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November 14, 2004

Standing of the Unborn

As a Christian, I am fully aware of my proclivity to challenge moral thinking in the public sphere, but I engage this within the context of our civil society. This provides an ethical challenge between what I think, feel and believe and what I am willing to do. I choose the moral framework of religion and the instrumentality of the law.

Fifteen years ago, I poisoned my mind with a dose of critical legal theory beginning with the works of Derek Bell and Kimberle Crenshaw. In those days I was seeking a legal understanding of racism and legal strategies against it. Basically I was trying to get under the question of whether or not our Constitution and/or founders were principly racist and if so, irreparably so. One of the legal terms I learned was that of 'standing'.

Standing basically means the ability of a person to his or her testimony be recognized in a court of law. If you are a space alien or a lizard or anything but a human, you do not have standing in a court. Anyway, all I was interested in was the diminished standing of Africans here in America, but I did learn this powerful concept.

So when the question of legalizing abortion or making abortion illegal comes up, I see it in terms that pro-life advocates suggest which is that a fetus is a person. IE an individual, IE someone who is endowed by their creator with certain inalienable rights among which is certainly life. So abortion is a constitutional question if a fetus is a person, just as slavery was a constitutional question if an African was a person. In many ways the the question is parallel - is a woman's unborn child her property or does it own itself? There the similarity ends.

I say that an unborn child is property and not a person endowed with rights. So I am very interested to guage people's position on the matter of the standing of the unborn.

If one believes as I do, that an unborn child is the joint property (or if the word property is sounds too harsh, say 'responsibility') of the parents, then they must consciously relinquish that property in order for the state to act in their stead in the matter of its disposition. Or, as I said before, the state must meet some burden to show that the pregnant pair are like a car out of control without brakes and intervene on behalf of society.

If one believes that the unborn child has some kind of standing to exercise its right to life. (very consciously using the phrase 'right to life'), then the state has a much more powerful interest in intervention. They probably shouldn't have to prove any matter of capacity, simply the intent to deprive the unborn of their right to life is sufficient. It is the standing of the unborn as a person endowed with inalienable rights that makes this a very central legal question in our nation.


Posted by mbowen at November 14, 2004 05:59 PM

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This is very logical and I appreciate your point of view. I would like to challenge you on your one fundamental premise: namely, that a fetus is property and not a person. I'm interested in how you arrived at that. Why does moving out of the birth canal "quicken" personhood? (Incidentally, I suppose this is what makes you "moderate." That to me is the code word for pro-choice.)

Posted by: Dan "lottajota" Smith at November 14, 2004 08:52 PM

A person has a name, a gender, a birthday, a nationality...

Just because we have a little science why should it overturn centuries of tradition? This is the direction of my next post vis a vis advances in reproductive science, etc. What human interest does the extending of the definition of 'a good life' in both directions serve? I think the interest is greed.

I'm a civil libertarian on most social issues. I believe the government has no business picking what kind of public it likes. I believe that humans have the right to make life and death decisions unless they punt to the state. On abortion I would say that I'm somewhere between pro-choice and anti-abortion, because I'm both. I am not pro-life, as I understand it.

Posted by: Cobb at November 15, 2004 08:29 AM

It is interesting that you cite "centuries of tradition" as justification for recognizing birth as the quickening point since I am sure you are also aware of another "peculiar institution" that existed with "centuries of tradition." One might wonder if you write in a Swiftian vein.

I concur that the central oft-unasked question to the abortion issue is at what point does the child gain recognition and, therefore, protection as a person. I feel this is purposefully ignored by the pro-abortion camp, as it places them in the position of having to argue that an otherwise viable fetus is not a person solely based upon the absence of respiration, an argument that for many Americans is difficult to buy. Morally, I see late term abortion similar to removing life-support from a patient without a living will (except the long-term prognosis for most fetuses is pretty damn good). If the state has an interest in representing the intersts of a non-communicative party in one case the propriety of its interest in the second is solely based upon standing. Most Americans, I think, would be willing to agree to recognizing the legal standing of a medically viable fetus past a certain point. Science is not on the side of the pro-abortion camp as that point of reasonable viability gets closer and closer to conception.

Posted by: submandave at November 15, 2004 05:54 PM

A person has a name, a gender, a birthday, a nationality...

Not if that person has amnesia. Then, by your thought, the person no longer exists. Then, if I kill him, I'm not guilty of murder.

Abortion ends a life.

Posted by: DarkStar at November 15, 2004 06:02 PM

I note the quirks of the citation, but I want to really establish that scientific discovery doesn't automatically serve the interests of humanity. We have a difficult time reconciling that over here in America, Innovation Central. Catching up to scientific possibility isn't always progress. Consider the generational war coming up over the flawed design of Social Security due to longer life expectancy of the next beneficiaries.

I need to clarify the differences I am trying to express between a soul, a person, and a citizen. I acknowledge the Christian definition of a human soul at conception, but I am arguing that they cannot force the State to recognize that soul as a person.

Throw in a simple twist like surrogate parenthood or invitro fertilization of a non-citizen and you throw the entire body of law with regard to citizenship completely into chaos.

It is my understanding that there is no international standard definition for death. If I remember correctly, in China there is no term for brain death. This same set of issues is very appropriate for questions of organ donation. So what is 'living tissue'? A part of a person, or a person's property?

Take this example. If Arafat were flown to Paris whil he was in a coma, and a comatose state has two different legal definitions in France and whatever Palestine is, whose definition takes priority?

The contingency of 'reasonable viability' is the rabbit hole I would seek to avoid. We already know that what is 'reasonable viability' for the malnourished teenaged girl in Alabama is very different from the 25 year old wife with full benefits in California. Whose fetuses and interests does a law which recognizes such a squishy definition serve?

Posted by: Cobb at November 15, 2004 06:22 PM