Friday, April 6, 2012

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.]

            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.

The U.S. Constitution, Justice, Personhood and Abortion Law
Abortion & Present 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.
            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.

The Constitution & Societal Pressures and 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.
         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 Law & 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.
         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.

Justice & Abortion 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.
         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.
         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.

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.
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.
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.

Science, Ethical Frameworks & Abortion Policy
Science as Objective 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.

Science Within an Ethical 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.
         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?

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]

            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.
            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.

            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.
[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
[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,
[11] Augustine of Hippo, unknown source
[12] Amendment 14


LN said...

Thank you.

gojirama said...

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.

Nulono said...

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.

Nulono said...

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.

Christie said...

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?