Friday, September 2, 2011
Horwitz on the Possible Jurisprudence of Laws Designating a Fetus as a Human Being
Readers will, I think, be interested in this very good post by Paul Horwitz on putative state laws which would designate a fetus as a person, and the jurisprudential possibilities that would attend this move. I'll just say briefly that a number of states (New York is one -- see, e.g., section 125.45 of the NYPL) have specific provisions proscribing abortional homicide. How these new laws would affect those sorts of older laws is opaque to me.
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/09/horwitz-on-the-possible-jurisprudence-of-laws-designating-a-fetus-as-a-human-being.html
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Marc, thank you for this post. Professor Horwitz raises interesting and important points. Two general issues can be kept in mind at the outset. The first is one that I made a few years ago on the Mirror of Justice. From the woman/mother's perspective, the state and other organizations have an important opportunity and responsibility to assist her with her pregnancy and pre- and post-natal care if she wants to keep the child but for one reason or another would find it difficult to do this on her own. Related to this first point is the capacity of the state and society to ensure that the father of the child is brought into the picture for surely he has an interest and, if he denies that, a responsibility in and for the outcome. The second point is to keep in mind that judicial opinions denying the humanity of others, e.g., Dred Scott, or lowering the classification of the humanity of others, e.g. Plessy, Korematsu, and the dissents accompanying those decisions need to be studied carefully. Why? Well, for one thing, we see that precedents, meaning the majority decisions, were legally and morally flawed. But, if we acknowledge that these decisions were flawed, we might realize that other justices saw the flaws and pointed them out (or at least some of them) on the spot. Subsequently, the flaws were corrected in different manners. When we come to the neuralgic issue of abortion and the status of the child-in-utero, can we finally see the ability to help both persons primarily involved in the case if we have taken some time to study the kinds of precedents which I have suggested? I think we can. One final thought: to deny the humanity of the child actually denies, albeit in different ways, the humanity of the mother and the others who are involved with each specific case. RJA sj