Gonzales vs. Carhart, today’s Supreme Court decision upholding the Federal “Partial Birth” abortion (PBA) ban,1 is a terrible decision for freedom and for women in many ways. But the most destructive element of the Court’s decision is a relatively obscure argument buried deep in Kennedy’s decision.
From Kennedy’s decision:
This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used. In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack. […]
As the previous sections of this opinion explain, respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases. Casey, supra, at 895 (opinion of the Court). We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications. It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.
What Kennedy is saying here is that if pro-lifers pass an abortion ban without any health exception, then women can successfully sue to have the ban overturned only in “as applied” cases. So a ban might not be illegal generally, but it still might be illegal in the case of Betty Smith of Memphis, who might be able to convince a court the ban “as applied” to women with her specific health circumstances is unconstitutional because it threatens her health.
But even if one lawsuit is successful in overturning the law “as applied” to the particular person who sued, the law could still apply to other women in other circumstances – meaning all those women would have to sue individually if they think the law is unconstitutionally being applied to them. The net effect could be to make it much harder for pro-choice activists to get Courts to consider whether or not new abortion-related laws are Constitutional.
So let’s say that Betty Smith has uterine scarring, and can convince a court for health reasons that the PBA ban is unconstitutional as applied to her and other women with her exact health conditions. That does nothing at all for Judy Jones, who has placenta previa; Judy has to initiate a whole new lawsuit regarding if the PBA bas is constitutional “as applied” to people in her condition.
This is what Jack Balkin was referring to when he wrote, in 2005, “Courts now enjoin new abortion laws as soon as they are passed if they burden some women’s right to abortion. But next term the court will decide whether to change that rule. If it does, states could pass stringent restrictions on abortion; these could remain on the books for years until lawsuits knock away the most blatantly unconstitutional features. That is not the same as overturning Roe v. Wade, but its practical effect is very similar.”
In her excellent dissent, Justice Ginsburg points out that Kennedy’s decision, while claiming to uphold previous decisions, in fact overturns the Court’s previous standards, and also ignores the basic purpose of requiring health exceptions:
Without attempting to distinguish Stenberg and earlier decisions, the majority asserts that the Act survives review because respondents have not shown that the ban on intact D&E would be unconstitutional “in a large fraction of relevant cases.” Ante, at 38 (citing Casey). But Casey makes clear that, in determining whether any restriction poses an undue burden on a “large fraction” of women, the relevant class is not “all women,” nor “all pregnant women,” nor even all women “seeking abortions.” Rather, a provision restricting access to abortion, “must be judged by reference to those [women] for whom it is an actual rather than an irrelevant restriction.” Thus the absence of a health exception burdens all women for whom it is relevant—women who, in the judgment of their doctors, require an intact D&E because other procedures would place their health at risk. Cf. Stenberg, (accepting the “relative rarity” of medically indicated intact D&Es as true but not “highly relevant”—for “the health exception question is whether protecting women’s health requires an exception for those infrequent occasions”); Ayotte, (facial challenge entertained where “[i]n some very small percentage of cases … women … need immediate abortions to avert serious, and often irreversible damage to their health”).
It makes no sense to conclude that this facial challenge fails because respondents have not shown that a health exception is necessary for a large fraction of second-trimester abortions, including those for which a health exception is unnecessary: The very purpose of a health exception is to protect women in exceptional cases.
Ginsburg also points out that it’s ridiculous to expect that women facing immediate health decisions involving pregnancies are going to be able to put their distressed pregnancies and medical emergencies on hold in order to sue the United States government (a process that takes years). “Surely the Court cannot mean that no suit may be brought until a woman’s health is immediately jeopardized by the ban on intact D&E. A woman ‘suffer[ing] from medical complications’ needs access to the medical procedure at once and cannot wait for the judicial process to unfold.”
Of course, it’s impossible to know for certain how this will play out in practice. But this aspect of Gonzales is the most frightening, and contains the most potential to destroy abortion rights in practice.
In short, this is some scary, anti-freedom shit, buried on page 37 of a 39 page decision.
(I’ve drawn on some past posts of mine in writing this new post: here, here and here.)
- Here is an AP article reporting the Gonzales decision, and here is the text of the decision itself. [↩]
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As I said over on Feministe: “Goddammit, goddammit, goddammit.”
I’m also hard pressed to think of other laws that work like this, where it’s easy to think of a thousand situations where they would be unconstitutional, but the courts just say, “well, then just sue and we’ll make them unconstitutional . . . in those situations.”
I mean, really, what else works this way?
Your argument, of course, is one which would prohibit state regulation of the any medical procedure on any person of any gender for any condition. After all, “it’s ridiculous to expect that _______ facing immediate health decisions involving ______ are going to be able to put their ______ and medical emergencies on hold in order to sue the United States government,” no?
A very dark day for all in America, but obviously especially for women. It is the Supreme Court’s version of terrorism, as it will strike terror into any woman who may need an abortion. By targeting the most vulnerable portion of the population — women who may need a late-term abortion in order to save their lives — the Third Branch of the government has demonstrated it is no slouch in oppressing the poor, the weak, the vulnerable.
The Democrats should immediately move in Congress to repeal the so-called “partial birth abortion” ban.
Invictus — an anti-torture website
Any argument, taken to its furthest extremes, becomes ridiculous. Kennedy’s argument is an extreme, and is ridiculous. But the alternative isn’t just my argument taken to a mirror-image extreme; it’s balancing the interests of the government in protecting citizens from bad medical care, with the interests of citizens in having access to the best health care they can get.
Well, that’s why, rather than deciding on a individual-patient-case-by-case basis, the government is usually best off relying on what experts in the medical community thinks, and not banning procedures that many qualified medical experts think are valuable for preserving the lives of their patients.
So it’s reasonable to ban, say, untested medicines, on the grounds that untested medicines can kill large quantities of people, not just according to the religious right but according to medical experts. It’s not reasonable to ban a procedure that, currently, most of the best-qualified experts and expert organizations believe could sometimes have a legitimate use in protecting womens’ health.
The bottom line is, do you want decisions about women’s medical care to be made by women and doctors with relevant expertise, or do you want them to be made by whatever theocrats can manage to get elected to the Senate? On this issue, you’ve aligned with the theocrats.
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(Note: I originally wrote this comment on the “Gonzales Decision: We Help Women By Removing Their Autonomy” thread. That thread is feminist only, so I’m posting it here instead. Much of this comment responds to comments made on that thread.)
According the the summary, 46 percent of women who had abortions in the US in 2000-2001 didn’t use birth control in the month they became pregnant. (One percent of those women were raped.) That’s not a majority, but it’s a pretty hefty minority. Of the women who did use birth control, a majority reported “inconsistent” use.
I commend rara and Kate L. for their posts. For a long time I’ve felt constrained to avoid posting on abortion threads because I don’t support a woman’s right to have an abortion at any time during pregnancy for any reason. Like Kate L, I’m pretty comfortable with the Roe framework; I support abortion on demand up until 20 weeks, with increasing restrictions from there on. I support abortion to protect the mother’s life or health at any time during pregnancy.
No, Myca, abortion is not good. It’s the destruction of a living thing, a necessary evil to be avoided if possible. To that end, I absolutely support comprehensive sex ed and cheap, reliable, readily available birth control. (I note the correlation in the Guttmacher report between youth, poverty and lack of education and nonuse of birth control.) I think both partners should take responsibility for using birth control when the woman doesn’t want to get pregnant.
There’s a conversation we keep having here on Alas (speaking of endless repetition) that goes something like this.
Amp: (not to single out Amp, but he has stated this view repeatedly) I support a woman’s right to an abortion at any time during pregnancy for any reason.
Dissenter: So you would be OK with a healthy pregnant woman’s aborting a healthy 35-week fetus just because she decided she didn’t want a baby after all?
Feminist: Strawwoman. No woman would actually do that, and no doctor would perform such an abortion. Why don’t you trust women? You just want to punish women for having sex.
I want to ask: 1) if the question is a strawwoman, why is the pro-choice position always stated in these absolute terms — almost as if to trap the non-absolutists among us into posing it? 2) would you in fact be OK with a healthy pregnant woman’s aborting a healthy 35-week fetus just because she decided she didn’t want a baby after all (assuming that she could find a doctor to do it)?
I’m not OK with it. I think it’s wrong. I favor keeping laws against it. I think pregnant women are no more immune from making bad decisions than anyone else (although I’ll grant that this is a pretty extreme case).
I’m also not OK with the Gonzales decision. It outlaws a procedure that’s basically never used unless the woman’s life or health is in danger. It shows total disrespect for women, their health, and their doctors. I hope it gets overturned as soon as possible.
“It’s the destruction of a living thing, a necessary evil to be avoided if possible. ”
It’s the destruction of a non-sentient living lump, at least up until a certain point in gestation. Let’s call that 20 weeks for now.
But before that, I certainly see no reason to call it a necessary evil (not conceding it is afterward, but for the sake of argument, let’s restrict). With respect, unless one is a vegan Jainist, I don’t know that the position that killing living things is blanket a necessary evil is something that anyone can claim without evident hypocrisy.
Nor even then, Mandolin: there’s a school of thought that every living thing, be it animal or plant (to simplify I’m going to ignore the other three kingdoms here), is equally an incarnation of God — or, if you prefer, has an equal right to existence — and is not to be lightly disposed of. From this perspective everything’s a balancing act.
But I take your point, and indeed I was parsing it myself while lying awake last night: does a non-sentient living lump have special status because it might someday become a human being? I guess in some illogical part of my head it does. There are other, more practical reasons why I find birth control preferable to abortion: it’s easier and cheaper, and it frees up medical resources that might better be used elsewhere.
You could make the same argument about dental care: as your dentist will tend to remind you in a most annoying schoolteacherish way, you’re much better off brushing and flossing properly than having to get a filling or a root canal every year or so. (I state here proudly and without fear of contradiction that I regard root canals as a necessary evil.) I guess I would put early abortion and restorative dentistry in the same category: it’s better not to need them, but they should be readily available and free from moral opprobrium. (And I will continue to tell the illogical and irrelevant part of my head to shut up.)
I don’t think it is the destruction of a living thing, except, perhaps in the sense that the removal of a tumor is the destruction of a living thing. For the overwhelming majority of a pregnancy, I think of the fetus as a parasite on the mother, and I believe that she has the same rights in regard to the fetus as she would have with any other parasite.
And heck, even if we are talking about the abortion of a 35 week old fetus . . . well, yes. I believe that a woman’s right to bodily autonomy is the most important consideration there. I prefer abortion, even at that late date, to government enforced childbirth, which is the other option.
Me too. Abortion is an invasive procedure that can be made mostly unnecessary by birth control and education.
Absolutely, 100% yes. I wish that all the men who bitch and moan about how they have no choice in abortion would just realize that they have lots and lots and lots of choice in birth control.
Nobody’s taking your semen from you against your will, you know?
—Myca
Also, I’d like to add, in regards to abortion being ‘good’.
I think it is a flat-out good thing that women have the option of abortion. Whether you think of abortion as a necessary evil or not on a personal level (that is, you’re happy that the option is there, but it’s not something you would undertake lightly) is another matter as far as I’m concerned. I think of abortion as good because it means that women won’t be trapped (or, more realistically will be trapped far less often) into an unwanted pregnancy, and that’s a good thing, period.
—Myca
OK, put that way, I agree.
Here I disagree. As Dianne put it in the other thread:
Do you have kids, Myca, or have you lived with a woman through a pregnancy? By 30+ weeks, or even by 20 weeks, a pregnant woman has had ample time to come to grips with being pregnant and to decide whether to carry to term. At a certain point she’s committed to going through with it (absent health issues, of course).
As an aside, quoting myself on the other thread:
Just FTR, there are women (usually, but not always, very young women) who hide pregnancy, deliver alone, and either leave the newborn to die of exposure or kill it outright. It’s rare, fortunately (more so now since many states now have “safe haven” laws allowing a woman to surrender a newborn at a hospital, no questions asked), but it does happen. Usually the woman is fathoms deep in denial until the baby actually comes, and for that reason I’d think the hypothetical 39-weeker would be even more rare, but I wouldn’t rule her out either.
“I’d think the hypothetical 39-weeker would be even more rare, but I wouldn’t rule her out either.”
I don’t rule her out, but I’m unwilling to make policy by her.
I don’t rule out welfare queens having lots and lots of babies so they can feast on the resources of the state 100% either. I’m not unwilling to make policy by them either.
I *am* unwilling to make policy by them. Excuse me.
*
Lu,
I get you with the illogical part of the brain thing. It’s not something I have about this issue — probably because I’m a strict materialist — but I totally have them about other stuff.
I think the story of Angela Carder is a good example of why it’s troublesome to leave medical decisions up to anyone other than the pregnant woman. The gist: Carder was a cancer survivor, 25 week pregnant, who was found to have a lung tumor and decided to undergo chemo- and radio-therapy. When her condition suddenly deteriorated, hospital administrators sought and obtained court order to perform a C-section against the wishes of her and her family. The baby died within hours of delivery, and Carder within days, with the C-section cited as a cause. She never got the cancer treatment she wanted.
I would find it very frightening to have to negotiate with my health care provider or hospital administrators or worse, supreme court justices who think I am in a “fragile emotional state”, whether threats to my life are significant enough to warrant an exception to a ban. Is 5% enough? Even if you allow non-life-threatening health exception, which the current ban doesn’t, that still leaves questions like what is a serious enough health issue? If there is a 10% chance that carrying a pregnancy to term will make me blind, am I allowed an abortion? Who decides?
I would find it unfortunate, just as I would if someone refused to donate a kidney to save their child (suppose they are the only match), but I don’t think anyone should go to jail for it. If you think this analogy is unreasonable, consider that the risk of maternal death is 1 per 5900 livebirth in the US (higher if you’re non-white)*, while the risk of death from living donation of a kidney is 1 in 5400**. Let’s say only a third of the maternal deaths occur after 35 weeks. That makes the risk of her dying by carrying to term roughly a third that of donating a kidney.
There isn’t a law requiring parents to donate blood to their children, even if they have a rare blood type such that the parent’s is the only source and the child will die otherwise, is there?
There isn’t a law allowing the taking of blood/organs from executed murderers without their prior consent. Even to save the most important/innocent person, or their own children, is there?
Bodily integrity. It’s that important.
* WHO report
** Arthur J. Matas, Stephen T. Bartlett, Alan B. Leichtman, Francis L. Delmonico (2003) “Morbidity and Mortality After Living Kidney Donation, 1999-2001: Survey of United States Transplant Centers” American Journal of Transplantation 3 (7), 830–834. doi:10.1034/j.1600-6143.2003.00126.x
At 35 weeks, even if she didn’t realize she was pregnant right away, this woman has had more than plenty of time to decide if she wants to run that risk, and to get an abortion if she doesn’t. (Even if she has to travel to another city and sit through a waiting period at considerable cost and inconvenience, and please note that I firmly believe no one should have to do this, PP clinics should be as common as McDonald’s, it’s a great deal less than the cost and inconvenience of carrying to term, to say nothing of raising a child.) And, frankly, I’ve never met a woman who even thought about the danger of normal childbirth when deciding whether to continue a pregnancy. It’s all about “is there room in my life for a baby right now?” And that’s perfectly legitimate, but, again, at a certain point the woman makes a commitment to go through with it, to allow her body to be occupied, and she can’t change her mind for no good reason after the fetus is a full-blown human being.
Danger to her health would be a good reason. I would absolutely make a health exception if there’s a significantly elevated risk of significant injury — a 10% chance of going blind would qualify. In England and I think in a lot of other countries as well it already works this way, and I believe the decision is completely up to the woman and her doctor, and there are review boards and charges can be brought (after the fact) if there’s doubt that a medical issue existed. I would not want anyone to have to negotiate case by case: that would be, to coin a phrase, an undue burden.
Thank you. I appreciate that, truly. I’ve been put in the same basket with never-no-never-not-even-to-save-the-woman’s-life pro-lifers (ugh) because I admit to ambivalence on this and I’m not a pro-choice purist.
Why? I believe someone can sign all the forms to donate their kidney to their child, and still change their mind and not go through with it. If the child dies as a result, the parent would have broken no law. (I specifically say child because anti-choicers like to say that the woman is responsible because she created the child.)
This is eerily reminiscent of “she consented to sex, but say ‘stop!’ in the middle – how dare she!”.
And note your use of “no good reason”, “good reason”, “
(cont’d) that’s perfectly legitimate” etc. It’s very nice of you to think that a 10% chance of blindness would do, but Justice Kennedy, who found motherhood the “ultimate expression of love”, may not agree. The hospital administrator is not going to know if they will face you or him, so to be on the safe side they deny the abortion.
Can you understand how scary “charges can be brought (after the fact) if there’s doubt that a medical issue existed” sound, given the large number of health care professionals that are religious zealots who wouldn’t even dispense emergency contraception information to rape victims?
Honestly, would you support a law mandating organ donation from parents to their children to save their lives? Mandating organ/blood donation from executed murderers to innocent people?
Why would I have less right to bodily autonomy than an executed murderer, once I agree to pregnancy?
That would be what we ask for. Without the witch hunt, paternalizing, second-guessing, etc. Thanks.
I’m pretty sure that this system has flaws; I think it’s been written elsewhere that there are certain doctors who refuse to help the woman because they are pro-life, but that they explicitly avoid identifying themselves as such and put her off until the time when she can get an abortion has passed.
Kai,
I’m not sure Lu is arguing for a legal change. I got the impression she wants to talk about whether or not it’s moral in more general terms.
Did I get that right, Lu, or am I off base?
All right. Let’s assume that the pregnancy was unplanned and the woman didn’t know about it until she was already 10 weeks along. What in blue blazes has she been doing for the past six months? Doesn’t she have to take any responsibility for the unborn child, at any point in her pregnancy? The difference between pregnancy and the kidney example is that she was perfectly free to get an abortion in the first or (some part of the) second trimester.
Also, someone with medical knowledge correct me if I’m wrong, but aren’t the health risks of any method of separating woman from baby roughly the same at this point (again, we are assuming a normal pregnancy)? If she doesn’t want the baby, why not give it up for adoption?
And I am not being “paternalistic”! We are not talking about what Justice Kennedy wants. I… grrrr! I’ll be back.
OK. Deep breath.
Well, yeah, Mandolin, I was thinking in moral terms, but I was also trying to come up with a legal framework where the woman’s health and her doctor’s judgment and the viable fetus’s life would all be respected. You’re right, of course, that no perfect solution exists (especially in the US where fundawackos flourish). You and Kai always err on the side of the woman’s bodily integrity, I err a bit more the other way. And because the difference is really pretty small, we end up arguing extreme cases.
I still think it’s morally wrong to kill a viable fetus except in self-defense, defining self-defense pretty broadly. (Btw if you kill your abusive spouse or your would-be rapist in self-defense, I will be squarely in your corner, and you will unquestionably be second-guessed.) I still think the Gonzales decision is bad law and bad policy, not to mention bad medicine. (At least Bill Frist had a license to practice.) Please do not lump me together with Justice Kennedy, never mind those hard-line pro-lifers I mentioned.
Just for an example of someone who doens’t know that she’s pregnant until she’s far along, a friend of a friend of mine didn’t discover she was pregnant until she was something like six months in. She wasn’t showing, she had no symptoms, and she’d been having monthly bleeding. (She had the child, but failed out of medical school because of it. I don’t know whether she’s happy about how things turned out, or unhappy, or ambivalent — I’d guess the latter.)
“I still think it’s morally wrong to kill a viable fetus except in self-defense, defining self-defense pretty broadly.”
I hear you. Things definitely get murkier in this area. I hope you don’t feel I’m tarring you with a black brush.
Personally, although I agree that the argument gets trickier for me here, I’m still more worried about potential abuses in the law hurting the women than the potential harms to fetuses. IIRC, I don’t think fetuses have consciousness as we define the term.
Given that, we have a possibility for the law to be abused, forcing women to give birth to a fetus that is damaging their health (as others have pointed out, it’s scary to let the medical establishment in a misogynistic country decide how much maternal risk is acceptable). We also have a possibility of some minority of women deciding frivolously* to abort advanced fetuses.
When these two groups of innocents (women in harm’s way, viable fetuses) are opposed, I support the women. They are fully fledged and have consciousness, where the fetuses probably don’t. I also suspect, though I admit that I have no statistical grounds, that there are more women potentially harmed by scrupulous doctors than viable fetuses potentially aborted for frivolous reasons. I have some other arguments, but they are grounded in assumptions I doubt you’d agree with.
So that’s how I feel, more or less.
*Frivolous is a problematic term. I don’t know what’s frivolous and what’s not. In this context, I imagine it means “medically unnecessary,” but I can think of situations where that seems like a poor guideline. If a woman’s husband dies when she is six months along and she can no longer support a wanted baby, is that frivolousness? I can understand why she might feel she can’t give it up. If a sixteen year old has kept her father’s child while living in his house, but has recently been taken out of the incestuous situation and, with the clarity of distance, realizes she doesn’t want to give birth, is that frivolous? A woman who is having sudden panic attacks about pregnancy at six months might be called frivolous, or at least people might suggest to her that they’ll alleviate if she waits, but what if that same woman becomes suicidally depressed and realizes she can’t care for the baby? Or enters her first schizophrenic episode and knows that it increases her baby’s likelihood of being ill?
Mandolin said it better than I can.
(Emphasis mine.) Lu, I’m not lumping you with Justice Kennedy, but trying to say (albeit not very effectively) that if there is a law banning all abortions after (say) 20 weeks, with a life and health exception, someone like you (nice), OR someone like Justice Kennedy (not so much), may come to decide my case. And I worry that the hospitals and doctors will, after calculating the odds (90% vs 10%) and possible outcomes (jail time for doctor vs blind woman suing for damages), deny me an abortion. Maybe in a more women-friendly country (where Eric Keroack wouldn’t be in charge of family planning, for example) I wouldn’t be as worried.
Also ditto to not being able to decide if “medical unnecessary” is always “frivolous”.
You seem to be saying that there is a certain point beyond which she should not, by law, be able to change her mind. I am not aware that’s the case in organ donation. Even if by the donor flip-flopping the recipient misses another opportunity, and dies, the donor would still have broken no law. You and I may think they are a horrible person. But we would not advocate a law forcing doctors to stick to someone’s original promise to sustain another’s life regardless of how they feel later.
I think many believe that the pregnant woman’s responsibility to the fetus is greater than any other. While I respect that belief, I think codifying it into law is unfair.
I think this is the reason the “35 week, both healthy” abortion doesn’t exist in reality. Women in these situations and their doctors overwhelmingly (always?) decide on giving birth rather than abortion. And you and I are both happy about that. Why, then, do we need a ban?
Agreed. Having been raped probably fuels my position – I am quite adamant about the government not sanctioning someone forcing their will against me. And it seems that fetal rights is increasing used to justify such coercion. Be it abortion bans or the more prevalent forced C-sections.
Truth be told, Lu, If more people in power believe like you do, I’d probably be taking a walk this beautiful Sunday morning rather than agonizing over this whole abortion debate. It’s the “fundawackos”, as you say, who keep me up at night.
Found this gem in a 2004 article, thought I’d share:
AFAIK it’s not. But what I’m saying is that a person who needs an organ will continue to need one until they either get it or die, and their personhood and the moral dilemma involved don’t change unless they do die. But a fetus is not a person until at least halfway through pregnancy; before that point there’s (for me, anyway) no moral issue with ending the pregnancy, but after that things get (again, for me) much trickier. I think a pregnant woman in the normal course of events* has a responsibility to know this and to commit one way or the other before that point. (And, for that matter, I think a woman who doesn’t want to get pregnant or a man who doesn’t want to impregnate anyone has the responsibility to abstain from sex or use birth control, but I wouldn’t try to legislate that any more than I’d legislate daily flossing.)
That’s a very, very slippery ethical slope, and I don’t want to go there. Does a newborn have consciousness? How about a severely disabled person? Not going there.
Or, to put it another way, if for every highly disturbed (to say the least) woman who manages somehow to find a doctor to abort her 35-week baby a thousand women with health complications can make these very, very tough medical decisions without having to worry about unearthing a doctor or hospital board willing to face down Justice Kennedy, that’s a good trade.
I can almost get there. Almost. I get stopped dead in my tracks when I get to the point where a person (the advanced fetus) has no legal rights and is completely at the mercy of someone else’s judgment…
Hmm, this begins to sound familiar. But I still can’t quite get there. Walk, anyone?
*That of course leaves Mandolin’s friend out in the cold. (SIX MONTHS? Dear heaven. I can’t imagine what a shock that must have been.) I think someone, somewhere, in some rare circumstance always will be. I don’t mean to sound unsympathetic (YIKES), I just have no idea what to do with those cases. (I would imagine that she is indeed ambivalent.)
Oh, and where does Dr. Bowes practice? Just so I know never to move there.
I think it’s possible to view the lack of consciousness as a contributing factor without conceding that the condition is necessary and sufficient to make it ethical to euthanize someone.
i.e.
fetuses probably don’t have consciousness; women definitely do
probably not conscious fetuses inhabit the bodies of conscious women; newborns and disabled people never do
probably not conscious fetuses can directly threaten, through the act of continuing to live inside the bodies of definitely conscious women, their host’s life and/or health; newborns and disabled people do not directly threaten people’s lives and/or health through the act of living
So if you have to choose one, you choose the woman.
While that makes sense, I have to tell you that this criterion, even if considered only as a contributing factor, really, really bothers me. I’m biased by having a severely disabled child.
Hey Lu,
That’s fair.
It’s amazing how abortion gets tangled in so many starting assumptions… one almost doesn’t realize they’re even there.
I hear you, Lu. My brother is severely disabled, and as the oldest daughter in a poor family I was his primary care taker when we were both young. The topic of selective abortion makes me uncomfortable. I am also a vegetarian and try to relocate bugs I find in the house instead of squashing them.
It helps when I realize that the same people who are anti-choice also cares the least about supporting people with disabilities, children, etc. IF we have a society that really values human life – and the work women do to reproduce it – such that health care is available to everyone who needs it, paid maternal leave is guaranteed, the elderly and the disabled are well taken care of, war isn’t waged unnecessarily, etc, I would be ok with sacrificing some bodily integrity for the common good, as long as it is fair (say mandatory blood donation for all healthy adults, organ donation upon death, plus restrictions on late term abortions). (I don’t speak for other women though.) Interestingly enough, Canada, which does seem to fit the “valuing human life” bill, has no restrictions on abortions.
(I continue this just for mental exercise, not to be argumentative.) A purely hypothetical situation: by prenatal genetic testing at 15 weeks a fetus is found to need the biological father’s skin/blood/chunk of liver/what-have-you upon birth, or else will die. He agrees to donating it, and based on this promise the woman carries the pregnancy to term. Should there be a law holding this man to his promise/responsibility?
If a fetus is not a person before some point (say 20 weeks), but is one afterwards, this makes some situation almost paradoxical. Say a woman finds at 18 week pregnant that she carries a fetus with conditions incompatible with life outside the womb. If she aborted at 18 weeks, no person would have been created or harmed. If she carries to term, she would have created a person that faces certain death. So should the law mandate an abortion in this case?
This is one of the reasons why I don’t prefer to engage in discussions about when a fetus becomes a person in the context of abortion debate.
As would someone in need of an organ, or rare-type blood. They have rights, just not enough to trump the woman’s to her body. I think fetuses have legal rights. If a fetus can be safely removed alive from the woman carrying it (as safe or almost as safe as if she would abort it), I think the woman should not have the right to order it destroyed if she consents to having it removed. In other words, I think a fetus has a right to live, just not a right to use the woman’s body. Another example: suppose a certain baby must have its mother’s breast milk, or face serious health consequences including death (let’s say deadly allergic to any other alternative). Would it then be right to forbid the woman to undergo surgery that would impact her ability to make milk? A baby definitely is a person and has rights.
Oy. Are you a lawyer by any chance, Kai? You’re awfully good at these hairsplitting hypotheticals. I’ll have to defer most of your questions until my mind is up to the gymnastics. (And until I’m not supposed to be working.)
The fundawackos, as I seem to be calling them, yes. I know a number of pro-lifers who do care very much about those things, and who also actively support improvements in education and health-care access that would reduce the number of abortions among other benefits. Sadly, they seem to be very much in the minority in the US, and given the actual state of play I very much hear what you’re saying.
I want to thank you both, Kai and Mandolin, for answering my original question so well. As I said, I still can’t quite get to where you are… but now I can see it from here.
Lu,
If you don’t mind continuing the conversation for a tick — I have an ignorant question, which I hope is not inherently offensive. Are there many disabled people out there with a level of consciousness less than newborns? I guess I’m thinking even Ashley, who seemed pretty impaired, was at a level quite a bit more sophisticated than that. But I may just not know what the hell I’m talking about.
Fuck. This – quite, uh, viscerally reminds me of that whole “i let my boyfriend tie me up and then he raped me” thing last winter. I’m so getting my tubes tied, seeing as I can’t ever take the risk that it’s month seven or whatever and I have to sue somebody for the right to decide to not kill my ass again and/or not die. And I have a sneaking suspicion that given my condition, at month seven the choice of procedure itself really would be the biggest difference between “I get to keep all of my guts intact” and “sure, I don’t mind having my bowels mixed in my bloodstream, that’s just fine!”
Maybe I’ll freeze some special little snowflakes first, but uh, probably not (more likely, I’ll sell a few to get those Good White Lady genes out there and pay off some medical bills – just as soon as I quit smoking, right?).
Hah, and it’s exactly the “gap” between Mandolin’s comment above my last one and that last one of mine that gets to me (not that Mandolin’s wasn’t a valid question given the conversation):
How conscious is the special snowflake When? versus: When does it stop being My special unique-to-me body and become the Supreme Court’s giant asshole shitting on me? That there is even such a debate is what makes me so damn (literally, figuratively, whatever) Sick.
Har har.
And WHY didn’t I think to link to the “Nice White Lady” clip/thread with my ‘good white lady genes’ crack? argh, that would’ve been soooo much funnier.
;(
“How conscious is the special snowflake When? versus: When does it stop being My special unique-to-me body and become the Supreme Court’s giant asshole shitting on me?”
Yeah… I’m starting to see why people favor bodily integrity arguments.
If I can still answer the question… no, I don’t think so. My son has the cognitive ability/consciousness of a 2-year-old, roughly. (He’s 13.) Ashley’s brain is said to function like a 3-month-old’s.
OTOH I have had it seriously suggested to me that my son is a drag on a productive society and should therefore be euthanized by the state. In general I’m hyper-hypersensitive to “this person is more valuable than that one” arguments. And I realize that’s a really broad-brush and unfair way to characterize what you were saying about consciousness, and I apologize, it’s just that that’s the button that it pushed.
No, I remember that, I think. It happened in the Ashley thread, didn’t it? Some guy who was saying something about how people weren’t inherently special, which for some reason gave him the right to dictate how you should treat your son? It was galling and insensitive, and it’s perfectly reasonable for you to be wary of similar arguments.
I don’t think I said anything at the time, because I was arguing on the other side of the issue from you, IIRC, and I didn’t want to go into the ways in which I agree with him (I don’t see humans as inherently special) and where I disagree with him (“drain” being a stupid term), and I thought it would have just made matters more complex and tugged the thread in a worse direction — but I was supporting you silently, and I’m sorry it happened.
I am very sorry that you’ve had to endure that. :-(
Apologies if the hypotheticals were annoying. Just thinking “out loud”, is all.
Thanks for sharing your perspectives.
Thanks, Kai and Mandolin. It was way before the Ashley thread — I can’t find it at the moment. Doesn’t matter that much.
The hypotheticals weren’t annoying — I sort of enjoy tying my head in that kind of knot myself, and I really will think about them some more and possibly even answer them when I can give them my full attention.
Hmm. I think I take it way too much for granted in these kinds of discussions that I’ve spent a lot of time working around people with various sorts of different abilities – most notably working in my teens in a theater company called “theater of inclusion (t.o.i)” that focused a lot on the 8-or-however-many kinds of intelligence. Aside from mixing up some professional dancers with some amateur dancers with Downs’, it turned out that the only autistic guy there during my time with them would just always want to go into the lighting booth and fiddle with the lights. And hell, even the professional lighting guy who flew in for each show just had to sit back and let him go with it.
[hey guess what I did? walked around with a video camera and kinda wove in and out of the action].
So when the discussion turns to “how much value/burden is a freaking person, when it comes down to it,” I am in fact a little biased. I also spent a year as a quadriplegic woman’s sorta “robot-helper,” since I was both able to lift a ninety pound woman and not terribly put off by wiping shit from someone’s ass, and she’s the chick who got Boston to add a little accessibility to its transit system way back in the day [by having another care assistant chain her to a trolley, bless both their hearts]. Her parents were told to just let her and her (similarly-abled) sister die quietly as babies instead of, y’know, taking them to the freaking doctor. So in my mind, I really do kind of associate deciding who-lives-who-dies on “what can’t the person do” with…uh…shittiness in every sense of the word.
{see: can’t tell my ass from a hole in the ground}
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