. But murder has also been around since Cain murdered Abel and we’re not debating whether its persistence and ubiquity means the law needs to allow it.
February 23, 2010, 2:33 pmWilliam Wallace says:
Fail. Epic Fail.
2:2 Thou shalt do no murder, thou shalt not commit adultery, thou shalt not corrupt boys, thou shalt not commit fornication, thou shalt not steal, thou shalt not deal in magic, thou shalt do no sorcery, thou shalt not murder a child by abortion nor kill them when born, thou shalt not covet thy neighbour’s goods, thou shalt not perjure thyself, thou shalt not bear false witness, thou shalt not speak evil, thou shalt not cherish a grudge, thou shalt not be double-minded nor double-tongued;
February 23, 2010, 2:38 pmWilliam Wallace says:
Another epic fail and a bold-faced lie. There is no scientific consensus on this point despite the fact you want to stomp your feet and pretend such.
February 23, 2010, 2:41 pmDavid M. Nieporent says:
Which, presumably, is why you opened this discussion by ranting about “paternalistic and discriminatory” laws, when neither term even makes any sense in this context.
February 23, 2010, 3:10 pmleo marvin says:
Be careful knocking this thread. Straight-up racism guy found something arguably intelligent to say, and DangerMouse was an object of sympathy. There’s some strange juju at work here.
February 23, 2010, 3:33 pmGopher says:
Randy, if you argue that life does not begin at conception you have argued, by definition, that the unborn, at some point (zygote, embryo fetus, etc.) is not alive. I cannot see a logical (logic in the philosophical sense of the word, not the colloquial sense) argument that can stand against this reasoning. Of course, the argument is based on the premise that there are two possible categories for organisms, alive and not alive. If you accept this premise as true, then the conclusion has to be either that the (it) is alive or not alive. If you do not accept this premise as true, then there must be some third category of being, of which I am unaware.
February 23, 2010, 3:48 pmGopher says:
And no matter how any of us come out on the philosophical, moral, scientific analysis – this case just goes to show the danger that internationalizing the legal arena can pose. It allows deeply rooted Constitutional principles, even if they be morally based, to be torn asunder and replaced by the, perhaps, equally morally based judgments of a foreign tribunal. Internationalism is the ultimate offense to federalism, representative democracy, and the private sphere. The existence of this case should be a warning to all who hold their rights under American law as American citizens, as opposed to world citizens, dear.
February 23, 2010, 4:02 pmSarcastro says:
[I hold to my point, leo marvin. The topic of Ireland's Constitution as relating to the European Court of Human Rights has truly fallen by the wayside. But I find the most interesting threads go off the rails.
I'm hoping that the genetic gayness tangent catches on, myself. And then eggandsperm guy can start talking about the evils of gay cloning...]
February 23, 2010, 4:02 pmleo marvin says:
… which would, in turn, raise the specter of what jukeboxgrad keeps warning us about: gay abortions. In Ireland. And we’re back on topic!
February 23, 2010, 4:20 pmDangerMouse says:
I only wish they would do the same regarding their views on gay people, as the science has moved conclusively to show that one’s sexual orientation is innate and unchanging.
Meh. Everyone has original sin, ie a tendency to sin. A genetic disposition towards homosexuality doesn’t provide you a pass on sinful behavior any more than a genetic disposition towards heterosexuality provides an out for adultery. The Church doesn’t condemn people who have any tendency towards sin, whether it be homosexual inclinations or adulterous inclinations, but instead calls for compassion towards those people and a refraining from sin.
February 23, 2010, 4:35 pmSarcastro says:
[The symmetry would be so beautiful!]
February 23, 2010, 4:36 pmAnthony says:
The argument generally has less to do with whether the zygote is alive than whether the zygote is a person (and thus worthy of protection of laws). Plenty of things are alive (and even genetically human) without being particularly worthy of protection.
February 23, 2010, 4:40 pmRandy says:
Wallace: “There is no scientific consensus on this point despite the fact you want to stomp your feet and pretend such.”
Actually there is. The only people who argue otherwise are people who are *not* gay and want to continue discrimination against gays. But obviously, when you say its’ a ‘bald faced lie’ aruguing with you will be rather pointless.
Laura: “But murder has also been around since Cain murdered Abel and we’re not debating whether its persistence and ubiquity means the law needs to allow it.”
True again. But we have been aruguing what exactly constitutes murder every since: Under what conditions is murder okay? In times of war? Self defense? Execution for criminals? Just because murder is outlawed doesn’t mean that this issue is settled any more than abortion is. Even where abortion is restricted, most places allow it if the mother’s health is in danger.
Gopher: ” if you argue that life does not begin at conception you have argued, by definition, that the unborn, at some point (zygote, embryo fetus, etc.) is not alive.”
Not necessarily. Everyone knows that the embryo is alive — there isn’t any question about that. The question is whether it is part of the mother’s body or something wholly separate. Some people argue that as an embryo, it can’t exist outside a mother’s body and so is completely dependent upon the mother’s body for survival, just as her heart, her liver or her leg are. At what point does the fetus become viable outside the mother? I don’t know, but some people argue that that should be the point at which the fetus/baby/whatever should be considered a separate human being.
I think the idea of trying to decide ‘when life begins’ is a red herring in itself. All our cells in our body have divided up from the single cell at the moment of conception. You cannot say when any particular cell ‘began’ life. Life, rather, is something that is continuous from the very first cell eons ago. That’s when life began. All forms of life are merely continuous from that point.
February 23, 2010, 4:51 pmMatej says:
In my comment above, I was referring to the post, not the note, but thanks for the information on the 9th Circuit – I assumed that “en banc” would normally mean all the judges of a court, happy to learn it isn’t necessarily so. I suppose the ECtHR Grand Chamber could then, in some respects at least, be termed “en banc”.
I don’t know if that part was also in response to my earlier comment. If it was, I appreciate that the note includes a discussion of the Irish law, but my point (and these examples do not disprove it) was that it seems to omit the treatment of this issue at the EU level. The Grogan case before the ECJ mentioned above is the most obvious reference point, but the issue is of a more general concern for the EU and was implicated at least indirectly in all the recent EU Treaty revisions, including the unease of the Irish with the Treaty of Lisbon which may have contributed (among other reasons) to its initial rejection at the referendum. Whatever happens concerning abortion in Ireland also has implications for (and is influenced by) the developments at the EU level, not just within the framework of the Council of Europe.
February 23, 2010, 5:48 pmWilliam Wallace says:
Just like you got it wrong on the position of the early Church, you get it wrong here too. You couldn’t fail more if you tried.
February 23, 2010, 5:49 pmRandy says:
William Wallace: “Just like you got it wrong on the position of the early Church, you get it wrong here too. You couldn’t fail more if you tried.”
interesting website. If you actually bothered to read it, you would find that the website claims that only about 8% of gay people think that they are gay by choice. That would leave the remainder, about 92%, for whom even this website thinks is not a choice. Therefore, assuming this website has any validity, I am right much more about this than I am wrong.
I didn’t bother mentioning bisexuals, but of course there are a great many bisexuals in the world. That means that they have an attraction to both sexes, but that doens’t mean that the attraction is equal to each sex. Exodus, the leading “ex-gay” organization that claims to turn gays into straights, claims that only at most a quarter of gays can be trained to stop being gay (meaning they just remain celebate), and that for most gay people, turning into heterosexuals just doesn’t really happen. You aren’t going to claim that they are liars too, are you?
So I’m glad that you admit that the vast majority of gay people are gay not because of a choice, but because it is natural and inherent. For me, I certainly fall into the ‘not choice’ camp. But hey, if you really want to argue that you know me better than myself, knock yourself out.
And regardless, surely you don’t believe that any discrimination should be tolerated against gay people whether it’s a choice for a small minority, or not for the vast majority?
February 23, 2010, 6:18 pmRandy says:
Actually, the more read this Queer by choice website, the more comical it is that Mr. Wallace would actually think this supports his notion that gays are gay by choice.
for instance, ” bear in mind that even some of us who consider ourselves queer by choice do believe in some form of the “gay gene” theory.”
On ex-gay reparative theories, it says that” Choosing to be queer and choosing to be hetero should be considered as two extremely different phenomena.” And they note “the proven statistics on the huge percentage of gay people who drop out of these ministries and very much regret having ever subjected themselves to such homophobic environments.”
Furthermore, you say that the ‘scientific consensus’ is that being gay is choice, and I don’t see that anywhere in the website. Indeed, I see very little science at all. Do you have another website that you can tell me what the ‘scientific consensus’ is?
February 23, 2010, 6:31 pmegd says:
When you state something as a scientific fact (“one’s sexuality is innate and unchanging”), you can’t weasel out of evidence that says exactly the opposite (some people have changed their sexuality) by saying “Well, I’m more right than I am wrong.”
If the sun rises in the west* one morning, it would really f*** with what we know of astronomy, gravity, and a whole host of other physical laws. We can’t just shrug it off and say “well, it was only that one time, all the physics still holds true more often than not.”
*that is, the direction from Hawaii to Japan, to control for changes in Earth’s gravitational field
February 23, 2010, 6:37 pmPubliusFL says:
Take a set of conjoined twins where separation is a medical impossibility. Any attempt to do so would kill both of them. So, each is completely dependent on the other’s body for survival. If you kill them, have you killed one human being, two human beings, or none?
February 23, 2010, 6:38 pmleo marvin says:
That raises lots of interesting questions (one health insurance premium or two? one driver’s license or two? what if one passes and the other fails?), but none I think that you’d want to base public policy on.
February 23, 2010, 7:08 pmWilliam Wallace says:
Interesting, but didn’t you say this:
Main Entry: on·ly
Pronunciation: ˈōn-lē
Function: adjective
a: alone in a class or category : sole
b : having no brother or sister
What was that you said again? Didn’t you use the word “Only”?
Really? I said that? Please cite or retract.
You used the word “only”. The entire point of the website was to show that you are dead wrong, just like you were wrong on the early church. I don’t have to show anything beyond the fact that you were wrong. The website accomplished that purpose.
Now, would you care to explain why you turn practically every thread into a discussion on homosexuality? Isn’t this about abortion? I noticed that you failed to acknowledge your misrepresentation of the position of the Early Church. I understand that you are probably embarrassed by your mistake, but that isn’t an excuse.
February 23, 2010, 7:10 pmRandy says:
egd: “f the sun rises in the west* one morning, it would really f*** with what we know of astronomy, gravity, and a whole host of other physical laws. We can’t just shrug it off and say “well, it was only that one time, all the physics still holds true more often than not.”
There is only one sun. There are millions of gay people. There are also millions of bisexual people. There are dozens of studies that show that sexually is innate and doesn’t change. There are no credible studies that show otherwise. Attraction isn’t chosen for gays any more than it is for straights. Bisexuals may, however, lean towards one attraction at some point in their lives and then lean another at another point. The subject of bisexuality has been little studied, and it might very well be that some bisexuals ‘choose’ one leaning at one point in their life. I don’t know, but neither do you. (There is some evidence that lesbians are a bit different, but that is even less researched).
Wallace was trying to say that homosexuality is a choice. It might be for some people, but there is no scientific evidence that it is, and it’s certainly not true for the vast majority of gay people. You don’t ‘choose’ who you are attracted to sexually. If you need further proof, please check out your genitals. See if you can choose to get aroused over just anyone. I’m sure you can’t, because you can only get aroused by looking at people whom you find attractive. If you get aroused only by seeing people of the opposite sex, you are heterosexual. If you get aroused only by seeing people who are of the same sex, you are homosexual. If both sexes can get you aroused, then you are bisexual. But if you are heterosexual, you will not get aroused no matter how many hot guys we trot before you. And vice versa. The most attractive woman I’ve ever seen was Princess Diana, and nope, nothing happened down there.
So I’m afraid you are stuck with the fact that gays are gay because they are gay and leave it at that. Regardless, it really doesn’t matter, does it? Because neither your argument nor mine justifies any discrimination against gays.
February 23, 2010, 7:17 pmRandy says:
Wallace: “I noticed that you failed to acknowledge your misrepresentation of the position of the Early Church. I understand that you are probably embarrassed by your mistake, but that isn’t an excuse.”
You are right — it isn’t an excuse. Therefore, I refer you to the source that I got the information from, which is here.
You will find that not only does it quote the quote you listed, but many others, showing that the church’s stance on abortion has been nuanced and changing over 2000 years. Please read the entire history, and if you are not embarrassed by your one sided approach, we will expect a point by point refutation of why the history is wrong.
February 23, 2010, 7:45 pmLaura(southernxyl) says:
Well, I’m not convinced that the history of the church has that much relevance here, particularly for those of us who are not RC and don’t derive our views from being told what to think.
February 23, 2010, 7:59 pmLaura(southernxyl) says:
…Not to say that being RC is equivalent to letting someone else tell you what to think.
February 23, 2010, 7:59 pmRandy says:
Laura: “I’m not convinced that the history of the church has that much relevance here.”
I’m not either. But I didn’t raise the church history to prove any particular line of thought. Rather, I was just trying to show by just one example that this issue has consumed men (and really only men, as only men have weighed in on the subject for most of the time), for thousands of years, opinions have shifted on some particular aspects that bear on it (such as when does the soul enter the fetus determining when abortion will be allowed), and that people of good faith can come to different conclusions of when and if abortions are allowable in some fashion. More importantly, the issue shows no signs of abating.
However, some people get very defensive when even this is pointed out.
Each person can answer the question according to their own belief and conscious, and I don’t think even that is controversial. What IS controversial is when one person says that their beliefs must restrict another person’s beliefs and actions, which is what this all comes down to.
February 23, 2010, 8:40 pmLaura(southernxyl) says:
Randy, we don’t have consensus even among the commenters here, that a baby shouldn’t be killed even after it’s born if the mother thinks that’s appropriate. People always rationalize and justify doing what they want to do. If we’re going to have laws at all, we’ll have person X telling person Y what to do or not do – otherwise there’d be no reason to have the law.
February 23, 2010, 8:44 pmCraig R. Harmon says:
I’m sorry if this has been asked and answered already but suppose that the EU Council requires Ireland to comply, Ireland determines that compliance would require a constitutional amendment and the amendment fails? I mean, they can’t command the people of Ireland to vote to go along with an amendment. I suppose that would mean that the EU Council would simply kick Ireland out of the EU. Is it the opinion of those here that the known threat of being bounced out of Ireland would outweigh the people’s preference for strict restrictions upon abortions? That is, would a sufficient number of Irish voters be likely to vote to amend the Constitution to rescind a section that they otherwise favor? Would removal from the EU be such a terrible thing? The Irish were clearly opposed to the proposed EU Constitution in that they voted against it. What would be the likely negative fall out from Irish removal from the EU?
If these questions have been answered above, I apologize.
February 23, 2010, 10:11 pmWilliam Wallace says:
So there is your problem, you were relying on an unreliable source for information. The source makes a number of errors, the most obvious of which is equating the Catholic Church as encompassing all of Christianity. This is obviously not the case.
I don’t have the time to dissect your source for you point by point, but I’ll point out another glaring inaccuracy for you.
The source seems to imply that Thomas Aquinas permitted abortions. He did not. While Aquinas did hold a theory of delayed animation he also held that no direct abortion was morally sound. In fact, he believed that all abortions were a grave sin and against nature. Aquinas, “Commentary on Sentences,: Book. 4, dist. 1, art. 3.
Moreover, Aquinas didn’t place ensoulment at quickening but rather at 40 days.
While it is true that Medieval animation allowed increasing penalties as the unborn child aged, it was still considered a grave immorality for ANY abortion at ANY time.
February 23, 2010, 10:30 pmWilliam Wallace says:
If you want an authoritative source on the Catholic view of abortion, you might want to try here.
February 23, 2010, 10:31 pmRandy says:
Wallace: “I don’t have the time to dissect your source for you point by point, but I’ll point out another glaring inaccuracy for you.”
Thanks. And since you insisted that I answer your questions, and I did, perhaps you could do the same for me? Or is there a reason you have ignored them all?
February 23, 2010, 11:52 pmWilliam Wallace says:
I didn’t and the questions are not your questions. You merely cut and paste inaccurate information from a site which is made up of essays constructed by a group that consists of “one Atheist, Agnostic, Christian, Wiccan and Zen Buddhist.” That’s hardly an authoritative source on what any Christian denomination believes.
The second link I provided debunks the trash that the site was spewing.
February 24, 2010, 6:57 amjukeboxgrad says:
leo:
In fairness to PC, I need to point out (as I did here and elsewhere) that I got the idea from him.
February 24, 2010, 1:43 pmRandy says:
Wallace: I asked you two questions. First, for a website that would actually describe the scientific consensus on whether sexual orientation is changeable or innate. You have provided nothing scientific, but merely one website that is based on nothing more than anecdotal evidence at best. Even looking at it charitably, the website acknowledges that for the vast majority of gays, it isn’t a choice, and attempts at so-called reparative therapy are useless at best, and often harmful. So — do you have any *scientific evidence* at all that being gay isn’t a choice?
The second question was “surely you don’t believe that any discrimination should be tolerated against gay people whether it’s a choice for a small minority, or not for the vast majority?” Because if it isn’t a choice, then discrimination can’t be justified. And if it is a choice, there is still no justification for discriminition, just as religion is a choice and no basis for justification in the US.
I completely understand your urge to dodge these questions. Which is fine, but then please don’t expect any else to answer your questions in the future.
February 24, 2010, 1:52 pmWilliam Wallace says:
I answered this from the beginning. There is NO scientific consensus as of right now. You are just merely shifting the goalposts. You said that the ONLY people who argue against such consensus are not homosexuals themselves. I pointed out that you were lying. That’s the only use that the website served. Nothing more.
You assume too much. Yes, “discrimination” FOR ANY REASON should be tolerated as part of a free society. If an atheist wants to refuse service to a Christian or a Muslim or a Jew or a Buddist or a Hindu, then so be it. The reverse is also true.
Moreover, equating a sexual behavior choose with religion is foolish. Certain conduct strikes at the very being of society. The State has the power to use the sword to prohibit and discourage such conduct.
February 24, 2010, 5:41 pmRandy says:
Thanks Wallace! You have failed to provide ANY scientific evidence which establishes that sexuality is a choice. Therefore, my statement that the scientific consensus is that it’s not a choice remains unchallenged.
You proved my point, which I will slightly amend. All people who are not gay and think that being gay is a choice do so to justify discrimination against gays. Homosexuality strikes at the very being a society? Please — this is the 21st century. Happily, trolls such as yourself are disappearing fast.
But I do thank you for confirming exactly what I suspected.
February 25, 2010, 1:30 amDoc Merlin says:
Yes, only the mother or a doctor she specifies is legally allowed to kill a fetus, and only while it is still at-least partially inside her. When it leaves her body (for any reason) if it is killed, it is illegal.
March 19, 2010, 6:14 am