A Human Person

A RERUN (WITH LIGHT EDITING) OF A POST AT MY OLD BLOG, FROM MAY 5, 2008

The ludicrous and (it seems) increasingly popular assertion that plants have rights should not distract us from the more serious issue of fetal rights. (My position on the issue can be found among these links.) Maverick Philosopher explains how abortion may be opposed for non-religious reasons:

It is often assumed that opposition to abortion can be based only on religious premises. This assumption is plainly false. To show that it is is false, one need merely give an anti-abortion argument that does not invoke any religious tenet, for example:1. Infanticide is morally wrong.
2. There is no morally relevant difference between abortion and infancticide.
Therefore
3. Abortion is morally wrong.

Whether one accepts this argument or not, it clearly invokes no religious premise. It is therefore manifestly incorrect to say or imply that all opposition to abortion must be religiously-based. Theists and atheists alike could make use of the above argument.

MP then links to a piece by Nat Hentoff, an atheist and Leftist. Hentoff writes, apropos Barack Obama and abortion, that

I admire much of Obama’s record, including what he wrote in “The Audacity of Hope” about the Founders’ “rejection of all forms of absolute authority, whether the king, the theocrat, the general, the oligarch, the dictator, the majority … George Washington declined the crown because of this impulse.”

But on abortion, Obama is an extremist. He has opposed the Supreme Court decision that finally upheld the Partial-Birth Abortion Ban Act against that form of infanticide. Most startlingly, for a professed humanist, Obama — in the Illinois Senate — also voted against the Born Alive Infant Protection Act….

Furthermore, as “National Right to Life News” (April issue) included in its account of Obama’s actual votes on abortion, he “voted to kill a bill that would have required an abortionist to notify at least one parent before performing an abortion on a minor girl from another state.”

These are conspiracies — and that’s the word — by pro-abortion extremists to transport a minor girl across state lines from where she lives, unbeknownst to her parents. This assumes that a minor fully understands the consequences of that irredeemable act. As I was researching this presidential candidate’s views on the unilateral “choice” that takes another’s life, I heard on the radio what Obama said during a Johnstown, Pa., town hall meeting on March 29 as he was discussing the continuing dangers of exposure to HIV/AIDS infections:

“When it comes specifically to HIV/AIDS, the most important prevention is education, which should include — which should include abstinence education and teaching children, you know, that sex is not something casual. But it should also include — it should also include other, you know, information about contraception because, look, I’ve got two daughters, 9 years old and 6 years old. I am going to teach them first of all about values and morals.

“But if they make a mistake,” Obama continued, “I don’t want them punished with a baby.”

Among my children and grandchildren are two daughters and three granddaughters; and when I hear anyone, including a presidential candidate, equate having a baby as punishment, I realize with particular force the impact that the millions of legal abortions in this country have had on respect for human life.

And that’s the crux of the issue: respect for human life.

Thus I turn to a Peter Lawler’s “A Human Person, Actually,” in which Lawler reviews Embryo: A Defense of Human Life, by Robert P. George and Christopher Tollefsen:

The embryo, George and Tollefsen argue, is a whole being, possessing the integrated capability to go through all the phases of human development. An embryo has what it takes to be a free, rational, deliberating, and choosing being; it is naturally fitted to develop into a being who can be an “uncaused cause,” a genuinely free agent. Some will object, of course, that the embryo is only potentially human. The more precise version of this objection is that the embryo is human—not a fish or a member of some other species—but not yet a person. A person, in this view, is conscious enough to be a free chooser right now. Rights don’t belong to members of our species but to persons, beings free enough from natural determination to be able to exercise their rights. How could someone have rights if he doesn’t even know that he has them?…

Is the embryo a “who”? It’s true enough that we usually don’t bond with embryos or grieve when they die. Doubtless, that’s partly because of our misperception of who or what an embryo is. But it’s also because we have no personal or loving contact with them. We tend to think of persons as beings with brains and hearts; an embryo has neither. But personal significance can’t be limited to those we happen to know and love ourselves; my powers of knowing and loving other persons are quite limited, and given to the distortions of prejudice. Whether an embryo is by nature a “who” can be determined only by philosophical reflection about what we really know.The evidence that George and Tollefsen present suggests that there are only two non-arbitrary ways to consider when a “what” naturally becomes a “who.” Either the embryo is incapable of being anything but a “who”; from the moment he or she comes to be, he or she is a unique and particular being capable of exhibiting all the personal attributes associated with knowing, loving, and choosing. Or a human being doesn’t become a “who” until he or she actually acquires the gift of language and starts displaying distinctively personal qualities. Any point in between these two extremes—such as the point at which a fetus starts to look like a human animal or when the baby is removed from the mother’s womb—is perfectly arbitrary. From a purely rational or scientific view, the price of being unable to regard embryos as “whos” is being unable to regard newborn babies as “whos”….

As I say here,

abortion is of a piece with selective breeding and involuntary euthanasia, wherein the state fosters eugenic practices that aren’t far removed from those of the Third Reich. And when those practices become the norm, what and who will be next? Libertarians, of all people, should be alert to such possibilities. Instead of reflexively embracing “choice” they should be asking whether “choice” will end with fetuses.

Most libertarians, alas, mimic “liberals” and “progressives” on the issue of abortion. But there are no valid libertarian arguments for abortion, just wrong-headed ones.

Abortion and the Fourteenth Amendment

Assessing the Presidential Candidates on Abortion, Supreme Court,” by Robert George, includes this intriguing passage:

Many believe that we need a constitutional amendment to overturn Roe v. Wade. However, Section Five of the Fourteenth Amendment expressly empowers the Congress, by appropriate legislation, to enforce the guarantees of due process and equal protection contained in the Amendment’s first section. As someone who believes in the inherent and equal dignity of all members of the human family, including the child in the womb, would you propose to Congress appropriate legislation, pursuant to the Fourteenth Amendment, to protect human life in all stages and conditions?

Political reasons aside, why not? George asked his question of Michele Bachmann, Herman Cain, Newt Gingrich, Ron Paul, and Mitt Romney at the Palmetto Freedom Forum on September 5, 2011. Ron Paul’s objection is of special interest. According to George,

Ron Paul responded to my question not by embracing judicial supremacy, but by denying that the 14th Amendment authorizes Congress to legislate to protect the unborn. Interestingly, Paul himself has a perfect pro-life voting record–in Congress. In his view, however, the abortion question is one that the Constitution leaves ultimately to the individual states, not the national government.

In his exchange with me, Congressman Paul argued that reading the 14th Amendment broadly enough to empower Congress to protect the unborn would be inconsistent with the 10th Amendment–the constitutional provision reminding us that powers not delegated by the Constitution to the federal government are reserved to the states and the people. But the Constitution, in its 14th Amendment, plainly does delegate to Congress power to enforce its guarantees of due process and equal protection. Congressman Paul, like the other Republican candidates, believes that the unborn, no less than those human beings at later developmental stages, are members of the human family–in other words, persons–entitled to the same protections as others. And he is right to believe it.

I am hard-pressed to understand Paul’s objection. If the Constitution grants a power to the central government, then the central government possesses that power. Should it be up to the States, individually, to decide the abortion issue? If it should, then why not leave slavery up to the States, individually? In other words, why should the Fourteenth Amendment any less binding than the Thirteenth Amendment? It seems to me that Paul is more enamored of “States’ rights,” than he is of liberty. And make no mistake about it, abortion is anti-libertarian.

P.S. Paul Linton, a pro-life lawyer and special counsel to the Thomas More Society, enters a dissent:

Conclusion

The Supreme Court’s abortion decisions can be overturned only by an overruling decision of the Court itself or by a federal constitutional amendment. Congress has no power under § 5 of the Fourteenth Amendment to define the unborn child as a “person” for purposes of § 1 of the Amendment, when the Court has held (in Roe) directly the opposite. Removal of the Supreme Court’s appellate jurisdiction over abortion cases would not affect the binding force of those decisions and would actually prevent a differently constituted Court from overruling Roe and Casey. The proposals made to the Republican presidential candidates at their “Tea Party” forum do not offer a realistic means of overturning Roe v. Wade and do not deserve the support of the pro-life community.

Roe can be overturned only by a decision of the Court itself overruling Roe or by a federal constitutional amendment–neither a federal statute enacted under § 5 of the Fourteenth Amendment defining the word “person” as used in § 1 of the Amendment, nor a statute removing the Supreme Court’s appellate jurisdiction over abortion cases would have that effect.

This is where “departmentalism” comes in. William J. Watkins Jr. explains departmentalism by way of example:

Departmentalist theory is perhaps best examined in the context of President Jefferson’s approach to the Sedition Act. Upon entering office, Jefferson ordered the cessation of all federal sedition prosecutions and he pardoned those who had been convicted. In 1804, Jefferson received a letter from Abigail Adams criticizing his handling of the Sedition Act controversy. Mrs. Adams argued that because the judges had upheld the Sedition Act, President Jefferson had overstepped his constitutional bounds when terminating prosecutions and pardoning offenders.In a polite response, Jefferson reminded Mrs. Adams that “nothing in the constitution has given [the judges] the right to decide for the executive, more than the Executive to decide for them.” Both branches, continued Jefferson, “are equally independent in the sphere assigned to them.” Jefferson recognized that the judges, “believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution.” However, this did not bind him when performing his duties as chief executive. Because he believed the Sedition Act was unconstitutional, he “was bound to remit the execution of it.”

It is conceivable that a Republican-controlled Congress could pass the law suggested by Robert George, and that a Republican president would enforce the law. Perhaps even a Democrat president would enforce the law as long as he was confronted by a Republican-controlled Congress and popular opinion on the morality of abortion, which has been shifting toward the pro-life position. The Supreme Court would be well advised to make like the Three Wise Monkeys.

My main concern is that the precedent of blatant departmentalism on a salient issue would be a dangerous one. Use of the doctrine would invite a Democrat-controlled Congress to conspire with a Democrat president to ignore, say, a Supreme Court ruling that overturns Obamacare or the McCain-Feingold Act.

P.P.S. In “Human Personhood Begins at Conception.” philosopher Peter Kreeft presents the arguments commonly used to explain why the unborn child is not a human person and then shows clearly and simply why each of these arguments cannot possibly be true.

Related posts:
I’ve Changed My Mind
Next Stop, Legal Genocide?
It Can Happen Here: Eugenics, Abortion, Euthanasia, and Mental Screening
Creeping Euthanasia
PETA, NARAL, and Roe v. Wade
The Consequences of Roe v. Wade
The Old Eugenics in a New Guise
The Left, Abortion, and Adolescence
Law, Liberty, and Abortion
Don’t Just Take My Word for It
Oh, *That* Slippery Slope
Abortion and the Slippery Slope
The Cynics Debate While Babies Die
Privacy, Autonomy, and Responsibility
Peter Singer’s Agenda
The Slippery Slope in Holland
The Slippery Slope in England
The Slippery Slope in New Jersey
An Argument Against Abortion
Singer Said It
The Case against Genetic Engineering
A “Person” or a “Life”?
How Much Jail Time?
A Wrong-Headed Take on Abortion
The End of Slavery in the United States
Crimes against Humanity
Abortion and Logic