Hadley Arkes on the Problem of Personhood Language [Scott]

Speaking of a previous personhood campaign, Arkes writes:

The pro-lifers in Colorado have brought forth, for the ballot this November, a Personhood Amendment to their constitution: “the term ‘person’ shall apply to every human being from the beginning of the biological development of that human being.” The proposition is certainly correct and defensible. And yet it has the form and tenor of an assertion. Cast in that way, it promises to trigger the perversity and relativism of judges who have absorbed liberal slogans: They begin with the premise that the beginning of human life is an inscrutably religious question; that it hinges on matters of belief, not truths. They know that people are brazen enough to contend that they don’t know when human life begins – even with a pregnancy test – and so the amendment simply looks like an exercise of brute force: One faction has simply imposed its “opinion” on the community with the force of law.

I would prefer another approach. We could begin with the old-fashioned mode of a preamble, which sets forth the premises in the bill. And the trick is to set down premises that even judges would be embarrassed to dismiss, because even they could not contest their truth. The preamble could begin then by citing passages from the textbooks on embryology – e.g., “The development of a human being begins with fertilization, a process by which two highly specialized cells, the spermatozoon from the male and the oocyte from the female, unite to give rise to a new organism, the zygote.” [Langman, Jan. Medical Embryology. 3rd edition]

And then:

“Nowhere in the chain of development does the offspring undergo a shift in species. It is human, and nothing less than human, from its first moments. Taller, heavier people are not more human than shorter, lighter people. No alteration in human standing can come with these changes in growth – or decline. Therefore, the ground of justification for the taking of this human life in the womb must be reconciled with the grounds that are required for the taking of any other human life in the laws of this state.”

Something in that vein – the legislative language may be sharpened and perfected. A commission could be authorized to hear cases and pass on the “justifications” that are offered. In all strictness, the legislation would still leave intact the right to order an abortion under certain circumstances – with the justifications yet to be tested. But at the same time, it implicitly calls into question many kinds of abortions now readily performed. Since there is no license to kill the children around us afflicted with Down syndrome or spina bifida, there would no longer be such a ready license to dispose of children in the womb with these afflictions.

This is not to say that judges, with more craft than shame, may not find a way to tie up these kind of law. But why not make them strain their wit to do it? And why not work, on our side, by seeking to plant in the law the truths that even the judges cannot dissolve.

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