Abortion: A Syllabus

A low-key reading group on a controversial topic.


This past year, my wife Amanda Schwoerke and I co-taught a reading group on "Abortion: Law, Policy, Ethics." We taught the course primarily to learn the subject ourselves. Abortion may be central to Supreme Court politics, but it's outside our academic specialties, and usually too sensitive a topic for the faculty lounge. So, except with family or close friends, we hadn't had many serious conversations about the ethics of abortion since college.

Law schools generally cover abortion in one of two ways. First, everyone has a few awkward and uncomfortable days on the topic in an introductory Con Law class, where the only people willing to talk about it are those who already have strong views. Neither of us were inclined to discuss the issue much in our own 1L class (where we happened to sit next to each other, something I remind my students whenever they fill out the seating charts). Second, there may be upper-level classes on Reproductive Rights, which often tend—at least from the syllabi we reviewed—to focus on policy and implementation rather than first principles.

This is a problem. Abortion poses important and difficult ethical questions, which lawyers (and others!) should be ready to think through seriously. And with the Court's membership changing, it's not enough to just assume the existing doctrinal framework. So we decided to put together our own course—and, below, to share our syllabus and some advice.

The class was intended as a lesson in "how the other half thinks." We have our own views, of course; but we wanted the students to wrestle with each other's views. So we taught the course pass/fail, so there wouldn't be any incentive to agree with us.

To keep the temperature low, class was mostly held in our living room, with coffee and dessert. We tried to balance the readings between pro-choice and pro-life perspectives. The students were roughly even (say, 60-40 pro-choice), helped by informal recruitment efforts on their part. This helped avoid some of the dogpiling one might see in an 80-20 or 90-10 class.

As to how well we did, we'll have to wait for the student evaluations! Two quick reactions:

  • At the end of the class, a substantial number of students, though not all, found "the personhood question" inescapable. There's an affectation in modern abortion discourse that we can somehow transcend the hard ethical questions by focusing on policy questions instead. This turned out not to be true, at least for a large group of our students.
  • Covering the constitutional law of abortion is very difficult. As you can see on the syllabus, there's not enough space to cover everything relevant. Whatever one thinks of Griswold or Roe or Casey on their own terms, there are also deep questions to be asked about Fourteenth Amendment fundamental-rights jurisprudence—about the Slaughterhouse Cases, privileges and immunities, incorporation of the bill of rights, etc. It's hard for any subject-specific seminar to address all of these at once.

In any case, here's the syllabus (also available as a pdf). Comments and questions welcome!

Abortion: Law, Policy, Ethics

The law of abortion is in flux. With new appointments to the Court and new legislative initiatives in the states, there is a greater likelihood of significant shifts in constitutional doctrine than at any point in the last few decades. As a result, it has become particularly important for future lawyers to have an opportunity to study the issue in detail and to decide what they think.

This one-credit, ungraded year-long readings course is intended to give students the chance to discuss, in a relaxed academic setting, the difficult and important questions of ethics, policy, and law raised by the issue of abortion. The course meets on eight Wednesday evenings, roughly once a month, from 7:30 to 9:15 p.m. Sessions are held at the instructors' home—depending on enrollment, either at our dinner table or in our living room. (You should have your dinner beforehand; we provide the coffee and dessert.)

The questions raised by abortion are both highly abstract and deeply personal. While they are the subject of intense and heartfelt commitment on both sides, this course is offered in the belief that they are also a proper subject for intellectual inquiry. We will insist that discussions be conducted in a civil and respectful manner, and that you address and listen to your fellow students, whatever their views, with an open mind. Within each unit, the assigned readings are roughly balanced as to viewpoint; they take deeply conflicting positions, and you will certainly disagree with some of them. The course is offered on a credit/no-credit basis partly to ensure that you are neither penalized nor rewarded for sharing the views of either of the instructors.

Two-page response papers are due 24 hours before each meeting. They may be uploaded to the 'Forum' section of the course website, so that you can read your classmates' papers in advance. Response papers should address some issue raised in your mind by that session's readings; they needn't discuss every reading, and they should respond to the readings rather than summarize them. Each student is expected to participate fully in the discussions.

There is one required text, What Roe v. Wade Should Have Said (Jack M. Balkin ed., 2005). Other required readings are available online or in the coursepack. (Because the course focuses on basic principles rather than the details of current doctrine, it leaves out such decisions as Gonzales v. Carhart, Whole Woman's Health v. Hellerstedt, or Azar v. Garza, as well as a number of important cases in state or circuit courts.)

  1. Persons
    1. Guttmacher Institute, Fact Sheet: Induced Abortion in the United States (Jan. 2018)
    2. John T. Noonan, Jr., An Almost An Almost Absolute Value in History, in The Morality of Abortion: Legal and Historical Perspectives 51, 51–59 (John T. Noonan ed. 1970)
    3. Mary Anne Warren, On the Moral and Legal Status of Abortion, 57 Monist 43 (1973)
    4. Peter Singer, Germ of a New Debate on the Ethics of Life, The Australian (Canberra), Dec. 23, 2005, at 10
    5. Patrick Lee & Robert P. George, Human-Embryo Liberation, Nat'l Rev. (Jan. 25, 2006 1:29 p.m.)
    6. Sherry F. Colb & Michael C. Dorf, Beating Hearts: Abortion and Animal Rights 13–44 (2016)
  2. Futures
    1. Don Marquis, Why Abortion Is Immoral, 86 J. Phil. 183 (1989)
    2. Colb & Dorf, Beating Hearts 96–115
    3. J Savulescu, Abortion, Embryo Destruction and the Future of Value Argument, 28 J. Med. Ethics 133 (2002)
    4. D Marquis, Savulescu's Objections to the Future of Value Argument, 31 J. Med. Ethics 119 (2005)
  3. Autonomy
    1. Judith Jarvis Thomson, A Defense of Abortion, 1 Phil. & Pub. Aff. 47 (1971)
    2. John Finnis, The Rights and Wrongs of Abortion: A Reply to Judith Thomson, 2 Phil. & Pub. Aff. 117 (1973)
    3. Don Marquis, Manninen's Defense of Abortion Rights Is Unsuccessful, 10 Am. J. Bioethics 56 (2010)
    4. Judith Jarvis Thomson, Rights and Deaths, 2 Phil. & Pub. Aff. 146 (1973)
    5. I. Glenn Cohen, Artificial Wombs and Abortion Rights, Hastings Ctr. Rep., July 1, 2017
  4. Equality
    1. Lawrence B. Finer et al., Reasons U.S. Women Have Abortions, 37 Persp. on Sexual & Reprod. Health 110 (2005)
    2. Rachel K. Jones & Jenna Jerman, Population Group Abortion Rates and Lifetime Incidence of Abortion: United States, 2008–2014, 107 Am. J. Pub. Health 1904 (2017)
    3. Sally Markowitz, Abortion and Feminism, in The Problem of Abortion 194 (Susan Dwyer & Joel Feinberg eds., 3d ed. 1997)
    4. Reva B. Siegel, Abortion as a Sex Equality Right, in Mothers in Law (Martha Albertson Fineman & Isabel Karpin eds., 1995)
    5. Robin West, Liberalism and Abortion, 87 Geo. L.J. 2117 (1999)
    6. George A. Akerlof, Janet L. Yellen & Michael L. Katz, An Analysis of Out-of-Wedlock Childbearing in the United States, 109 Q.J. Econ. 277 (1996)
  5. Society
    1. Gallup, Abortion: Gallup Historical Trends (viewed July 25, 2019) (skim)
    2. Judith Jarvis Thomson & Peter de Marneffe, Abortion: Whose Right?, Boston Review, Summer–Fall 1995 (1, 2)
    3. The Pollitt-Douthat Debate (1, 2, 3, 4, 5)
    4. Michelle Alexander, My Rapist Apologized, N.Y. Times, May 26, 2019, at SR1
    5. Ariana Eunjung Cha, Babies with Down Syndrome Are Put on Center Stage in the U.S. Abortion Fight, Wash. Post, March 4, 2018
  6. Roe
    1. Pierce v. Society of Sisters, 268 U.S. 510 (1925)
    2. Buck v. Bell, 274 U.S. 200 (1927)
    3. Griswold v. Connecticut, 381 U.S. 479 (1965)
    4. Eisenstadt v. Baird, 405 U.S. 438 (1972)
    5. Roe v. Wade, 410 U.S. 113 (1973)
  7. Responses
    1. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973)
    2. What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision (Jack M. Balkin ed., 2005) (read as much as seems relevant)
  8. Casey
    1. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
    2. Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995 (2003)
    3. Neal Devins, How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars, 118 Yale L.J. 1318 (2009)

NEXT: Woman Banned from "Making Any ... Public Allegations Against" Ex, a Police Sergeant, "on Social Media"

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  1. There's an affectation in modern abortion discourse that we can somehow transcend the hard ethical questions by focusing on policy questions instead.

    QFT. Both sides do this. It's reasoning by slogan.

    The reason the abortion issue vexes basically every government and so many moral philosophers is because of two main things:

    1. There are obviously competing interests that are considered compelling in other contexts (we certainly consider a fetus to have a right to life in other contexts, such as a criminal who stabs a pregnant woman; we also certainly consider values such as control over one's own body, medical and sexual privacy, and gender equality to have enormous value in other contexts).

    2. There's a continuum on which you have to balance those interests (at the end of pregnancy, there is very little demand for abortion but the fetus is indistinguishable from a born baby; at the beginning of the pregnancy, there is a significant demand for abortion and the embryo is basically a collection of cells, and in between, there is moderate demand for abortion and the fetus has developed some human features).

    And then add to this one piece of potential bad faith- a lot of advocates of restrictions on abortion have beliefs about female sexuality, or sexual morality in general, that just happen to align perfectly with their views on the abortion issue.

    And then, on top of that, the legal problem- what does the Constitution protect, should regulation be at the state or the federal level, what to do about underage girls, etc.

    We are so used to using political slogans as a substitute for reasoning. But it just doesn't work on a ridiculously complex issue. The only way you ever come up with an ethical framework that works on this issue is to really get down into the weeds and balance all the competing considerations.

    1. "And then add to this one piece of potential bad faith- a lot of advocates of restrictions on abortion have beliefs about female sexuality, or sexual morality in general, that just happen to align perfectly with their views on the abortion issue."

      Isn't there a certain amount of this on the other side, too? I mean, legality of abortion is certainly very convenient if you have a permissive view of sex, in terms of wiping away the natural consequences. Just as a right of minors to obtain abortions without parental notification is a real life saver if you're a statutory rapist.

      " The only way you ever come up with an ethical framework that works on this issue is to really get down into the weeds and balance all the competing considerations."

      This is, I think, the exact problem with the Court "constitutionalizing" the issue; It cut that whole process of balancing competing considerations in the political arena off at the knees, and imposed the justices idea of what would be a good framework.

      1. Right, but the left doesn't try and hide the alignment like the right does.
        Allowing family planning and sex ed and letting women be the ones to make these serious philosophical decisions allows sex to be fun and safe, and that's cool.

        You don't see many on the right saying 'yeah, sex should be serious and kinda portentous, and banning abortion is a great way to make that happen.'

        1. Nonsense. There are plenty on the right saying that sex should be serious, and that banning abortion would be a great way to make that happen by preventing the ability to erase consequences of behavior.

          In fact, segments of the right have been saying that for decades.

          But of course, you were referring to your own caricature of the right, not the right as it actually has existed and does now exist with respect to abortion.

          1. There are plenty on the right saying that sex should be serious, and that banning abortion would be a great way to make that happen by preventing the ability to erase consequences of behavior.

            That's exactly the problem. You see, "prohibit abortion and make women's lives miserable because the fetus has a separate interest in its life" is an argument that falls on the spectrum I set out. I may disagree with it, or say, as Roe and Casey did, that it is stronger later in the pregnancy and weaker earlier on, I can do a lot of things with that argument.

            But "prohibit abortion and make women's lives miserable because people have the wrong type of sex and we can force them to stop by making them have babies they don't want" is an argument that literally, only a profoundly evil person would accept.

            Not because sex isn't important, but because what YOU think their sex lives should be is not important. Or at least not important enough that we should turn their bodies and their lives over to you and others who agree with you.

            If you don't win the life versus the interests of the women argument, you lose the argument. And if you win it, it has to be won on its merits. Not in order to try and promote what you view as the "correct" type of sex.

            1. They don't say "make women's live miserable", they say "make sinners' lives miserable", which is generally recognized as one way of changing the incentives to discourage unwanted babies. Whether it works or not is besides the point. You do no favors by misrepresenting your opponents.

              1. Let he who has not sinned cast the first stone.

                Even Jesus thought humans who wanted to zealously punish sexual sinners are sociopathic asswipes.

            2. "people have the wrong type of sex and we can force them to stop"

              So the people who think this way would then be OK with abortion inside of marriage?

              "If you don’t win the life versus the interests of the women argument, you lose the argument."

              Within our historically brief and rapidly shrinking cultural milieu of individual liberty -- Sure.

              Outside of that, a government could outlaw abortion, for instance, if it concludes that more babies are needed.

        2. You don't see a lot of people on the left saying, "I like casual sex, and women are less likely to put out if they have to worry about becoming a mother." either. And, yeah, actually they are trying to hide the extent that abortions for minors without parental notification is about protecting statutory rapists.

          Maybe both sides are mostly being honest about their motives, even if it's not shocking that things tend to align neatly on both sides?

          1. Brett, feminists literally make that exact argument all the time.

            1. Yeah, but most of the people supporting abortion out of it are guys, and THEY aren't.

              1. Really? Literally the strongest supporters of abortion rights I know are sexually promiscuous heterosexual women. Obviously a lot of other people support abortion too, as support for Roe is a majority position in the United States. But the absolute strongest, "I'm not sorry", "my body my choice" abortion rights supporters absolutely make and believe the argument that abortion rights are a necessary element of the sexual revolution.

                1. Isn't this a policy argument such as the professors hoped to avoid?

    2. Everyone is just a collection of cells.

      1. That's right. But that's exactly why "life begins at conception" is such an empty slogan. It isn't the property of being a collection of cells that gives us protectable rights.

        1. Human life does *start* at conception, out of pure logic this is true. Because that moment is when a the zygotes merge (and nothing else replicates that process) which starts the process of the cells later becoming a fully formed human.

          Just because we can't agree on when exactly the moment that the fetus becomes "human" doesn't mean that life does *start* at conception. Of course it does.

          1. When does an identical twin's life start?

            Before the split, was it one person or two?

            1. That is a good question that I don't have an answer too, but it doesn't negate that a human life (or maybe more) starts at conception, because we don't have cloning vats like Star Wars.

              1. It's a good question because it shows that you can't win the abortion argument by definitional slogans.

                Like it or not, what constitutes protectable "human life" is a complex philosophical question.

                1. Meh. It's not quite the problem you think it is. If there are two (potential) humans instead of one, does it still change the question of when the life becomes human? Not really.

                  It also shows that the idea that getting down to first principles, such as when a "human" life begins, is inevitable. As the OP says, the personhood question always comes up.

                2. Like it or not, what constitutes protectable “human life” is a complex philosophical question.

                  That's certainly true, but the identical twins question and the "life begins at conception" question are not particularly difficult questions in themselves.

                  1. "Life begins at conception" means "the life of a new human organism begins at conception" (the same principle applies to all birds, mammals etc)

                  An arm is a clump of living cells, but it isn't an organism. A human is an organism, from its beginning - conception - as a single celled orgamism.

                  2. Identical twins do not defeat the proposition that a human organism begins its life at conception. All we have with identical twins is an organism, which divides into two separate organisms at an early stage. But each of the two organisms that exist after the split can trace its unbroken life back to the time before the split, to conception. But no further back, because neither the sperm nor the egg which contributed to the formation of the zygote were organisms.

                  1. Let's name the twins Lee and Kalak. So when that life was a single fertilized egg, was it one human life or two? Was that human life Lee, Kalek, or someone else who ceased to exist when Lee and Kalek were created?

                    Your slogan doesn't answer that question. Indeed, it doesn't answer lots of questions. Nature flushes a lot of fertilized eggs and blastocysts right out of the vulva. Don't we have a duty to those human lives if we can invent a technology that will save them? And if your answer is "no", doesn't that imply that the rights of the woman outweigh the intterests of those fertilized eggs and blastocysts?

                    1. So when that life was a single fertilized egg, was it one human life or two?

                      One organism.

                      Was that human life Lee, Kalek, or someone else who ceased to exist when Lee and Kalek were created?

                      I expect it didn't have a name. But each of Lee and Kalek, when grown up, could correctly say that "I began when that sperm fertilised that egg. So did that other guy. What you see now - the two of us - started as a single creature, which split into two."

                      The only reason you imagine that you have alighted on a contradiction is that you assume that an organism can't split into two. But it can.

                      Don’t we have a duty to those human lives if we can invent a technology that will save them? And if your answer is “no”, doesn’t that imply that the rights of the woman outweigh the intterests of those fertilized eggs and blastocysts?

                      This is ethics, not biology.

                    2. Suppose you went to bed tonight and woke up in the morning and there were two of you. Each of you is identical to the other physically and mentally. The two bodies were created by each cell in last night's Dilan body dividing in ordinary mitotic fashion. The process by which the cells all migrated in an orderly fashion to create two bodies is at present unknown, but that's what happened. Your memories are intact, as are those of your identical twin beside you. Same memories.

                      Until now. From now on, your lives diverge. Left Dilan breaks his wrist - Right Dilan doesn't. Right Dilan learns fencing, Left Dilan doesn't.

                      Wind the clock forward ten years. Left Dilan and Right Dilan are different guys. They've got different families, different beer guts, and different memories (after this morning; though they may have forgotten different pre split things too.)

                      But when did Left Dilan begin ? To say he only began this morning when the split happened makes no sense at all. He woke up this morning with the body and the memories he went to bed with last night. And likewise for Right Dilan. If Right Dilan's Mom reminded him that he would have got a better grade in college if he hadn't spent so much time partying, he wouldn't reply "But that wasn't me. That was Only Dilan and he's a different guy."

                      Both Left and Right Dilan began when that original Dilan zygote formed. "They" existed as that single organism - quite unaware that they were ever going to turn into two separate organisms - and then each continued on its separate way, as separate organisms, from this morning.

                      All I'm doing is pulling the twinning event forward forty years - it doesn't change the concepts.

                3. What constitutes a protectable human life is a complex philosophical question.

                  What constitutes a human life is a simple scientific question.

          2. And exactly why is it a sin to masturbate and spill your seed, or to use contraceptives? Someone seems to think life begins before conception.

            1. Isn't the point that for every individual human being there is a point in time before which he didn't exist and after which he did?

              1. Not for identical twins. Are they not individual humans?

                1. As explained above, this is mistaken.

            2. That varies by denomination. Most protestants don't consider contraceptives a sin...a process of change that started in the 1920s. However, there is still the problem of separating the reproductive act from it's natural consequence, which is why other denominations are not on board with that. It creates an incentive problem.

              As for your bit about spilling your seed, that is related to the Old Testament order to be fruitful and multiply, and in the modern era how porn is a vice that duhumanizes the participant and recipient.

              That's a 30,000 foot view of Christian views on the subject. I can't speak for other religions.

            3. And exactly why is it a sin to masturbate and spill your seed, or to use contraceptives? Someone seems to think life begins before conception.

              No. There are a number of theological doctrines that have to do with this area - held by different stripes of believer - but precisely none of them have anything to do with the notion that life begins before conception. These include the notion that the sexual act should be used not for private amusement but to reproduce - sexual acts that do not attempt reproduction are therefore sinful (there are variants on this theme.)

              Onan was guilty of a very specific version of this sin. He was in breach of his duty to provide (or at least to try to provide) a child for his brother's widow. Sex is not for your private amusement, Onan, it's to fulfil your duty to your brother's widow.

    3. "at the beginning of the pregnancy, there is a significant demand for abortion and the embryo is basically a collection of cells, and in between, there is moderate demand for abortion and the fetus has developed some human features"

      Appreciate your comment but to be clear, all humans are collections of cells, and the embryo is undeniably "human" unless you will propose that it is some other species.

      Understandably, we feel more visceral empathy when the human looks more like us. The fetus with eyes, ears, nose, beating heart is more sympathetic. Historically, a born person who is deformed, or has their face melted off in a fire may be considered less than human and receive little empathy or consideration. Not to mention all of the other classifications and ways in which humans have been disposed to categorize the "other" as not qualifying as human or a person.

      Of course, human features like eyes, ears, nose, fingers, and beating heart develop before most abortions.

      A most pertinent fact to the constitutional issue is that our advances in science over the last 50 years have drastically changed our understanding of human life in the womb.

      1. Appreciate your comment but to be clear, all humans are collections of cells, and the embryo is undeniably “human”

        No it isn't. There are different defintions of "human". A sperm is a human gamete. Is it "human"? Depends on the definition.

        The scientific issue of whether something exists on the development continuum of human life does not answer the question of how one defines "human". The development of features is extremely relevant.

        Indeed, pro-lifers know this. Why do they argue so much about fetal pain? If you were strictly going off "life begins at conception", fetal pain wouldn't matter. And yet they say it does.

        Why? Because, obviously, the ability to feel pain is one of the aspects of a being that might be rights-creating. And once you are at this point you are debating the deep philosophical issues and not the stupid, brainless, misogynistic slogan "life begins at conception".

        1. Perhaps we should stop using the phrases "human life" or "life," or "human" and instead use "person" when discussing abortion. Most of the time the former three terms are used to connote the latter term.

          1. Josh - No, they are different things.

            A "person" by definition in this discussion is an entity that has legal rights.

            The pro-choice position is that the unborn human should not be considered a person, while the pro-life position is that the unborn human should be considered a person.

            1. For the purposes of rational conversation we need to use the same term for the same concept.

              So "human life", "life", "human" and "person" do not all map to the same concept in everyone's usage. And yet everyone understands that there are different concepts involved. So we may as well all use the same word for the same concept. And a different word for a different concept.

              There is of course a style of argumentation that likes to sweep multiple concepts into the same word - even if there are already separate words for the each concept - so as to better conceal flaws in the argument and to facilitate concept hopping.

              And there are folk who like to purloin words which neatly capture a concept, and start using it to refer to something else, so that it becomes a little more difficult for their opponents to refer to the concept.

            2. Even though you intend them as different things, when people hear "human," they think "person." I also agree with Lee that some people purposely use "human" knowing that people think "person."

              1. It doesn't matter what "people hear" so much as it matters that we define our terms.

                Some people use "person" knowing that people think "human."

                For example, they'll say: "It's not a person." Yes, that's true -- SCOTUS literally made that so, expressly, in Roe v Wade. If it was a person, it would have legal rights.

                But some will hear this and think "Oh, it's not a person so like it's not alive or its not human." Wrong. It is a human life, scientifically speaking.

                You say "when people hear human, they think person." And why is that? At bottom, it's simply because the proposition is morally compelling that all humans, regardless of size or shape, should be considered persons, generally possessing at least some level of rights. This proposition is very morally compelling, even if seemingly inconvenient or just totally impractical as some would argue.

                1. At bottom, it’s simply because the proposition is morally compelling that all humans, regardless of size or shape, should be considered persons

                  That statement begs the question and thus saying "human" knowing people hear "person" improperly begs the question.

                  1. No, even once terms are defined and agreed upon (person=entity with legal rights, human life=living homo sapiens) the proposition remains morally compelling (to many/some, not all) that all humans should be persons.

                    If you disagree with the definitions and want to propose something else or introduce other terms, I'm all ears.

                    1. There are no accepted definitions. I would like to see some word other than "human" used that does not connote person. Perhaps we have to invent such a word.

                    2. There are no accepted definitions.

                      And even if there were, there would be a struggle to change them. Preparing the linguistic battlefield is an important step towards winning the rhetorical war. Moreover words do not stick to their original meanings even when antagonists aren’t deliberately trying to change them. Usage attaches values – see more below.

                      I would like to see some word other than “human” used that does not connote person. Perhaps we have to invent such a word.

                      To engage in the discussion on strictly neutral terms you need a word that “does not connote a person” but which does not also connote “not a person.” I tend to use “creature” or “crittur” in jocular fashion to connote this sort of Schrodinger human.

                      But connoting is a difficult business. Elsewhere in the thread I gave three examples of nouns that might be elided to arrive at “a human” :

                      A human [being]
                      A human [creature]
                      A human [organism]

                      “Human being” seems at first glance admirably neutral, because if parsed straightforwardly it appears to be merely the conjunction of “human” (adjective, relating to that species) and “being” (noun, something (usually living) that exists)

                      But these days its usage is not neutral, no doubt in part because of the abortion debate. Pro-lifers seem happy to use it, pro-choicers not so much. Hence we can deduce that its ordinary usage has absorbed at least a flavor of “person” – too much to serve as the “Schrodinger’s human” that we are looking for.

                      “Human organism” flops the other way. Although it is entirely accurate, it is accurate with a strong antiseptic flavor. It connotes “not a person” quite strongly, as no one but Sheldon Cooper would ever refer to a walking, talking human in that way. Nor would anyone outside a biology lecture refer to any other kind of animal in that way. We do not hear much of dog organisms, horse organisms or fish organisms at a typical cocktail party. At least not where I live.

                      “Human creature” does, I think, the best job at present, since “creature” connotes the biological mechanism, but it is also used in ordinary speech to refer to animals of all kinds when they are long past any larval stage, and it is also used of walking talking humans in many senses – “she’s a peculiar creature”, “he’s a miserable creature”, “you gorgeous creature.” So for me it works as Schrodinger’s human at present.

                      But even if it does so work now, its neutrality is unstable. Pro-lifers would rhetorically prefer a term that does connote “person. Pro-choicers, a term that connotes the opposite. If the term is used widely, one side or the other will perceive that its connotations are unsatisfactory. If, for example, pro-choicers perceive that it is too widely understood as connoting “person”, it would become like “human being.” And so, mutatis mutandis, for pro-lifers.

                      Words don’t hang always around in one meaning forever, particularly if they have some important element of “value” associated with them. There’s a long history of words being used to describe an unfavored subject. The word acquires a derogatory flavor, simply by its usage to describe an unfavored subject; a new word is deployed to allow reference to that subject without the derogatory flavor, and the old word becomes taboo. In time the new word acquires the old flavor and has to be discarded in favor of a new one. The game can only stop when the linguistic community no longer associates anything unfavored with the subject in question.

                      So if you do manage to land on an excellent word for a Schrodinger’s human, for the purposes of intelligent discussion,
                      it'll last about twenty minutes.

        2. There are different defintions of “human”. A sperm is a human gamete. Is it “human”? Depends on the definition. The scientific issue of whether something exists on the development continuum of human life does not answer the question of how one defines “human”.

          This is hopelessly confused. And it starts with grammar. "Human" is both a noun and an adjective.

          In the phrases "human rights" , "human sperm" and "human being" it's an adjective. In the phrase "a human" it's a noun. The noun derives by ellipsis from the adjective.

          A human [being]
          A human [creature]
          A human [organism]

          The ellipsis of the noun turns the original "human" from adjective to noun.

          So, you ask "A sperm is a human gamete. Is it “human”? "

          Whether it is "human" or not depends on whether it pertains to members of the species to which we all belong. If it pertains to kangaroos, no, it is not "human." We determine whether it is "human" or "kangaroo" by inspection of the genome.

          But if we find that a sperm is "a human [adjective] gamete", that does not mean that it is "a human" [noun.]

          The scientific question of whether something exists on the development continuum of human life is not the question we were discussing, since "the development continuum of human life" could refer to the development of human life by evolution, which would bring in a lot about fishes and monkeys.

          What is under discussion here is "the development continuum of a a human organism"

          And as a matter of science that's not a hard one. Is it human - ie of the human species, and is it an organism ?

          Your discussion of fetal pain etc does not relate to the question of "whethersomething exists on the development continuum of (a) human life" but where it exists on that continuum.

          Whether a human life exists is not a complicated biological question. Whether a human life has any value is an ethical question, which may be usefully informed by the biology, but cannot be decided by it.

        3. Dilan,

          Your comment is incredibly ignorant. There's simply no question that life begins at conception. The science is, as they say, settled.

          This does not decide the question of what rights of that life may be recognized or respected. That's why, yes, fetal pain is incredibly significant. The development of features is extremely relevant. I agree.

          But you're not going to be able to deny the basic scientific fact of human life with some babble about "clump of cells."

  2. Its not that complex I'll give a primer right here.

    Abortion Constitutional Law in a Nutshell: There is a 0th Amendment on the Bill of Rights written on the back in invisible ink that guarantees the right to abortion and the right to privacy that exists only and exclusively for this right to abortion. Amendment 0 transcends all the other visible Amendments and the rest of the Constitution. It is so important it takes precedence even over a global plague that because it supposedly could wipe out the earth easily causes the informal suspension of all other rights.

    In the end all the back and forth is just mumbo jumbo. It doesn't really matter what anything including the constitution says ormeans. What matters is one side wants abortion and to extend it and the accompanying ideology as far as possible and the other doesn't and will twist and contort in whatever way to achieve their respective goals.

    There I saved y'all shelling out a few bucks and couple weeks for this fancy pants course.

    1. AA's blather is one of the big reasons why having normal conversations about abortion end up being fruitless to large groups. The anti-choice side has a significant number who helpfully chime in (with fingers plugging their ears). "la la La La LALALALALA My side is right. It's obviously right. And so there is zero point in listening carefully and soberly to the other side. LALALALALALALA."

      I'll be interested in hearing your (the teacher/s) perspective on how the class went. Hopefully, with a small enough group, students would have self-selected out, so the "LALALALALA" group was not represented, which would have meant that actual substantive discussions could go on. (Or, that idiots like Amos--stripped of the internet's anonymity, were too embarrassed to show up at your house and act like a moron. Same result...thoughtful discussion.)

      But, professor, I am surprised that you did not offer your own perspective of how the class went. Were the monthly short papers interesting to you? Interesting to the other students? What surprised you about the class? In what ways were your expectations met? What would you do differently next time? What would you definitely do again? Those are the questions I'd love to have answered. And the type of feedback you end up getting from your students seem irrelevant to most of these.

      (That feedback might inform what you'd do again or change in the future, of course.--but I'd be interested in your own thoughts about those now . . . and then see if those two answers changed after you got your students' feedback.)

  3. Abortion is a difficult topic to discuss because the "choice" side never wants to concede the fact that the act of abortion artificially brings to an end a life. Society tends to call this "murder" or "manslaughter" when it involves a walking, talking human. But for some reason because a baby in the womb does not have these physical capabilities we don't carry on through that same logic. Instead destroying a baby in the womb is a sterile verb such as "termination".

    The core question with abortion is does the government permit murder as a matter of law. That is a rough one. Regardless if the law permits it, abortion is probably going to happen. But, the moral/ethical question is still there - can the government condone it or provide for legal pathways for it to happen.

    I've only ran into one person who would concede that yes abortion is a form of murder, but it is justifiable homicide. Every other "choice" advocate wants to dance around the issue. Which is impossible to do if you want to talk candidly about the subject.

    1. I think labeling it as murder is accurate in the same way that forcing a woman to carry to term is 'slavery.' Is a government permitted to force a rape victim to become a slave for 8+ months? Or is she allowed to murder the fetus?

      I suspect you'd get equally firm opposition from both sides on the use of those terms, and compelling arguments on why abortion does not equal murder, and on why forcing a woman to carry to term is not equal to slavery.

      But sure; if you're in a group that sees abortion = murder, then the issue should be pretty straightforward and simple.

      1. Pro life folks talk to outside this forum tend to agree that abortion isn't murder because they don't want to jail women who try and procure one.

        But the folks on this forum just push through, and say 'yeah, jail the woman.' Which may show you the...rarefied flavor of conservatives we get around here.

        1. I don't think calling forcing a woman to carry a baby to full term "slavery" is completely off-base. It is inaccurate as they still retain personhood, certain rights, and are not the property of someone. It does restrict their liberty and freedom to some extent though. I would call it more akin to indentured servitude with the term being how many months necessary to carry the baby fully. In a form, it is a "taking" and if society requires such I think it is fair to compensate the woman for the time.

          I don't think there is a serious argument that abortion is not a form of murder. It may be a justified homicide, but it is still homicide.

          1. Not all homicide is murder. Justifiable homicide is not murder. Negligent homicide is not murder.

        2. "Which may show you the…rarefied flavor of conservatives we get around here."

          There he goes again.

          1. To a liberal any conservative is "extreme" so much so that you only know you are doing the right thing if you are accused of being "outside the mainstream" by said liberal.

            1. Jailing women for abortion? I'm quite comfortable saying that's extreme.

              1. If you believe that the act is first degree murder, it's hardly extreme. In fact, not punishing both women and doctors for abortion is the absurd idea. After all, abortion is explicitly banned in the Hippocratic Oath as a form of deadly medicine. That's why most doctors these days don't swear the Hippocratic oath.

                If you don't think the fetus is a human and it's not murder, then doing so is absurd.

                I think that you inadvertently hit the nail on the head of why this issue is so contentious.

                1. Except that's not even something people suggest as a policy in pro-Life circles.

                  Remember when Trump kinda mentioned it during the campaign and then had to retract in like a day after everyone thought that was crazy?

                  I agree, if you think it's murder, it's logical. That's why the murder rhetoric is just that. Doesn't mean it's illegitimate to condemn it, to think it's the taking of a human life, etc. etc. But following through with the 'it's murder' bumper sticker puts you well outside of the manstream.

                  2nd century Greek morals are also outside of the current manimstram.

        3. "Pro life folks talk to outside this forum tend to agree that abortion isn’t murder because they don’t want to jail women who try and procure one."

          Pro life folks tend not to talk about abortion being murder because they don't want to give women who've had an abortion another reason to not change their minds. Saving lives going forward being more important than making people who've already killed feel worse about what they've done...

          But, yes, if abortion were outlawed, having one illegally would certainly be murder, (Murder being unlawful killing.) and appropriately prosecuted as such once everybody knew the law had changed.

          Abortion wasn't previously treated as murder on the part of the woman as a kind of automatic insanity defense, it being thought that any woman who'd kill her own baby was obviously mentally incompetent. By today's standards that's a rather patronizing stance to take.

          1. Just t o be clear, your position is that once abortion is outlawed, a woman who has an abortion at any stage of pregnancy should be prosecuted for first-degree murder? I suppose the same holds true for the ownership and staff at an IVF clinic that destroys unused embryos (assuming such destruction is outlawed)?

            1. Only assuming it was outlawed at all stages of pregnancy, an outcome I certainly neither anticipate nor advocate.

              It's my expectation that, if the judiciary stepped back and let abortion laws be dictated by legislatures responding to political pressure, that we would eventually end up with abortion laws similar to what you see in Europe. Which, despite the left's love affair with Europe, are typically rather less tolerant than what the judiciary have imposed here.

              1. Can you give some examples of European laws that you advocate for?

                1. Take a look, for instance, at the abortion laws of France.

                  Abortion on demand for the first 12 weeks, after that only for serious medical cause with extensive safeguards.

                  In essence, European nations tend to have something like the rules Roe purported to authorize, but only purported, because Doe v Bolton, decided shortly thereafter, prohibited genuine enforcement of medical necessity. In Europe, medical necessity after the voluntary period is strictly enforced.

                  1. Thanks. I couldn't tell whether the woman is punished for having an unapproved abortion after 12 weeks, but it seems certain she isn't treated as a murderer.

                    1. It is a little bit unclear. There are indications that the woman can't be implicated, but they come down like a ton of bricks on the abortionist. Prison time and a massive fine. I don't imagine it happens a lot, given that they require multiple people to sign off on any abortions.

                    2. I thought you supported the notion that outlawed abortions should be considered murder, but the French law you endorsed doesn't treat outlawed abortions as murder.

                    3. I do support it being murder for late term abortions of the sort Dr. Gosnell specialized in.

                      I cited European laws for the proposition that our courts imposed a much more 'liberal' regime on abortion than even left-wing Europe arrived at democratically.

            2. Josh R : Just to be clear, your position is that once abortion is outlawed, a woman who has an abortion at any stage of pregnancy should be prosecuted for first-degree murder?

              I think this confuses the moral question with the policy question.

              Suppose I lived in a society where the enslavement of people with dark skin was legal, and that slaveowners could kill their slaves as they pleased, without legal sanction. And suppose I was in the minority who disapproved. I might think that the killing of a slave should be murder and that the punishment should be the same as for any other murder.

              I might believe that I could persuade my fellows that killing slaves should be illegal, but that I would never persuade them - or at least not at any time soon - that slaveowners should be executed, or sentenced to prison for life, for killing one of their slaves.
              Maybe I could start with a $25,000 fine, That would deter some slaveowners.

              So would I favor the death penalty for killing slaves ? No - not because I'm in any doubt that killing slaves is just as bad as killing other folk - but because half a loaf is better than nothing.

              1. I was asking the moral question, not the practical legal question.

        4. The punishment component seems to me to be a serious issue that is going to have to be confronted by all branches of government as well as interest groups from all sides. If a state enacts restrictions on abortion it generally must include some kind of punishment provision to give the law teeth. In the past, the operating doctor was the one punished as the woman was treated as a victim. But medical abortions (using two pills) seems to be quickly supplanting surgical abortions as the more common approach (at least within the first 10 to 12 weeks). If a state criminalizes abortion at an early stage, does it punish the prescribing physician, the woman, or both? What if a woman obtains abortion pills online, then it would seem that the woman would be the only party to punish, since the doctor has been effectively removed from the equation. Perhaps the pills themselves become illegal?

          I believe a recent Kentucky (?) court opinion grappled with this issue in the context of a fetal heartbeat law and a criminal prosecution of woman who took the pills.

          From looking at a couple of random Pro-Life organization websites, I still typically see some reference to the woman being viewed as a victim in the process. if states are given greater flexibility in prohibiting early abortions, I think that rationale will have to be abandoned and a new one constructed to support criminally punishing her. One question is whether such a shift will reduce support from some woman who would otherwise continue to support prohibitions.

        5. But the folks on this forum just push through, and say ‘yeah, jail the woman.’

          I'll take some links on that one, bozo. At least one for each one of the "folks on this forum." You can start with me. Good luck.

          1. Good news, LoB, it showed up on this thread! Before you even posted this response!!

    2. Assuming that abortion is murder, what is the argument that it is justified?

      1. There are many theories out there. I am not the best to argue them as I don't believe any have any real merit. The most common is that forcing a woman to carry a child to full term is an infringement on her right to liberty. But, there are some arguments out there which I think make serious cases. I just don't think any of them override the fact that abortion ends the life of a child.

        1. I just don’t think any of them override the fact that abortion ends the life of a child.

          I take it you don't think abortion is justified. Does it then follow, a woman who has an abortion should be treated the same as a woman who hires a doctor to kill her 3-year old child?

          1. The issue here is that a woman who, today, hires a doctor to kill her 3-year old child knows that this is a crime, while a woman who, today, hires a doctor to kill her 6 month old child in utero knows that this isn't a crime, and may think they're not doing anything wrong.

            AFTER abortion is outlawed is a different matter. At THAT point, yes, they should be treated the same.

            1. So the woman should go to jail for 20+ years for having an illegal abortion?

              You seem to be basing your argument on the assumption that if abortion was outlawed, abortion rates would drop drastically, because otherwise the practical consequences of what you're advocating would be crazy (since right now there are 600,000 abortions per year, and imprisoning 600,000 women a year for 20 years would imply a ~500% increase in prison population). But I don't know if your assumption is true. Even if the law successfully prevented 90% of abortions, we would still increase prison populations by 50%.

              I have a hard time accepting a society that, even prima facie, criminalizes the actions of 12% of the population.

              But what I want to ask you is, if someone were to convince you, that abortion laws were largely ineffective in preventing abortions, would you still advocate for such a harsh punishment.

              Also, this sounds like an argument that "abortion is more wrong when it's illegal", and I'm skeptical of any conclusion linking legality and morality to this extent (e.g. "smoking marijuana is wrong because it's illegal").

              I'd be interested to hear if I inadvertently mischaracterizing what you're saying.

              1. Not so much that abortion is more wrong when illegal, in a moral sense, but it's certainly more wrong legally when it's illegal. And you can't do ex post facto laws anyway.

                Yes, I think the frequency of abortions would decline dramatically if it were outlawed with serious penalties, but note that I'm only advocating that for later term abortions.

        2. The argument is that even if the fetus is a person, it's a trespasser, and the property owner -- the woman in whose body the fetus currently is -- has the right to eject a trespasser, by lethal force if necessary.

          I disagree with you that abortion ends the life of a child. Some abortions do; it depend on how far along the pregnancy is. But in the early stages, it's at best a potential child, just as the batter I just put in the oven is a potential cake. At some point, if nature takes its course, it will become a cake, just as the fetus will become a child. It's not crystal clear at which precise moment the batter becomes cake; reasonable minds may differ. I think designating either quickening or the acquisition of consciousness makes sense.

          But, some one who is anti-abortion is never, ever going to be convinced that a fetus isn't a child. And, most people who are pro-choice will never, ever be convinced that it is. This seems to be one issue on which we just seem destined to talk right past each other.

          1. I can be convinced that a fetus doesn't have consciousness, because a human baby at birth doesn't even have much per se. I think you use the wrong word though. It's not at what point the fetus becomes a "child", but at what point does it become "human."

          2. Lethal force to expel a trespasser. State statutes vary but usually only reasonable force is authorized and that is only predicated upon the individual being given a full and complete opportunity to leave voluntarily. Under common law that was also the general rule. That is why I never got the trespass argument. When the law balances the interest of the property owner with the life interest of the trespasser the result is usually if they don't voluntarily leave you can carry them off the land. Not they are on your land so it is legal to shoot them dead.

            1. *Especially* if the trespasser is not there voluntarily, and they are there as a forseeable consequence of actions you took.

              Perhaps a better framework is self-defense. A pregnancy can cause harm. You can use force to defend yourself, but it has to be at least somewhat proportional, exact laws varying by state. I don't think a normal pregnancy is enough to justify lethal force to defend yourself. And in many cases you can't claim self-defense if you provoked the attack, if you see where that analogy goes.

              1. A burglar entering your house may be a foreseeable consequence of leaving the door unlocked, but I'm not sure that's relevant.

            2. Following your logic (assuming the NAP), if fetus=trespasser, it seems like I should be allowed to remove the fetus from my body. Sure it's wrong for me to kill the fetus inside my body, but if I remove it from my body and it happens to be unable to survive it's not my moral prerogative to help it survive.

              Unless you would also hold that it's wrong to remove a trespasser who is stealing food that is necessary for him to survive, or otherwise using your land in a way vital to his survival. But that doesn't really seem like a strict application of the NAP to me.

              I don't really see how the NAP can be used to defend abortion bans unless you hold that the woman was the first aggressor by conceiving the child, which doesn't really seem like aggression to me, or by considering the woman's body the fetus's property, which seems counterintuitive since the woman controls the actions of her body. Otherwise, you have to weigh the fetus's existence over the woman's autonomy.

              1. Under the trespasser scenario at common law, and under most state statutes, one cannot remove a trespasser if it places that person in harms way. The trespasser is permitted to remain until the danger subsides. (Law school scenario is like kicking a trespass out into sub-zero conditions). I don't think this makes a good analogy but if you want to continue using it doesn't seem like the argument that you can still remove the baby but if it doesn't live, oh well, is going to work in the trespass scenario.

                1. Just to be clear, I'm not entirely sold on the trespasser analogy, for some of the reasons given by other commenters. I was simply responding to the question that had been asked: What's the argument for abortion if personhood of the fetus is conceded?

                  I do think pregnancy is a special case because the trespass, if it is a trespass, is taking place inside someone's body. It's one thing to say I have to allow a trespasser to remain inside my house because he'll die if I kick him out; it's another thing to say that someone else can actually physically take over my body. And ultimately, even if I did believe the fetus has full personhood from the moment of conception (which I do not), I think I would still permit abortion just because I'm not willing for someone to have her entire body seized.

                  1. As I asked below, are there people arguing that 1) the fetus is a person, 2) abortion is permitted because the fetus is a trespasser, and 3) destroying embryos in an IVF clinic or stem-cell research lab are first-degree murder because the embryo is not a trespasser?

              2. I don’t really see how the NAP can be used to defend abortion bans unless you hold that the woman was the first aggressor by conceiving the child

                I think you need to analyse the biology carefully here. What happens is :

                1. the sperm swims along and finds and fertilises the egg. Except in cases of rape (which would change the analysis entirely) there does not seem to be any aggression yet
                2. after a while the blastocyst implants in the uterine wall. This could be described as aggression, though this is perhaps a little harsh as there is no volition involved. Even so. But...
                3....the uterine wall has already organised a welcoming party. Again without volition, but sauce, gooses, ganders etc, the mother's body has made preparations to receive the blastocyst. Traditionally, initiating contact is not aggression if it is uninvited
                4. the connection between mother and embryo develops into a placenta, though it in fact has two components, one composed of embryonic tissue, the other composed of maternal tissue.

                Now, unless you take 2 to be aggression without taking 1 and 3 as invitations, we haven't had any aggression so far.

                So then the question becomes - what happens in an abortion, and is it aggression ? Assuming you accept

                - a right to evict
                - but not to inflict death or injury
                - but no responsibility for the wellbeing of the evicted post eviction

                then the method of abortion becomes important to the relevance of the non aggression principle.

                A direct and injurious (or lethal) physical or chemical assault on the body of the abortee certainly runs the risk of breaching the NAP. But an abortion which involves, say, surgery to maternal tissue alone would be fine.

                Devil in the details.

                1. Traditionally, initiating contact is not aggression if it is uninvited


                  "Traditionally, initiating contact is not aggression if it is invited"

          3. > But, some one who is anti-abortion is never, ever going to be convinced that a fetus isn’t a child. And, most people who are pro-choice will never, ever be convinced that it is. This seems to be one issue on which we just seem destined to talk right past each other.

            I think this is what the author means when he says that

            > At the end of the class, a substantial number of students, though not all, found "the personhood question" inescapable.

          4. What do concepts of domestic violence say to your theory?

      2. I think a real problem with your question is that "murder" isn't a necessarily a moral category, it's a legal category. The word murder inherently implies that the death is wrong and worthy of punishment.

        Amending the question to "assuming that abortion is homicide (one human killing another), what is the argument that it's justified".

        If you're a deontologist that believes killing a human is wrong and abortion is killing a human, then there's nothing that's going to convince you.

        Consequentialists, on the other hand, might find a better way to attack this question. For example, Peter Singer argues:

        > It isn’t unreasonable to hold that an individual human life begins at conception. If it doesn’t, then it begins about 14 days later, when it is no longer possible for the embryo to divide into twins or other multiples. Where I disagree with opponents of abortion is that I don’t think that the fact that an embryo is a living human being is sufficient to show that it is wrong to kill it.

        This is linked in his Wikipedia page. What he views as charateristics relevant to personhood is "rationality, autonomy, and self-consciousness". Now Peter Singer is *the* most extreme but otherwise respected voice I've heard on this issue; some of his conclusions seem down-revolting intuitively. But I think general variants of this argument are used (explicity or implicity) by pro-choice advocates. The basic idea (reflected in the original article) is that there should be a weighing between the woman's autonomy and the fetus's potential human life.

        Also, if you thinking doing good is morally equivalent (or similar) to not doing bad, and you conclude that abortion is absolutely wrong, from a consequentialist perspective then it would likely be similarly wrong to wear a condom or even to not have sex (since both prevent potential future human life). This leads to a whole host of conclusions that seem incorrect, so maybe the premise (preventing future human life is absolutely wrong) was incorrect.

        1. This should say "down-right revolting" in the second to last paragraph.

    3. You can call your question-begging a core question, but you're still begging the question.

    4. You're confusing the words "murder" and "homicide". Murder is usually defined as malicious unlawful homicide. Most abortion is right now not considered murder because it's not illegal. This is irrelevant to whether it's morally right to permit abortion without punishment.

      People are probably "dancing around the issue" because assuming abortion is murder implies it's wrong, which begs the question.

    5. abortion artificially brings to an end a life

      This ain't necessarily so, and it's another illustration of the fact that abortion is way more complicated factually and philosphically than the slogan bearers on either side insist.

      Although there are some rather strange people who insist that the mother's right to choose entails her right to insist that the crittur finishes up dead, abortion is about relieving the woman of her burden of carrying the crittur in her body.

      Removal ahead of a natural live bith, not the death of the fetus, is the object of the exercise.

      It is true that, in practice and under the current state of technology, the crittur finishes up dead. But death is not inherent in abortion. If the boffins could work out how to remove the crittur without killing it, hardly anyone would object.

      In that sense, a C section is an abortion, even though it usually finishes up wth the crittur surviving. Nobody objects to C sections.

  4. The obvious comparator is extraterritorial aliens. Supreme Court has held that the Due Process clause lacks extraterritorial application in the same way, and for much the same reasons, as it lacks prenatal application. And Americans have frequently acted in a manner indicating that the rights and interests of Americans trump when there is a conflict. The current President is explicit in this, but reflects a long past.

    Under Justice Breyer’s formulation, there is no reason to consider the fact that a human being happens to be located a few inches away from territoriality to manner. And in his view the personhood question should be transactional rather than an absolute characteristic. When the territorial world reaches out and hits the extraterritorial world, the transaction, conceived and enacted territorially, should be considered a territorial transaction, and hence the Sue Process clause should apply.

    Justice Breyer’s formulation describes the abortion context very well. In the abortion context, the natal world reaches a few inches into the prenatal world. The entire transaction is conceived and executed in the natal world. The situation really is very analogous to shooting a Mexican teenager just over the other side of the border. If Justice Breyer’s formulation of the applicability of the Due Process Clause as transactional rather than absolute holds at all, it ought to hold here.

  5. To be clear, Roe v. Wade never held that a fetus is not a person. It merely held that the Due Process Clause lacks prenatal application, in the same way and for muchthe same reasons that Johnson v. Eisentrager held it lacks extraterritorial application. The question “is the fetus a person” is no more relevant or even meaningful to the constitutional issues than the question “is a German prisoner of war a person” was in Eisentrager. The relevant question is about the limits of the constitution’s applicability. This is a question about the constitution, and only about the constitution. It is about nothing else.

    1. To be clear, Roe v. Wade never held that a fetus is not a person.

      I think the Court did rely on the fetus not being a person:

      The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. [...] If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.

      1. This argument is a bit like saying a finding of not guilty means the Defendant was proven to have been innocent. The Court was very careful about its language. It indeed failed or declined to establish That a fetus is a person within the language and meaning of the 14th Amendment. It did so because it found the word “person” the Due Process clause kacks “extraterritorial application.” So the claim that a fetus is a person within the language and meaning of the 14th amendment was not established. But just as failure to prove guilt does not prove innocence, here also absence of evidence is not evidence of absence.

        The anology to extraterritorial aliens is obvious. The Supreme Court found that German POW Eisentrager had no due process clause because the word “person” in the Due Process clause lacks “extraterritorial application.” It’s a essentially the same finding. It came up recently in the case of fhe border guard who shot a Mexican teenager on the other side of the border, and the teenager’s family had no legal remedy. (There was also the case of the wife who claimed her husband was killed by the CIA, who was also told by the Supreme Court that there’s nothing illegal about that.) Are you seriously going to claim that these cases mean an extraterritorial alien isn’t a person? Surely you can see a difference between not being covered by the Due Process clause - something that’s the case for most of the world’s adult human population - and not being a person at all?

        1. So the claim that a fetus is a person within the language and meaning of the 14th amendment was not established. But just as failure to prove guilt does not prove innocence, here also absence of evidence is not evidence of absence.

          I think you are wrong as a matter of logic. Again from Roe:

          If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment

          A = the fetus is a person, B = Roe loses her case. The Court held that if A then B. The contrapositive, if not B then not A, must also be true. That is, I Roe wins her case, then the fetus is not a person. Roe won her case. Therefore, the Court held the fetus is not a person.

          1. You assume a two-valued logic - either the jury finds guilty, or the plaintiff is completely innocent. The Supreme Court’s decision is fully consistent with three-valueD logic. It held that the word “person” within the language and meaning of the Due Process Clause lacked “prenatal application,” and hence could not find that the term aplied to the a fetus. But this is a statemwnt about the nature of the constitution. The Court expressly declined to make a statement about the nature of a fetus. And it said so in very clear terms.

            “In support of this, they outline in detail the well-known biological facts of fetal development.”

            But the Supreme Court explicitly refused to consider biological facts. It spoke only about the language of the constitution.

            And rightly so. The same argument was made in Eisentrager, where the Supreme Court held the word “person” in the Due Process clause lacked “extraterritorial application” based on a briefer but nonetheless similar look at constitutional language and usage. There too, it made no statement about the fundamental nature of foreigners,, only about the applicability of the constitution’s bill of rights.

            And the same issue was at stake. If Eisentrager could show he was a person within the meaning of the Due Process Clause, he too would have won his case. But nobody claims that the Supreme Court established that foreigners outside US territory aren’t persons, that the idea that there are ethical or moral considerations involved in sealing wifh them is mere superstitious claptrap, that they are in their fundamental nature no more than chunks of meat. It only established that the Bill of Rights doesn’t apply to them.

            If you prefer, we could say that a fetus isn’t a person in the same way, and with the same meaning, that an extraterritorial alien isn’t a person. The fact that the bill of rights doesn’t apply doesn’t mean that there death has no moral consequence.

            This became particularly relevant, of course, in the Guantanamo Bay cases. If an alien POW isn’t a person In all senses, then people who think jt’s wrong to torture them have no rational basis for their position. But they do have a rational basis.

            1. Let’s be clear. Are you prepared to argue that an extraterritorial alien isn’t a human being because the Supreme Court held that the Bill of Rights lacks application to them? Eisentrager, too, would have won his case if the Supreme Court had found that it did. So would the people from Muslim countries seeking visas.

              The logic is the same. If a finding of personhood protection means Eisentrager wins his case, and Eisentrager loses his case, doesn’t that mean the Supreme Court has held Eisentrager isn’t a person in the ordinary sense of person - that he’a a thing, a piece of meat, and not a human being, even though the fact that he walks and talks may make him superficially resemble one? His destruction would be of no moral consequence.

              And of course we CAN kill extraterritorial foreigners on demand. And not just through war. The CIA assassination case makes clear that the constitution poses no more obstacle to irregular killing than it does to military killing.

              1. I suppose it is possible to interpret Roe as concluding that the fetus is not a "person" within the meaning of Fourteenth Amendment because it lies beyond the territorial jurisdiction of our courts. Nonetheless, I find this interpretation highly implausible.

  6. I believe Judith Jarvis, cited in OP's bibliography, argues that abortion is justifiable homicide.

    Basically,the argument is fetus is a trespasser who poses a physical threat.

    1. The "physical threat" here, at current maternal mortality rates, is about 17 deaths per 100K births. You'd be hard put to persuade a court that you were engaging in justifiable self defense with the risk THAT low.

      1. The physical threat includes not only deaths during pregnancy, but also morning sickness, weight gain, being unable to do your job, labor pains, and all the other stuff you gleefully want to force women to go through so that you can morally preen about their sexuality, Brett.

        Plus it then forces women to either have to make an emotionally difficult choice to give the baby up for adoption or to be enslaved for the next 18 years.

        All of that is part of the physical threat. Not just maternal mortality, although given 1 million abortions a year, saving 170 lives is a big deal by itself.

        1. There's no particular glee involved. You're attributing all sorts of nasty motives to me, and the truth is I just don't like murder.

          Do I attribute your support of abortion to a ghoulish love of death? No. So I'll ask you to return the favor.

          1. If your spouse is bothering you, you can’t walk into a psychiatrists office and get a prescription to kill him or her, even if your spouse is really , really bothering you, even if causing you pain and mental health symptoms. And while today you can generally get a divorce, no-fault divorce is discretionary (you din’t have a constitutional right to divorce), and even then it often takes more than 9 months to complete it.

    2. I'm guessing that argument does not apply to the IVF clinic or stem-cell researcher that destroys embryos?

      1. It doesn't. It's worth noting that I don't think Casey necessarily does either. SCOTUS has certainly situated the right to terminate a pregnancy as connected to bodily integrity and privacy.

        1. Does Jasper, or anyone else, argue that having an abortion is the justifiable homicide of a trespassing person, but destroying embryos in IVF or stem-cell research is murder?

    3. I believe Judith Jarvis, cited in OP’s bibliography, argues that abortion is justifiable homicide.

      So she does, and it's a brilliant argument well worth reading. As is John Finnis's equally brilliant answer, also in the bibliography.

      For those who can't be bothered to read the originals - Judith Jarvis Thomson's "violinist" thought experiment posits a famous violinist with an acute life threatening illness. His friends kidnap an innocent passer by and plug the two of them into an organ-sharing machine that allows the violinist to survive for 9 months - long enough for the violinist to recover. She argues that the kidnap victim has every right to unplug himself before 9 months are up, and walk away, even though there is no doubt that the violinist is a live human, and that unplugging before 9 months are up will kill him.

      Finnis's reply argues that Thompson's example is cleverly framed to present the kidnap victim as the victim of an obvious injustice - kidnapping, followed by forcible connection to the organ machine. The violinist, or at least his friends, are guilty of a serious moral crime.

      But that is not the case for a woman pregnant with child. The child has not kidnapped the woman, it is perfectly innocent. Indeed the woman has, unless she was raped, entered into the risks of pregnancy on a perfectly voluntary basis. Thomson frames an injustice which is absent in a pregnancy.

      This is another great example of how complicated abortion is. Thomson's argument, whatever the artfulness of its framing, demonstrates that "personhood" is not necessarily decisive. There are homicides that are justifiable.

      But it also shows that the "rape" exception is not just a hypocritical exception carved out for no justifiable reason by nervous pro-life pols. The question of whether the mother has volunteered for the pregnancy, or the risk of it, is important in the analysis of whether and when abortion can be seen as justifiable homicide.

      1. As I have said elsewhere, if we accept Jarvis' argument of justifiable homicide, we have to accept that IVF clinics and stem-cell researchers that destroy embryos have committed murder. If you are like me and reject the latter, you have to reject the former as well.

        1. No, I don't think you quite got Thompson's point. Which was that :

          even if we STIPULATE that the abortee is a fully fledged human being, with moral rights equal to any adult, and so killing it would be homicide it would be justifiable homicide.

          Her argument has nothing to do with what moral status should be afforded to the creature at various stages of its existence. It stipulates the highest possible moral status, and then seeks to demonstrate that even stipulated "personhood" is not sufficient to conclude that abortion is morally impermissible.

          1. I understand her argument that abortion is morally permissible even if we stipulate personhood begins at conception.

            My problem with her argument is if we stipulate that personhood begins at conception, we end up concluding abortion is morally permissible while destroying embryos in IVF clinics and stem-cell research labs is not morally permissible. That result strikes me as quite wrong.

            1. Well, I still don't think you've cracked her stipulation, which is that an adult violinist is a person. Pro-lifers are then invited to apply her logic to whatever they happen to think is a person.

              I agree that if we were to further stipulate that embryos in IVF clinics are persons (aka human beings with full moral rights) then I am agree with your conclusion as to how the argument goes, but puzzled as to why you would find it "quite wrong." It seems to me - subject to the stipulation - perfectly reasonable.

              If we so stipulate, what possible justification could we have for destroying embryos in IVF clinics ? They have full moral rights and no one else's rights are being abused by their continued existence.

              Whereas in the case of an embryo / fetus in utero, even if it has full rights, there is another set of rights that have to be considered - the mother's.

              Your puzzlement puzzles me.

              1. I suppose I should add that my conclusion (and yours) relies on the hidden premise that it's not OK to deliberately kill "persons" unless you've got a good excuse (ie one that would work if you or I were the victim.)

              2. I strongly suspect Thompson, like me (*), believes that both abortion and destroying those embryos are both morally permissible. While she cleverly constructed the violinist hypothetical to bolster her position that abortions remain morally permissible even if the fetus is a person, she cannot use the hypothetical and must reject that personhood begins at conception in order to support her full position.

                (*) I am unaware of anyone who argues that abortion is morally permissible while destroying those embryos is not.

                1. I agree with you about Thomson's views on abortion. She does not accept the second stipulation, and hence can advance her violinist with a clear conscience.

                  As to "I am unaware of anyone who argues that abortion is morally permissible while destroying those embryos is not" I cannot claim to be an expert on their doctrine, but my understanding is that that is precisely the position of the Roman Catholic Church.

                  Accepting, as they do, that a human life is morally valuable from conception, the deliberate destruction of IVF embryos is a sin. Whereas abortion is only a sin if its deliberate intent is to kill the child. The doctrine of double effect covers attempts to save the mother's life, even if the death of the child is a predictable, though unintended, effect.

                  1. Other than rare instances of abortions very late in pregnancy, what abortions aren't a deliberate intent to kill?

                    1. 1. The traditional Catholic example, I believe, is a hysterectomy when it is required to save the mother's life - eg in cases of cancer. The intent is to save the mother's life by removing the uterus, the unintended side effect is the death of the fetus.

                      2. C sections can, as I mentioned elsewhere, easily be seen as abortions, which are not intended to kill the fetus. They're not particularly rare.

                      3. Medical technology marches on. Who knows what they'll be able to do by way of non fatal abortions in time.

                      4. But I don't need any of these to make the point you doubted. There really are people who believe, on entirely logically consistent grounds, that while killing IVF embryos must be wrong, abortion sometimes isn't. And that is because in the latter, but not the forrner, case, there is another life to be considered - the mother's.

                    2. Neither 1 nor 2 is part of the abortion debate, and 3 is speculation. Thus, as relevant to this debate, the Catholic Church does not hold the position you claim it does, and I remain unfamiliar with anyone who does.

  7. Needs something by G.E.M. Anscombe.

  8. For what it's worth, I'd include the Dred Scott decision because that's what did it for me.

    Dred Scott was not a human being -- while I know he was.
    A fetus is not a human being, by a very similar argument, QED.....

    1. Just to nitpick...Scott was not a citizen, though a human being, at the time considered a lesser sort not worthy of citizenship and thus just a "subject" without the same rights, but still human.

    2. I do not think Dred Scott is an appropriate example. The Supreme Court did not hold that Dred Scott was not a human being. It held that slaves could never be considered citizens for purposes of the Fifth Amendment.

      I think a better argument would be for including Johnson v. Eisentrager in the discussion and the applicability of constitutional protections to non-citizens. The argument in Roe v. Wade and its progeny is not that a fetus is not human, but what level of constitutional protection do we give to potential citizens who have not yet achieved citizenship status.

  9. Suggest the syllabus include a basic scientific article about embryology to start the factual discussion on a firm foundation.

    1. Agreed!

      Harry Blackman was born in 1908 -- whatever he personally knew about pregnancy came from what he might have been taught at Harvard circa 1927, or have learned from his wife's three pregnancies in the 1940's. The same would be true of the other four men.

      I have long felt that if one took the *text* of Roe and applied it to what is known today, the case would have to be decided the other way. Four-color ultrasound tells us things that a stethoscope simply couldn't, and Roe is a stethoscope decision.

    2. “The appelee and certain amici argue that a fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline in length and in detail the well-known facts of fetal development.”

      The Roe court refused to consider biological facts in deciding this question. It considered only the language and meaning of the 14th Amendment. Biological facts have no more relevance to the question of whether the 14th Amendment has “prenatal application” than they do to the analytically similar question of whether the 5th Amendment has “extraterritorial application.”

      Indeed, in Roe v. Wade as in Johnson v. Eisentrager, if any inference is to be drawn from the opinion, it is that had biological facts been considered, they would have weighed in favor of finding personhood.

      1. But, of course, Roe vs. Wade is not the single, exclusive issue in abortion. As described, the course considers ethics, morality, and policy, each of which necessarily examines the subject of the exercise, the new human life developing inside the pregnant woman.

  10. Professor Sachs seems to take the view, in his presentation, that the “personhood” question is decisive. If fetuses are persons within the language and meaning of the Due Process clause, then laws against abortion are appropriate. And if they aren’t, then they have no basis - concern about the welfare of fetuses is irrational, umconstitutional, an imposition of religion on the law of a secular state.

    I disagree. And the reason I disagree is that there is another, very large set of human beings who also lack personhood status within the language and meaning of the Due Process clause. If personhood status decides everything, it ought to decide everything for this group too.

    That group, of course, is extraterritorial aliens, the vast majority of the world’s human population. Johnson v. Eisentrager applied a very similar analysis to the one later used in Roe v. Wade to conclude that the word “person” in the Due Process clause lacks “extratteritorial application,” a finding Roe closely mirrored in holding that the same clause lacks “prenatal application.”

    And the lack of personhood status for extraterritiorial aliens has weighed heavily over the years. In US v. Verdugo-Irquidez, the Supreme Court held that no constitutional rights means you can be seized and forcibly taken into the US. In Christopher v. Harbuty, it held that it means your citizen spouse has no recourse if the CIA kills you. In the Guantanamo Bay cases, it held that Guantanamo Bay prisoners have rights only because Guantanamo By’s peculiar history makes it US territory, rights prisoners outside US territory don’t. It recently sidestepped a question of whether a Mexican teenager a few inches across the border is sufficiently connected to US territory that he has a right not to be killed by holding that his family has no remedy if he does. And it upheld the President’s right to exclude people form the country based on religious criteria, reinforcing that extraterritorial aliens have no First Amendment (or other constitutional) rights.

    Yet, for all of this, nobody says that there is no problem with killing an extraterritorial alien. Nobody thinks that objecting to torturing one is a mere religious view which is anti-science and agaimst the First Amendment. Extraterritorial aliens disprove Professor Sach’s thesis, and decisively. They show that the question of whether a human being is entitled to constitutional rights in no way decides the completely separate question of whether attempts by the state to protect that human being violates the constitution.

    Consider Justice Stevens’ concurrence in the first Carhart case, joined by Justice Ginsburgh. They held that if something could lawfully be killed, then it is irrational to worry about whether the method of killing it is barbaric or not, and it is irrational not to defer to the method preferred by the professionals charged with doing it.

    Let’s look at the enemy combatant torture cases. They are in exactly the same constitutional boat. They have no constitutional rights. They can be lawfully killed (that’s what war means). If this opinion was meant seriously, one would expect Stevens and Ginsburgh to have dismissed people opposed to CIA torture of enemy combatants as irrational moral-mongers, attempting to impose antiscientific religious views on the CIA’s scientific professionals. One would have expected a principaled defense of the CIA’s activities as essential to the rule of science, reason, secularism, and our constitutional way of life. Where were they, where were their consciences, when things really mattered? Were they willing to stand up for science, reason, etc. then? It seems they all suddenly had a bout of religion. Justice Sotomeyor, in an immigration case, even referred to the nation’s traditional values as if they were something other than a sorry blot on the freedom of choice of its citizens.

    In short, liberal attitudes towards extrateritorial aliens, immigration, rnemy combatants, etc. are almost exact mirrors of conservative attitudes towards abortion. Nobody actually believes that a decision by the US Supreme Court that the word “person” lacks application really decides anything of any real importance. Liberals are no more willing to defer to the US Supreme Court’s decisions and set aside tbeir own deeply held beliefs than conservatives are with their.

    Most fundamentally, the Supreme Court’s characterization of personhood as a binary - full constitutional rights or more a sack of meat than a human being - was fundamentally wrong. It was fundamentally wrong to conclude that no rights means no state interest, even more wrong to conclude that people who support state protection are being irrational or their views are religious and not appropriate for secular government. This country’s treatment of extraterritorial aliens and enemy combatants in particular - who have no constitutional rights whatseover, and yet Americans are often required to put their lives at risk for their protection - completely belies the binary conception of personhood that the Supreme Court assumed, indeed invented out of thin air, in order to decide Roe v. Wade the way it did.

    Recently, Justice Ginsburgh objected to Justice Thomas’ characterizing a fetus as a baby. If the personhood binary formulation is valid, it was hypocritical of her not to similarly object to characterizing the Mexican teenager, or the various enemy combatants, as human. The reason it wasn’t hypocritical is that to regard the comstitutional personhood question as deciding everything isn’t valid at all. Nobody, nobody, actually takes it that seriously.

    1. And for a minute, I thought you were going to defend father's rights....

    2. Perhaps Justice Ginsburg sincerely believes that some persons (in the ordinary sense) aren't "persons" within the meaning of the 14th Amendment, while also sincerely believing that a fetus is not a person in either sense.

    3. This seems unlikely. More likely is that in construing the meaning of :

      any person within its jurisdiction

      Johnson v. Eisentrager concerns the meaning of "within its jurisdiction" rather than the meaning of "person."

      As for whether you can torture enemy aliens who are outwith the jurusdiction of the United States - even if said aliens have no constitutional rights, that doesn't mean the United States can't make it illegal to torture them. Much the same could be said for sheep worrying and cow tipping.

      1. The 5th Amendment, which Johnson v. Eisentrager construed, doesn’t contain this language.

        However, I would tend to agree with the slightly different but very similar proposition that when the Eisentrager court Said the constitution lacks “extraterritorial application,” it was making a statement, not about Eisentrager, but Only about the Constitution. It was saying, not that Eisentrager has a particular nature (he isn’t a person), but that the reach of the constitution and its rights is limited.

        But if we accept that, i think we also have to conclude that when the Roe court said the word “person” in the Due Process Clause lacks “prenatal application,” it was saying exactly the same thing. It wasn’t deciding anything about the fundamental nature of a fetus. It wasn’t saying a fetus isn’t a person (in the usual sense of what we mean by person) any more than it was saying Mr. Eisentrager wasn’t. It was only saying that the constitution and its protections have limits, and the prenatal world, like the extratteritorial one, lies outside them.

        1. On what basis do you think the Roe court concluded a fetus is not a "person" within the meaning of the Fourteenth Amendment?

          1. It did say this. This is a statement about the nature of the 14th Amendment. It’s not a statement about the nature of a fetus. Just as concluding that an extraterritorial alien is not a person within the language and meaning of the 5th amendment is not a basis for concluding that, say, the Geneva Convention is unconstitutional whenever it requires Americans to limit their liberties, even risk their lives.

            1. I don't think you answered my question.

  11. Looks like a good class.

    "First, everyone has a few awkward and uncomfortable days on the topic in an introductory Con Law class, where the only people willing to talk about it are those who already have strong views."

    I had a conlaw prof who said abortion was self-defense, like repelling a military invasion. A student replied that if the nation had sent a message requesting the foreign military to enter the country, then the analogy would be complete. I don't want to say the student was shouted down by the prof, but it was close to that.

  12. "there are also deep questions to be asked about Fourteenth Amendment fundamental-rights jurisprudence—about the Slaughterhouse Cases, privileges and immunities, incorporation of the bill of rights, etc."

    No kidding!!!

  13. This introductory, open-access ( = free) 2019 book may be of interest:

    Thinking Critically About Abortion: Why Most Abortions Aren't Wrong and Why All Abortions Should be Legal


  14. The only legitimate argument for abortion being legal is that if you have to weigh the fetus' right to life against the mother's right to not carry it to term, the fetus has to win out. The problem with that formulation is that you can just as easily come out on the other side, so pro-abortion people lie and reduce the complex moral issue down to stupid slogans like "You're trying to tell women what they can do with their bodies" or "It's just a clump of cells."

    1. You beg the question as to whether a fetus has a right to life.

      Though pro-abortion people kinda gives it away.

      1. I disagree that whether a fetus has a right to life begs the question of whether abortion is moral. For example, I support abortion rights by concluding the fetus' right to life is outweighed by the woman's right to liberty, at least up until fetal viability.

    2. It’s not the only legitimate argument. An enemy combatant obviously has no constitutional right to life. That’s what war means. And yet measures providing for humane treatment of prisoners of war have a legitimate basis, even when it requires Americans to give up liberties, even risk their lives.. If you concede that they have a legitimate basis, you must also concede that there is some basis other than a constitutional right to life justifying laws provide human treatment.

      The dichotomy you are imposing is a completely false dichotomy. There are more than two possible propositions. Falsifying one proposition does not prove the truth of the other.

  15. As to the substance of the post, which is not a debate about abortion: I took a similar course in law school. It balanced pro-life and pro-choice readings; examined law, ethics, and policy questions; and required response papers. We were paired up with students who had responded to similar issues in a different manner and were required to have a discussion every week.

  16. I suspect you’d get equally firm opposition from both sides on the use of those terms, and compelling arguments on why abortion does not equal murder, and on why forcing a woman to carry to term is not equal to slavery.

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