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Sunday, February 12, 2006

Indiana's proposed informed-consent law

In Indiana, where I live, there has been a lot of talk about a proposed abortion-related law, which would -- the Washington Post reports -- require women seeking an abortion to be informed in writing that "human life begins when a human ovum is fertilized by a human sperm."  According to some who oppose the proposal, it "blurs the line between church and state":

"To put our religion or faithful beliefs into a statute that's going to be law, without being able to back it up scientifically, I have real hard questions about doing that," said state Rep. John D. Ulmer (R), who voted against the bill.

Let's concede, for the moment, that reasonable people can disagree about the merits of a proposal like this one, and also that the purpose of the law is to dissuade women from having abortions.  That said, in what sense is the statement that "human life begins when a human ovum is fertilized by a human sperm" anything other than a "scientific[]" claim?  After all, the proposal is not to require women to be informed that "it is always immoral to cause the death of human beings", or that "human beings are endowed by their Creator with an inalienable dignity from the moment of conception", or that racial discrimination is wrong, or that recycling is good.  The information required by the proposal is relevant (many think) to moral arguments about abortion, but how is it a "religious belief[]"?

Posted by Rick Garnett on February 12, 2006 at 08:35 AM in Religion | Permalink

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Posted by: Moe | Feb 14, 2006 11:27:31 AM

in what sense is the statement that "human life begins when a human ovum is fertilized by a human sperm" anything other than a "scientific[]" claim?Rick, Jeff, and I all live in Indiana, so I'm going to be faultlessly polite here. ;) This is an incredibly obvious point, but doesn't the law necessarily involve a judgement about when life begins? Despite attempts to suggest otherwise, isn't the debate not about whether the law can define when life begins, but when the law should say life begins?

It seems to me that it will be almost impossible to detect "life," which may render the question of when life actually begins unknowable. But it seems to me that once there are detectable indicia that the prerequisites of life are present - brainwaves, heartbeat, etc. - we should defer to the fact that the fœtus may be alive, and therefore afford it appropriate protections. In other words, in questions of underdeterminacy, we should adopt a "cause least harm" approach, which means letting the child live.

All of which means that I have no objection to this proposed law, and I'm not entirely sure I see what the objection to it is.

Posted by: Simon | Feb 13, 2006 2:02:27 PM

I'm a bit confused by Michael's comment, in particular. Is this a problem specific to human beings, or do we have this same conceptual difficulty with, say, pigs?

If we were to trace a sow back, how far could we go? Would it make sense to say that the sow was once sperm, or once an unfertilized egg? We could surely trace the sow back to her beginnings--to paraphase--when the swine ovum was fertilized by the swine sperm.

Or perhaps we can't--perhaps problems of ensoulment, or some such, prevent what would otherwise be thought of as a rather basic determination.

Posted by: Thomas | Feb 13, 2006 9:59:50 AM

Here is an article from the companion website to a developmental biology textbook: http://www.devbio.com/article.php?id=162

Note the section entitled "Current Scientific Views of When Human Life Begins". It lays out various criteria for when human life begins and shows the different results they reach. But the important thing to note about each of these "scientific" answers is that every one of them is either entirely arbitrary, or based on moral considerations beyond science alone.

The quotes from Engelhardt, Singer, and Tribe are superficially appealing, but look more like sophistry on closer examination. They all run something like this: It's Alive. It's Human. Therefore, it's a Human Life.

But that's not what we mean when we use the phrase "human life". That criteria would apply just as well to sperm or egg cells as to an embryo. Or to blood or other tissue cells in a laboratory petri dish. How about a human heart that has been removed from a body for transplant. It's alive. It's human. Is it a human life? Of course it isn't, but why not? There must be some other criterion that we consider relevant.

What about that human heart after it's been successfully transplanted? Is it a separate human life from that of the body hosting it? It's human tissue with its own separate DNA. It can't survive on its own independent of the host body, but then, the same is true of the pre-viability fetus.

None of this implies that a fetus isn't a human life, or that human life doesn't begin at conception - it just suggests that this is a determination that science alone can't make.

Posted by: Michael Yuri | Feb 12, 2006 9:42:28 PM

Here is a comment, by Professor Michael Perry, that was posted over at my other blog, "Mirror of Justice":

Although, as H. Tristam Engelhardt has observed, "many describe the status of the embryo imprecisely by asking when human life begins or whether the embryo is a human being . . . no one seriously denies that the human zygote is a human life. The zygote is not dead. It is also not simian, porcine, or canine."

Philosopher Peter Singer, who is famously and enthusiastically pro-choice, has acknowledged that "the early embryo is a 'human life.' Embryos formed from the sperm and eggs of human beings are certainly human, no matter how early in their development they may be. They are of the species Homo sapiens, and not of any other species. We can tell when they are alive, and when they have died. So long as they are alive, they are human life."

Similarly, constitutional scholar Laurence Tribe, a staunch pro-choice advocate, has written that "the fetus is alive. It belongs to the human species. It elicits sympathy and even love, in part because it is so dependent and helpless."

Posted by: Rick Garnett | Feb 12, 2006 8:01:11 PM

In for a penny; in for a pound, but it's more interesting than what I was working on.

I'm no constitutional law scholar, but it seems to me one would have to look at it the way Judge Jones did in Kitzmiller v. Dover Area School District on the subject of intelligent design. Let's assume Case 1: every woman seeking an abortion were required, on the pretext of informed consent, to receive in writing, a statement that an aborted fetus, having not been baptized, would burn in hellfire. Let's assume Case 2: the most the legislature could get through was the written statement that in considering whether to undertake the procedure, one should "do unto others as you would have them do unto you." Finally, Case 3: as a matter of informed consent, every woman is required to receive a written statement advising that the procedure is one subject to significant religious and social debate, and she may wish to seek religious or secular counseling before going forward.

Case 1: Is there any doubt that from the perspective of a reasonable person that would be the case of the government adopting the dogma of a particular religion and "establishing" it? Case 3: it's hard to see the legislature has established any religious dogma, even though it recognizes the existence of religion. Case 2: is the Golden Rule religious? Would the adoption of the Golden Rule as the state motto constitute an establishment of religion? I don't think so. But in this case, you'd make the argument that what is implicit is that the other is a person.

My point is that informed consent requiring a statement that "human life begins at conception" in this day and age smacks of the disingenuousness of the intelligent design debate. It is far closer to Case 1 than any of the others, and could not be anything other than pretext for the imposition of (and establishment of) religious values associated with a particular group of organized religions.

Posted by: Jeff Lipshaw | Feb 12, 2006 3:22:34 PM

I appreciate the comments. Let's say, just for fun, that I am convinced that the statement "human life begins at conception" is not a "scientific" statement. It does not follow (does it?) that the statement is "religious" -- at least, not in the sense that should raise anything like an Establishment Clause concern? (I mean, I suppose one might think that all interesting and important questions with any normative dimensions are, in the end, "religious", but I don't think that's what the proposals' critics are getting at.) Is the statement any more "religious" than other statements that government makes *all the time*, or any more "religious" than the premises that precede most state actions and policies?

Posted by: Rick Garnett | Feb 12, 2006 2:05:18 PM

As a pro-life atheist, let me suggest that while this statement is certainly not "scientific," it is not "religious," either. It is, wholly, political.

I don't support the law and am indifferent to the sentiment behind it (my distaste for abortion is for other reasons, and I'm quite enthusastic about ending human life in other contexts), but I can imagine supporting this statement out of belief consistent with my areligiosity or as a simple matter of tactics. Any objection to the law should therefore be based not on Establishment Clause concerns, but about secular government "proselytizing" in general. It's similar to a hypothetical requirement that the top of your Form 1040 state: "Paying taxes is a moral duty to help the state provide for others." (Or pick your own philosophy of government idea that you disagree with.)

There is a strong (and bad) tendency of those concerned with "blurring the line between church and state" to assume that moral judgments that arise from religious teachings are themselves necessarily religious in nature (wrong) and therefore prohibited by the First Amendment (debatable even if the first point wasn't wrong). We atheists who agree with "Christian" morality on most points are rather ticked off by the idea that it's only the moral ideas of the "secular left" that can be enacted in law.

Posted by: Dylan | Feb 12, 2006 11:01:13 AM

Because of my slowness in composing, other commenters have beat me to the punch, but here's my take, for what it's worth:

There are really two points here. The first is that any "scientific" definition of the beginning of life is ultimately arbitrary. If it is necessary for some reason to draw a line defining the start of human life for scientific purposes (though I'm not convinced that it is), then fertilization seems like a reasonable and convenient choice, but it is by no means the only reasonable choice.

One could choose to define the beginning of life as the meiotic divisions which create sperm and egg cells, due to the genetic complement of each gamete which is distinct from that of the parent. It lacks the full 46 chromosomes that a typical human has, but so does the fertilized egg which develops into an individual with Turner syndrome or other similar genetic disorders. A sperm cell will combine with an egg before developing into a single adult organism, but so will a fertilized egg that undergoes chimerism, developing into an adult human with DNA from two separate fertilized eggs. The vast majority of sperm and eggs will never develop into an adult individual, but the same is true for the majority of fertilized eggs that are spontaneously aborted.

Similarly, you could define the "scientific" beginning of human life at viability simply by deciding that one of the (arbitrary) criteria is capacity for survival independent from the mother. Or birth, if actual physicial separation from the mother's body is deemed to be a necessary criterion. Now, some of these definitions may be more useful than others for a particular classificatory purpose, but each is arbitrary in its own way.

The second point is that a "scientific" determination of the beginning of human life tells us precisely nothing about moral personhood. There is no necessary connection between the scientific definition and intelligence, or self-awareness, or moral agency, or capacity to feel pain, or ensoulment, or any other philosophical or theological requirement someone might posit as a basis for personhood.

Which brings me back to the law in question. Does anyone really think that the purpose of this law is to inform these women of a particular, arbitrary definition of human life used by some in the scientific community? Clearly, the intent is for these women to hear "human life begins with fertilization" and understand "and if you have an abortion you are murdering a human being". And that intended understanding relies on moral or theological premises that are beyond the domain of science.

If the question is whether this sort of intention on the part of lawmakers is, or should be, unacceptable, I haven't thought enough about the issue to have an informed opinion. But I don't think it's at all unreasonable to see this as an attempt to smuggle in religious/moral beliefs under the guise of objective science.

Posted by: Michael Yuri | Feb 12, 2006 10:46:58 AM

I also live in Indiana, and while my political scream-o-meter is relatively hard to get off the snide (I'm no ideologue on the constitutionality versus the morality of abortion rights), I was aghast at this proposal (coming as it did on the heels of the effort of some Indiana state representatives to invoke their constitutional right to invoke Jesus's name as part of the opening of the legislative session). Sorry for the long post to follow, but it's a way to organize my own thinking about this. (Anon's comment makes the same point in fewer words; I ought to think about that.)

Let's break down the reasons why the phrase "human life begins. . ." as used in this proposal is anything BUT a scientific statement. First, the word "human". Is the word used in this case as a biological classification, or as a qualitative description? There is no question that the fertilized egg, in the instant after conception, is a cell within the female form of the primate known by the genus and species homo sapiens, sometimes referred to as a human. But is it a human life? That, I am afraid, is a religious question. A Christian friend of ours just miscarried in the first week after becoming pregnant. Was the miscarried egg a "human" in the sense that I am? You are within your rights to believe it was, but I observe there was no mourning, it had no name, they had no public ceremony akin to a funeral.

Second, let's parse "life begins." Does life mean a living cell? Well, they are all "living cells." The sperm was living before conception, as was the ovum. In a biological sense, after coming together they are fertized, they have a potentiality for growth they didn't have before, but they are no more alive, unless you add a qualitative adjective to the word "life." Consider the phrase "life ends." What does that mean? Do cells in the human body continue to live after we consider someone dead? Yes. Do we have accepted but arbitrary standards by which we consider someone dead? Yes. Would anyone argue that someone whose heart is not beating and has no brain function is alive because there are living cells in the body (hair and nails continue to grow after death)? No. So we have to conclude that "life ends" means something different than all the cells are dead. It means that something we communally acknowledge as a living soul is no longer living. Now, you have every right to believe that moment on the front end is at the moment of conception, but it is not a scientific statement.

I can imagine propositions that would more closely fit what you are trying to argue. Suppose it could be shown that a one month old fetus responds to some kind of stimulus from which one could theorize the ability to feel pain. To say "human life has begun..." based on that data has all the problems I've just noted. Even to say the fetus "feels pain" is too broad. But if you wanted to assemble a fair disclosure of the scientific data around the responsiveness of the fetus to certain stimuli and let the mother and father draw conclusions, I guess that's okay.

I have written on what Kant calls the transcendental illusion - reason's "vain but confident treasure-hunting" - in which our ability, a priori, to posit what ought to be is the same process by which we draw scientific and moral or religious conclusions. Science as well as morality has a teleology to it - why do we presuppose an order to the universe? I believe it is that process that causes us to want to draw moral lines as much as scientific ones. There is a Jewish prayer by which we conclude the Sabbath that embodies the innate desire to draw lines, to have separation, to distinguish the sacred and the ordinary. All of that is legitimate, and indeed, I believe, trivialized by the predominant scientific world view, particularly in the legal academy (or confused). But that doesn't make the Indiana legislature's proposal one of science.

Sorry for the long rant. I don't have the SSRN cite, but there is an interesting and short article by an epidemologist named David Ozonoff recently posted entitled "Epistemology in the Courtroom: A Little 'Knowledge' is a Dangerous Thing" (95 Am. J. Pub. Health, Supp. 1, at S13 (2005). My further thoughts on this general topic can be found at http://ssrn.com/abstract=881066.

Posted by: Jeff Lipshaw | Feb 12, 2006 9:54:03 AM

The question of what constitutes "life" isn't really scientific in nature. Indeed, one can conclude that a corpse is "alive" because there may be some bilogical material in it. What constitutes "human" life is a decision based on politics, religion, and a question of how we determine who is subject to legal protection.

Posted by: anon | Feb 12, 2006 9:12:46 AM

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