Why posit the question? Well, consider recent remarks proffered by former presidential candidate and religous conservative former Arkansas Governor Mike Huckabee in support of a Colorado "Human Life Amendment" initiative, as recently reported:
..."This proposed constitutional amendment will define a person as a human being from the moment life begins at conception," Huckabee said in a statement, according to a Denver Post report.Yes, "Equal Protection," guaranteed by the 14th Amendment in the U.S. Constitution. Governor Huckabee, we must allow, at least has the courage of his stated convictions, i.e., whereas the bulk of abortion and contraception opponents tend to dance euphemistically and deflectively around the core issue by asserting more imprecisely that "life begins at conception," the Governor wishes to specifically -- via constitutional amendment -- "define a person as a human being from the moment life begins at conception." Recall that the current language of the Constitution extends full protection only to "persons born or naturalized" here, stating additionally that "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
"With this amendment, Colorado has an opportunity to send a clear message that every human life has value. Passing this amendment will mean the people of Colorado will protect the sanctity of life from conception until natural death occurs," he said.
Huckabee also has expressed support for a similar amendment to the U.S. Constitution.
Pro-life activists in Colorado now are in the process of collecting the 76,000 petition signatures they will need to put their proposal on the 2008 election ballot. The state Supreme Court previously approved the format of the proposal for the ballot.
The plan would grant personhood to the unborn from the moment of fertilization, meaning state and local laws protecting any individual life would be applied to the unborn. It targets a loophole the U.S. Supreme Court created when it issued the original Roe v. Wade abortion opinion.
The opinion said: "(If the) suggestion of personhood [of the preborn] is established, the [abortion rights] case, of course, collapses, for the fetus' right to life is then guaranteed specifically by the [14th] Amendment."...
"Born," not "unborn." (hence the end-game need for the Amendment, ultimately -- notwithstanding the ongoing legislative and inferior courts' patchwork incremental nibbling at the margins in the wake of Roe).
One case still considered a seminal post- Roe reproductive rights decision is that of the Tennessee Davis vs. Davis frozen embryos dispute:
"...Over the past several years, some important cases have shed light on the legal parameters and core ethical issues facing couples who disagree over the disposition of frozen embryos. The seminal case, Davis v. Davis, involved a Tennessee couple who attempted for several years to have children through IVF. The last attempt produced 7 extra embryos, which were placed in cryopreservation for possible use at a later time. When the couple signed up for IVF, they did not execute a written agreement specifying what disposition should be made of any unused embryos that might result from the cryopreservation process. Thus, when the couple filed for divorce and the wife wanted to retain the embryos, the husband filed suit seeking to enjoin the clinic from releasing them. She sought "custody" of the embryos; he wanted them destroyed.As my wife and I were residing in Knoxville at the time, we had more than just a passing familiarity with this highly visible, acrimonious case. In fact, we knew the activist "pro-life" attorney who intervened to sue separately for "foster parent custody" of these frozen embryos (he was denied; the frozen embryos were ultimately destroyed).
The Supreme Court of Tennessee upheld the lower court's ruling that the pre-embryos in this case should not be considered "persons" or "property" in the contemplation of the law, nor where they afforded protection as "persons" under the federal law as laid forth in Roe v. Wade. However, the Supreme Court refused to let stand the lower court's ruling that the couple held joint custody of the pre-embryos, noting that the only outcome allowable was to keep the pre-embryos in cryopreservation pending the couple's possible future meeting of the minds. Instead, the higher Court shifted its analysis to the issue of whether the couple intended to have children in the future -- not whether they agreed on the disposition of the pre-embryos -- and ruled that the answer turned on the parties' exercise of their constitutional right to privacy...
Interestingly, Supreme Court Justice Antonin Scalia recently weighed in on the issue. As reported this past March:
Warrensburg, MO (LifeNews.com, 3/5/08) -- Supreme Court Associate Justice Antonin Scalia spoke to students at the University of Central Missouri on Tuesday night and told them that abortion isn't found in the Constitution. He also indicated he would be lucky to get 60 votes in today's political climate where abortion rules how senators vote on judicial confirmations.Justice Scalia echoed the sentiments during CBS "60 Minutes" interview on April 27th:
"The reality is the Constitution doesn't address the subject at all," Scalia said of abortion. "It is one of the many subjects not in the Constitution which is therefore left to democracy."
"If you want the right to an abortion, persuade your fellow citizens it’s a good idea and pass a law. If you feel the other way, repeal the law," he said, according to a Columbia Tribune report...
WASHINGTON [AP] — The Constitution doesn't prohibit abortion any more than it allows it, Supreme Court Justice Antonin Scalia says in a television news interview to be broadcast Sunday.From the subsequent "60 Minutes" Scalia interview transcript:
Scalia told CBS News' "60 Minutes" that he may be conservative, but he is not biased on issues that come before the court. "I mean, I confess to being a social conservative, but it does not affect my views on cases," Scalia said in excerpts released Thursday.
"On the abortion thing, for example, if indeed I were ... trying to impose my own views, I would not only be opposed to Roe versus Wade, I would be in favor of the opposite view, which the anti-abortion people would like to see adopted, which is to interpret the Constitution to mean that a state must prohibit abortion," Scalia told correspondent Lesley Stahl.
"And you're against that?" Stahl asked.Scalia replied, "Of course." He said "there's nothing" (in the Constitution to support that view.)...
"My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons [emphasis mine -BG]. You don't count pregnant women twice."Yes. That is what the Constitution in fact plainly says, even to us Great Unwashed non-lawyers.
Amendment XIVSo, in Mr. Scalia's view, the Constitution neither protects nor prohibits clinical abortion, consequently "democratic" legislation is the remedy for proponents of either position. But, legislation has to ultimately pass Constitutional muster (even by the default circumstance of appellate challenges declined). Clearly, he would personally favor legislation outlawing the practice, however, if he is to be taken at his word, legislation legalizing abortion would also have to be adjudged permissible a priori were his view to prevail within The Court (absent some new and compelling rationale with clear Constitutional implications within an appellate case seeking Supreme Court review).
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This takes us back to the 14th Amendment. State level or federal legislation prohibiting clinical abortion (of either the surgical or pharmaceutical variety) inescapably denies the "equal protection of the laws" accorded by the 14th Amendment to an entire class of "persons born" solely on the basis of their female gender. Simple plebian yet coherent deductive logic says that such laws would necessarily and clearly contravene the 14th Amendment. Many critics of the principal Roe rationale -- a woman's inviolable (1st trimester only) "right of privacy" -- fault the finding for not ruling primarily on a 14th Amendment "equal protection" basis. "Privacy," as we have seen increasingly post- 9/11, can be the shakiest of terrain (across a number of fronts) upon which to ground constitutional arguments. "Equal protection," on the other hand, seems intuitively more fundamental and politically defensible in the aggregate.
There is plainly no way for both an unwillingly pregnant woman and the not-currently-a-"person" zygote/blastocyst/embryo/fetus growing within her gestational organ to be accorded "equal" legal rights (established Roe trimester/"increasing-state-interest" parsing notwithstanding). One or the other must prevail in the event a woman opts to terminate her pregnancy. Any law denying a woman this autonomy of personhood looks to be nothing other than unconstitutional on its face.
That leaves the tactic of the ultimate "democratic" legislation, the one publicly favored by Mr. Huckabee et al (and, we might safely assume, Justice Scalia), a "Human Life Amendment" conferring Constitutional "personhood" on the unborn from the (clinically unknowable) "moment of conception."
What, then, would be a direct, necessary logical jurisprudential consequence of such a national "Human Life Amendment" update to our Constitution?
Well, first, unless a ratified Human Life Amendment contained explicit language eliminating 14th Amendment "equal protection" minimally with respect to pregnant women, we would have the problematic, paradoxical spectacle of two Amendments at war with one another.
But wait, there's more...
Quoting John C Petrozza, MD, Instructor, Department of Obstetrics and Gynecology, Harvard Medical School; Consulting Staff and Chief, Division of Reproductive Medicine and IVF, Vincent Obstetrics and Gynecology, Massachusetts General Hospital:
OK, for the sake of simple illustration, let's take the E-Z round number "50%", i.e., from the foregoing: "the true rate of early pregnancy loss is close to 50% because of the high number of chemical pregnancies that are not recognized in the 2-4 weeks after conception. Most of these pregnancy failures are due to gamete failure (eg, sperm or oocyte dysfunction)."...Early pregnancy loss is unfortunately the most common complication of human gestation, occurring in at least 75% of all women trying to conceive. Most of these losses are unrecognized and occur before or with the next expected menses. Of those that are recognized, 15-20% are spontaneous abortions (SABs) or ectopic pregnancies diagnosed after the pregnancy is clinically recognized. Approximately 5% of couples trying to conceive have 2 consecutive miscarriages, and approximately 1% of couples have 3 or more consecutive losses...
...The incidence of spontaneous miscarriage is 10-15%, whereas the rate of recurrent miscarriage is 3-5%.
Most studies demonstrate a spontaneous miscarriage rate of 10-15%. However, the true rate of early pregnancy loss is close to 50% because of the high number of chemical pregnancies that are not recognized in the 2-4 weeks after conception. Most of these pregnancy failures are due to gamete failure (eg, sperm or oocyte dysfunction). In a classic study by Wilcox et al in 1988, 221 women were followed up during 707 total menstrual cycles. A total of 198 pregnancies were achieved. Of these, 43 (22%) were lost before the onset of menses, and another 20 (10%) were clinically recognized losses...
Do a little basic arithmetic using another recent national round number of approximately 4,000,000 live births in the U.S. each year. Exclusive of intentional clinical abortion, 4,000,000/50% = 8,000,000 Human Life Amendment "persons" conceived each year, four million of them "dead" in utero.
High-minded, vigilant "equal protection," consequently, would mandate that all of these "weakest among us" be accorded  the monitoring by (and warranted intervention by) expanded "Child Protective Services" agencies, and  in the event of in utero zygotic/embryonic/fetal demise, full investigations to determine whether any evidence of criminal or otherwise actionably negligent "foul play" might have occurred (e.g., beyond willful acts such as abortifacient ingestion, or simply dysfunctional maternal "lifestyle" behaviors that would now necessarily be regarded as tantamount to "child abuse").
Anyone who thinks there would not arise platoons of Morally Wonderful, Altruistic "pro-life" lawyers ready and eager to litigate such mindless "constitutional" inanities has got another thought coming. Abstruse clean-hands moralism apparently knows no bounds.
None of the immediately foregoing is intended to take broad-brush pejorative potshots at everyone who opposes abortion. Count me among those who have misgivings with therapeutic abortion being reflexively viewed as "just another birth control method." But I also have misgivings about my right to even opine on the topic, in light of my male gender. What's the joke? "If men could get pregnant, abortions would be everywhere legal and free."
A FURTHER RUMINATION ON ROE
The eminent philosopher Simon Blackburn, in his book "Being Good: a short introduction to ethics," addresses some of the salient, problematic core concepts that bedevil the reproductive rights issue (pp 61 -- 63).
A foetus is a potential person, certainly. But, 'potential' is a dangerous word. A yellow flower is a sort of flower. But an acorn is a potential oak tree without itself being an oak tree. Mr car is potential scrap, but it is not scrap, and its being potential scrap does not justify anybody treating it as scrap.In other words, petitio principii: the fallacy of circularly begging the question; i.e., artfully restating the unresolved conclusion itself as the evidentiary premise purporting to prove the conclusion.
Is the foetus not only a potential person but an actual person? What kind of question is that? A possibility is that in describing the foetus as a person, the word 'person' is itself functioning to imply a moral category, so by insisting that the foetus is a person the opponent of legal abortion is just repeating himself. Moral conclusions are frequently presupposed in this way by the very terms in which the question is raised. A person, on this account, is just anything that ought to be treated as a person and afforded protection as a person. But then, whether a foetus is a person is exactly the question that is in doubt...
...we should note that, equally, the T-shirt slogan of a woman's right to control her own body begs the question the other way: the ways in which we control our bodies may well depend on what other persons are dependent upon them. So, if the foetus is a person, that right will be circumscribed. If a murderer is prowling around, my general right to talk is defeated by the fact that your life depends upon my silence.I would characterize it more accurately as "false dichotomy" and/or the "line-drawing fallacy" (both of which implicitly subsume the slippery slope, in my view -- albeit a minor point of pedagogy).
Rights themselves are tricky things... In one of the most famous papers in this debate, Judith Jarvis Thompson compares the situation of a pregnant mother to that of someone suddenly waking to find another person plugged into them and dependent on them for life-support. She argues that the dependent person's 'right to life' does not include a right to unlimited demands on other people, including here the demand that the supporter continues her support...
Suppose, then, we look for marks of increasing approximation to a person. We will find them at different stages We might look out for the development of a functioning brain, or a capacity for 'distress' or for movement that at least resembles the behaviour in which persons expresses [sic] pain. The foetus is not, however, a subject with plans, intentions, fears, memories, or self-consciousness, each of which form part of our own adult personhood. These come later. And then it seems that there is no principled place to draw a line. The foetus, and the baby, just go on becoming more and more of a person. Nature is gradual, through and through.
A bad argument to watch out for now has the form: 'If there is no principled place to draw a line, then we must draw it here -- at the very moment of conception'; or, if you stand on a woman's right to control her body, we should draw it only there -- at the moment of birth. The idea is that anywhere else involves a 'slippery slope'.
Now, in addition to the "privacy" problem the critics point out in order to assail the Roe vs Wade decision, equally knotty is the Court's ungainly (and equally unloved on all sides) split-the-baby-in-thirds "trimester" parsing:
[Section X] With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. [emphasis mine- BG] This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like."in the light of present medical knowledge..." That turned out to be an irrestistable low-hanging curve ball that hordes of abortion opponents would subsequently imagine that they could swat right out of the judicial park by offering up "ever-changing medical technology" as a useful rationale with which to increasingly move the point of 3rd-party actionable gestational "viability" ever-closer to "the moment of conception."
This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here...
But, we again run forthwith smack into that pesky 14th Amendment problem of "equal protection." Accord heroic (and crushingly expensive) clinical preemie intervention and life-support technology to one otherwise physiologically non-viable fetus, you are Constitutionally required to provide it to all.
The simple obstetrical truth is that the "moment of viability" is about as difficult to determine as "the moment of conception." Impossible, in the aggregate, actually. Blackburn: "Nature is gradual, through and through."
In sum, for me, our time and resources are much better and more righteously spent getting our hands dirty abating the miseries comprising the daily lot of millions of the world's actual "persons."
There's a maxim among trial lawyers: "He with the best story wins." So, perhaps a closing anecdote is in order to bring the grand abstract reproductive "rights" moral issue down to eye level, so indulge me a short story.
The year is 1969, the place, suburban Seattle. A young couple chafes within the throes of an ill-advised (and ultimately doomed) marriage. They have an infant girl, on whom the young father joyfully dotes. The one unequivocally bright spot. Parenthood, at least, suits him, so it seems.__________
The young wife announces one day that she is again pregnant. But, while the husband is thrilled at the news, she exudes an inexplicable anxious and distant air. In the subsequent weeks, her smoldering anxiety morphs into a controlled state of cornered panic, and the devastating truth must finally be aired one night; she had had a recent transient sexual dalliance, and this unwanted pregnancy is almost certainly the upshot. To make matters even more complex, the cuckolding paramour is a black man (this couple is white).
Thermonuclear agonies ensue, regarding which, words utterly fail.
The young woman is beyond frantic to obtain an abortion (circumstances being exacerbated by the fact that her own father is an overt racist), but, this being an era prior to Rove vs Wade, abortions are proscribed by law in Washington state. Her subsequent attempts to procure one illegally fail, and she realizes she will have to carry this fetus to term.
She is then advised by state social services agencies that she may indeed relinquish the newborn sight-unseen for adoption, and wishes to opt for that alternative to end this nightmare, however imperfectly. This, though, requires the husband's written assent, which, for reasons not entirely clear to him, he declines to provide. In part, one can safely assume, hoping against hope that this is all a cruel, horrific dream, and the child will in fact prove to be biologically his.
An uneventful delivery obtains in the hospital in Renton in July of 1970, a 7 lb. 6 oz. healthy baby girl. The young man hesitantly approaches the glass partition of the nursery unit. The moment of truth in a glance: 'Nope, well, this is definitely not your child.' A fleeting, wracked feeling of being summarily dropped down an open elevator shaft gives way within seconds to a subsequent flustered internal flurry:
'Now what? Whatever will become of this child? None of this shit is her fault...'
He turns and heads down the hall to the office, whereupon he signs the requisite parental paperwork. He will be her "father." Not even legally her "adoptive father," simply her father, DNA be damned. His bigoted father-in-law be damned. Subsequent hushed gossip and furtive glances within his social cohort be damned.
Fast forward four years to a Clark County, Washington courtroom. The young man is granted an uncontested divorce, along with sole custody of his two girls. The henceforth ex-wife does not attend the hearing.
Fast forward yet again. Knoxville, Tennessee a decade later, a dining room discussion ensues during which the younger daughter learns for the first time the full story.
"Thanks, Dad, you saved my life."
They laugh. It is good.
The foregoing is no mere illustrative fictional anecdote conjured up for emotional impact. I am that father.
Father to a young woman, now approaching age 38 at this writing, who has gone on to obtain a Master's degree and a position as the highly successful local Executive Director of a major non-profit youth golf organization, following lengthy prior stints as a hospital chaplain, and a wildly successful grantwriter for a national social services foundation (Sadly, we lost her older sister to cancer in 1998).
Proud grandfather to her amazing son, now 14, who had become ranked 43rd in the nation in his U.S. Tennis Association age division by the time he was 12, and who has just been awarded a full-ride private high school scholarship in recognition of his ongoing honor student academic track record.
While such achievements and accolades are really just the icing on the cakes (my love for my kids is unconditional), I am today the proud papa of offspring who bring so much good, and so much joy, to my life and to our world.
We laugh. All the time. It is good.
DNA is simply irrelevant.
I shudder to think what I would have missed. I am blessed to be the father that I am.
Having said that, it is not properly for me (nor any politician or self-appointed private moral overseer) to decide at a distance what a woman must do in the event of pregnancy.
Difficult, most difficult. Moreover, a difficulty that will not be attenuated one whit by a problematic "Human Life Amendment" or any lesser judicial or legislative intrusions into a woman's moral and physiological autonomy.
Perhaps, for many politicians, voicing support for a Human Life Amendment is a cheap, expeditious way to provide themselves "pro-life" cover where needed, given that our federal amendment passage bar is so onerous (for good reason) -- i.e., approval by a 2/3 vote in each house of Congress and subsequently ratified by 3/4 of the states (typically within 7 years), or, alternatively, as offered up during a Constitution Convention, and again then passed along for 3/4 of states' legislative approval (the latter has never happened during the span of U.S. history). Consequently, one can loudly bandy the Amendment proposal about to posture as "pro-life" without ever likely having to walk the accountability talk (one could indeed say the same of that hardy, even more frivolous, perennial -- the Flag Burning Amendment).
Failing that, -- despite what should be the fatally dispositive equal protection problems heretofore discussed -- much damage could still be wreaked by the continuing passage of logically unconstitutional 14th Amendment restrictions via new state or federal legislation and muddled inferior court rulings. And, one more Scalia/Roberts/Alito/Thomas vote on the Court will give them the opportunity to overturn Roe and create perhaps decades more courtroom wrangling, with women suffering in the balance.
SEPT 2nd 2012 UPDATE
My Grandson is now a freshman at St. Olaf College, on a sports scholarship.