Footnote eCp421.
The text of the opinion
https://www.law.cornell.edu/supremecourt/text/410/113
Justice Byron White, in his dissent on Roe v Wade, observed that the majority had held that the Constitution "values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus..."
White's dissent, with Rehnquest joining
https://en.wikisource.org/wiki/Roe_v._Wade/Dissent_White
In Justice Harry Blackmun's majority opinion, the court spoke of "the wide divergence of thinking on this most sensitive and difficult question." The court continued:
There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained...
The justices believe, "When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."
A subtle error lies in the majority opinion. But first note that they only mention those favorable to their position.
For example, what of Hippocrates and his oath, which relates abortion to doctor-assisted euthanasia? "I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion." That oath certainly had a profound effect over the centuries. Why are all these doctors dismissed in preference to the Stoics?
Second, observe that they do not consider that the view of Stoics and other Greeks may have stemmed from the profound state of ignorance about what goes on in the womb. Even at the time of Roe v Wade, medical knowledge had advanced greatly beyond what was known even 50 years previously. This is something that is relevant to the views of various liberal religious sectors. Why? Because religious beliefs usually take quite some time in their adaptation to new knowledge. But, silence on this from the majority. That's because their reasoning is superficial, even lazy.
But, now to the subtle error.
HOW DO YOU WAGER?
That the court should not take sides as to the answer about the origin of life does not imply that it should therefore gamble 50/50 on getting the right or wrong result.
If a consequence could be sufficiently catastrophic, then even a low probability of failure may not be worthwhile.
Consider the "six sigma" idea of prevention of disaster when carrying out a mission. NASA aims for six sigma (or a probability of success of 99.99966% ) by building in redundant systems. If system A fails, backup system B kicks in, and if that fails, then backup C... and so on. In other words, the "real world" takes very seriously low probability of failure when failure is utterly unacceptable.
Think of when that mentality has not been at work, or not sufficiently so: The Chernobyl and Fukushima nuclear disasters. The public was assured that chances of a nuclear accident were very low. But, low probability events on occasion DO occur. So we can say now that the builders' gamble did not pay off because they did not weigh the price of failure.
A thought experiment: Suppose 100 pistols are laid at random on a table, only one gun holding a bullet, which is in the chamber. You are offered the possibility of $10,000 if you survive a game of Russian roulette. Your chance of death by gun is a minimal 1 percent. Is the risk of your life worth taking the gamble? What if the prize were $1 million?
What will you give in exchange for your very life?
The fact that you have a 99% chance of success (without taking into account whether you might be seeking trouble by testing God) does not make the game a good idea.
The justices are saying that no one really can say who is right about the origin or sanctity of human life. Thus, they say that society (as embodied by them) must gamble that there is no catastrophic harm done by the wanton killing of a fetus. That is, from their perspective, it is 50/50 whether any terrible harm is done – whether to the putative mother, to the fetus (since no one is sure what all that concept entails) and to the people at large.
So the error lies in the notion that when there is a fair chance that a bomb lying in the street is a dud, that therefore we should hence do nothing about it. Let people fool with it, kids play on it, etc., as they please.
The problem for the court is that once a fetus has been killed, the decision is irrevocable. Whatever terrible harm might have occurred has occurred. Maybe chances are actually low that there is any real harm. But, low does not mean ignorable, as our examples above show.
What we have is a variant of Pascal's wager, of course, but a variant that has immediate social application.
White's comment cited above is pertinent here. The majority has not really been neutral. It "values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus..." But even that is granting the majority too much. They may assume that the woman is being favored here, but as we have argued, they do not at all know that to be so.
KNOTTY QUESTIONS
The majority's appeal to ignorance is reflected in the millenia-old debate between materialists and non-materialists, between those who believe that particles of inert matter (or these days quanta of unconscious energy) account for everything, including all subtleties of human consciousness, and those who regard potential as implying something beyond the accidental.
In the 18th Century, Samuel Clarke and Anthony Collins publicly debated the notion of the human soul. Clarke defended the Platonic idea that souls are immaterial, hence indivisible and immortal, whereas Clarke urged that the soul is material. By
soul they meant "substance with the power of thinking." Their dispute turned on whether a system of mere matter can think, as had been proposed by John Locke.
"As those who are familiar with contemporary philosophy of mind will know from similar debates in our own times,
this particular conflict may be unresolvable," write Raymond Martin and John Barressi in their account of this debate.
1 I have added the emphasis in order to underscore the falseness of the "background assumption" held by many that the machine paradigm of life and the cosmos is proved or completely adds up.
Much of the "abortion philosophy" debate that I have reviewed concerns the idea of
consciousness. I have no doubt that this is an important issue – but let us not forget the classical notion of human
free will. This leads to the question,
how can a machine have a will? How can it be held accountable for a good or a bad choice, a moral or an immoral choice? Certainly, we may expect that some advanced AI machine program will be able to display a
pseudo-will. It may bring enough data into the mix, with enough selection algorithms, to make a very effective android – i.e., a human-like machine. But, it still is only re-active, not pro-active. If we humans believe in the necessity of a will, then we must ask what would be the basis for that will. There must be some
non-machine core that enables us to make pro-active decisions. There must be some
non-machine rudder or pilot that permits us to not only make decisions, but to be held morally accountable for those decisions.
Some philosophers will respond that while that may be so, it does not follow that a god must exist. (See Thomas Nagel, for example.)
And I agree that for the moment we may avoid a discussion of God and "his" existence. Yet, in doing so, we do not avert the issue of what we may mean by some non-mechanical, presumably non-materialistic substance to which we resort when we invoke our will. In other words, a soul by any other name is still a soul.
Yes, I realize you may have assumed that this Cartesian argument has been effectively refuted. But, in point of fact, it has not. On the other hand, I am not really a Cartesian, because I do not hold a materialist view of phenomena, even though the science of "materialism" calculates well, in its sphere. That is, being able to calculate the motions and radiations of phenomena does not mean that these phenomena are composed of unconscious bits of energy only.
Behind and
beyond the phenomena we have already concluded is the soul. Other substances like one's soul – in being non-material and "core" forces – would also be expected to exist. That is, the "material world" is the outward projection of various immaterial dynamics.
1a
Supposing that souls are mere figments of our old-fashioned imagination, we would be disposed to admit that there is no reason not to shelve the fetus as an only partly activated software program. Who cares what you do to a bit of software? Aborting software is nothing. Of course, you can say that about a just-born infant – and a number of abortion advocates do say that children under age 2 don't fulfill the criteria of sentient, conscious, self-aware humans, so that there is nothing intrinsically wrong in killing them – though social aversion might have to be taken into account. They are right. Even a software program that has been running a number of years has no intrinsic right to life. The state can kill anyone at anytime. Murder is, at bottom, meaningless. How can you murder a software program?
Of course the abortionist/infanticide folks don't think you should kill
them. Hey, that's against the law! But, if they lack souls – as they seem to believe – then their will to survive is simply a machine feedback loop, and really means nothing. So much for their right to life.
Well, THAT'S different, they say. People with desires, expectations and self-awareness do have a right to life. But, why do these people think so? What's the big deal about shutting off a machine?
Typical of "abortion philosophy" thinking: "To be brief, human beings are paradigmatically self-aware intentional beings who stand in complex relationships of social indeterdependency with other human beings"
2. What does the author mean by intentional? An AI program follows a pattern that appears to be
intentional; that is, it calculates and updates its calculations in accordance with a set of (perhaps nested) goals. Yet, we don't care at all about shutting off that "intentional" program. It's what we – perhaps subliminally – assume is behind intentionality that is important to us. That force or soul should not be arbitrarily disconnected, we strongly feel.
So, another point here is that those who believe in a right of a "self-aware intentional being" to life are, whether they like it or not, forced to concede the necessity of human souls. Of course, most of these persons are neither scientists nor logicians. So they assume there must be some epiphenomenal way out of the conundrum. But, not so.
And, for the Christian (and not only), the question may be asked: "Is a fetus your neighbor?"
DEHUMANIZING THE OTHER
That last sentiment relates to an often-overlooked factor with respect to the protection of human life: the ability to empathize with the Other – to identify, that is, with the Other. We at least to a degree tend to place ourselves in the shoes of the Other.
The process of dehumanization of others is a process of coming to see them as very much Other, as very much not human. A form of dehumanization occurs under stress of combat, or other very difficult situations, making a person overly focused on the self and one's little ? to the point that the death of the Other carries with it little meaning. Then one doesn't identify with the Other.
Another form of dehumanization occurs when the foe is distant and unseen. One's job is to destroy the target, and one avoids thinking about the humans there who are not visible. One must use one's imagination to conjure up sympathy for the human "collateral damage" victims, something that it doesn't pay emotionally for the soldier to do. Still another aspect of dehumanization is to continually propagandize that members of a particular group are not really human – i.e., their lives are worth nothing.
In all these cases, there is a struggle over language. The enemy isn't killed, he is "zapped" (like in a video game). The people who are killed are not people, they are "targets" or "collateral casualties."
Whatever one thinks of the rights of the fetus or newborn, the same psychological process of dehumanization occurs. One doesn't identify or empathize. It's not really human. In fact, it's not even a person. The fetus is not distant, but it is unseen as far as the woman is concerned. She avoids looking at images of fetuses, because she has a need to dehumanize the fetus. That's not so easy in the case of a newborn, but infanticide of newborns has been justified – both in the past and currently – on ground that the baby is not actually yet a person. It is an Alien. It is the Other.
Also, one doesn't use the word
kill, since that connotes destruction of something that could have some right to remain alive. One uses such terms as
abort and
terminate, which help to psychologically buttress the Otherness of the Other. As long as the Other is sufficiently OTHER, then there is no need to consider its rights. We don't identify with the Other that has been made that much of an alien. An Other that has become sufficiently alienated – an Alien – lacks in one's eyes intrinsic value. Intrinsic value is assigned to only those we accept on one level or another.
So the question of abortion reduces to: When does a human life have intrinsic value, if ever? Moral relativists will have difficulty with that question.
FETUS AS PET ANIMAL
"Pet cat"or "pet dog" is an appropriate characterization of the present legal status of the fetus in many states.
If the owner likes it, she is free to care for and nourish it. But if not, she is free to euthanize it.
In New York State, the "pet animal" status lasts until the verge of birth (which in some cases implies "abortion" just after birth when verge-of-birth abortion fails ).
Which one of Gov. Cuomo's three children would have been OK to sacrifice at the verge of birth? Would he have been fine with his then-wife Kerry deciding, just before delivery, to terminate the pregnancy?
Is the unintended uterine object (does that sound mechanical/objective enough?) your son or your daughter? If you are the woman, is that thing your male partner's son or daughter? If so, how can it be that the State denies him all rights in the decision of termination?
Again, is that entity – at whatever stage you choose – your son or your daughter, or is it only your potential son or potential daughter, analogously to an acorn being a potential oak tree (though no one thinks an acorn has a right to grow into a mature oak).
Those questions should be faced by the woman before she decides on abortion. But, we all know of the human tendency to dodge such thoughts when we are grasping for excuses to rationalize what we may believe is a morally tenuous decision. Those in the "us girls" world and their male associates think that they should help shield the woman from that sort of self-examination. Help her to dodge. Don't listen to those
men. And so on. But, how are they doing her a favor by urging her, or smoothing the way for her, to make a hasty and quite possibly ill-considered decision? They are imposing their own mental wall onto her mind, which, true, may be what she wants. But, we never do another person a favor by "enabling" them to avoid thinking out what they are doing. If they won't, they won't. But we should not further that.
In fact, women who smooth the way for others to have abortions really have a moral duty to point-blank ask the abortion-seeker: "Do you see this internal entity as an actual daughter or actual son or as a potential daughter or potential son? Come back tomorrow after you have thought this over."
I realize that feminists will react: that is just what pro-lifers want, to scare and deter the woman! But that emotional reaction screens out the point that it's the feminists, if they really care about the abortion seeker, who should be defending her need to make an informed, considered choice.
In making a case that abortion
can occasionally be immoral, Jane English writes, "Non-persons do get some consideration in our moral code, though of course they do not have the same rights as persons have..." Though the interests of non-persons "may be overridden by the interests of persons," yet "we cannot just treat them in any way at all."
She continues, "Treatment of animals is a case in point. It is wrong to torture dogs for fun or to kill wild birds for no reason at all. It is wrong Period, even though dogs and birds do not have the same rights persons do."
Well, there must be something behind that emotion-laden
Period. And, what is behind it is English's ability to envision the suffering of the animal, or the sudden loss of its ability to enjoy its life. That is, she is
identifying empathatically with the creature. The meaningfulness of its life relates to her ability to "feel" its suffering and its joy. Perhaps in many cases farmers and hunters don't empathize all that much with the animal. To the practical farmer or sporting hunter, the Other is paramount (though I am not going to delve into the multifarious arcane psychological possibilities).
Hence, English can identify – at times – with the animal, but it seems her ability to identify with the creature in the womb is limited.
1. The Rise and Fall of the Soul and Self – An Intellectual History of Personal Identity by Raymond Martin and John Barresi (Columbia 2006).
1a. From Soul and Self by Martin and Baressi:
Clarke declared that in Collins's view, consciousness, rather than being a real individual quality, would be a fleeting transferrable Mode or Power," and hence that the self would be a fiction... Collins, for his part, appealed to the analogy between consciousness and the property of roundness to blunt the force of Clarke's claim that emergent properties cannot be "real," pointing out that the ashes out of which a circle is composed, while not round individually, may be round collectively. Roundness, as even Clarke admitted, is a real property. But neither Clarke nor Collins had a principled, non-question-begging way of showing whether the comparison of consciousness and roundness is a good analogy.
Elsewhere, I talk about the Gestalt of "emergent" properties. (See Ghost Slips Ryle's Grasp) Three good examples:
1. The macro-behavior of gas emerges, statistically, from the motions of tiny molecules which do not individually have "gas-like" properties.
2. The K extinction line in a differential equation on population growth. Once a certain mathematical point is reached, the population spirals to extinction – despite the fact that there are numerous individual members still alive.
3. The topological object known as the Mobius band. Any part of that surface has, paired with every positive vector, its negative. But, the entire surface has only positive vectors.
I give those examples in order to acknowledge that the emergence argument is not altogether specious, or specious at all.
But now I would like to comment on the argument about roundness. True, individual ashes can be arranged in a circle, or loop. But, where is the template for that circle or loop?
It is like a point, line or triangle. It subsists as a mathematical object or concept, but it cannot exist "in" reality. That's because we cannot see a line or point or whatever. It has no width, which our minds require for asserting tangibility.
Well, before mathematics, you say, the notion of roundness has been "picked up" by repeated experiences of similarly rounded drawings and objects. But that process does not really explain how one knows that something is round. Plato thought that the circle is an ideal, somewhat like a soul, that pre-exists and in-forms the circular phenomena of our world. I make no such claim. But I do suggest that, even after the mechanics of perception have been accounted for (and we have a long way to go in that regard), it is most difficult to say what knowledge really consists of. We know what a circle is, but that's quite a subtle and amazing outcome, really!
And that brings us back to abortion. If we really cannot track the depths of a "simple" thing like a circle, should we assume that the depths of the not-so-simple thing, the fetus, are of no particular account?
2. "Being a Person – Does It Matter?" by Loren E. Lomasky in The Problem of Abortion Joel Feinberg, ed. (Wadsworth 1984).
3. "Abortion and the Concept of a Person" by Jane English in The Problem of Abortion Joel Feinberg, ed. (Wadsworth 1984).
In an attempt to avoid the charge of quotation out of context, I include the two full paragraphs from which the quotations are taken:
On the other hand, supposing a fetus is not after all a person, would abortion always be morally permissible? Some opponents of abortion seem worried that if a fetus is not a full-fledged person, then we are justified in treating it in any way at all. However, this does not follow. Non-persons do get some consideration in our moral code, though of course they do not have the same rights as persons have (and in general they do not have moral responsibilities), and though their interests may be overridden by the interests of persons. Still, we cannot just treat them in any way at all.
Treatment of animals is a case in point. It is wrong to torture dogs for fun or to kill wild birds for no reason at all. It is wrong Period, even though dogs and birds do not have the same rights persons do. However few people thing it is wrong to use dogs as experimental animals, causing them considerable suffering in some cases, provided that the resulting research will probably bring discoveries of great benefit to people. And most of us think it all right to kill birds for food or to protect our crops. People’s rights are different from the consideration we give to animals, then, for it is wrong to experiment on people, even if other might later benefit a great deal as a result of their suffering.
