Leontiskos wrote: ↑June 28th, 2022, 6:18 pm
That's your characteristic
ad hominem argument against religious individuals. (
Ad hominem not in the strict sense of claiming an argument is false on the basis of the speaker's religion, but in the looser sense of claiming that a religious person's arguments ought not be taken seriously).
Those are the same thing, in effect. Whether they should be taken seriously depends, not on whether their exponent is religious, but on whether the arguments themselves proceed from or assume or depend upon supernatural beings or phenomena. Finnis's arguments clearly do.
<Here> is his Amicus Curiae brief, co-authored with Princeton's McCormick Chair of Jurisprudence, Robert P. George.
Read it. Many
non sequiturs.
First, let me say I agree that abortions after "quickening" were not among the liberties women could freely exercise in 1789. But they did have that liberty prior to "quickening."
Finnis's brief advances two key arguments. The first is that 1) "Quickening" is ambiguous, and can mean either the point at which the fetus becomes “ii. 'a quick child' (a live child), understood to emerge when an embryo had developed enough to receive a rational animating principle (soul) and so had become a truly human individual," or the point at which the mother begins to feel fetal movement: "iii. 'quickening' (a “quickened child”, etc.), from the pregnant woman’s perception of a shift in the uterus’s position or her child’s movements, sometime between the twelfth and the twentieth week (or not at all), but normally about the fifteenth or sixteenth week."
He also lists a third meaning for "quickening, (i.)" i.e., the moment of conception. He doesn't rely on that one, so we can ignore it.
We can dismiss the ii. meaning of "quickening" for two reasons: First, it would be impossible for prosecutors or courts to determine whether a fetus was "quick" in that sense, and 2) because the whole concept of an "animating principle (soul)" is religious nonsense, referring to nothing biological or otherwise rationally or empirically ascertainable. Mammal fetuses develop in a well-understood sequence of steps and stages; acquiring a "soul" is not one of them. There is, on the other hand, a point in which the fetus's nervous system and musculature have developed enough to permit movement, which the mother can feel. So meaning iii. at least yields some palpable evidence for when "quickening" occurs.
His second chief argument is that in other areas of the law ("descents, devises, and other gifts") the fetus is considered
"in esse" ("in being") from conception, "a child will be considered in being, from conception to the time of its birth in all cases where it will be for the benefit of such child to be so considered...."
But the question is not whether a fetus is "in being," (exists) from conception. Of course it is. The question germane to abortion is, whether it is a
person with a right to life.
Finnis conflates those questions throughout, confusing life and existence with personhood, confusing personhood for other legal purposes with whether aborting it is prohibited, and citing court decisions handed down decades after the Constitution was adopted to support those confusions: "The American Medical Association in 1859 dismissed the fiction 'that the foetus is not alive till after the period of quickening' and urged correction of any 'defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth as a living being.'"
Well, the question is not whether a fetus is a "living being." It is, again,
whether it is a person, with a right to life."
The entire question of When does life begin? is nonsensical. It began, per best evidence, about 1.5 billion years ago, and has been continuous ever since. Sperm cells and unfertilized ova are living beings. Each cell in one's body is a living being. The relevant question is, When does a developing fetus acquire moral status, and thus rights?
The only way Finnis could make his case is to show that pre-quickening abortions were prohibited by law and women who obtained or induced them were prosecuted when the Constitution was adopted. There were no such laws, and no prosecutions. Hence women at the time were free --- at liberty --- to end those early pregnancies.
My own view is that human being does not become a person, in the sense of a moral agent, until sometime after birth. Until then it is only a "moral subject," and while there is a moral constraint against inflicting pain or other stresses on moral subjects, they have no rights to life (most of us are not vegetarians).
But that view would not be constitutional either. What is constitutional is what liberties people understood and enjoyed at the time, and thus what the 9th Amendment protects.
Have you read Dobbs yet? Because Dobbs notes much of the same history that Finnis and others have shown.
Just the syllabus.
GE Morton wrote: ↑June 26th, 2022, 6:48 pmFetal development is a process, and as it develops the embryo moves from being a living organism (a fertilized egg) with no moral status, to a complex organism with a nervous system capable of registering pain and pleasure (thus a "moral patient"), to a neonate capable of perceiving and responding to the external world, to an a adult, capable of pondering the "rightnesss" or "wrongness" of its actions and judging the actions of others (a moral agent). "Personhood" corresponds to the last two of those stages.
That's an interesting assertion. Do you have an argument?
That's just a statement of the near-consensus among moral philosophers. Which part do you think requires argument?
Modern science has shown us that that dividing line of quickening is superficial, and that the zygote is itself human life that will, left to the natural course of events, develop into a mature human.
Of course. That is the confusion I mentioned above --- the question is not whether a zygote is a human life --- of course it is --- it is whether it is a
person as contemplated in the Constitution, or when it becomes one.
1. Every person has a natural right to liberty, which consists in doing whatever he or she wishes to do, as long as it inflicts no injuries or losses on other persons.
Egads. This the same sort of unconstitutional silliness that Blackmun relied upon, but now we get the further admixture of
Libertarian dogmas. I would encourage you to read
Dobbs, or at least the first three pages:
"The term 'liberty' alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy. For this reason, the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125. (Dobbs v. Jackson, 2-3)
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"The Court is correct in adding the qualification that this “assumes a state of affairs in which the choice does not intrude upon a protected liberty,” ibid.—but the crucial part of that qualification is the penultimate word. A State’s choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a “liberty” in the absolute sense. Laws against bigamy, for example—with which entire societies of reasonable people disagree—intrude upon men and women’s liberty to marry and live with one another. But bigamy happens not to be a liberty specially “protected” by the Constitution."
Again, the Constitutional question does not turn on how much agreement there is regarding some claimed liberty, but whether it was one acknowledged and exercised at the time the document was written. Pre-quickening abortion was; bigamy was not. (Though if I had my way all state laws defining, licensing, or restricting marriage would be struck down. A person could take as many spouses as would have him or her, or marry their dogs or horses or goldfish if they wished).
(Quoting Scalia): That is, quite simply, the issue in these cases: not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed. (Casey v. Planned Parenthood; Scalia's Dissent, 979-80)
Two problems there: first, the prohibition of abortion is not "long standing;" it began in the mid-19th century. But the more important problem is Scalia's utter disregard of the 9th Amendment. The entire purpose of that amendment was to acknowledge the existence of rights which the Constitution otherwise "says nothing about." It is the job of the courts to interpret that Amendment, not ignore it and leave claims arising under it for state legislatures to decide. It obliges them to examine the relevant history and, even more importantly, to determine whether a claimed but unenumerated right is consistent with or implied by other acknowledged rights, such as the right to equal protection of the law, and the right to be free of unreasonable searches and seizures of their "persons, houses, papers, and effects". Does the former imply a right to marry whom one wishes? Does the latter imply a "right to privacy"? I think they do. More broadly, is the the claimed right compatible with the grand scheme of establishing a polity in which people are maximally free to "pursue happiness" as they define it? Those are questions the 9th obliges the Supreme Court to address.