Justice in the Face of Unknowing
[Today’s post is by Aimee Bedoy and Steven Oetjen. It is a shortened version of an article that originally appeared in the Life Matters Journal.]
INTRODUCTION
A
quandary of major proportions faces our nation in this day and age. It could be
a matter of life and death for countless persons – we cannot truly be sure.
This post seeks to examine abortion through the lens of Constitutional law,
science, and justice.
quandary of major proportions faces our nation in this day and age. It could be
a matter of life and death for countless persons – we cannot truly be sure.
This post seeks to examine abortion through the lens of Constitutional law,
science, and justice.
BACKGROUND
The U.S. Constitution,
Justice, Personhood and Abortion Law
Justice, Personhood and Abortion Law
Abortion & Present
Constitutional Law
Constitutional Law
As law currently stands within the United States, the
ability to procure an abortion is a constitutional right, which should not be
impeded by an “undue burden.” In Planned Parenthood v. Casey, the
Supreme Court disseminated a decision which stated as law that “the right of
the woman to choose to have an abortion before viability and to obtain it
without undue interference from the State”[1] is a result of Roe’s
“essential holding” of the right to abortion. According to this statement,
provided that new State laws which may place restrictions on the abortion
procedure did not provide an “undue interference from the State,” they would be
constitutional.
ability to procure an abortion is a constitutional right, which should not be
impeded by an “undue burden.” In Planned Parenthood v. Casey, the
Supreme Court disseminated a decision which stated as law that “the right of
the woman to choose to have an abortion before viability and to obtain it
without undue interference from the State”[1] is a result of Roe’s
“essential holding” of the right to abortion. According to this statement,
provided that new State laws which may place restrictions on the abortion
procedure did not provide an “undue interference from the State,” they would be
constitutional.
The
existing allocation of constitutional rights according to judicial decisions
regards the woman’s right to choose abortion as “central to personal dignity
and autonomy”, and views it as a matter of “the highest privacy and the
most personal nature.”[2] However, the Supreme Court also claimed in Akron
v. Akron Center for Reproductive Health, Inc. that “the State possesses compelling
interests in the protection of potential human life . . . throughout
pregnancy.”[3] Constitutionally, we are
asked to draw the line between the value of potential human life and the value
of a woman’s right to choose to terminate her pregnancy.
existing allocation of constitutional rights according to judicial decisions
regards the woman’s right to choose abortion as “central to personal dignity
and autonomy”, and views it as a matter of “the highest privacy and the
most personal nature.”[2] However, the Supreme Court also claimed in Akron
v. Akron Center for Reproductive Health, Inc. that “the State possesses compelling
interests in the protection of potential human life . . . throughout
pregnancy.”[3] Constitutionally, we are
asked to draw the line between the value of potential human life and the value
of a woman’s right to choose to terminate her pregnancy.
The Constitution & Societal Pressures and
Mores
Mores
The Court in Roe v.
Wade made a claim to ignorance as regards fetal life, and weighed
historical belief against the not entirely fully formed beliefs of various
modern groups.[4] In this case, our
Constitution was interpreted to be a relative compass defined by popular voice,
and utilitarian meter based on assigned cultural value. This is not the
foundation of the U.S. Constitution — contrariwise, it is to represent a
moral, objective justice that may be unpopular (i.e. banning slavery through
the 13th Amendment), but claims truth and righteousness as federal mandate. Yet
in the cases of Roe v. Wade and PP v. Casey, the decisions of the
courts could not claim to be “grounded truly in principle, not as compromises
with social and political pressures having, as such, no bearing on the
principled choices that the Court is obliged to make.”[5] The laws that states can
use to restrict abortion may not place an “undue burden”[6]
on women – however, there is no measure for what consists of an “undue burden”
and this policy may deem void those laws which may significantly decrease the
amount of abortions, for any reason. These decisions were based on contemporary
and societal persuasion, and were given the power of law that easily condone
and encourage abortion.
Wade made a claim to ignorance as regards fetal life, and weighed
historical belief against the not entirely fully formed beliefs of various
modern groups.[4] In this case, our
Constitution was interpreted to be a relative compass defined by popular voice,
and utilitarian meter based on assigned cultural value. This is not the
foundation of the U.S. Constitution — contrariwise, it is to represent a
moral, objective justice that may be unpopular (i.e. banning slavery through
the 13th Amendment), but claims truth and righteousness as federal mandate. Yet
in the cases of Roe v. Wade and PP v. Casey, the decisions of the
courts could not claim to be “grounded truly in principle, not as compromises
with social and political pressures having, as such, no bearing on the
principled choices that the Court is obliged to make.”[5] The laws that states can
use to restrict abortion may not place an “undue burden”[6]
on women – however, there is no measure for what consists of an “undue burden”
and this policy may deem void those laws which may significantly decrease the
amount of abortions, for any reason. These decisions were based on contemporary
and societal persuasion, and were given the power of law that easily condone
and encourage abortion.
If truth and morality are claimed as part of the
Constitutional mandate, what may have been voted on state by state has become a
matter of national importance through Roe v. Wade. Though states may
attack the Roe decision and the right to abortion little by little through
State impositions, “Roe‘s mandate for abortion on demand… rendered
compromise impossible for the future, and required the entire issue to be
resolved uniformly, at the national level.”[7] States may be allowed to
add restrictions through political law, but given that the right to abortion
was made federally and not locally, the debate has become one of absolutes. But
the only real absolute truth in the matter is that which is outlined in the
Constitution: the responsibility of the federal government is to protect the
life, liberty, and property of all persons. If the government is to protect
these rights of persons, there must be a definition of personhood.
Constitutional mandate, what may have been voted on state by state has become a
matter of national importance through Roe v. Wade. Though states may
attack the Roe decision and the right to abortion little by little through
State impositions, “Roe‘s mandate for abortion on demand… rendered
compromise impossible for the future, and required the entire issue to be
resolved uniformly, at the national level.”[7] States may be allowed to
add restrictions through political law, but given that the right to abortion
was made federally and not locally, the debate has become one of absolutes. But
the only real absolute truth in the matter is that which is outlined in the
Constitution: the responsibility of the federal government is to protect the
life, liberty, and property of all persons. If the government is to protect
these rights of persons, there must be a definition of personhood.
Constitutional Law &
Personhood
Personhood
In reality, according to the U.S. Constitution, “personhood”
has yet to be defined according to any specific factors. Citizenship is granted
to “all persons born or naturalized in the United States,” but no State shall
“deprive any person of life, liberty, or property without due process of
law (emphasis added).”[8] Citizen and person seem
to be two different ideas. Though many rights are afforded and protected by the
U.S. Government to all persons based on the Constitution, personhood is not
defined by age, place, gender, or race; neither is it articulated by
development, dependency, sexual orientation, creed, nor size.
has yet to be defined according to any specific factors. Citizenship is granted
to “all persons born or naturalized in the United States,” but no State shall
“deprive any person of life, liberty, or property without due process of
law (emphasis added).”[8] Citizen and person seem
to be two different ideas. Though many rights are afforded and protected by the
U.S. Government to all persons based on the Constitution, personhood is not
defined by age, place, gender, or race; neither is it articulated by
development, dependency, sexual orientation, creed, nor size.
In order to more clearly delineate who is afforded all of
the rights granted to persons, and therefore have a totally just Constitutional
law on abortion, we as a nation must define personhood. Some specific
interpretation must be done that would define this concept according to a great
number of categories. This process must be undertaken at a national level; if
different states define personhood differently, we may very well be violating
the rights of true persons while defining them as “others” in an attempt to
negate their personhood. This would be a great injustice.
the rights granted to persons, and therefore have a totally just Constitutional
law on abortion, we as a nation must define personhood. Some specific
interpretation must be done that would define this concept according to a great
number of categories. This process must be undertaken at a national level; if
different states define personhood differently, we may very well be violating
the rights of true persons while defining them as “others” in an attempt to
negate their personhood. This would be a great injustice.
Justice & Abortion
Law
Law
Justice can be divided into natural rights and positive
rights. Natural rights are those which are due to persons by their very nature,
such as life and liberty. Positive rights are those which are granted to
individuals based on agreement or consent. A legislature can formulate positive
rights by agreement, and these have their place so long as they do not violate
natural rights. Thus, different states can justly make different laws as long
as none of the laws allow the violation of natural rights.
rights. Natural rights are those which are due to persons by their very nature,
such as life and liberty. Positive rights are those which are granted to
individuals based on agreement or consent. A legislature can formulate positive
rights by agreement, and these have their place so long as they do not violate
natural rights. Thus, different states can justly make different laws as long
as none of the laws allow the violation of natural rights.
Regarding abortion, the positive right guaranteed by the
Constitution is the right to privacy. Different laws can exist justly in
different states as long as they protect this right to privacy without
violating any natural rights. States are free to regulate privacy in abortion
in different ways, as is fitting for different regions. If a state law
preserves the positive right of privacy in such a way that it fails to protect
a natural right, however, it is unjust. The agreement of a legislature cannot
make such a law truly just.
Constitution is the right to privacy. Different laws can exist justly in
different states as long as they protect this right to privacy without
violating any natural rights. States are free to regulate privacy in abortion
in different ways, as is fitting for different regions. If a state law
preserves the positive right of privacy in such a way that it fails to protect
a natural right, however, it is unjust. The agreement of a legislature cannot
make such a law truly just.
The justice of an action considers not only the relation to
its agent, but also to others affected. The justice of abortion laws is not
only dependent on the privacy of the woman involved in the abortion, but also
on the natural rights of other persons. Harm against any other person’s natural
rights is an injustice that a positive right cannot justly supersede.
its agent, but also to others affected. The justice of abortion laws is not
only dependent on the privacy of the woman involved in the abortion, but also
on the natural rights of other persons. Harm against any other person’s natural
rights is an injustice that a positive right cannot justly supersede.
Personhood as a Binary Condition
Personhood is a binary
condition: either you are a person or you are not a person. While no claim is
being made here to know whether the unborn are truly persons, if justice,
personhood, and Constitutional law are to be viewed through another lens,
consider the case of historical slavery laws in our own country.
condition: either you are a person or you are not a person. While no claim is
being made here to know whether the unborn are truly persons, if justice,
personhood, and Constitutional law are to be viewed through another lens,
consider the case of historical slavery laws in our own country.
According to the
Constitution as it was first written, the unjust policy both allowing slavery
and acknowledging slaves as “three fifths” of a person degraded the
worth of particular human beings based on their enslaved status and likely
based on the color of their skin. It allowed for slavery, prevented them from
voting, and denied them any rights to autonomy or property. In Scott v.
Sanford, members of the African race “were not numbered among its ‘people
or citizens.’”[9] This we eventually and
painfully discovered to be unjust and accordingly outlawed slavery and assumed
to protect the rights of all persons.
Constitution as it was first written, the unjust policy both allowing slavery
and acknowledging slaves as “three fifths” of a person degraded the
worth of particular human beings based on their enslaved status and likely
based on the color of their skin. It allowed for slavery, prevented them from
voting, and denied them any rights to autonomy or property. In Scott v.
Sanford, members of the African race “were not numbered among its ‘people
or citizens.’”[9] This we eventually and
painfully discovered to be unjust and accordingly outlawed slavery and assumed
to protect the rights of all persons.
However, the law is not
what made these individuals persons: they were persons before they were granted
freedom and rights. Though the law allowed for a devastating degradation of the
African race because they were not popularly viewed as persons, whether or not
a being is popularly viewed as a person is not truly indicative of whether or
not it is a person. Further we see that we must be careful when proclaiming
personhood, so that we may never again perpetrate such an evil against justice
as was done in the case of slavery.
what made these individuals persons: they were persons before they were granted
freedom and rights. Though the law allowed for a devastating degradation of the
African race because they were not popularly viewed as persons, whether or not
a being is popularly viewed as a person is not truly indicative of whether or
not it is a person. Further we see that we must be careful when proclaiming
personhood, so that we may never again perpetrate such an evil against justice
as was done in the case of slavery.
Science, Ethical
Frameworks & Abortion Policy
Frameworks & Abortion Policy
Science as Objective
Information
Information
In our modern day world dominated by scientific reasoning
and advanced technology, so often our society views science as an objective
meter for what is or can be reasonably theorized to be. While it is true that
advancing science increasingly shows us the scientific truth of situations, the
results of the evidence presented are always viewed through the eyes of
politics or our existing ethical frameworks. Thus, though science is often
thought to be an infallible entity, it is constantly changing, and is
consistently influenced by external forces.
and advanced technology, so often our society views science as an objective
meter for what is or can be reasonably theorized to be. While it is true that
advancing science increasingly shows us the scientific truth of situations, the
results of the evidence presented are always viewed through the eyes of
politics or our existing ethical frameworks. Thus, though science is often
thought to be an infallible entity, it is constantly changing, and is
consistently influenced by external forces.
Science Within an Ethical
Framework
Framework
Our ethics are preconceptualizations of norms and practical
applications. These frameworks are determined and set and we make moral
decisions based on the complex systems we create for ourselves. Science can
only inform these frameworks, it cannot define them.
applications. These frameworks are determined and set and we make moral
decisions based on the complex systems we create for ourselves. Science can
only inform these frameworks, it cannot define them.
The problem with relative ethical frameworks then lies in
the fact that manifold different moralities are held within the United States,
and our justice system tells us that outlining one particular system of
morality (based on religion, claims to truth, etc.) would be wrong – we must
allow for liberty in all cases except where one person’s liberty infringes upon
the life, liberty, or property of another. This question again leads us back to
the idea of personhood: if our morality cannot define personhood due to the
pluarlity of belief, can science dictate it for us?
the fact that manifold different moralities are held within the United States,
and our justice system tells us that outlining one particular system of
morality (based on religion, claims to truth, etc.) would be wrong – we must
allow for liberty in all cases except where one person’s liberty infringes upon
the life, liberty, or property of another. This question again leads us back to
the idea of personhood: if our morality cannot define personhood due to the
pluarlity of belief, can science dictate it for us?
Science & Personhood
Due to the fact that science can only inform ethics and
cannot define it, we cannot use science to define personhood. Only a set of
ethics can delineate how science will be used to create policy. The personhood
of a being is not a scientific question. Science can only answer the queries we
place before it, like, “personhood is defined by a heartbeat, when does a
heartbeat start?”, or “personhood is defined by brainwaves, when do brainwaves
start?”, or perhaps “personhood is defined by humanity, when does the being
become human?” As you can see, science can answer these questions, but our
morality is not defined by the scientific evidence placed before us; rather, it
is based entirely on the morals which we already base our lives on.[10]
cannot define it, we cannot use science to define personhood. Only a set of
ethics can delineate how science will be used to create policy. The personhood
of a being is not a scientific question. Science can only answer the queries we
place before it, like, “personhood is defined by a heartbeat, when does a
heartbeat start?”, or “personhood is defined by brainwaves, when do brainwaves
start?”, or perhaps “personhood is defined by humanity, when does the being
become human?” As you can see, science can answer these questions, but our
morality is not defined by the scientific evidence placed before us; rather, it
is based entirely on the morals which we already base our lives on.[10]
EVALUATION &
APPLICATION
APPLICATION
If
we intend, as a nation, to stand for justice for the rights of all persons, we
cannot do so if we do not first define who persons are. Justice asks us
according to no particular framework, “who is a person?” Though some laws protects
human beings after 20 weeks gestation, we cannot know whether this human being
is a person or not. Using our best judgment and not using ignorance as an
excuse, we as a nation are compelled to protect human development from the
beginning since we cannot know whether personhood is existent from conception,
quickening, pain-capability, birth, or even later. We are not capable of
knowing.
we intend, as a nation, to stand for justice for the rights of all persons, we
cannot do so if we do not first define who persons are. Justice asks us
according to no particular framework, “who is a person?” Though some laws protects
human beings after 20 weeks gestation, we cannot know whether this human being
is a person or not. Using our best judgment and not using ignorance as an
excuse, we as a nation are compelled to protect human development from the
beginning since we cannot know whether personhood is existent from conception,
quickening, pain-capability, birth, or even later. We are not capable of
knowing.
But
because we do not know does not give us the right to terminate the life of a
being for whom we cannot determine personhood status. The act of injustice that
would be present to hurt a human person, much less to kill a human person is
one which we must do everything to protect against. There are laws that makes
great strides against the claim to ignorance that Roe utilized to create the
right to abortion: but they are not complete. Ignorance provides a veil of
inculpability for those perpetrators of injustice to hide behind, but it does
not change the fact that “an unjust law is no law at all.”[11]
And if we cannot know, we must, for justice’s sake, err on the side of caution.
because we do not know does not give us the right to terminate the life of a
being for whom we cannot determine personhood status. The act of injustice that
would be present to hurt a human person, much less to kill a human person is
one which we must do everything to protect against. There are laws that makes
great strides against the claim to ignorance that Roe utilized to create the
right to abortion: but they are not complete. Ignorance provides a veil of
inculpability for those perpetrators of injustice to hide behind, but it does
not change the fact that “an unjust law is no law at all.”[11]
And if we cannot know, we must, for justice’s sake, err on the side of caution.
CONCLUSION &
RECOMMENDATION
RECOMMENDATION
The role of
science in the issue is in informing the pre-existing ethical frameworks on
abortion; while according to our judicial system no particular ethical
framework can be made law of the land based on its claim to truth. Scientific
observations confirm that a fetus feels pain 20 weeks after conception, that
brainwaves can be detected at about the sixth week after conception, and that
the beginning of a human being’s development is at the moment of conception.
Scientific observations, however, make no claim for the exact moment human
personhood begins, only that it could reasonably begin as soon as conception.
To deprive a person from life without due process is unjust and
unconstitutional[12]. The exact moment that personhood
begins for a human fetus is not known, but ignorance does not excuse injustice.
Therefore, the life of a human should be protected by law if there is a
reasonable possibility of personhood — we must be willing to protect potential
human life in the case when we cannot know whether any being is truly a person
– to uphold justice in the face of unknowing.
science in the issue is in informing the pre-existing ethical frameworks on
abortion; while according to our judicial system no particular ethical
framework can be made law of the land based on its claim to truth. Scientific
observations confirm that a fetus feels pain 20 weeks after conception, that
brainwaves can be detected at about the sixth week after conception, and that
the beginning of a human being’s development is at the moment of conception.
Scientific observations, however, make no claim for the exact moment human
personhood begins, only that it could reasonably begin as soon as conception.
To deprive a person from life without due process is unjust and
unconstitutional[12]. The exact moment that personhood
begins for a human fetus is not known, but ignorance does not excuse injustice.
Therefore, the life of a human should be protected by law if there is a
reasonable possibility of personhood — we must be willing to protect potential
human life in the case when we cannot know whether any being is truly a person
– to uphold justice in the face of unknowing.
[1]PP v. casey (1992)
[2]PP v. casey (1992)
[3]Akron v. Akron (1983)
[4]Roe v. Wade (1973)
[5]PP v. Casey (1992) dissent
[6] PP v.
Casey
Casey
[7]PP v. Casey (1992) dissent
[8]Amendment 14
[9]Scott v. Sanford
[10] Scott
F. Gilbert, “Chapter 29: When Does Human Life Begin?”, from Developmental
Biology 8e Online, http://8e.devbio.com/article.php?id=162
F. Gilbert, “Chapter 29: When Does Human Life Begin?”, from Developmental
Biology 8e Online, http://8e.devbio.com/article.php?id=162
[11]
Augustine of Hippo, unknown source
Augustine of Hippo, unknown source
[12] Amendment 14
Thank you.
Brilliantly written. I have long felt that if Roe V Wade had gone to court a decade or more later, the scientific evidence would have made passing it unthinkable.
Great article, except for the bit on the three-fifths compromise. Slaves were counted as three fifths of a person for the purposes of the census and congressional representation. Abolitionists didn't want to count slaves at all, because they couldn't vote and counting them would give slave states way more power in Congress, essentially meaning they would have representatives elected by non-slaves, but a lot of them, considering the vast number of slaves the slave states had. It had nothing to do with what rights slaves had; it was just an attempt to prevent slave owners from artificially inflating their power in the Legislature.
Great article, except for the bit on the three-fifths compromise. Slaves were counted as three fifths of a person for the purposes of the census and congressional representation. Abolitionists didn't want to count slaves at all, because they couldn't vote and counting them would give slave states way more power in Congress, essentially meaning they would have representatives elected by non-slaves, but a lot of them, considering the vast number of slaves the slave states had. It had nothing to do with what rights slaves had; it was just an attempt to prevent slave owners from artificially inflating their power in the Legislature.
I'm wondering why at the end of the article you write, "we must be willing to protect potential human life." I was assuming you believed that the zygot/embryo/fetus was a human being, and thus a human life, not just a POTENTIAL human life?