But what is the ‘intent’ of saying an unborn child cannot be subject to a wrongful death suit but one who was born a minute ago can? If you hold to the pro-life view that the unborn are persons, the intent is clearly to deny equal protection to one class of persons.

Let’s use a slightly different example. It’s 1850 and a man accuses Frederick Douglass in court of not paying him wages for working in his house. Douglass asserts that the man is black and since slavery is legal he shouldn’t have to pay the black man. Would it not be hypocrisy for Douglas to make that argument, then go off to work as an abolitionist? Would it be sufficient to just shrug and say sure he won’t have slaves once the law gets changed but right now it’s a valid legal argument?

Richard M,

It seems to me quite different for lawyers to argue that a given statute does not apply—and was not meant to apply—to the unborn, than for a lawyer to argue that the unborn are nor persons and should not be covered by the statute.

Remember I have been giving rather trivial examples of laws that are obviously not meant to count the unborn as persons. Recall the pregnant woman stepping into the elevator already carrying 9 people, with the legal limit being 10 people. Are you saying that if someone tries to prosecute a pregnant woman for smuggling an eleventh person onto an elevator that a lawyer could not in good conscience argue that the regulation limiting the elevator passengers to 10 did not count unborn babies?

There are no doubt a great many laws that mention persons that we would not want to apply to the unborn. For example, in inheritance law, the unborn cannot inherit. If a man dies without a will, and his wife is pregnant with twins, the husband’s money will go to his wife. It will not be split between the wife and the unborn twins.

How am I arguing that? Your argument’s getting off the bend here. If there was no state there most likely couldn’t be a hospital or medical profession (I’m sure the hospital relies more upon courts to sue for unpaid bills than the reverse). But yes without any state people do tend to resort to ‘just taking stuff’ and fighting each other to settle private arguments like this. See, for example, Somalia.

If the hospital is aligned with the Catholic view of the unborn, they should not use an argument that the unborn are not persons to win a civil suit. That hardly means the family of the woman and unborn child who died have a right to ‘just take stuff’ from the hospital.

This is not quite correct. The Church opposes all direct abortions, but it does not oppose all indirect abortions.

I’m not at all comfortable with this language of “indirect abortions,” and I think it’s unwise for you to use here as well. It *is* true that Directive 47 states that “Operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child.” But it avoids the phrase “indirect abortion,” since what it is contemplating is not considered an abortion per se at all. The integral nature of the act is not to abort an unborn baby. It is, instead, to remove a damaged or diseased organ which if left unchecked will result in the death of the mother.

There is not universal agreement as to what is a direct and indirect abortion in certain difficult cases, for example, in the case of the “Phoenix abortion,” for which Sister Margaret McBride was announced by her bishop to have excommunicated herself by approving the procedure in her role on the hospital ethics committee.

I don’t think that there’s much that’s difficult about the McBride case, however. She approved a direct (induced) abortion as a response to the mother’s pulmonary hypertension. There’s no principle of double effect to justify her act; it was a direct abortion, and that is never licit under Church teaching.

Are all Catholic lawyers now duty bound to consider unborn babies legal persons and ague (or not argue) cases accordingly?

I think that you can make a good case that they are duty bound to never advance a legal argument that denies that they are.

The Catholic hospital, is certainly duty bound to refrain from making such a legal argument, regardless of whether the law permits it (as it seems to do here).

“Person,” at common law, for most tort and crime purposes, is defined as individuals born alive.

Without the coerceive power of the state private disputes would be settled by private means. The state is simply acting as a referree here (and in many lawsuits it’s not even the state but a private arbitrator!) How is choosing not to use all the possible legal arguments available to one in a lawsuit being ‘coerced by the state’?

It’s a question of there are multiple definitions of a word.

You haven’t given us multiple definitions of the word. You have simply stomped around demanding that in cases of wrongful death the unborn child isn’t a person but in cases of a woman who desires to have an abortion it is a person. Since I don’t have multiple definitions from you I have no idea why one would apply in one case and another in the other except because you say the legislature wanted it that way and if it was any other way women who have miscarriages or ectopic pregnancies would be tried for murder (again not clear why that would be).

I don’t understand why you’re clinging to the idea that there is one definition of personhood. It isn’t a question of convenience. It’s a question of there are multiple definitions of a word.

It actually is a basis upon which you can raise self-defense as a defense against a murder charge.

The fact that legal persons, like corporations, have more rights than fetuses should be enough to make perfectly clear to you that “person” as a legal term has only an historical relationship to “person” as a theological term.

Again corporations do not have rights as persons. Their rights are only the collected rights of the persons who own them.

There aren’t any defenses to it, as it doesn’t exist. There’s no way they can challenge the measure of damages, as under Colorado law, there are no damages.

They could argue there was no malpractice. They could argue that even if there was malpractice it did not cause the featus’s death. They could argue the calculation of damages. Why would that be different than any other wrongful death claim?

Do you really want the coercive power of the state to depend on the defendant’s moral beliefs?

What power of the state? The state didn’t sue, the family did. And yes outcomes do depend on moral beliefs. Why should one’s moral beliefs not have consquences? Your entire argument amounts to an assertion that considering fetuses persons results in awkward consquences. The coherent response to that is either reject the proposition that fetuses are persons or accept the consquences that they are. Your answer seems to be accept the assertion when it isn’t awkward, reject when it is.

Richard M,

This is not quite correct. The Church opposes all direct abortions, but it does not oppose all indirect abortions. To take the classic example, if a woman is pregnant and has a cancerous uterus which must be removed to treat the cancer, the uterus may be removed with the unborn baby inside, even if this is certain to kill the baby. However, performing the exact same surgery if the uterus was not cancerous would be a direct abortion. It is really, in this case, a matter of intention.

In the case of ectopic pregnancy, it is considered an indirect abortion to remove the fallopian tube (or part of it) to which the embryo is attached, even though this is certain to kill the embryo, but it is considered a direct abortion to remove the embryo itself from the fallopian tube or to administer a drug to the woman that will kill the embryo.

There is not universal agreement as to what is a direct and indirect abortion in certain difficult cases, for example, in the case of the “Phoenix abortion,” for which Sister Margaret McBride was announced by her bishop to have excommunicated herself by approving the procedure in her role on the hospital ethics committee.