Peg,

Have you ever driven a car? You might have an accident. Cooked a meal for someone? You might give someone food poisoning. Given someone medicine? They may have a fatal allergic reaction.

There is just no way to have metaphysical certitude that just about anything you do in life won’t harm or kill someone. Some Catholic hospitals use Plan B to make sure rape victims don’t get pregnant. Catholic nuns in the Congo back in the 1960s were permitted to take oral contraceptives because they were in danger of rape.

I can’t even begin to tote up the number of times I’ve had a medical procedure where I signed a consent form warning me that it could be fatal. General anesthesia is always a risk. Should doctors refuse to use general anesthesia for fear someone will die from it? I has photographs of my retinas taken that required the injection of a dye into my bloodstream. There is always the possibility of allergic reaction when you have something injected like that. If you listen to the commercials advertising drugs on television, most of them mention adverse (and potentially fatal) reactions.

When someone like the EPA sets safety rules or air quality standards, they can predict how many people will die if they make the standards looser. They decide not by attempting to prevent all deaths, but by setting a monetary value on human life (last year it was $7.9 million) and do a cost-benefit analysis. There is no way that some people aren’t going to die of various lung disorders if the air isn’t perfectly clean, and you can’t run power plants, drive cars, or heat homes and keep the air perfectly clean. Somebody has to decide how many lives are worth losing, and they don’t have the option of setting it at zero.

We have different approaches to life then. I must have metaphysical certitude that my action will not kill or injure someone else. It makes no difference to me if such action is legal (example: abortion with or without fetal anesthetic) or if experts say my actions “probably” won’t kill or harm another (example: Plan B).

Joe Sansonese,

Of course there can be scientific consensus about a matter such as when a fetus feels pain. In many ways, the same limitations you describe would prevent us from knowing with certitude whether human adults feel pain. It is impossible to know whether any other human being is actually aware and conscious (rather than an amazing automaton) let alone whether he or she feels pain. The fact that anesthesia always used for, say, open-heart surgery, is testament to the fact that medical science can reach a consensus about whether or not others feel pain. I don’t think anyone doubts that a newborn baby feels pain, or that a baby about to be born can feel pain. The question is when a developing fetus a developed enough nervous system to feel pain and shows physiological signs of feeling pain. To the best of my knowledge, there is no consensus on when that developmental point occurs, but I don’t think anyone would deny that it does occur.

Taking your position to its logical conclusion, it seems to me the argument would be that an embryo or fetus at any stage might feel pain, and consequently there should be no abortion at all. I am not sure why you would not be appalled that Republicans would attempt to draw a line at 20 weeks when, if the fetal-pain argument can stop abortion, they could draw the line so early as to stop all abortions.

reduces your argument to rubbish, and tendentious rubbish at that . . .

I find it difficult to respond to people writing at this pitch, so forgive me if I don’t answer most of what you say. I am here to discuss, not to engage in verbal fistfights and make personal jabs.

peg,

Well, if I am a food manufacturer, and I am not 100% sure no one with a peanut allergy will die from my product, why would I manufacture peanut butter?

Human beings simply cannot require metaphysical certitude before they act, even when life (or possible life) is at stake. There are many things that are known to interfere with implantation, and other things that very will might. Smoking is known to inhibit implantation. Coffee is suspected. It seems to me that to be consistent, you would have to insist that no woman of childbearing age should be allowed to smoke or drink coffee, because she might get pregnant and the pre-embryo might fail to implant. As I said above, it is suspected that breastfeeding may, in some cases, interfere with implantation. Should a woman refrain from breastfeeding, or abstain from sex while breastfeeding on the grounds that a pre-embryo dies that otherwise would have survived?

It is known that women conceive a great many more times than they ever know they are pregnant. The best estimates I have seen are that between 60% and 80% of pre-embryos die within about ten days of conception. There is very little effort to find out why this is the case in human beings, or to do anything about it. If we must presume in favor of possible life in every case, this is a huge area in which nothing is being done.

Prenatal surgery is performed as early as 18 weeks, with the fetus anesthetized. For those concerned about fetal pain, why not require fetal anesthesia for all abortions at 18 weeks or later?

Here’s my question: If fetal-pain bills restricting abortion at 20 weeks or later are found unconstitutional, will there be a big push for fetal anesthesia during abortion? I seriously doubt it. Because the goal isn’t to prevent fetal pain. It is to restrict abortion.

Now, I am not arguing that it is necessarily a bad thing to restrict abortion, and especially late-term abortion. I am saying let’s be honest about what is going on here. It’s not about fetal pain. It’s about restricting abortion. This does not mean that there aren’t people genuinely concerned about fetal pain. But as a legal strategy, this is about restricting abortion, not about preventing fetal suffering.

Sorry for not being clearer, but I wasn’t talking about the law. I was talking about conscience, or philosophy. If you are not 100 percent certain that a fetus cannot feel pain, why would you support let alone participate in an abortion? Likewise, if you are unsure if “Ella” can provoke an abortion, why would you support its use let alone use it yourself you abhor abortion?

“There is no scientific consensus as to when a fetus feels pain.”

Which, as a matter of plain logic, means there is no scientific consensus as to when a fetus feels no pain. Consensus means “agreement.” What you are saying is there is a disagreement on the matter. Good. What peg says above, therefore, seems to me more than persuasive. If you don’t know don’t vote as if you did. I take it as read that, the mother’s life to one side, no lawmaker of either party would still vote for destroying a human fetus if he KNEW that it would cause the fetus pain — EVEN if the fetus’ mother and her doctor enthusiastically wanted the baby dead. At the very least, I cannot believe that any lawmaker would admit it. Therefore, since he doesn’t KNOW he may not vote against the bill, at least not conscientiously.

“Pain is a subjective experience, and we don’t know what the subjective experience of a fetus is.”

Exactly. And I’ll tell you something else: We shall never know. The question of subjective states, of qualia, is not an issue that can be settled scientifically. There can never be a scientific consensus on the matter because the inability to answer the question “What does he feel?” — so long as “he” is not yourself — is not a matter of some deficiency in your objective knowledge. No amount of objective, which is to say, scientific knowledge can ever answer such a question. The only way to settle the matter would be to BE the other person, but since the very premise of the argument is that you and he are distinct, that is as much as to collapse the reasoning into circularity.

“That does not, of course, mean that we can’t make a reasonable assumption. . . .”

My apologies, but it means precisely that. You may no more make such an assumption in good conscience when a life is in the balance than the results of a lie detector may be admitted into court to settle matters of far less gravity. A lie detector is a device used to infer another’s state of mind — his qualium, if you like. Is he lying? I don’t care how many “reasonable” arguments that a polygrapher makes one way or the other, no attorney, neither for the defense nor the prosecution, will ever be allowed to present them. And it’s a good thing, too. It’s VERY distressing to read an argument such as yours, which would not be persuasive in proceedings for divorce, used to justify voting against the instant act.

“. . . . but why draw the line at 20 weeks, rather than 18, or 16, or 12? Or, for that matter, 26?”

Why indeed? Determining such a line would not seem to be MY problem, but yours. In any case, are you really making a slippery slope argument here. If so, you are bringing the discussion onto very delicate and none too friendly ground for the so-called pro-choice side.

“Roe v Wade and other decisions by the court are not based on whether or not a fetus can feel pain.”

Simultaneously simplistic and superficial. If the question of fetal pain was not argued in 1973, and I don’t think it was explicitly, that may very well have depended on the lack of any statutory basis for making such a case against abortion, which the present legislation was specifically designed to remedy. Even so, a STRONG case can be made that the question of fetal pain and/or terror is implicit in the trimester guidelines set forth in Roe. Might the justices, at the very least, have had the ontological good of the fetus in mind in declaring that the State had an absolute interest in regulating abortion in the last trimester and a qualified one in the second. Indeed, the same notion, namely, the ontological status of the fetus, in my opinion undoubtedly inheres in the Court’s decision to bar State interference in abortion during the first trimester, which is to say, the then prevalent and since largely discredited pseudo-scientific proposition that the fetus was a “blob of protoplasm” or like rubbish, which the imbecile — a tax lawyer, as it happened — who wrote the, ugh, decision, is on record as believing.

“. . . . this bill was not expected to pass, and not really even intended to pass. It was just to force a vote to make people (largely Democrats, but a few Republicans) look bad.”

As to the first, I would probably agree. As to the latter assertion,the use of “just” reduces your argument to rubbish, and tendentious rubbish at that. How on earth do you know with such precision the “intentions” of others. Or must we go over the problem of extra-personal subjectivity yet again? And besides, arguing for passage of a piece of legislation, whether successful or no, may legitimately serve other purposes, such as embarrassing the bills opponents. I cannot imagine why you think those other purposes discredit the ostensible purposes of the bill.

Shaming the devil is a worthwhile activity. Analogously there are laws on the books, against gambling, sodomy, and prostitution, for instance, that are enforced only sporadically. Such acts of a legislature are called precatory laws. Even so, they serve a useful, indeed a desirable, purpose and should not be repealed. Laws preach. They preach not only unavoidably but deliberately. The law declares what the citizenry believes to be good and what bad. Laws are not utilitarian wish lists. If they are not always enforced, that is undoubtedly because inveighing against the sin and punishing the sinner are separate aspects of one fundamental question: What is the common good? Common here of course means “political” in the aristotelian sense; but the distinction should be clear: we are OBLIGED to declare the sin, even if we incur simultaneously only the prudential judgment of whether or not to punish.

“There is no way of knowing how those Republicans would have voted had their votes actually counted.”

A naked appeal to ignorance; and that is all there is to say about that.

“. . . it was not a bill designed to regulate abortion. It was a bill about politics and the upcoming election.”

Simple question begging. Moreover it amounts to asserting that a bill EXPLICITLY about when it is permissible to kill a fetus is simultaneously not about regulating abortion. That is not merely ridiculous, it is self-contradictory.

peg,

We’re talking about the law here, and the law can’t be based on “the shadow of a doubt.” Even judges and juries deciding death penalty cases use “beyond a reasonable doubt” as a standard, not “beyond a shadow of a doubt.”

But if people want to argue based on doubt, then they should argue based on doubt. There really is no agreement when a fetus feels pain. There are no real facts.

What has happened here with anti-abortion fetal-pain bills is that forty years after Roe v Wade, pro-life activists have come up with a brand new theory about how to limit abortion. It doesn’t matter what I personally think. What matters is whether this new theory will be accepted by the courts. So far there is only one test—a federal judge ruled the Arizona bill constitutional. I doubt that his ruling will stand, but we shall see.

As for “abortifacient” drugs, there are three possibilities: they do sometimes result in the death of pre-embryo that would otherwise survive, they don’t, or it’s impossible to know. Again, if people want to argue that it must be known beyond a shadow of a doubt, they not claim to know that Ella and Plan B are “abortifacients.” They should argue that they might be.

There are a great many instances, even those involving human lives, where applying the standard of “beyond the shadow of a doubt” would paralyze society. If car manufacturers had to make cars so safe no one would ever be killed in a car accident, we would have no cars. We would, in fact, have no peanut butter! There are a number of lifestyle and environmental factors that increase the risk of a woman having a miscarriage—one of them is smoking (maternal and paternal). Should pregnant women and their husbands be legally barred from smoking? There appears to be some evidence that breastfeeding can interfere with implantation. How are women who want to be sure beyond a shadow of a doubt that they aren’t going to conceive and lose a child supposed to deal with that possibility?

“There is no scientific consensus as to when a fetus feels pain. Some say earlier than 20 weeks, some say much later”.

This being the case, why wouldn’t you give the fetus the benefit of the doubt? Likewise, in discussions of the HHS mandate, you often argue that the contraceptives “Ella” and Plan B might or might not be abortifacients. Why, then, should anyone—especially pro-lifers— take the risk of aborting a child? Shouldn’t people err on the side of caution?

In both of these cases there is at least the shadow of a doubt. I do not understand the apparent lack of qualms that should send people right into the pro-life camp.