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Beginnings of Life, Impossible Issues

July 24th, 2010 4 comments

I’ve got two somewhat related topics to discuss today. Let’s start with the unpleasant subject of late-term abortions: On Keith Olbermann’s “Countdown” last night,1 Andrew Sullivan said that he was moved by the tragic testimonials of those who’d had such abortions when faced with the prospect of giving birth to seriously disabled children, some of whom were destined to live very short, painful lives. Yet virtually in the same sentence, he added that he opposes late-term abortions; he later reiterated that statement in the Daily Dish, in the most sympathetic way I’ve ever read:

“I am immensely grateful to those readers who have shared such personal, painful experiences with such candor and open hearts. I have to say that I remain somewhat shaken by the emails…. They reminded me of the human beings behind these tragedies, and forced me to reassess my own certainties and beliefs. I still cannot in good conscience support these abortions; but I can offer my profound gratitude for the readers who have forced this blogger to see things I had not fully grasped so keenly before; and to return to them respect and empathy in the particulars, even while we may disagree in the abstract.” (emphasis added)

I’m not clear as to whether he believes that such abortions should in all cases be illegal, or that he can’t support them morally. In either case, though: Why? Why doesn’t that empathy, so eloquently expressed, translate into a change in the “abstract”?

Let’s take the most extreme case, as the statement in opposition isn’t qualified in any way: A woman is to give birth to an anencephalic, a (human?) being without a functioning brain, or perhaps with nothing but a brain stem. What justifies the abstract position against abortion in this case? We’re talking about an entity that will live for only a few hours, often, and which isn’t human in the sense that matters to me from the point of view of moral philosophy: as a rights holder. Without any capacity for functioning beyond the most primitive, the anencephalic can’t be distinguished from other species to which we afford far less sympathetic (sentimental?) treatment.  I do think the cases are different, somehow, but it’s hard to say why. Is this tragic being one of us? Are we so clear about that to oppose a woman’s decision to terminate a pregnancy that will have this result, with the visual image of this unfortunate being likely to be seared into her brain forever?

To his credit, Sullivan acknowledged that in some of these cases the women’s lives will also be placed at risk. Yet his position was stated without an exception to cover such cases, thereby placing him beyond even those who favor legislation prohibiting late-term abortions, where such exceptions are routine. (I’d welcome a contrary clarification, of course.)

On the subject of tragic lives, what should the law do about a sperm bank that negligently fails to screen its donors for various kinds of genetic abnormalities, and then sells the “product” to a woman whose child then ends up seriously disabled? I’m about to be interviewed on this very subject (by WHYY, the local Philadelphia affiliate of NPR) later this afternoon. The woman’s claim, which likely would have focused on the increased expenses of raising and caring for such a child, was barred by the statute of limitations, but her daughter — now a teen with serious mental disabilities — is able to sue, as the statute doesn’t start to run against kids until they achieve majority.

But what are the child’s damages? Her “choices” were this life, or none. Can she sue for something called “wrongful life”? Most states say no, and go all metaphysical in the knees: “It’s impossible to weigh even an impaired life against the inky void of utter non-existence, only God knows, etc.” Is this child a “defective product”? What a horrible thing to say, to think. But if she can’t raise a claim, where’s the accountability?

As a parent of young twins with my own difficult story to tell (but I’m not going to), all of this makes me uneasy. How do we respect life without being (effectively, if not intentionally) punitive?

Originally published on June 2, 2009

  1. The link will take you to the video, too.

Actual Couples! (Your Empathy May Vary)

April 5th, 2009 2 comments

I’ve had the mixed pleasure and pain of reading many marriage equality cases over the past several years. From a host of early cases dating back to the 1970s to the more recent judicial explosion of the past decade or so, it’s quite possible that I’ve read and analyzed every available legal argument for and against allowing same-sex couples the right to marry that opposite-sex couples — be they deadbeats, felons, the chronically divorced, or the anti-iconic Britney Spears  — take for granted.

I and every other halfway-bright legal scholar can soak up these arguments, assess them, and opine exhaustively on their soundness. Particularly after reading Varnum v. Brien (the recent decision by the Iowa Supreme Court), I’m more convinced than ever that there really aren’t any sound arguments against basic equality in this context.

But this post isn’t about the law, but about facts.

If  you want to know, from the jump, how a given case is going to come out, don’t bother  getting a law degree. Instead, perform this simple exercise: Read what the court has to say about the lives of the plaintiff couples before it. Courts that decide in favor of marriage equality offer a detailed and sympathetic portrait of these couples. Courts that decide the case the other way simply omit any such description. And courts that go the civil  union route are, perhaps not suprisingly, divided on how much detail they  provide.1 Iowa follows the trend begun by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, opening the discussion with detail that invites the reader into the committed lives and loves of the couples. The sheer length of the following quote from Goodridge will give you a sense of my point:

“Gloria Bailey, sixty years old, and Linda Davies, fifty-five years old, had been in a committed relationship for thirty years; the plaintiffs Maureen Brodoff, forty-nine years old, and Ellen Wade, fifty-two years old, had been in a committed  relationship for twenty years and lived with their twelve year old daughter; the plaintiffs Hillary Goodridge, forty-four years old, and Julie Goodridge, forty-three years old, had been in a committed relationship for thirteen years and lived with their five year old daughter; the plaintiffs Gary Chalmers, thirty-five years old, and Richard Linnell, thirty-seven years old, had been in a committed relationship for thirteen years and lived with their eight year old daughter and Richard’s mother; the plaintiffs Heidi Norton, thirty-six years old, and Gina Smith, thirty-six years old, had been in a committed relationship for eleven years and lived with their two sons, ages five years and one year; the plaintiffs Michael Horgan, forty-one years old, and Edward Balmelli, forty-one years old, had been in a committed relationship for seven years; and the plaintiffs David Wilson, fifty-seven years old, and Robert Compton, fifty-one years old, had been in a committed relationship for four years and had cared for David’s mother in their home after a serious illness until she died.

“The plaintiffs include business executives, lawyers, an investment banker, educators, therapists, and a computer engineer. Many are active in church, community, and school groups.”

Cases rejecting the claims, though, tend to avoid these portraits, which are at once sympathetic and, well, a little boring. If these couples’ lives are quotidian, they become less scary. But scary is good if you’re trying to hold back the tide of equality. Better not to know anything about committed same-gender couples; denying rights to abstractions is much easier.

History has taught many disturbing lessons about what can happen to people whose humanity is stripped away. But it’s not going to work this time.

  1. I’ve gone into much greater detail on this point in a law review article.
Categories: courts, Gay Rights, Marriage Equality Tags: , , , , , , , , ,