From: Lee Daniel Crocker (lee@piclab.com)
Date: Tue Feb 04 2003 - 18:26:51 MST
A spate of depressingly ignorant news coverage of the anniversary
inspired me to write this. I'm not sure if there's any venue
that would interested in it, but there ought to be. Also, since
this is an editorial piece rather than a scholarly work, I do not
include references for the assertions I make about human biology,
but I believe I have all my facts right. Feel free to point out
any mistakes I may have made, though.
At any rate, it is an anniversay worth noting, and an issue worth
thinking about, because there will be more decisions in the area
of human reproductive technologies to come, and we should prepare
our arguments with an eye toward how non-extropians may view them.
In Praise of Roe v. Wade
Lee Daniel Crocker, January 22, 2003
The United States Supreme Court's decision in Roe v. Wade has been
maligned by both sides of the abortion debate throughout the 30
years since it was issued on January 22, 1973. It has been called
a "non-decision", a "cop-out", "political weaseling" and much worse.
You've probably heard some of those opinions recently. Even though
many lawyers will tell you that in a civil case, a judgment that
both sides complain about is probably a good one, they nonetheless
will call this decision "cowardly" or "muddled".
But the facts are that the decision itself stands up remarkably
well to detailed analysis of the issues involved, and when we add
in all that we have learned about biology in the years since, it
can even seem prescient. I doubt that my words here will persuade
any of those who are truly commited to either side of this debate,
but I believe I can at least show that the justices really did know
what they were doing, legally, morally, and biologically.
First, let's make it clear what they really decided, since there is
confusion even over this. In a recent episode of ABC's series
"The Practice", for example, lawyer Eugene Young ridicules the
decision as "nine men in robes making a decision for the rest of us".
But Mr. Young's tirade is 180 degrees from the truth. The court did
not "make the decision" for everyone; they did exactly the opposite:
they said that the Texas legislature, despite being a group even
larger than the court and directly elected by the people of that
state, cannot make the decision for every woman in Texas. But the
decision was a bit more complex than that. They further divided
pregnancy into trimesters, and said that different rules apply to
each. In the first, only the woman involved can decide for herself,
and no legislature or court can interfere; in the second, the state
can regulate to some degree; and in the third, the state can step in
and even ban abortion outright if it chooses.
That three-part standard is what both sides complain about: those
who believe that all abortion is wrong don't like the court allowing
women that choice even in the first timester of pregnancy, and those
who favor absolute choice don't like the fact that the court let the
state step in before birth at all. Both sides refuse to recognize
any substantive difference between a first-trimester pregnancy and
a third-trimester one as far as fundamental rights are concerned.
So let's look at the issues involved, starting at the end: birth.
There is no question in our society that once a child has been born,
the umbilical cut and its lungs full of air, killing that child is
seen as a despicable crime. There have certainly been societies
where that was not the case: infanticide was tolerated and even
common in some cultures, but not here. Our culture, unlike many,
even assigns gender to infants: we call them little boys and little
girls from the moment of their birth, while most cultures only
separate men and women after puberty, treating all children as just
"children". Our attitudes are more in line with the facts. The
qualities that we admire, even revere, about people that make us
revile harming them are just as evident in an infant as an adult:
people think, and feel, and dream, and laugh, and love, and want;
infants do as well. Infant boys and infant girls have different
skills and different personalities that can be observed and
measured right from birth. Infants may not be be able to express
themselves as well as adults, but they clearly are /selves/,
thinking and feeling as whole people. In the past people have
asserted that infants didn't feel pain, or never remembered events
from their infancy, but we now know these beliefs are false, and
that infants do feel pain and joy much as adults do, and their
adult lives are affected by events in infancy, and even by
experiences before their birth.
The third-trimester rules of Roe acknowledge a simple biological
fact: that there is little fundamental difference in kind between
a child just before and just after birth. Hospitals are full of
infants born weeks early, and while they may need a bit of
assistance from modern medical technology, we clearly think of them
as "people" in every important legal and ethical sense, and whether
they are in a womb or an incubator doesn't much affect that
evaluation: they have thoughts and feelings and experiences in
either case, and the thought of ending their lives bothers us.
There is a person there, and it is reasonable for a state to step
in and protect that person from harm.
The picture at the beginning of pregnancy is very different. It
begins with the event of conception, though "event" isn't really
the right word because even conception is a complicated process
in many stages that can be accomplished in many ways. But for the
moment I'll concede the point. Once the DNA from the egg and sperm
have combined, the newly-formed zygote then begins to divide into
two cells, four, eight, and so on. At this point there aren't yet
any specialized cells: they're all stem cells, and will only take
on specialized roles as organs, nerves, and so on much later in
the process of development.
The process of development itself can take many turns. The
majority of the time, in fact, the process results in nothing at
all: most conceptions are simply flushed out with the mother's
next menstruation, and never develop, and the woman never knows
that any conception occurred at all. In those fewer cases where
the zygote does make it through the tubes to implant in the
uterus, its fate is still undetermined. It might develop into a
person, or two people, or three, or half. Identical twins, for
example, result when the multi-celled zygote splits at some point,
and both portions go on to implant and develop into fully formed
unique people (albeit with identical DNA). Identical triplets are
quite rare, but also possible. Another even rarer possibility is
that two different zygotes will merge at some point in their
development, and develop into a single fully-formed person with
two sets of DNA. These are called tetragametic chimeras, and are
often born with defects, but can also be born as perfectly normal
infants who may never know that they were the product of two
different conceptions.
This is where the "life begins at conception" argument falls down:
yes, a zygote after conception is living, in the same sense that
any of our skin cells or liver cells is living. They can divide and
grow (indeed, we can now grow skin and muscle tissue in vitro from
a single cell), and contain a full set of genetic material. But
the legal question is not whether the thing is living or not, or
even whether it is human. The legal question is "is it a person?",
in the sense of laws that make harming people an act of violence we
detest, or is it merely a collection of cells like the skin cells
we flush down the drain when we wash our hands, or blood cells that
we donate to the Red Cross? What is it about people that makes
them specially deserving of such protection? A good way to answer
that is to think of the twin case: why do we consider twins to be
two people, not one? It's simple: each twin thinks and feels and
dreams independently. Each has its own personality and its own
desires and fears. It is untenable to argue that the single zygote
that would later develop into these two people had any of those
qualities: it has no brain, no nerves, no eyes, no ears. It had
only the potential for developing those things--and we don't know
yet from the zygote stage exactly what it might develop into. It
might become a person, or two, or half, or it might not.
Likewise, there is nothing special about the type of cell that is
the zygote. We retain stem cells even into adulthood, and any of
them also has the potential to develop into any other kind of cell.
The day is not far off--if it hasn't happened already--when a single
cell from an adult human will be able to produce a cloned person,
just as Dolly the sheep was created from a cell of her mother.
Clearly, it would be morally repugnant not to grant that person the
same legal rights as other people, because she will have the same
thoughts and feelings as any other infant, despite the fact that she
was not the product of conception at all. Whether or not you
approve of cloning, the fact is that it demonstrates vividly the
fact that the concept of one-conception-one-person doesn't fly.
So the first trimester rules of Roe also reflect what we know about
biology: a few cells don't make a person, and it doesn't make sense
to arbitrarily grant them the rights of a person when we don't even
yet know what they may develop into. The mother, on the other hand,
is quite clearly a person, and her rights can and should be
protected. Laws against birth control, "morning after" pills, and
yes, even first-trimester abortion clearly do victimize real women,
and we simply can't legally or ethically justify that to protect
what is clearly not a person.
Lastly, there's the middle ground: the second trimester. The
justices here make another wise statement: we don't know. At this
point in the development of what's now a fetus, it begins to resemble
a person. Twins have already split, chimeras have already joined,
and it begins to develop a brain and eyes and ears. It might have
the beginnings of something like thoughts and feelings, or it might
not--we just don't know. And because we don't know, the justices
leave the issue for further debate by the people's representatives.
In short, the justices in Roe weighed the legal and biological
facts before them, and reached the right decision, despite the
fact that they had to decide decades before some of the biology I
mention above was known. I for one find that remarkable and
worthy of praise.
-- Lee Daniel Crocker <lee@piclab.com> <http://www.piclab.com/lee/> "All inventions or works of authorship original to me, herein and past, are placed irrevocably in the public domain, and may be used or modified for any purpose, without permission, attribution, or notification."--LDC
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