Bioethics as Comedy

Sometimes comedy takes a cultural activity to its logical conclusion to reveal an absurdity that is so humorous everyone will talk about it. Sometimes a bioethical argument takes a cultural activity to its logical conclusion to reveal an absurdity that is ethically so troublesome hopefully everyone will talk about it. Recently, popular comedian Dave Chappelle combined the two.

Sponsored by Netflix and speaking at The Tabernacle in downtown Atlanta, Mr. Chappelle offered the following bioethical observation during his comedy monologue. I have removed all descriptive adjectives non-essential to his main argument. Speaking about abortion as a woman’s right to choose, he observed:

“I don’t care what your religious beliefs are or anything. If you …[are a man,]…you need to…[keep quiet]…on this one, seriously. This is theirs, the right to choose is their unequivocal right. Not only do I believe they have the right to choose, I believe that they shouldn’t have to consult anybody, except for a physician, about how they exercise that right.

Gentlemen, that is fair. And ladies, to be fair to us, I also believe that if you decide to have the baby, a man should not have to pay. That’s fair. If you can kill this…[baby,]… I can at least abandon them. It’s my money, my choice. And if I’m wrong, then perhaps we’re wrong.”

Mr. Chappelle comedically paired “My body, my choice” with “My money, my choice” and something well short of bioethical hilarity ensued. Regardless of what you think about his proposed moral equivalency, a simple Google search on the above quoted portion of his comedy monologue suggests this particular “bioethics as comedy” approach certainly has everyone talking.

For the record, I agree that he is right that both are wrong.

Veil of Ignorance and Unrestricted Abortion

As a Christian, it seems to me that the most logically consistent application of justice is based upon the belief that all human beings bear the image of God, the imago Dei, and as bearers of the image, have equal human dignity, deserving of equal and just treatment by others, both morally and legally, regardless of our varying human attributes (as expounded here at page 163). I realize that not all human beings believe in this God so their systems of justice naturally differ from mine. Resolving conflicting understandings of justice is what makes the intersection of law and bioethics challenging. Currently, nowhere is this conflict so challenging as in the issue of unrestricted, elective abortion.

One such differing theory of justice is by the late John Rawls, in his 1971 Theory of Justice. Briefly, Rawls conceived arriving rationally at a theory of justice by conducting a thought experiment whereby rational persons would determine justice by conceiving it from an “Original Position” behind what he termed a “Veil of Ignorance”. At this Original Position, no one knows what eventual position they would subsequently hold in society, including wealth, health, class, education, minority status, religion and sex/gender. Since justice would be determined prior to one’s random subsequent placement in society, no decision from behind the Veil of Ignorance within the Original Position ought to favor one classification over another because no one would know in advance into what classification one might fall. No one religion would be favored since one might not believe in that religion or any religion at all. No one racial group or sex/gender would be favored since one might not be included in that group or sex/gender.

So what does the Theory of Justice have to say about elective abortion? Interestingly, Rawls himself only wrote once parenthetically on the subject of abortion as it pertained to his theory. It was a very brief footnote in support of abortion, unfortunately not a rigorous defense. As one might expect, different people have used Rawls’s theory to support or refute abortion. I have included links to two such example position papers (RawlsAbortionPro and RawlsAbortionCon). Both of these papers (and others like them) hinge on whether or not one believes the embryo or fetus has sufficient “personhood” or “moral potential”, qualifications that are indeterminate from within the Theory of Justice. Facts are preferred to beliefs when rationalizing from the Original Position behind the Veil of Ignorance, since one does not know in advance what one might believe once subsequently existing in society. Are there any facts that one might use from the Original Position to consider the Rawlsian justice of abortion regardless of one’s beliefs about personhood or moral status of the unborn?

Consider the following: EVERY actual human being invited by Rawls to step with him behind the Veil of Ignorance into the Original Position to determine justice MUST have already passed from conception through the stages of embryo, fetus, newborn infant and immature youth before reaching that nebulous stage of human development called personhood in order to receive the coveted invitation. For the sake of argument, let’s grant that Rawls only wanted the philosopher-kings, IQs above 180, possessors of the apex of personhood, Harvard, not Yale, to join him behind the Veil. Would any of these persons reasoning from the Original Position permit unrestricted, elective abortion of an otherwise healthy unborn human, given that the unborn human aborted might be one of them? The beliefs about the personhood or moral status of any of the earlier stages of development prior to personhood of these great thinkers are irrelevant. What is factually relevant is that all of these great thinkers must each pass through all these stages of development before achieving personhood. None would, from that Original Position, choose unrestricted, elective abortion of themselves to be a just outcome, simply because death has to be the worst of all social categories in which to land after leaving the Original Position. Or is that just my belief?

Treating all humans as equal image bearers of God regardless of any other human characteristics we might possess seems to me a better basis for a theory of justice than one rationally designed by our best and brightest fellow humans. Living that out is the real challenge.

Should Abortion be a Trivial Event?

A recent NEJM Perspective by Drs. Jane Henney and Helene Gayle is calling for reduction in the current restrictions on Mifepristone, previously better known as RU-486. Mifepristone, a progesterone blocker, which effectively opens the cervix of the uterus, when combined with misoprostol, which promotes contractions of the uterus, forms the two-pill combination marketed as Plan C – an effective, safe, self-administered home medical abortion. Arguing that the drug has been shown to be far safer than originally thought, and because many US women are accessing foreign internet sources of potentially suspect quality Mifepristone, Drs. Henney and Gayle are encouraging the FDA to make the drug available from regular US pharmacies rather than at special medical/surgical clinics from a restricted set of doctors as it is presently distributed.

At the time of its initial FDA approval in 2000, it was unknown whether mifepristone would have a high risk of excessive bleeding or incomplete abortions so it was approved under FDA Subsection H, which required that the drug be dispensed directly from a physician (rather than a pharmacy) who can provide blood transfusion or surgical abortion. Drs. Henney and Gayle argue that numerous studies since 2000 support that this level of restriction is unnecessary. This is not to say that the risks of Mifepristone are zero but rather, as one of their arguments goes, there are many other medications available from a pharmacy via prescription that have higher risks so why single out Mifepristone? They are not specifically calling for the medication to become “over-the-counter” (meaning available without prescription) but they list other countries where this is the case.

Their concern about the ease of obtaining Mifepristone (or Plan C) over the Internet is not exaggerated. A quick search of the Internet shows one advocate website called providing a report card where their own secret shoppers grade various Internet sites offering Mifepristone for sale. Another popular site called offers an informative video, telemedicine consultation as well as foreign sourced Mifepristone and this site is presently one of the least expensive sources of the drug.

One of the statistics offered in support of abortion, especially medication-based abortion such as Plan C, is that these processes are safer for women from a morbidity and mortality standpoint than actually being pregnant, particularly the labor and delivery of birthing a baby. Of course, it (always) goes without saying that the same processes are nearly universally fatal for the baby. But, for arguments where the morbidity and mortality of the child are excluded, abortion, particularly medication-based abortion, has become a relatively safe process.

I have no doubt that the present restrictions by the FDA on access to Mifepristone will be reduced for the reasons Drs. Henney and Gayle have provided, perhaps eventually to point of making Plan C available over the counter.

Abortion is becoming a trivial event.

Abortion kills a human being.

Killing a human being should not become a trivial event.

Defense of Abortion as Killing

It is rare to hear a defender of abortion plainly admit that the act of abortion is killing. So, I was curious as to how such an individual would defend that killing. Dr. Sophie Lewis has recently done so in her new book, Full Surrogacy Now: Feminism Against Family. The publisher, Versa Books, has put out a short YouTube video interview, where she outlines her “abortion as killing” defense. The video is just over 2 minutes and she articulates her point clearly. While I have not read her new book, summaries from the publisher suggest the overarching theme is that pregnancy is “gestational work” done by women without appropriate compensation (permission, time, money, recognition…), resulting in their exploitation. Pregnancy (and procreation in general) ought best be done by willing “gestational workers” with clearly defined contractual obligations and recompense. Surrogacy is the answer. There is much to unpack here so I want to focus the remaining blog entry on her defense of abortion as killing as stated in her linked video above.

Her central defense of abortion as killing is as follows:

…looking at the biology of the hemochorial placentation helps me think about the violence that, innocently, a fetus meets out vis-a-vis a gestator. That violence is an unacceptable violence for someone who doesn’t want to do gestational work. The violence that the gestator meets out to essentially go on strike or exit that workplace is an acceptable violence.

The gestator going on strike or exiting the gestational workplace is the act of abortion. In her view, pregnancy is gestational work that can result in workplace violence or, at least, unacceptable work conditions that exceed those previously agreed upon. At that point, Dr. Lewis believes it should be permissible for any woman to leave the workplace, even though that exit causes an ultimate violence to the fetus – the killing of that fetus. She holds the placental attachment to the uterus as a sufficiently biologically violent condition that should permit a biologically violent defensive reponse with the abortion.

It is hard to make these acts either biologically or morally equivalent. Biologically, there is nothing violent about a placenta developing an attachment to a uterus. In fact, using Dr. Lewis’s workplace metaphor, it is the job of the placenta to attach to the lining of the uterus and it is the job of the uterus to receive such an attachment – it is what both were designed or evolved to do. Even if we accept her workplace violence metaphor, it is rare for the violence of the placental attachment to the uterus to result in the death of the mother just as it is equally rare for the violence of the abortion NOT to result in the death of the fetus. These are hardly biologically equivalent events.

Morally, it is hard to argue, even in her terms, that the mother’s choice to terminate gestational work is equivalent to the baby’s placental attachment, even if we grant her claim that both are equally violent. The mother always has the choice in deciding to terminate the pregnancy – the fetus never has a choice or intentional control of the placental attachment process at any point during the pregnancy. After all, intentional choices are made by persons not fetuses. I doubt that Dr. Lewis wishes to cede further moral ground by granting personhood to a fetus.

Maybe that is why Dr. Lewis stipulates that the baby’s violence is innocent. Frankly, the obvious innocence of the baby makes it even harder, if not impossible, to morally justify the violence she desires us to find acceptable.

Oh, Those Darned Terms (Part 3)

It is hard to keep a good theme down as terminology is back in the news. It seems National Public Radio (NPR) is concerned about proper terminology as a recent “Guidance Reminder: On Abortion Procedures, Terminology & Rights” post by NPR Standards and Practices Editor Mark Memmott on suggests. This link is one of periodic commentaries by Memmott on standards expected by journalists at NPR based upon their Ethics Handbook, which is also available on their website. The stated goal of the Ethics Handbook and the periodic commentaries is to be as accurate and unbiased as possible with reporting at NPR, which is obviously an appropriate goal in reporting the news, particularly potentially controversial topics. Read Memmott’s commentary link and see if you think NPR is meeting that goal.

I think there is room for improvement.

For one thing, while there is an appropriate “We-They” throughout the article describing NPR’s word choice versus the word choice of groups favoring “anti-abortion rights” (approved term), I failed to find a similar “We-They” within the article describing NPR’s word choice versus the word choice of groups favoring “pro-abortion rights” (not approved term). Perhaps I missed it?

Additionally, NPR favors the term “fetus” over the term “unborn”, despite the fact that fetus means “unborn offspring of an animal” per Wikipedia or “unborn or unhatched vertebrate” per Merriam-Webster. The Latin sounds more accurate but fewer people are speaking Latin these days. Nonetheless, NPR believes that “[i]ncorrectly calling a fetus a ‘baby’ or ‘the unborn’ is part of the strategy used by antiabortion groups to shift language/legality/public opinion.” I wonder if the Mayo Clinic realizes their interchangeable use of the terms “fetus” and “baby” on their fetal ultrasound web page is not only incorrect but places them squarely in the antiabortion movement trying to shift language/legality/public opinion?

Finally, NPR does not like to use the term “abortion clinics” but rather “medical or heath clinics that perform abortions”. That may indeed be more accurate but why stop there? Why not list all the procedures that a specified medical clinic performs, including the total number of each of the procedures performed, and let the reader decide how he or she wishes to categorize that particular clinic?

It is wrong to purposely select terms feigning accuracy so as to appear unbiased, particularly if the goal is to bias by use of those very same terms.

Oh, Those Darned Terms (part 2)

By Mark McQuain

Voltaire has been credited with saying: “If you wish to converse with me, define your terms”. In a previous blog entry, Tom Garigan reminded us that it is literally vital that we define our terms when we engage in ethical debates, particularly those ethical debates related to the beginning of life. Explicit definition of terms should apply for opinion pieces in the New England Journal of Medicine (NEJM) as well.

In a recent NEJM Perspective (subscription required), Cynthia Chuang, MD, and Carol Weisman, PhD, are concerned that the Trump administration’s November 15th publication of final rules (HERE and HERE), broadly allowing employers to deny contraceptive coverage to their employees on the basis of religious or moral objections, will “undermine women’s reproductive autonomy and could lead to an increase in rates of unintended pregnancies, unintended births, and abortions.” The article provides a summary of the political back and forth of court injunctions and rule modifications that have ensued, which is interesting but not the point of this blog entry. I want to focus on one of the four main objections they raise against allowing employers religious or moral exemptions from the current requirement that employers provide all FDA-approved contraceptive/birth-control methods.

There are 18 FDA-approved Birth Control methods for women provided by the Patient Protection and Affordable Care Act (commonly called Obamacare or ACA) without cost-sharing [that is, at no cost to the patient]. These are also referred to as contraceptives. A contraceptive is defined as a method that prevents pregnancy. Pregnancy has been defined as either beginning at conception (the union of an egg and sperm that results in a fertilized egg) or beginning at implantation of a fertilized egg into the lining of the uterus. This difference in definition impacts how one views certain contraceptive methods that may work in part by preventing a fertilized egg from implanting into the wall of the uterus. Any contraceptive method that prevents implantation causes the intentional death of that fertilized egg and would correctly be an abortifacient (a birth control method that causes an abortion) if pregnancy is defined as beginning with conception. An intrauterine device (IUD) and Levonorgestrel (PlanB) both work primarily by preventing the egg and sperm from joining to create a fertilized egg, but some argue that it can not be proven that these methods don’t also work, in part, by preventing implantation ((PlanB) (IUD).

This background is useful in discussing Chuang and Weisman’s third objection to allowing employers religious and moral objections against the full gamut of FDA-approved birth control methods currently allowed by the ACA:

“Third, the rules allow entities to deny coverage of contraceptives to which they have a religious or moral objection, including certain contraceptive services “which they consider to be abortifacients.” By definition, contraceptives prevent pregnancy and are not abortifacients. Allowing employers to determine which contraceptives they consider to be abortifacients, rather than relying on medical definitions and evidence, promotes the spread of misinformation.”

The previous link on IUD by the American College of Obstetrics and Gynecology (ACOG) relies on the definition of pregnancy that defines pregnancy as beginning with the implantation of a fertilized egg into the lining of the uterus. Neither an IUD nor Plan B are believed to terminate a pregnancy after implantation and therefore, under ACOG’s definition, the one relied upon by Chuang and Weisman, neither is an abortifacient. If pregnancy begins with conception, then both Plan B and the IUD are potential abortifacients, as both interfere with implantation of an otherwise viable fertilized egg. ACOG admits the IUD interferes with implantation in their position paper linked above.

Rather than rhetorically condemning employers who have genuine religious and moral concerns about participating in the termination of innocent life by implying they fail to rely on proper “medical definitions and evidence”, Chuang and Weisman (and ACOG for that matter) should do better job explaining their definitions so they can also avoid promoting “the spread of misinformation”.

Oh, those darned terms!

Abortion and viability

By Steve Phillips

There has been considerable reaction to the recent passage of a New York State law a regarding abortion. It has been celebrated by those who support a woman’s choice to have an abortion at any time and for any reason and strongly opposed by those who believe that a human fetus has a life that should be greatly valued because he or she has been created in the image of God. The new law basically changes two things in the previous New York State abortion law which led the way in the legalization of abortion prior to Roe v. Wade. One is that it expanded those who can legally perform and abortion in the state to include nurse practitioners, physician assistants, and midwives in addition to physicians. I will not be discussing that here. The other changes have to do with the circumstances under which an abortion may legally be done after 24 weeks gestation.

The 1970 law stated that an abortion could be done legally for any reason prior to 24 weeks, but only to protect the life of the mother after 24 weeks. Why 24 weeks? 24 weeks gestation was considered to be the limit of viability for a fetus in 1970. Today it would probably be more like 22 weeks, but they didn’t change that. What has changed in the new law is that abortion is considered legal after 24 weeks if there is an absence of fetal viability after 24 weeks or to protect the life or health of the mother. This significantly expands the cases in which abortion after 24 weeks can be considered legal. Roe v. Wade already expanded it in the second way. In that decision the Supreme Court ruled that the state could have an interest in the life of the fetus later in the pregnancy that it did not have early in the pregnancy but limited that interest by saying that a state could not say that an abortion was legal if it was done to protect the life or health of the mother. A companion decision made at the same time stated that the health of the mother should be interpreted very broadly to include the emotional well-being of the mother. That left us with the current situation in which the United States has the broadest definition of a legal abortion in the world.

The thing that I find most interesting about the new law is that it keeps the distinction between abortions done before and after 24 weeks and that it adds the condition that an abortion after 24 weeks can be legal in the absence of fetal viability. If the law is going to say that an abortion can be legal at any time during the pregnancy based on the mother suffering emotional distress, why would those making the law be concerned about fetal viability? I think that what is being said by those who have written and passed this law is that until a fetus is capable of living independently of his or her mother the life of that fetus has absolutely no value other than the value conferred by his or her mother. They want that to be contained in the law even if it actually makes no practical difference regarding the legality of abortion. Why is that so important?

I think it is important because the fundamental underlying issue regarding the permissibility of abortion has to do with how we determine who is a person who we are obligated to treat as we would want to be treated ourselves. It is essential for those who support the moral permissibility of abortion and therefore its legality to say that a fetus is not such a person. The best way to do that is to say that an individual is only a person with full moral status when that individual has certain capabilities that are like ours. One of those capabilities which can be fairly clearly defined is viability. If people can be convinced that they should look at capabilities such as viability to determine who we are obligated to treat like ourselves it will distract them from the alternative way of determining that. The alternative is to say that every human being, or every member of the human family, no matter what their level of development or capabilities is a person that we should treat as we would want to be treated ourselves. That means that every human being who is weak, helpless, and marginalized has equal value with the strongest and most privileged of human beings. That is the position of those of us who believe that every human being is important because we have been made in the image of God. That includes everyone who is dependent including those who are dependent to the point of being unable to survive outside their mother’s womb.

Justice Potter Stewart’s Infanticide Equivalent

By Mark McQuain

Regular readers of this blog will hopefully forgive me for repeating myself but given the recent failure of the “Born Alive Abortion Survivors Protection Act” (BAASPA) in the Senate, the repetition seems warranted.

My concern is not specifically the result of the failure of this particular bill. We indeed already have a “Born-Alive Infants Protection Act of 2002” (BAIPA), which passed by voice vote in the House and Unanimous Consent in the Senate, and accomplishes (as best as I can tell) essentially everything demanded in the BAASPA, including granting 14th Amendment personhood protection of such a baby under federal law. The arguable difference between the existing law, BAIPA, and the failed bill, BAASPA, is that the latter specified legal punishment if certain resuscitative measures were not performed.

Supporters of BAASPA argued that, despite BAIPA, examples continue to exist of babies who are otherwise normal and healthy at their stage of gestation that were born alive post abortion attempt and were subsequently allowed to die without attempts at resuscitation, effectively resulting in infanticide. Pro-choice advocates argued against the passage of BAASPA claiming the legal punishments within the bill would ultimately limit abortion providers from providing the full range of abortion services permitted under current law out of fear of legal recrimination. For the purpose of this particular blog entry, I will concede that both concerns are valid and simply state, given my pro-life position, that the moral weight of the first position infinitely outweighs the second. I want to focus the remainder of this blog on two public comments by prominent lawmakers regarding the status of any baby born post abortion.

The first comment was by Virginia Governor Ralph Northam and covered in my previously linked blog entry above. During a radio interview he described what would happen during a third trimester abortion if the woman went into labor: “The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and mother…” The second comment was by U.S. Senate Minority Leader Chuck Schumer. He expressed concern that the BAASPA legislation would force doctors to provide care to a baby born alive post abortion attempt even if that care was “ineffective, contradictory to medical evidence, and against the families’ wishes.”

In both cases, what the family “desired” or “wished” prior to the abortion procedure was not a living baby. Current law permits a family with a “desire” or “wish” to terminate the life of a fetus to do so without any legal recrimination. Current BAIPA law grants all babies born alive the 14th Amendment protection of personhood, including life, liberty and the pursuit of happiness, regardless of the “desires’ or “wishes” of others. I believe it is a huge stretch to argue that these comments were meant to only apply to babies born so medically compromised that any attempt at further life-sustaining care would indeed be ineffective and/or contradictory to medical evidence – in short, futile.

I close again with Justice Potter Stewart’s infanticide equivalent from 1972 Roe v. Wade oral argument testimony between Justice Potter Stewart and attorney Sarah Weddington, who represented Roe (see LINK for transcript or audio of the second reargument Oct 11, 1972, approximately one-third of the way through):

Potter Stewart: Well, if it were established that an unborn fetus is a person within the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not?

Sarah R. Weddington: I would have a very difficult case. [Laughter]

Potter Stewart: You certainly would because you’d have the same kind of thing you’d have to say that this would be the equivalent to after the child was born.

Sarah R. Weddington That’s right.

Potter Stewart: If the mother thought that it bothered her health having the child around, she could have it killed. Isn’t that correct?

Sarah R. Weddington: That’s correct.

Abortion, at any time, for any reason?

By Mark McQuain

Last week, Virginia delegate Kathy Tran introduced a bill to eliminate some current restrictions on late term abortions in the Commonwealth. During the committee hearing on the bill, she answered a question by one of the other committee members to the effect that her bill would permit a third trimester abortion up to and including the point of birth. That exchange may be heard here. She later “walked back” that particular comment as outlined here. Virginia Governor Ralph Northam, who is a pediatric neurologist by training, added his comments to the discussion on a call-in WTOP radio show, where he implied that the bill would additionally permit parent(s) and physician(s) to terminate the life of a “severely deformed”, “non-viable” infant after the birth of the infant, which may be heard here (the entire 50+ minute WTPO interview may be heard here). That particular bill is currently tabled (the actual bill may be read here).

These events deserve far more reflection and discussion than can be afforded in the small space of this blog. I want to discuss two comments by Governor Northam and then comment on expanding abortion to include the extreme limit of birth.

First, during his radio interview, the Governor added qualifiers to the status of the infant that are not only not in the bill submitted by Delegate Tran, they are specifically contrary to it. Section 18.2-74(c) of the Code of Virginia is amended by Tran’s House Bill No. 2491 to read ([w]hen abortion or termination of pregnancy lawful after second trimester of pregnancy):

“Measures for life support for the product of such abortion or miscarriage must shall be available and utilized if there is any clearly visible evidence of viability. “(markup/emphasis in the bill)

To be generous to the Governor, it is unclear why he qualified his comments the way he did, given that the bill is explicitly discussing a potentially viable infant. Options include that the Governor was simply ignorant of the specifics of Tran’s Bill (possibly), was actually purposefully advocating for infanticide (unlikely), or wanted to defend the loosening of restrictions on very late term abortions, clearly intended by her bill, by introducing at least one conditional situation that a number of people might initially consider reasonable (most likely). The firestorm caused by his so-called “post-birth-abortion” comment completely obscured any attention to the equally tragic portion of Tran’s Bill that eliminates a huge portion of the Code of Virginia section 18.2-76, which currently requires a much more specific informed consent process, inclusive of a pre-abortion fetal ultrasound to attempt to educate the woman on the nature of the human being she is desiring to abort.

The second comment by Governor Northam was made parenthetically while expressing his opinion that the abortion decision should be kept between a physician and the pregnant woman, and out of the hands of the legislature, “who are mostly men”. Does this imply all men be excluded from the abortion discussion or just male legislators? Should male obstetricians likewise be excluded from this discussion? Following the Governor’s comment to its logical conclusion, shouldn’t he refrain from similar comments/opinions regarding abortion since he is also a man? This is absurd. Representative government specifically, and civil discourse more generally, is not possible if ideas cannot be debated unless the particular people involved in the debate are all the same sex, same race, same ethnicity, same height, same weight, same age, etc…

Aborting a healthy, viable baby just prior to, or, at the very moment of, birth seems to me to be the least likely example of the type of abortion that anyone on the pro-choice side of the abortion debate would use to make the case that abortion is a good and necessary right. Presently, immediately after birth, the baby (finally) has the protection as a person under the Fourteenth Amendment. Eerily, as I have shared in this blog before, almost identical concepts were discussed during the 1972 oral arguments of Roe v. Wade, such as the following exchange between Justice Potter Stewart and attorney Sarah Weddington, who represented Roe. (see LINK for transcript or audio of the second reargument Oct 11, 1972, approximately one-third of the way through):

Potter Stewart: Well, if it were established that an unborn fetus is a person within the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not?

Sarah R. Weddington: I would have a very difficult case. [Laughter]

Potter Stewart: You certainly would because you’d have the same kind of thing you’d have to say that this would be the equivalent to after the child was born.

Sarah R. Weddington That’s right.

Potter Stewart: If the mother thought that it bothered her health having the child around, she could have it killed. Isn’t that correct?

Sarah R. Weddington: That’s correct.

I am one blogger who is praying that Governor Northam’s “post-birth-abortion” misunderstanding of Delegate Kathy Tran’s Bill liberalizing abortions through the end of the third trimester never causes Justice Potter’s 1972 infanticide equivalent to become a reality.

Self-Awareness, Personhood and Death

By Mark McQuain

Many philosophers argue that attaining the threshold of self-awareness is more valuable in determining a human’s right-to-life than simply being a living member of the human race. They require a human being attain self-awareness (reaching so-called full “personhood”) before granting unrestricted right-to-life for that particular human being. Lacking observable self-awareness relegates one to non-personhood status, and, though fully human, potentially restricted right-to-life status. The philosophic argument seems to be that only self-aware things suffer harm, or at least, do so to a more meaningfully significant degree than non-self-aware things.

Consider the following thought experiment. I finally designed a computer with sufficient complexity, memory, external sensors and computational power (or whatever) that, at some point subsequent to turning the power on, it becomes self-aware. The memory is volatile, meaning that the memory cannot hold its contents without power. The self-awareness, and any memory of that self-awareness, exists only so long as the power remains on. If subsequently powered off and then powered on again, the computer has no prior memory of being self-aware (because the memory is volatile and is completely erased and unrecoverable with loss of power) so becomes newly self-aware, with new external sensory input and new memory history. The longer the power remains on during any such power cycle, the more memory or history of its current self-awareness the computer accumulates. The computer’s hardware is bulletproof and is essentially unaffected by applying or disconnecting the power.

In this thought experiment, do the acts of turning the computer’s power on, allowing the computer to become self-aware, and then turning the power off harm anything?

By stipulation of the thought experiment, the computer’s hardware is unaffected by these events so no harm has occurred to the physical computer. Also, by stipulation, subsequently turning the computer’s power on again results in the computer becoming newly self-aware, with absolutely no memory of its previous period of self-awareness. The prior self-awareness is neither presently aware nor even in existence – it existed only during the prior power cycle. Perhaps as the designer, I may be harmed if I miss interacting with the computer as it was during its first self-awareness. The same perhaps goes for any other similar self-aware computer that had constant power during the experiment and witnessed the power cycling of the first computer.

But, what about the first computer? Was that computer harmed when I turned the power off? If so, what, exactly, was harmed? Following power-off, the computer has no self-awareness to be self-aware of any harm. The self-awareness no longer exists and that same self-awareness cannot exist in the future. Non-existent things cannot be harmed. Looking for some measure of group harm by assessing any harm experienced by other self-aware computers witnessing the event appears to be a problem of infinite regress (“It’s turtles all the way down”), as their self-awareness of the first computer’s self-awareness is also transient and becomes instantly non-existent when they power off. We will ignore the designer for the purpose of this experiment.

Assume now that the initial computer is a human brain. Some consider the physical brain a single-power-cycle, self-aware computer. For most humans, at some point after conception, we become self-aware, though philosophers disagree and cannot define the exact threshold for self-awareness. We can lose that self-awareness to physical brain injury or disease. Most believe the self-awareness certainly ceases with physical death, that is, it is volatile like the self-aware computer in my thought experiment, since, after death, there is no longer a functioning physical brain to sustain that self-awareness.

But if the thought experiment holds, requiring human beings the threshold of self-awareness before granting so-called personhood privileges such as unrestricted right-to-life is a meaningless threshold with regard to harm if that self-awareness is volatile and therefore not sustained in some manner after death. For self-awareness to be the determinant of harm in a living being, it must be non-volitile, meaning it sustains beyond death. However, if the self-awareness is sustained after death, then it is sustained in a non-physical manner (since the physical brain is obviously dead by definition of death). If self-awareness exists non-physically, might it also exist more fully than we can appreciate in a premature, a diseased, or an injured human brain prior to death?