Bayou Calvinist

A Somewhat Eclectic Discussion by a Law Student Concerning All of Today's Major Topics, as well as, a Few Not So Major Topics

Friday, July 22, 2005

Abortion Laws and Science

I sent this article on Supreme Court Justice To Be John Roberts' position on Roe v. Wade to my good friend Brady Couvillion. In detailing one of the three main constitutional understandings of the abortion issue, the article states in part that:

"A second position is that the Constitution prohibits, to one degree or another, laws that permit abortion. Under this "pro-life" position, unborn human beings would be recognized as "persons" for purposes of the Due Process Clause. The argument for this position would begin with the historical fact that, prior to Roe, the American tradition long provided broad legal protection for the lives of unborn human beings from the time that those lives were understood, in light of the biological knowledge of the age, to commence. It would build on the modern advances in embryology and genetics, which establish that the life of each individual member of the species Homo sapiens begins at conception. Consistent with the American tradition, this pro-life position might allow limited exceptions for abortion — for example, where continuation of the pregnancy threatened the life of the mother.

This argument is far more credible than the position taken by the Court in Roe and Casey. Indeed, advocates of the "living Constitution" ought to embrace it, as it combines respect for America's traditions with an updated scientific understanding. Nonetheless, I believe this position to be incompatible with a proper originalist understanding of the Due Process Clause.
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Not long after having sent him the article Ireceivedd this reply from Brady via e-mail:

"two thoughts with regard to the article..Onee, my main concern is that he is not conservative enough and will not be pro-life enough. And secondly, I loved the part in the pro-life paragraph about science...cause isn't that at least where we should start our decision making process...base it on the best scientific evidence available...which clearly states that human life does begin at conception."

My response to Brady was the following:


"I don't necessarily agree that science should necessarily play a significant part in determining what a state's laws will be concerning abortion. The point of a republic is that laws are to be passed by those whom the people choose to be their representatives or in some states allow direct votes concerning such issues. It is up to the representatives and the people to determine what their position will be as to any law. What these people/representatives allow to influence their decision is a personal matter. By stating that science should decide/or be a major consideration is either to suggest that individuals who allow other considerations to decide or outweigh science are wrong (this would include those who listen to religious considerations). Or perhaps you meant you wish that the courts should look to science...but this misses the whole point of judicial restraint and means that the courts should make decisions that are properly left to the legislative branch. I have seen far too often examples of courts ignoring judicial restraint (Roe v. Wade for example) in order to force humanistic, liberal European views onto the American public to be able to condone the use by conservatives of such a process."

Brady's response to this comment was:

"You know what I mean...the extra-scientificestablishmentt of laws has already taken place. In other words, we have already decided through laws established by the people and/or their representatives that murder is not acceptable. That having already beenestablishedd (without scientific considerations), science can then be utilized to decide if abortion constitutes murder."

My final response to Brady was:


"Yes, murder as illegal has obviously already been established. But if you look at most modern criminal codes murder or homicide is defined as something like the following:

Homicide is the killing of a human being by the act, procurement, or culpable omission of another.

Most similar codes distinguish when persons become human beings for legal purposes (persons being human beings from the moment of fertilization and implantation). In the definition of "person" one is able to see the influence of scientific knowledge of human biology.
But where exactly science leaves off and equitable considerations come into play is a murky line of demarcation. For instance science says at two weeks after conception the fetus is able to function in manner x. Well does functioning in manner x = life? = human life? Deserve the same legal protections as a person who is unquestionably alive and viable? All of these questions are just as much philosophical and/or moral as they are scientific. When does one's soul come into creation?
Some people will answer this question from a moral standpoint others from a scientific standpoint. So my initial point about scientific understanding not being the only missing piece to the abortion as murder puzzle (or even being the most substantial missing piece) remains valid."


Now in complete honesty mine and Brady's conception of the immorality of abortion is the same. The differences arise in possibly two areas. First it appears to me that Brady is not troubled to the same extent as I about the legal impact the use of the 14th Amendment's Due Process Clause to outlaw abortion nation wide might have. Secondly, what Brady sees as common sensical (prove the existence of human life in utero via science and ipso facto you have proven the immorality of--the need to outlaw--the abortion of that human life), I see as a point which has and will be argued on the basis of different moral and theoretical constructs by certain in the pro-choice crowd.

Also it must be kept in mind that since this conversationoccurredd rather rapidly via e-mail, many of our arguments were probably hinted at instead of greatly drawn out to their completeness and our choices in words were probably not the best. So to correct any misunderstandings which might remain concerning my view let me clearly state:

I understand Brady's point that science can play a valuable roll in determining how people should apply their moral beliefs to a real life scenario that is not expressly defined as murder by many traditional religious texts. I was a bit too dismissive of the importance science can and, I feel, should play in such determinations. This is primarily because I was worried about the idea of judges forcing states (their publics or legislators) to use science in determining their abortion laws.

I am equally concerned with how abortion is outlawed as I am with its actually being outlawed. The use of the due process clause of the 14th Amendment to create rights worthy of federal protection has been too common and should be stopped and reversed. Most forms of discrimination which that amendment was designed to stop have been effectively fought by the Federal government and there is no need to use it as a panacea for all the situations to which any ideology's fervent desires might attach.

Brady has promised to respond and so as soon as he does, I'll post his take.

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