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Abortion and the Meaning of Life: Some Anthropological Implications of the Viability Standard — Transcript

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0:00questions about the center sponsoring
0:01this event the events itself and then um
0:04introducing our speaker
0:06my name is elizabeth kirk
0:08i teach some of you here at the law
0:09school and i also direct the law
0:11school's new center for law and the
0:13human person
0:14the mission of our law school is to
0:17achieve distinction in the catholic
0:19intellectual tradition and to promote
0:21certain ideals among which are the
0:24dignity of the human person
0:26respect for the inviolability of all
0:28human life justice rooted in the common
0:31good
0:32care for the poor the neglected and the
0:34vulnerable
0:35and the obligation of love for one
0:38another so the goal of the center for
0:40the law and the human person
0:41is to be a resource for the law school
0:43for thinking
0:45uh more intentionally about how these
0:47commitments ought to inform the study
0:50and the teaching and the practice of law
0:52so we're going to do that by supporting
0:55faculty and students uh and also by by
0:59sponsoring events like the series uh uh
1:02today
1:03so we're grateful i want to say to the
1:04institute for human ecology for their
1:06co-sponsorship of this lecture series
1:08and in particular uh to the support of
1:11their master's program in human rights
1:12which is directed by bill saunders uh
1:14who's here with us today um and
1:16especially for spreading the word to the
1:18rest of campus
1:19uh if you are interested in learning
1:21more about the center's work and our
1:22activities uh especially as we get
1:24underway in the coming year there is a
1:26sign up sheet um and so i encourage you
1:28to put your name and email address on
1:30that
1:31so today's lecture is the second in a
1:34series exploring different angles that
1:36are related to the dobbs d jackson
1:38women's health organization cases
1:40pending before the supreme court
1:42uh right now so for those among us that
1:44maybe haven't attended law school or
1:47haven't yet attended law school you're
1:48welcome to check us out while you're
1:50here um
1:52or who are unable to attend the first
1:54lecture where our law school professor
1:56joelle alicea uh
1:58lectured on the constitutional
1:59implications of this case i'm just going
2:01to give you a little background about
2:02the case
2:03so dogs involves the constitutionality
2:06of the mississippi gestational act which
2:09forbids abortions
2:10after 15 weeks gestational age and the
2:14question before the court is whether all
2:16pre-viability
2:18prohibitions on elective abortions are
2:21unconstitutional
2:22that question and the possibility that
2:26the court might uphold the mississippi
2:28statute directly implicates
2:31the central holding of roe which is that
2:33there is a constitutional right to
2:35abortion and the viability rule of casey
2:38which states that states may not
2:40prohibit abortion or even place an undue
2:44burden on a woman's right to access
2:46abortion before viability which is
2:48widely viewed to be somewhere around 22
2:50to 24 weeks so a 15-week ban of course
2:53um directly
2:55implicates that
2:57so what the court might decide the
2:59reasoning it might employ the possible
3:01variations on how it might rule etc
3:04is is meant to it is is the is the
3:07fodder for what this series is meant to
3:09discuss um and so we had a lecture on
3:12the constitutional interpretation
3:14questions we'll have professor
3:15crawford's lecture today and then
3:17finally um on april 5th we'll welcome
3:20helen alvarez he's a professor at george
3:22mason to give the final lecture in the
3:24series which will be about which will uh
3:26contend with the argument the social
3:28equality and reliance argument
3:30that women's flourishing depends upon
3:33the availability of abortion
3:36so today we are grateful to have
3:37professor david crawford address the
3:39philosophical and anthropological
3:42implications
3:43of the viability standard dr crawford is
3:45dean
3:46an associate professor of moral theology
3:49and family law in other words he is a
3:51lawyer and a theologian
3:54um so he received his library from the
3:56university of michigan which i don't
3:57think i knew about you and as a notre
3:59dame person i found to you you're my
4:01sworn enemy now i didn't realize that
4:03um but his law degree from michigan and
4:06his stl and std from the institution at
4:08which he now teaches the pontifical don
4:10call 2 institute which is located right
4:12here on our campus dr crawford teaches
4:16and writes at the jp2 institute in the
4:18areas of fundamental moral theology
4:20bio and sexual ethics marriage and
4:23family and law
4:25so please join me in welcoming dr david
4:27crawford
4:35thank you
4:36so i've been told i can take this off
4:38and i'm probably as immune
4:40as anyone in the universe at this point
4:42so um
4:44hopefully no one's in danger
4:48so
4:49um
4:50uh
4:51michigan and notre dame uh you know one
4:54consolation is i never in all my time
4:56there went to a single football here so
4:59that might that might help um
5:02okay so uh
5:04you know we're talking about uh dobbs
5:06versus uh jackson's jackson women's
5:09health um this case is presently um
5:12before the supreme court um and you know
5:15i have to talk about viability um and i
5:17think you know the case really turns on
5:19this question of viability is viability
5:22what is the basis for liability
5:24um although
5:27justice barrett stated in the oral
5:29argument
5:30that the case turns on story decisis
5:33but this would only be true
5:35on the supposition that roe and casey
5:37and the many cases that follow from them
5:40uh were wrongly or at least questionably
5:42decided so it seems to me her statement
5:45uh presupposes um something
5:47uh already about about the sort of
5:49substance of the case you might say um
5:52setting that aside then um
5:55dogs really does turn on uh
5:58the substance substantive question of
6:00viability that's his basis
6:02um and as as professor kirk had stated
6:06mississippi law the mississippi law in
6:09question would uh ban elective abortions
6:12after 15 weeks well before
6:15um the time of liability at 22 24 weeks
6:20so what is the viability standard i just
6:22wanted to very briefly talk about um
6:25about viability for any you know i
6:28not all of you are law students and some
6:31of you may be in my class
6:33at the institute right now and we
6:35haven't gotten to abortion yet so uh
6:37i'll just uh briefly go over this
6:40uh roe versus wayne employed the concept
6:42of viability
6:43uh the point in pregnancy when the fetus
6:46can
6:47with a great deal of medical
6:48intervention
6:49uh in principle survive outside the womb
6:52um but in row the concept of viable
6:54viability was used as a support
6:58uh for the famous or perhaps infamous um
7:03uh trimester framework
7:05according to which pregnancy is divided
7:07into three parts and in the first
7:10part the first three few months
7:14according to roe the state is not really
7:16empowered to uh to offer any regulation
7:20of abortion uh at all during the second
7:23trimester the middle period
7:25um the state is allowed to legislate on
7:29behalf of of the health the life or
7:32health of
7:33uh of of the mother uh and then finally
7:36in the third trimester
7:38um which you know is about 27 weeks so
7:41actually after viability but you know
7:43close
7:44the state's interest in what row called
7:47potential life
7:49uh rises to the level uh rose said of
7:52compelling uh and therefore it's the
7:55interest of the state could defeat
7:57rhodes application of strict scrutiny
8:00to the legislation concerning abortion
8:03which the court deemed to be in
8:07abortion which the court court seemed to
8:09be included as a fundamental right uh
8:12under the
8:13rubric of privacy
8:15um the key here is that during the first
8:17semester the first trimester
8:20uh according to roe the state could
8:22regulate on behalf of potential the
8:24potential life of the fetus
8:26up to and including by means of the
8:29prohibition of elected abortions so long
8:32as there were exemptions for life and
8:34health of the mother
8:36uh which were broadly interpreted under
8:39the companion case joe people bolton
8:43um it's
8:45important to remember because i find uh
8:47people always get confused about this
8:49viability
8:51uh again 22 to 24 weeks is not the point
8:54at which
8:55the legal recognition of personhood
8:58applies
8:59rather it's only the time at which the
9:02state may begin
9:03to regulate abortion for the protection
9:06of potential life in the words of rogue
9:09viability therefore signals a kind of
9:12shadow existence for the sake of
9:14possible legal
9:16uh recognition so the the fetus is not
9:19yet treated as fully human
9:23but it is close enough to warrant the
9:24possible but not necessary concern of
9:26state legislators
9:28personhood in the full legal sense
9:30occurs only at live birth
9:33at live birth on the other hand not only
9:36can the state legislate to protect life
9:38presumably it also must do so
9:41casey in 1992 claimed um to uphold roe's
9:45basic right to abortion um as professor
9:48kirk was just saying but it modified row
9:50to eliminate the trimester framework
9:52which was said to be unwieldy and sort
9:55of
9:56overly legislative
9:59which to paraphrase chief justice
10:01roberts in dobbs the dog's oral argument
10:05left the court only
10:07with the viability standard
10:11since casey states
10:13since casey states are said
10:15to have an interest in unborn life
10:17throughout pregnancy
10:19however they may only regulate abortion
10:22prior to viability if the regulation
10:24does not pose an undue burden on the
10:27right to abortion
10:29after viability the state may ban
10:32abortion or elect elective abortions so
10:34long as there are uh exceptions for the
10:37life and health of the mother as
10:38underwrote
10:40so mississippi's abortion ban of
10:43elective abortions after
10:4515 weeks
10:47with life and health exceptions
10:49directly challenges casey as professor
10:52kurt said since it seeks to ban
10:54abortions prior to viability because of
10:56the concept's importance
10:58several of the justices in oral
11:00arguments and dogs
11:03pushed hard on the two attorneys
11:05defending casey's
11:07by ability standards
11:09the attorney
11:10for jackson women's health julie
11:13rickelman and u.s solicitor general
11:15elizabeth probably
11:18chief justice uh roberts and justices
11:20alito and barrett each
11:22focused on the standards seeming
11:24arbitrariness
11:26indeed roberts explicitly cited justice
11:29blackburn's own statement that the
11:31viability standard is arbitrary or was
11:34arbitrary
11:35for her part merit observed that the
11:37line could be that the line could be
11:39drawn later than viability uh in
11:42pregnancy
11:43as had in fact been the case with rose
11:46trimester framework
11:48and she asked why couldn't the line be
11:50moved earlier as mississippi
11:53is trying to do
11:55in other words both roberts and barrett
11:57were asking if there is any clear and
11:59principal basis for upholding the
12:02viability standard
12:04in response the attorneys argued that
12:07the viability standard signals the point
12:09at which the fetus can potentially live
12:11outside alone
12:13it therefore also signals a kind of
12:15independence as preluger uh argued for
12:19separateness
12:21from the mother
12:23here roberts responded referring to john
12:26park eli's famous criticism
12:30that this amounts caught logically
12:32only to a definition and not a principle
12:36the two attorneys also insisted that the
12:38viability standard is principled because
12:41it is reasonable
12:43it balances women's and state's
12:45interests it was argued on the one hand
12:47it gives the mother enough time to
12:49decide to have an abortion if she
12:51chooses
12:52on the other it allows the state to
12:54exercise its interest as the potential
12:56life of the fetus becomes more developed
13:00to move the standard of 15 weeks as
13:02mississippi seeks to do is to throw off
13:05this balance
13:07according to recommended um and and
13:09payload
13:11moreover it invites states to challenge
13:13the court with a slippery slope
13:16if 15 weeks then why not 12 weeks or 10
13:20weeks or 6 weeks
13:22these considerations spawned what i
13:24thought what i thought was an especially
13:26interesting line of inquiry on the part
13:28of justice alito
13:31to say that the viability standard
13:33balances interests may state a motive
13:36for using the viability standard
13:38but it comes no closer to stating a
13:40principle
13:41for seeking that moment
13:43for selecting that moment in pregnancy
13:45than the merely definitional explanation
13:48hacked
13:51to say that it strikes the right balance
13:53fails to provide a principle for saying
13:55why it is the right balance
13:57or why the court should be balancing at
14:00all when it comes to such weighty
14:01matters
14:03alito pointed out the mother's interest
14:05in getting an abortion is the same
14:07immediately after viability as it was
14:09before and that the interest of the
14:11fetus in having a life is the same
14:13before before is after viability
14:16so nothing seems to change in this
14:19regard at viability
14:21hence striking a balance of viability
14:23seems arbitrary alito argued as compared
14:27to rose 27 weeks
14:29for mississippi's legislation at 15
14:32weeks
14:33um it is in this context that we find a
14:36really fascinating line of questioning
14:38uh one that gives us a clue as to the
14:40kind of principle alito seems to be
14:43seeking
14:44the viability standard elito complains
14:47seems to depend more on medical
14:49technology than on the fetus itself
14:53as he observes medical technology has
14:55changed and might change further so
14:57viability is a moving target and one
14:59that turns on develop on developments
15:01extrinsic to the fetus
15:04it does not seem very satisfactory to
15:06think that the status of the fetus and
15:09the state's interest in protecting the
15:10life of the fetus could write on the
15:12changing and variable conditions of
15:14medicine and medical technology
15:17here that is the basic problem with
15:19viability alito suggests
15:22if such a consequential line is to be
15:24drawn regarding how we are to understand
15:26and treat the fetus shouldn't that line
15:28be based on something intrinsic to the
15:32fetus itself
15:34wouldn't an adequate principle rest not
15:36on such external factors as medical
15:39capabilities
15:40but on something inherent in the fetus
15:44shouldn't the criteria for a change
15:46legal status depend on some bright line
15:48in the fetus's actual development
15:52what change in the fetus itself can be
15:54pointed to that would justify the highly
15:56consequential division for purposes of
15:58law between pre and post viability
16:02hence at one point alito asks
16:04given the competing interests of the
16:06mother and the fetus is there some point
16:08in which independence
16:10uh in which the independence or
16:12separateness spoken of by rickleman and
16:15prelager
16:17um might occur
16:20but in in intrinsic in the dynamics and
16:23development of the fetus itself
16:26by asking whether a principle for
16:28viability can be found in relation to
16:30the fetus itself alito seems to seek
16:33some anchor some reality outside of law
16:37and indeed outside the mere remediation
16:40or balancing of interests or the
16:41circularity of purely positivistic legal
16:44definition
16:46he had earlier asked solicitor general
16:48the solicitor general of mississippi
16:51if there are any secular philosophers
16:53who think that human life in the proper
16:55sense begins earlier than viability say
16:58a conception
17:00oledo was trying to counter justice
17:02sotomayor's uh claim
17:04argument
17:05um that uh
17:07that that
17:08setting
17:09any sort of beginning to life it must be
17:13purely theological
17:15nevertheless this question betrays the
17:16kind of the kind of principle he's
17:18looking for
17:20he seems to be looking for a
17:21philosophical principle
17:24in order to give a proper context to
17:26this question and significance we should
17:29look a little to a little of the earlier
17:32case law so i'm going to begin with a
17:34case that i always i've used for years
17:36um but it's not very well known but it's
17:39from 1972 just before so just before roe
17:42versus wade from uh new york so it's a
17:44new york state law uh from the new york
17:47new york court of appeals
17:49um so
17:52so this is decided just before uh row
17:55um and what's interesting is it's almost
17:57uh the mirror um
17:59opposite if you know the mere reflection
18:02of roe in this case you had a new york a
18:04very permissive new york uh
18:07legislation
18:09um and you had someone suing on behalf
18:12of fetuses um to overturn
18:15the law
18:16uh and so you see it's postured exactly
18:19in the opposite way from uh
18:21from roe from casey and from dogs
18:25the court held the suit failed because
18:28the question of personhood is it purely
18:30is purely a question of law rather than
18:32nature
18:34so an argument was made that
18:36the fetus is is by nature a person
18:39and therefore when the law talks about a
18:41person it must also be talking about
18:43fetuses
18:45so the court is uh so the court is
18:48saying that whether an unborn um the
18:50unborn are persons under new york law
18:53is a question of pure positive law and
18:55therefore lacking necessary roots in
18:57nature
18:58just because a fetus might be a person
19:00from the natural point of view really
19:02has no bearing on whether the fetus
19:05is a person in legal terms
19:07indeed the court said the question of
19:09legal personhood is purely definitional
19:12this is what i mean by that circle you
19:14know circularity of definition
19:16um what is a legal person this and this
19:18importation from the case what is a
19:20legal person is for the law including of
19:23course the constitution to say
19:26which simply means that upon according
19:28legal personality to a thing
19:30the law affords it the rights and
19:32privileges of a legal person the process
19:35is indeed circular because it is
19:37definitional
19:39the court argues that just as a
19:41corporation's status in law as a person
19:44does not make it a person in nature
19:46so too the fetus's possible status in
19:50nature as uh as a person has no bearing
19:53on whether it is uh to be considered a
19:55person in law
20:00um
20:03notice uh there's a little bit of a
20:05known secretary here right uh in the
20:07sense that
20:08the corporate personhood is a legal
20:11fiction
20:12um just because it cannot be read back
20:14into nature does not mean that nature
20:16ought not to be the foundation for law
20:18or that the use of the word person in
20:20law ought not to be rooted in the
20:22reality of natural in fact i wouldn't
20:24even say that the fact that it's
20:25possible to have this fiction relies on
20:28the reality of
20:29natural person right existence of real
20:32persons
20:35aside more importantly however the court
20:37the court's ruling effectively uh severs
20:40the idea of personhood from anything
20:42outside law itself law seems in this
20:44instance to be completely separate from
20:46natural things such as fetuses
20:49a scathing descent points out it
20:51suggests points this out and suggests
20:53that it is a dangerous path to travel
20:55down
20:56drawing parallels to historical
20:58situations in which the natural persons
21:00were considered legal non-persons or
21:02something less than legal persons
21:05notice however that this decision is
21:07conservative
21:09insofar as it exhibits exhibits judicial
21:12restraint
21:13and in that sense it is postured
21:15differently as i said from roe casey and
21:17dogs nevertheless his significance
21:21uh its significance for what uh what our
21:24for our topic today is that it precludes
21:26a sort of rational principle centered in
21:29the fetus itself
21:31that alito seems to be searching for
21:33um in his in his seeking uh a
21:37principle or foundation for the legal
21:39states of of the fetus and for um
21:43whether or not
21:45viability is a principled line to draw
21:49if there is no necessary foundation for
21:51law in nature
21:53then a legislature could draw the line
21:55at 27 weeks 24 weeks 15 weeks or any
21:59other number
22:00if the law granted personhood which i
22:03grant is not at stake in involves
22:06it could do so in any way it shows now
22:09consider roe
22:11addresses and dismisses two arguments
22:13offered by texas in defense of its
22:15restrictive abortion law
22:17texas first argued that the unborn are
22:20persons under the 14th amendment and
22:22that on that basis texas had the
22:24authority
22:25and indeed the duty to protect them
22:27here the court had two responses first
22:29is a historical one um and that is that
22:32historically uh fetuses have not been
22:35understood um as a person's in the full
22:38uh since now
22:40you know the historical argument uh is
22:42complex and difficult right and uh and
22:45controversial um and also it's it's
22:48unclear the extent to which uh it's um
22:53you know to influence uh modern courts
22:55um
22:56uh what do you do
22:58uh with uh the fact of the earlier lack
23:01of knowledge concerning how conception
23:03works for example or
23:04what to make of the fact that there
23:06could be many ways in which the common
23:08law understood things differently and
23:10less well than we do now
23:14okay but second um
23:16um the court in row dismissed this
23:19argument under the 14th amendment um
23:23by explaining to other uses of person in
23:25the constitution
23:26that cannot plausibly refer to the
23:29unborn for example when person is used
23:32in describing qualifications for public
23:35office
23:36um
23:37however as john hart eli pointed out the
23:40same could be said of children who
23:42clearly are persons under the 14th
23:43amendment
23:45on the basis of these arguments the
23:47court concluded that the fetus is not a
23:49person under the 14th amendment i.e is
23:52not a constitutional person is not a
23:54person under the
23:56as defined by the constitution and the
23:5814th amendment needless to say this
24:00judgment like that in burn is simply a
24:02matter of positive law without any
24:04attempt to link the 14th amendment's use
24:06of the word person to the question of
24:09what a fetus is either in theology
24:11philosophy or science
24:14texas second argument was that
24:16notwithstanding the question of fourth
24:18of the 14th amendment of 14th amendment
24:20personhood
24:21texas has an interest in human life and
24:24may or even must legislate to protect it
24:29after all the 14th amendment is one of
24:31the civil war amendments passed in 1868
24:34and states have been prohibiting
24:36homicide for example for a long time
24:38before the civil war
24:42so the state's authority or power to
24:44pass laws protecting human life does not
24:46depend on the 14th amendment this is
24:48texas basic argument i think in the
24:50second argument
24:52it is to the second our second argument
24:54that roe responded famously by saying
24:56that texas may not impose its own theory
24:58of when life begins on individual women
25:02we need to study the nature of this
25:04second argument and the court's response
25:06more carefully first the court and roe
25:09and rose author justice blackman clearly
25:11understood that fetuses are alive right
25:13when it talks about imposing the theory
25:15of life of human life
25:17uh penises are alive it knows for
25:19example that there's a difference
25:20between living and dead penises
25:23moreover it knows that we are speaking
25:24of human fetuses and not some other sort
25:26of fetus from this point of view the
25:30fetus is clearly a human fetus and not
25:32only a potential life
25:36so when roe tells texas that it cannot
25:39say
25:40when life begins and clear it is clearly
25:42not referring to anything empirically
25:44available
25:45for example it is not referring to our
25:47knowledge that this fetus is alive and
25:49that one is dead
25:50or that this one is a human fetus and
25:52that one is a chimpanzee venus
25:55it's referring to the status of the
25:57fetus as something more
25:59than is uh that is quite available
26:01to the purity
26:03in effect it is referring to the
26:05metaphysical or ontological sense of the
26:08fetus as possessing the dignity of
26:10personhood even if not 14th amendment
26:13personhood
26:15texas was arguing by alternatives
26:18if the first amendment
26:19if the first argument that the fetus is
26:22a person within the meaning of the 14th
26:24amendment fails
26:26then at least the fetus is a person by
26:28nature on the basis that the kind of
26:31life we are talking about is human life
26:34in effect then when roe rejects texas
26:37second argument for natural personnel if
26:40i can put it that way it's not the
26:42language of the court but i think you
26:44have to deduce this this is what's
26:46really being talked about
26:48it is saying that texas cannot impose
26:50its own understanding of when this
26:52personal nature begins
26:56like burn but from the opposite point of
26:58view
26:59the row court effectively severed law
27:01from nature here
27:03so where you have roses uh so there you
27:06have rose response to elito's question
27:08right rose already answered this
27:10question if if i've understood his
27:12question correctly
27:14um
27:16the law simply cannot look to the thing
27:18in itself namely what a fetus really is
27:22which is inherently a philosophical
27:24question
27:26however this is not a sufficient answer
27:29rose rational rationale for this
27:31response seems to be that
27:33because there has always been
27:35disagreement over when life begins in
27:37the pertinent sense
27:39among philosophers and religions in
27:41history
27:42it is not for the texas legislature to
27:44select one position and oppose it
27:47this sort of disagreement among groups
27:49would not in itself be enough to
27:50preclude a legislature from taking a
27:53position
27:54for example there is much historical
27:56disagreement surrounding slavery and
27:58racial discrimination or the role and
28:00status of women in society
28:02this has not meant that
28:04legislatures or courts could not act
28:07decisively
28:09so why can't texas look to the question
28:11of what a fetus is why can't it address
28:14the metaphysical or philosophical
28:15question
28:17for an answer to this let's turn to
28:19briefly to planned parenthood versus
28:21casey our third case consider casey's
28:24famous passage concerning the mystery of
28:26life or as justice scalia i think
28:29derisively referred to it the sweet
28:31mystery of light passage
28:33our law
28:34affords constitutional protection to
28:37personal decisions relating to marriage
28:39procreation contraception so this is a
28:42quotation family relationships child
28:44rearing and education these matters
28:46involving the most intimate and personal
28:49choices a person may make in a lifetime
28:51choices central to personal dignity and
28:53autonomy are central to the liberty
28:55protected by the 14th amendment at the
28:58heart of liberty is the right to define
29:00one's own concept of existence of
29:02meaning of the universe and of the
29:03mystery of human life
29:05beliefs about these matters
29:07could not define the attributes of
29:10personhood where they formed under
29:11compulsion of the state
29:15like roe's rejection of texas imposition
29:18of one theory of life this passage tells
29:21us
29:22that government may not impose its view
29:24concerning what we could call absolutes
29:27right that's really what's at stake
29:29absolutes
29:30um the big stuff right
29:33such as when life begins
29:35uh
29:36but because to do so would limit
29:38individual autonomy
29:40and the ability of the individual to
29:42decide for him or herself on the meaning
29:45of things
29:46in essence casey like roe
29:49is saying that government may not look
29:51to the fetus itself because to do so is
29:54to make a philosophical judgment and
29:56this would replace the freedom of the
29:58individual to make his or her own
30:00judgments
30:02again we have another example of the
30:04deracination
30:06of law from nature
30:08and yet despite these implications of
30:10burn row and casey
30:12perhaps the viability standard does
30:14imply a judgment about the nature of the
30:16fetus after all
30:19but also of the nature of the mother and
30:21of humanity generally
30:24viability is claimed as a principled
30:26standard because as we saw
30:29in indicating the time when the fetus
30:31can survive outside the womb it also
30:34stands for an incipient level of
30:36independence
30:38and independence that only grows with
30:40birth
30:41hence the beginning of sort of the
30:43shadow existence i talked about under
30:45the law
30:46but what is not stated is why
30:49independence should be the criterion for
30:51the kind of shadow existence i described
30:53earlier
30:55which is a basis for the respect law
30:57accords to viable fetus
31:00let me present two possible senses of
31:03independence
31:05so you know
31:06what do we mean by independence in a
31:07certain sense that becomes the question
31:09doesn't it
31:10first independence might mean what i
31:12will call extrinsic uh independence
31:15this sense of independence understands
31:17relationships is fundamentally voluntary
31:20on both sides
31:22it supposes that i am free to enter into
31:24relationships with others but i am also
31:26free to enter my relationships
31:29by implication on the other hand if my
31:31survival or continued existence depends
31:34on the cooperation or help of others i
31:36fall short of this kind of independence
31:40by implication i also fall short of the
31:42paradigm of voluntary relationships
31:45if my personal existence develops and
31:47increases based on this kind of
31:49independence then the maturation of my
31:51independence and personhood implies over
31:53ever greater separateness from others
31:56and ever more complete choice in
31:58relations on the other hand the
32:01implication goes in the other direction
32:02as well if i'm in a state of dependence
32:05i still have something less than full
32:08personal existence
32:11but there could be a second sense of
32:12independence or separateness which we
32:14will call intrinsic
32:18this sense of independence or
32:19separateness could simply refer to the
32:21wholeness and trajectory of the personal
32:23human organism the art of life
32:26that is possessed by every individual
32:28member of the species
32:30here the independence would simply point
32:32to the fact that the fetus or the embryo
32:35or zygote
32:36is a whole and not simply a part of
32:38another organism such as the mother
32:41in other words it means possessing one's
32:43nature as an individual organism an
32:46individual instance of a nature
32:49but then we are talking about human
32:51nature is this not
32:53what what we mean by person then with
32:56its capacities for freedom reason and
32:58love
33:00in this sense independence
33:03of independence dependency on the care
33:05and even essentially
33:07non-voluntary relations of the family do
33:09not stand as a limitation
33:12of independence or separateness
33:15nor do they stand for a diminution of
33:18personal dignity
33:20nor does the fact that in reality none
33:22of us is truly independent in the first
33:24sense diminish our personal dignity
33:27after all i would uh not last long and i
33:31thought i think most of us would not
33:33without the social context in which i
33:36live
33:36since i certainly cannot provide
33:38everything needed for my life let alone
33:41a good life as everyone as many people
33:44from aristotle
33:45alistair mcintyre pointed out
33:49it is interesting in this regard that cs
33:52lewis and the great force sees hell as
33:54an ever-increasing distance between the
33:57damned
33:59yet it seems that the entire discourse
34:01surrounding the viability standard
34:03nevertheless presupposes a legal
34:05priority of the first kind of
34:07independence
34:09and because it presupposes this sense of
34:11independence and law it also presupposes
34:14this sense of independence for the order
34:16and structuring of society
34:19under these conditions the inherently
34:21natural communities of marriage and
34:23family will increasingly seem like
34:24assaults on freedom and personal dignity
34:28presumably alito has
34:30the first sense in mind when he speaks
34:32of the mothers and child's interests as
34:34essentially outside each other and in
34:36competition
34:38on the other hand his search for a
34:40principle intrinsic to the fetus
34:42generates a certain ambiguity in this
34:44regard
34:45how is extrinsic independence intrinsic
34:48to the fetus
34:50doesn't it run into the same sort of
34:51objection as this critique of viability
34:54as determined by the state and
34:56availability of medical technology
34:59so i think and indeed hope that we are
35:01left in alito with a certain ambiguity
35:05by way of conclusion what is important
35:08to see here i think is that defining the
35:10person in terms of independence is not
35:14uh is not a is not neutral regarding
35:17absolutes or their disposition before
35:20toward uh big questions in the way that
35:23roe and casey hope
35:26these two senses of independence mark
35:29when presupposed in their purity as
35:32founding principles two completely
35:35different understandings both the nature
35:37of the
35:38to use casey's language the attributes
35:40of personhood
35:42and uh and the shape and meaning of
35:44social relationships and communities
35:46so we can't just define those for
35:48ourselves
35:49right they're given us
35:51they're necessarily given us
35:54it is the difference between seeing
35:56human relationships and communities is
35:58natural and seeing them as based on an
36:01essentially contractual model
36:04the first sense the extrinsic sense of
36:06independence
36:08suggests a contractual model of society
36:10a voluntary idea of society
36:13for this reason the viability standard
36:15depends
36:16on a deep and typically unconscious
36:18assumption that the human person is best
36:20understood as simply a chooser before he
36:23or she is anything else or i should say
36:26before it is in details um because he or
36:29she
36:30um has to you know increasingly come
36:32after uh as we're seeing today
36:34um this act of choice um
36:37okay

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