Justice in the Face of Unknowing


BY AIMEE BEDOY & STEVEN OETJEN

A quandary of major proportions faces our nation in this day and age. It could be a matter of life and death for countless persons -- we cannot truly be sure. This paper seeks to examine abortion through the lens of Constitutional law, science, and justice, and lastly to apply these faculties to the Pain Capable Unborn Child Protection Act recently passed in Nebraska. In brief, our recommendation is always to stand for justice and ultimately the natural rights of all persons.

BACKGROUND

The U.S. Constitution, Justice, Personhood and Abortion Law

Abortion & Present Constitutional Law

As law currently stands within the United States, the ability to procure an abortion is a constitutional right, which should not be impeded by an "undue burden." In Planned Parenthood v. Casey, the Supreme Court disseminated a decision which stated as law that "the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State" [1] is a result of Roe's "essential holding" of the right to abortion. According to this statement, provided that new State laws which may place restrictions on the abortion procedure did not provide an "undue interference from the State," they would be constitutional.

The existing allocation of constitutional rights according to judicial decisions regards the woman's right to choose abortion as "central to personal dignity and autonomy," and views it as a matter of "the highest privacy and the most personal nature." [2] However, the Supreme Court also claimed in Akron v. Akron Center for Reproductive Health, Inc. that "the State possesses compelling interests in the protection of potential human life . . . throughout pregnancy." [3] Constitutionally, we are asked to draw the line between the value of potential human life and the value of a woman's so-called right to choose to terminate her pregnancy.

The Constitution & Societal Pressures and Mores

The Court in Roe v. Wade made a claim to ignorance as regards fetal life, and weighed historical belief against the not entirely fully formed beliefs of various modern groups. [4] In this case, our Constitution was interpreted to be a relative compass defined by popular voice, and utilitarian meter based on assigned cultural value. This is not the foundation of the U.S. Constitution -- contrariwise, it is to represent a moral, objective justice that may be unpopular (i.e. banning slavery through the 13th Amendment), but claims truth and righteousness as federal mandate. Yet in the cases of Roe v. Wade and Planned Parenthood v. Casey, the decisions of the courts could not claim to be "grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make." [5] The laws that states can use to restrict abortion may not place an "undue burden" [6] on women -- however, there is no measure for what consists of an "undue burden" and this policy may deem void those laws which may significantly decrease the amount of abortions, for any reason. These decisions were based on contemporary and societal persuasion, and were given the power of law that easily condone and encourage abortion.

If truth and morality are claimed as part of the Constitutional mandate, what may have been voted on state by state has become a matter of national importance through Roe v. Wade. Though states may attack the Roe decision and the right to abortion little by little through State impositions, "Roe's mandate for abortion on demand . . . rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level." [7] States may be allowed to add restrictions through political law, but given that the right to abortion was made federally and not locally, the debate has become one of absolutes. But the only real absolute truth in the matter is that which is outlined in the Constitution: the responsibility of the federal government is to protect the life, liberty, and property of all persons. If the government is to protect these rights of persons, there must be a definition of personhood.

Constitutional Law & Personhood

In reality, according to the U.S. Constitution, "personhood" has yet to be defined according to any specific factors. Citizenship is granted to "all persons born or naturalized in the United States," but no State shall "deprive any person of life, liberty, or property without due process of law" (emphasis added). [8] Citizen and person seem to be two different ideas. Though many rights are afforded and protected by the U.S. government to all persons based on the Constitution, personhood is not defined by age, place, gender, or race; neither is it articulated by development, dependency, sexual orientation, creed, or size.

In order to more clearly delineate who is afforded all of the rights granted to persons, and therefore have a totally just Constitutional law on abortion, we as a nation must define personhood. Some specific interpretation must be done that would define this concept according to a great number of categories. This process must be undertaken at a national level; if different states define personhood differently, we may very well be violating the rights of true persons while defining them as "others" in an attempt to negate their personhood. This would be a great injustice.

Justice & Abortion Law

Justice can be divided into natural rights and positive rights. Natural rights are those which are due to persons by their very nature, such as life and liberty. Positive rights are those which are granted to individuals based on agreement or consent. A legislature can formulate positive rights by agreement, and these have their place so long as they do not violate natural rights. Thus, different states can justly make different laws as long as none of the laws allow the violation of natural rights.

Regarding abortion, the positive right guaranteed by the Constitution is the right to privacy. Different laws can exist justly in different states as long as they protect this right to privacy without violating any natural rights. States are free to regulate privacy in abortion in different ways, as is fitting for different regions. If a state law preserves the positive right of privacy in such a way that it fails to protect a natural right, however, it is unjust. The agreement of a legislature cannot make such a law truly just.

The justice of an action considers not only the relation to its agent, but also to others affected. The justice of abortion laws is not only dependent on the privacy of the woman involved in the abortion, but also on the natural rights of other persons. Harm against any other person's natural rights is an injustice that a positive right cannot justly supersede.

Personhood as a Binary Condition

Personhood is a binary condition: either you are a person or you are not a person. While no claim is being made here to know whether the unborn are truly persons, if justice, personhood, and Constitutional law are to be viewed through another lens, consider the case of historical slavery laws in our own country.

According to the Constitution as it was first written, the unjust policy both allowing slavery and acknowledging slaves as "three fifths" of a person degraded the worth of particular human beings based on their enslaved status and likely based on the color of their skin. It allowed for slavery, prevented them from voting, and denied them any rights to autonomy or property. In Scott v. Sanford, members of the African race "were not numbered among its 'people or citizens.'" [9] This we eventually and painfully discovered to be unjust and accordingly outlawed slavery and assumed to protect the rights of all persons.

However, the law is not what made these individuals persons: they were persons before they were granted freedom and rights. Though the law allowed for a devastating degradation of the African race because they were not popularly viewed as persons, whether or not a being is popularly viewed as a person is not truly indicative of whether or not it is a person. Further we see that we must be careful when proclaiming personhood, so that we may never again perpetrate such an evil against justice as was done in the case of slavery.

Science, Ethical Frameworks & Abortion Policy

Science as Objective Information

In our modern day world dominated by scientific reasoning and advanced technology, so often our society views science as an objective meter for what is or can be reasonably theorized to be. While it is true that advancing science increasingly shows us the scientific truth of situations, the results of the evidence presented are always viewed through the eyes of politics or our existing ethical frameworks. Thus, though science is often thought to be an infallible entity, it is constantly changing, and is consistently influenced by external forces.

Science Within an Ethical Framework

Our ethics are preconceptualizations of norms and practical applications. These frameworks are determined and set and we make moral decisions based on the complex systems we create for ourselves. Science can only inform these frameworks; it cannot define them.

The problem with relative ethical frameworks then lies in the fact that manifold different moralities are held within the United States, and our justice system tells us that outlining one particular system of morality (based on religion, claims to truth, etc.) would be wrong -- we must allow for liberty in all cases except where one person's liberty infringes upon the life, liberty, or property of another. This question again leads us back to the idea of personhood: if our morality cannot define personhood due to the plurality of belief, can science dictate it for us?

Science & Personhood

Due to the fact that science can only inform ethics and cannot define it, we cannot use science to define personhood. Only a set of ethics can delineate how science will be used to create policy. The personhood of a being is not a scientific question. Science can only answer the queries we place before it, like, "personhood is defined by a heartbeat; when does a heartbeat start?", or "personhood is defined by brainwaves; when do brainwaves start?", or perhaps "personhood is defined by humanity; when does the being become human?" As you can see, science can answer these questions, but our morality is not defined by the scientific evidence placed before us; rather, it is based entirely on the morals which we already base our lives on. [10]

EVALUATION & APPLICATION

Nebraska Law Background

The new Nebraska Pain Capable Unborn Child Protection Act was passed in April 2010. This law, passed by a unicameral legislature in a very conservative Nebraska, was created to "[restrict] abortion after twenty weeks declaring that the state has a compelling interest in the life of a pain-capable unborn child at and after twenty weeks." [11] The law also has a disclaimer for the safety of the life of the mother, stating that abortion after 20 weeks gestation would be permissible if she "has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert death or to avert serious risk of substantial or irreversible physical impairment of a major bodily function or . . . it is necessary to preserve the life of an unborn child." [12]

Nebraska Law, Prior Abortion Law, & Science

The Issue of Maternal Health

In Roe v. Wade, it was determined that prior laws against abortion had by and large been devoted to the health of the mother, since there had been no societal consensus on the ethical issue of the beginning of human personhood. Roe v. Wade was decided on the trimester system on the basis of maternal health, such that "a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health."

The Nebraska ban on abortion after 20 weeks could be seen as legitimate according to Roe if only it were to protect the mother's life and if abortion were more dangerous for her. This is not the basis of the Nebraska law, but according to Planned Parenthood v. Casey, "Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term." [13] Thus, within this framework based solely on maternal health, the Nebraska Pain Capable Unborn Child Protection Act is not based on lawful grounds because most emphasis is placed on the health and well-being of the fetus.

One issue that has been largely ignored by legislators in regards to abortion law is that of poor maternal psychological health due to abortion. Granted, not all women suffer from psychological harms after abortion, but according to studies done in the British Medical Journal, from their study cohort, the suicide rate associated with abortion was 6 times greater than for live birth, and the rate of mental health claims was 17 percent higher for post-abortive women compared to women who had carried their pregnancies to term. [14] Protecting maternal health does not only lie in maternal mortality in childbirth, but also in the effects of abortion and childbirth. This aspect has heretofore been put by the wayside in regards to legislation -- Nebraska has taken this aspect into account perhaps only peripherally, allowing only for abortion after 20 weeks for physical health and not psychological health. Perhaps this is the realization of the research that carrying the pregnancy to term will have less psychological harm than a later-term abortion.

The Issue of Fetal Health

Fetal health was not of true concern to the court during Roe v. Wade -- personhood could not be defined and thus whether it was life or potential life was up for debate and should be decided on an individual basis: thus allowing for free choice for women to abort their fetuses if they saw fit. The Nebraska Pain Capable Unborn Child Protection Act brings into focus that which our society often views as deplorable: causing another being, especially one that is human, pain.

The science that supports this particular case is clarified by Dr. Kanwaljeet Anand of the University of Arkansas Medical Center, who through his recent research has clarified that the human brain does not need a cerebral cortex to process pain, has stated that when the cortical subplate is present, pain can be felt. [15] This subplate begins forming as early as 17 weeks, and pain can be felt as early as 20 weeks gestation. [16] The framework that society has deemed worthy, that of causing pain, is substantiated by thorough and unbiased research in neurobiology. However, we do not know if this framework matters at all according to constitutional law. If the health of the fetus did not matter in Roe, we may be constitutionally compelled to continue to offer abortion services after 20 weeks if the unborn human being is indeed not a person.

Nebraska Law & Constitutional Law

Though, according to Roe v. Wade and Planned Parenthood v. Casey, the State has a compelling interest in the life or potential life in the womb of the mother, the Nebraska law may place an "undue burden" on the right to abortion in restricting it after 20 weeks within that particular state.

Though "the very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted" [17], and "undue burden" placed in the regulation of abortion rights would be deemed unconstitutional. The definition of an "undue burden" is "a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." [18] However, this statement implies a different measure from Roe -- viability has become the important factor instead of purely the safety implications for maternal health. The shift from mother's safety to that of the fetus is a compelling switch in rhetoric, and leads us to the conclusion that legislating for the safety of the fetus may be allowable.

As it remains, however, the Nebraska law does place restrictions on abortion that are almost entirely focused on the health of the fetus, and therefore may be deemed unconstitutional unless the fetus is deemed a person, and is therefore worthy of protection. However, the constitutionality of the existing laws does not make them just for our society.

Nebraska Law & Justice

If we intend, as a nation, to stand for justice for the rights of all persons, we cannot do so if we do not first define who persons are. According to the Nebraska law, those human beings who can feel pain are worthy of protection. This is a greater protection afforded to these human beings than in prior laws, but justice asks us according to no particular framework, "who is a person?" Though the law protects human beings after 20 weeks gestation, we cannot know whether this being is a person or not. Using our best judgment and not using ignorance as an excuse, we as a nation are compelled to protect human development from the beginning since we cannot know whether personhood is existent from conception, quickening, pain-capability, birth, or even later. We are not capable of knowing.

But because we do not know does not give us the right to terminate the life of a being for whom we cannot determine personhood status. The act of injustice that would be present to hurt a human person, much less to kill a human person, is one which we must do everything to protect against. The Nebraska law makes great strides against the claim to ignorance that Roe utilized to create the right to abortion: but it is not complete. Ignorance provides a veil of inculpability for those perpetrators of injustice to hide behind, but it does not change the fact that "an unjust law is no law at all." [19] And if we cannot know, we must, for justice's sake, err on the side of caution.

CONCLUSION & RECOMMENDATION

It is recommended that the Nebraska legislation be supported if introduced in a similar manner in any state. This legislation serves to protect humans who are reasonably thought to be persons based on the concept of pain. The role of science in the issue is in informing the pre-existing ethical frameworks on abortion; while according to our judicial system no particular ethical framework can be made law of the land based on its claim to truth. Scientific observations confirm that a fetus feels pain 20 weeks after conception and that the beginning of a human being's development is at the moment of conception. Scientific observations, however, make no claim for the exact moment human personhood begins, only that it could reasonably begin as soon as conception. To deprive a person from life without due process is unjust and unconstitutional. [20] The exact moment that personhood begins for a human fetus is not known, but ignorance does not excuse injustice. Therefore, the life of a human should be protected by law if there is a reasonable possibility of personhood. The Nebraska law protects human lives where there is a reasonable possibility that they are persons, and so is more apt than less stringent restrictions. As a legislator and a representative of the State, you must be willing to protect potential human life in the case when you cannot know whether any being is truly a person -- to uphold justice in the face of unknowing.

This paper was presented in the Carnegie Mellon Ethics, History & Public Policy Case Competition in the fall of 2010.

REFERENCES

[1] Planned Parenthood v. Casey (1992)

[2] PP v. Casey (1992)

[3] Akron v. Akron (1983)

[4] Roe v. Wade (1973)

[5] PP v. Casey (1992) dissent

[6] PP v. Casey

[7] PP v. Casey (1992) dissent

[8] Amendment 14

[9] Scott v. Sanford

[10] Scott F. Gilbert, “Chapter 29: When Does Human Life Begin?”, from Developmental Biology 8e Online, http://8e.devbio.com/article.php?id=162

[11] Steven Ertelt, “New Study Denying Fetal Pain Lacks Scientific Basis Pro-Life Groups Say,” from LIfeNews.com, June 28, 2010.

[12] Nebraska Legislature, LB1103: Pain Capable Unborn Child Protection Act, passed on April 13, 2010.

[13] PP v. Casey (1992)

[14] E. Joanne Angelo, “The Psychological Aftermath of Three Decades of Abortion,” in The Cost of “Choice”: Women Evaluate the Impact of Abortion, ed. Erika Bachiochi. San Francisco: Encounter Books. 2004.

[15] Testimony of Sunny Anand. “Pain of the Unborn.” Hearing Before the Subcommittee on the Constitution of the Committee of the Judiciary in the House of Representatives, November 1, 2005.

[16] Steven Ertelt, “New Abortion Law in Nebraska on Fetal Pain Could Weaken Roe v. Wade Further” LifeNews.com. April 13, 2010. http://www.lifenews.com/2010/04/13/state-4986/

[17] PP v. Casey (1992)

[18] Ibid.

[19] Augustine of Hippo, unknown source

[20] Amendment 14

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