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Thursday, July 03, 2008
"Co-opting" "human being"
Emily Bazelon writes here, at Slate, about South Dakota's "unbelievable" abortion law which, among other things, "requires doctors to give patients who come for an abortion a written statement telling them that 'the abortion will terminate the life of a whole, separate, unique, living human being.'" "If you care about doctors' freedom of speech," she writes, "or their responsibility to give accurate information to patients, the South Dakota statute looks pretty alarming."
The statute in question defines "human being" as "an individual living member of the species Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation." Now, Bazelon thinks this is just cheating. The legislature, she writes, "has co-opted human being and attached its own meaning to it." "What's [so] distressing," she says, "is the assertion that by defining a phrase one way, a state can erase its ambiguity and the variety of perceptions people bring to it."
Now, she is right, I think, that those of us who believe that abortion involves the taking of a human life -- the killing of a human being -- have an interest in framing abortion-related questions in "what ought we to do to, and how ought we to treat, human beings?" terms. After all, as she writes, people a variety of perceptions to the term "human being" and one of these perceptions, the anti-abortion sponsors of this legislation presumably thought -- and hoped to exploit -- is that "innocent human beings ought not to be killed." But, does this mean the legislature "co-opted" the term? Maybe I'm nit-picking here, but "co-opt" has connotations that I don't think apply here. It's not as if the legislature attached some strange, esoteric, gnostic-secret-knowledge meaning to "human being". With all due respect to Bazelon, it does not seem inaccurate to say that a human fetus is a "human being," or to define "human being" as the South Dakota legislature has done.
I would have thought the issue at the heart of the abortion debate is not so much whether or not, as a matter of description, a human fetus is a "human being" but is, instead, whether privacy-, autonomy-, and equality-based arguments make it the case that, at the end of the day, the law should permit a woman to decide that she does not wish to continue a pregnancy. The question is not whether a human fetus is a human being, but what are the implications for law, action, etc., of the fact that a human fetus is a human being.
Now, to get into all this is not to enter, let alone resolve, the debate about what a doctor should have to tell a woman before performing an abortion (or any other procedure). There are lots of true statements, including statements of moral truth, that would seem irrelevant to the abortion decision. But, is the South Dakota statement one of them? In my view, it's not. Maybe the stronger argument against the law is simply that this is a true, relevant statement, engagement with which that should be encouraged of all of us, but in other contexts, by other speakers.
Anyway . . . I'd welcome others' thoughts.
Posted by Rick Garnett on July 3, 2008 at 04:12 PM in Rick Garnett | Permalink
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Rick, I think you are missing the pro-choice perspective of this debate. The pro-choice perspective undeniably relies on defining a fetus as something less than a "human being" or "legal person" of whatever label you want to place to suggest that the fetus is a full participant in the human community. You frame the debate as whether "privacy-, autonomy-, and equality-based arguments" ultimately permit the killing of an undisputed "human being." If that were the case, there would be no debate (and it is not surprising that you are pro-life when you view the issue from these lens). Virtually no one argues that even the most compelling privacy, autonomy or equality based argument allows you to kill another human being, such as your (born) child or spouse.
You are right that the legislature has not placed an outlandish definition on "human being." It has chosen one of two competiting definitions, the precise competition that underlies the abortion debate. You can define a "human being" as including the fetus, such that the fetus is a full member of the human community with all the legal protections that entails; or your can define human being as excluding the unborn, in so far as that implies the fetus is less than a full member of the human community. That doesn't mean a fetus is a clump of cells, but it also doesn't get the relatively strong protection that everyone agrees is appropriate for human beings.
In short, by choosing to define a fetus as a human being, the legislature has taken sides in a philosophical debate. It is not /necessarily/ inaccurate to describe a fetus as a human being as a matter of general langauge. At the same time, it is not absolutely, 100%, always accurate to describe the fetus as a human being, unless you are pro-life. And therein lies the rub.
Posted by: anon | Jul 3, 2008 5:16:51 PM
Anon has it exactly right: whether a fetus is a "human being" is debatable. You deny that it's debatable because you are pro-life. I am pro-choice, and I deny that a fetus is a human being. I deny that a corpse is a human being for similar reasons.
Of course, an even bigger problem with South Dakota's law is its description of the fetus as "separate." Obviously it's not separate, and to argue otherwise is silly.
Posted by: Bobo Linq | Jul 3, 2008 5:25:26 PM
Thanks, Rick, for teeing up the issue thoughtfully and respectfully; for carefully distinguishing and preserving the question of what a doctor should be *required* by law to say; and, especially, for stressing that "the issue at the heart of the abortion debate is not so much whether or not, as a matter of description, a human fetus is a 'human being' but is, instead, whether privacy-, autonomy-, and equality-based arguments make it the case that, at the end of the day, the law should permit a woman to decide that she does not wish to continue a pregnancy" -- a sentiment I agree with (and that I suspect Emily would, too).
Here's the question your post raises, then: If you -- we -- are correct that the issue is a complex one to be determined by reference to privacy, autonomy and equality concerns, rather than by resolving whether a fetus is a human being, then what possible social or public value does the South Dakota law serve? Does it inform the woman of *any* relevant information that she did not already know? I can't see that it does. Instead, it conscripts the doctor to parrot the *State legislature's* view of the answer to the question that you agree does not and should not resolve the debate about public policy -- that is to say, it commandeers the physician to use a rhetorical trope, not in order to inform the woman of relevant medical or other information she did not already understand, but instead in order to exploit the *emotional* resonance such a script might have with some (certainly not all) women during what might be (again, for some, but hardly all, women) a difficult and emotiontially charged procedure.
I would put the point slightly differently than Emily, although I think largely to the same effect: The State has co-opted *the doctor* and required her to define a phrase one way, so that the state can, even in the medical facility, and even in the midst of the private doctor-patient relationship, "erase its ambiguity and the variety of perceptions people bring to it."
If this is correct, then do you think there is any valid defense of the South Dakota law?
Posted by: Marty Lederman | Jul 3, 2008 5:30:14 PM
Rick: I apologize that I overlooked the most egregious aspect of the law: the physician is also required to "inform" the woman that she "has an existing relationship with th[e] unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota; [and] [t]hat by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated."
I don't even know what to say about this. Requiring a physician to tell the woman that she "has an existing relationship" with an unborn human being -- a relationship that she is about to "terminate"? I hope you'll agree that, whatever one's views on whether abortion should be legal, this is nothing short of grotesque. And, more to the point, that there is no conceivable legitimate state interest to support it -- unless one believes that the state has an interest in terrorizing, shaming, and inducing guilt in pregnant women who have chosen abortion.
P.S. Re: The bit about the "relationship" being constitutionally protected, and telling the woman that she's about to terminate not only a "human being" and her own "relationship" with it, but also her own constitutional rights!, well, . . . words fail.
Posted by: Marty Lederman | Jul 4, 2008 2:25:23 AM
Whether you believe that a fetus is a human being or not, isn't this law somewhat condescending? Requiring this statement seems to presume that women just nonchalantly jaunt to abortion clinics, as if it was going to the spa. However, most women are going to have already thought about this issue long and hard before making an appointment for an abortion. For the scant few who have not pondered this issue, a statement by their doctor is meaningless--it will not provoke thought, change their minds, or do anything else. Not to mention, as Bobo Ling pointed out, this statement is blatantly incorrect in saying that the fetus is "separate." The fetus is no more a separate entity than the brain is a separate entity from the body.
Posted by: Anonymous | Jul 4, 2008 4:33:04 AM
It is simply not true, as "anon" suggests, that by "choosing to define a fetus as a human being, the [South Dakota]legislature has taken sides in a philosophical debate". It is also mistaken to state that "it is not absolutely, 100%, always accurate to describe the fetus as a human being, unless you're pro-life".
There is consensus amongst the scientific community about the fact that fetuses are members of the species Homo sapiens (i.e. human beings). It suffices to consult one of the many embryology textbooks that recognize this.
Furthermore, many pro-choice philosophers, such as Peter Singer, have no problem with recognizing that a fetus is human in the sense that it is a member of our species (See Practical Ethics, Chapter 4). This is unproblematic for people like Singer because it can cogently be argued that the wrongness of inflicting pain or of killing a being should not be predicated on whether the being is a member of our race. This would be speciesist. Ultimately, the wrongness of harming a being should depend on some other morally relevant feature, such as the being's capacity to feel pain (i.e. its "sentience"). Since embryos and some fetuses are not sentient beings, killing them would be less wrong than killing sentient beings. Thus, it could be argued that the mother's interest in autonomy outweighs whatever interests a non-sentient being is deemed to have. This is a perfectly sensible defense of a pro-choice approach to abortion that is not grounded on the notion that a fetus is not a human being.
Talking about "human beings" in this context is a distraction. As far as our legal system is concerned, rights attach to beings that are considered "persons", whether they are human or not (think of a corporation, for example). This is why fetuses are not "persons" under the Fourteenth Amendment due process clause. A legal person is a "being who is the bearer of rights". Although most human beings qualify as persons, some (fetuses) do not. Furthermore, non-human entities can (and are) routinely considered to be persons. This goes to prove that, at the end of the day, there is no necessary connection between humanhood and personhood. The moral and legal status of a being can and should depend on features other than that being's membership in a particular species.
This is why Bazelon's concerns are overblown. The South Dakota legislature has not co-opted anything. Fetuses are human beings. Many pro-choice people agree (and those that don't should agree in light of the mounting scientific evidence). If pro-choicers cannot defend their position without denying what seems to be a scientific fact - that fetuses are members of the Homo sapiens race - they are fighting for a lost cause. That's why they better start arguing that the South Dakota law is problematic because it suggests that membership in the Homo sapiens race automatically entitles a being to a special moral and legal status, not becuase it implies that a fetus is a human being.
Posted by: Luis Chiesa | Jul 4, 2008 12:47:49 PM
The thoughts you welcomed seem to have arrived, Rick, though maybe you don't engage because not all of them accepted your premise about the law's obviously "true, relevant statement[s]." 1 + 1 = 2, and a human fetus = separate human being.
Posted by: anonymous | Jul 4, 2008 12:59:46 PM
"The question is not whether a human fetus is a human being, but what are the implications for law, action, etc., of the fact that a human fetus is a human being."
Basically, this is just cheating your way past the core issue of dispute.
What an honest anti-abortion foe needs to do is build a case as to why killing, say, an embryo is wrong, not just piggyback on the general principle that "killing a human being is wrong" and then note that by some definition, an embryo (to pick the most distant case) is a human being.
You need to be able to make your case without resorting to special terminology (i.e. point to a specific being, and show why killing it is specifically wrong: what harms are done, what important principles, etc.): otherwise, you're just suspect of exploiting equivocation.
It's easy to do the same for people: the thinking, feeling beings with which we all interact everyday. And we developed these moral ideas about how killing people is wrong over the course of history: all based on our understanding of them as particular sorts of beings, different from rocks, trees, mice, and so on. We did this mostly in ignorance of the existence of such beings as embryos.
Piggybacking on this understanding to apply the reasoning to something that is radically different in every way from the beings we meant when we developed those ideas won't do. If there's a case to be made, surely it can be made from scratch in precisely the same way we do it for ordinary people.
Posted by: Bad | Jul 4, 2008 1:48:43 PM
"it can cogently be argued that the wrongness of inflicting pain or of killing a being should not be predicated on whether the being is a member of our race. This would be speciesist."
Of course we regularly kill all other species. And we do not "kill" humans who have lost sentience (unless possibly it becomes too expensive to keep them "alive." In that case the corporate person's rights trump.)
An acorn is the same species as an oak tree, but that scientific definition does not get at the heart of this -- unless these South Dakota mothers need to be assured that they are caring the seeds of humans and not of sea lions. The definition of "separate human being" is far more relevant than sentience for all the reasons that Bad and others discuss.
Posted by: anonymous | Jul 4, 2008 3:08:00 PM
I agree that we "regularly kill all other [non-human] species [and] we do not "kill" humans who have lost sentience".
However, this surely can't be regarded by anonymous as an argument in favor of continuing to kill non-human species without special justification and against the killing of non-sentient human beings. Past practice is (and has been) a bad proxy for identifying moral propositions. Just think about slavery. Slavery was surely wrong regardless of whether people "regularly" engaged in the practice. That feature of the conduct is morally irrelevant.
My claim is that asserting that the immorality of harming a human being stems from the fact that he is a member of the Homo sapiens race is speciest because it assumes that a species is inherently superior to another without putting forth arguments that demonstrate that this is the case. It is similar to claiming that "a member of X human race is superior to a member of Y human race" simply because he belongs to the "superior" human race.
What is needed is a theory that explains why human lives are worth more than the lives of non-human animals. Merely stating that humans lives are more valuable than non-human animal lives because they are "human" is tautological. It just doesn't cut it, unless one believes in some sort of metaphysical claim about the inherent superiority of human life over other life-forms.
Most people that have tried to elaborate such a theory usually conclude that what makes a human life worth more than a non-human animal life is the uniquely human capacity for rationality and self-consciousness. This would lend credence to the position that the lives of fetuses are worth less than the interests of the typical human being, for fetuses are not capable of rationality or self-consciousness.
One could point out that once a fetus acquires the capacity to feel pain we should have a moral duty to abstain from unjustifiably causing them to suffer in much the same way as we should abstain from unjustifiably harming sentient non-human animals. However, this interest arises in light of the being's sentience and not as a result of its belonging to the species Homo sapiens.
As you might have guessed by now, I'm a staunch defender of animal rights (I actually prefer the animal welfare approach...but that's a topic better left for another day). Thus, I believe that we are under a moral duty to not cause unjustifiable pain to non-human animals in much the same way that we are under a moral obligation not to make sentient fetuses suffer. This has broad implications for questions about the rights of non-sentient beings, including non-sentient human beings. Because of time limitations (this being the 4th of July and everything), I won't attempt to flesh them out here. Suffice it to say that it would be perfectly rational for us to protect non-sentient human beings for reasons other than to safeguard whatever interests such a being may have (perhaps to protect the non-sentient being's loved one's from suffering or to avoid slippery slopre problems that might arise once one starts justifying the killing of non-sentient human beings).
Posted by: Luis Chiesa | Jul 4, 2008 3:43:23 PM
I know where you are coming from Luis, and I appreciate it. I was only (inarticulately) pointing out that "human being," (ignoring "separate") caries all of what you discuss along with it. By saying that the fetus is a human, the legislature clearly means to say that it has all the characteristics that demand safeguarding. So when someone argues against a fetus being a human they are not arguing about species, but about those characteristics that we assume deserve a very high level of protection (presumably outweighing the mother's rights.)
The original anon pointed out that it is a philosophical debate that the legislation takes a side on. That debate is not about species, but ultimately about whether a fetus has the rights we assume all human beings have. They are taking the long-view in changing perception. Some day the Supreme Court will discuss the evolving consensus of what a human is, and because 6, or 8, or 10 states call a fetus a human, they will overturn Roe.
Posted by: anonymous | Jul 4, 2008 4:19:28 PM
Thanks for your comments, anonymous. What this post and the subsequent comments reveal is the ambiguity in the term "human being". The problem is that many people (probably including the South Dakota legislature) believe that fetuses should be regarded as "human beings" in the sense that "they deserve a very high level of protection" precisely because they are human beings in the biological sense of the word. I hope to have shown that this doesn't follow.
In any case, the ambiguity in the term "human" doesn't show that the South Dakota legislation is "taking sides in a philosophical debate". What Rick suggested in his post is entirely right:
"It's not as if the legislature attached some strange, esoteric, gnostic-secret-knowledge meaning to "human being". With all due respect to Bazelon, it does not seem inaccurate to say that a human fetus is a "human being," or to define "human being" as the South Dakota legislature has done.
I would have thought the issue at the heart of the abortion debate is not so much whether or not, as a matter of description, a human fetus is a "human being" but is, instead, whether privacy-, autonomy-, and equality-based arguments make it the case that, at the end of the day, the law should permit a woman to decide that she does not wish to continue a pregnancy. The question is not whether a human fetus is a human being, but what are the implications for law, action, etc., of the fact that a human fetus is a human being." (end of quote)
A fetus is a human being according to the ordinary meaning of the term. When you ask your neighbor to define human being he will answer by saying something along the lines that "a human being is a member of the Homo sapiens race". A fetus is also a human being according to the scientific defintion of the term. Perhaps a fetus is not a human being according to a definition of the term that uses it as a shorthand for "being who deserves the maximum amount of legal protection".
Regardless, South Dakota is entitled to call the fetus a "human being", since it contradicts neither the ordinary meaning of the term or its technical scientific meaning. Furthermore, philosophers and bloggers would be well-advised to stop using the term "human" as synonymous with "being that is a bearer of rights". As Singer convincingly argued a long time ago, we better reserve the term "person" for that (or any other that we might agree upon).
In sum, requiring a doctor to tell a patient that having an abortion will terminate the life of a human being is not demanding that he lie or that he take sides in a philosophical debate. It actually amounts to requiring the doctor to tell to the patient something that most people and most scientists believe to be the truth- that abortions entail the killing of a human being. Most people intuitively know that this is the case. However, they perhaps believe that some human beings (fetuses) are not as worthy of legal protections as others (born human beings). They probably don't know what reasons justify this conclusion. Perhaps after some reflection they might realize that what probably justifies it is that (some) fetuses lack certain morally relevant features (sentience, rationality, self-consciousness) that differentiate them from most born humans. Once they realize this, they won't care that much about what the South Dakota legislature believes regarding whether a fetus is "human" or not.
Posted by: Luis Chiesa | Jul 4, 2008 5:56:37 PM
"[the legislature] requiring a doctor to tell a patient that having an abortion will terminate the life of a human being is not demanding that he . . . take sides in a philosophical debate"
I don't know how we will determine whether they intended to take a side in a philosophical debate, but I would take 100 to 1 odds that most of them intended to do just that. Does anyone really believe otherwise?
Posted by: anonymous | Jul 4, 2008 6:13:38 PM
I'm focusing on what they ended up doing, not on what they intended. South Dakota ended up requiring doctors to tell their patients that abortion entails killing a human being. Most people believe that this is an accurate description of what happens. Furthermore, most doctors believe that this is true (again, look at embryology textbooks). Thus, what the legislature ended up doing, regardless of what they intended, was to require the doctor to tell her patient what doctors and the scientific community actually believe is the case! This is why the concerns over the law are overblown. At the end of the day, the "problem" with the law is that people just don't like to hear that when you have an abortion you kill a human being.
Posted by: Luis Chiesa | Jul 4, 2008 6:45:51 PM
I won't argue with you about whether the scientific definition of what they directed is accurate or inaccurate. But it is laughable if one fails to realize that the law has nothing to do with that (presumably informing a woman that the child will not live after the abortion??) And more laughable if the "intent" of the legislature in passing a law somehow becomes irrelevant to a discussion about its.
One could only get caught up in this technical discussion if they either don't care at all what happens with regards to abortion -- how the law affects and will or might affect human beings - but only about scholarly debate on embryological definitions, or they actually support the law and are using this as a way to defend its (perceived) intent.
Posted by: anonymous | Jul 4, 2008 6:59:32 PM
Anonymous writes, "Rick, though maybe you don't engage because not all of them accepted your premise about the law's obviously 'true, relevant statement[s].' 1 + 1 = 2, and a human fetus = separate human being." Actually, the reason I "[haven't engage[d]" is because I have been cooking for a 4th of July gathering. Sorry. My short-ribs temporarily took precedence over Prawfsblawg.
Marty, unlike "Anonymous", has responded in a way that, as usual for him, invites engagement. It seems to me, Marty, that -- Roe, notwithstanding -- the state need not be disabled from trying to convince women not to have abortions. If we agree (and perhaps we don't, but if we do) on this point, then the question is whether the means chosen here -- i.e., requiring doctors to communicate (what I regard as) true, morally relevant information -- are appropriate, prudent, and / or justifiable. This is, I admit, a hard question. We require medical professionals to communicate information to prospective patients all the time. Sometimes, I assume, these reuqirements run counter to the professionals' preferences. How do you think we should decide which requirements are permissible and which ones are unjustifiable intrusions?
"Bobo Linq", on the other hand, says, "I deny that a fetus is a human being. I deny that a corpse is a human being for similar reasons." Weird. What "reasons" are those, dare I ask?
Posted by: Rick Garnett | Jul 4, 2008 10:36:20 PM
: the physician is also required to "inform" the woman that she "has an existing relationship with th[e] unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota; [and] [t]hat by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated." I don't even know what to say about this. Requiring a physician to tell the woman that she "has an existing relationship" with an unborn human being -- a relationship that she is about to "terminate"? I hope you'll agree that, whatever one's views on whether abortion should be legal, this is nothing short of grotesque.
I agree that this disclosure seems a bit weird -- whatever one thinks of abortion, it is odd to suggest that the salient fact is that it terminates a "relationship" that would give rise to "constitutional rights" (Pierce v. Society of Sisters, perhaps?).
Nonetheless, I'd suggest that words such as egregious, terrorizing, grotesque, etc., might be better reserved for something a bit more substantive. Otherwise, it's like the boy who cried wolf. If such insubstantial requirements are described in those terms, there will be no vocabulary left to describe, say, extraordinary rendition of an innocent person.
Posted by: Stuart Buck | Jul 5, 2008 1:44:16 PM
I hope you'll agree that, whatever one's views on whether abortion should be legal, this is nothing short of grotesque.
An interesting argumentative move here. A response might be, "I hope you'll agree that, whatever one's views on abortion, it's very difficult to imagine a less significant burden than that created by the South Dakota law." I suspect that not everyone would actually agree with this bootstrapping suggestion that no argument need be made since everyone already agrees.
Posted by: Stuart Buck | Jul 5, 2008 9:05:01 PM
The pro-life people have chosen to focus on the medical/technical correctness of the facts underlying the mandatory briefing that doctors must give. The pro-choice people have pointed out that the briefing appears to employ rhetoric in support of the pro-life viewpoint and that the technically correct facts underlying the rhetoric serve almost no purpose - unless we believe that women (a) don't know that the abortion will terminate the pregnancy; (b) don't know that they would give birth to a homo sapien; or (c) need to know that certain constitutional rights accompany a parent-child relationship.
Rick has no problem saying that the legislature should be able to try to convince women not to have abortions, but admits that it is a hard question as to whether the legislature *should* be doing it in this particular way - using the doctors as their agents.
Thus, Rick seems to have admitted that the purpose of this is to use doctors to advance moral rhetoric - and wants us to debate the wisdom of this. I haven't yet heard any argument as to why this is a good idea.
I imagine a doctor could transmit the factual information underlying this requirement by saying "do you realize that once the procedure to remove this *human* embryo is complete you will not be able to change your mind?" And then hand them a pamphlet on constitutional rights regarding education etc. -something that a doctor is not an expert on.
Posted by: newanon | Jul 6, 2008 2:53:15 PM
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