Abortion in Wonderland

By Charles Foster

 

 

Image: Heidi Crowter: Copyright Don’t Screen Us Out

Scene: A pub in central London

John: They did something worthwhile there today, for once, didn’t they? [He motions towards the Houses of Parliament]

Jane: What was that?

John: Didn’t you hear? They’ve passed a law saying that a woman can abort a child up to term if the child turns out to have red hair.

Jane: But I’ve got red hair!

John: So what? The law is about the fetus. It has nothing whatever to do with people who are actually born.

Jane: Eh?

That’s the gist of the Court of Appeal’s recent decision in the case of Aidan Lea-Wilson and Heidi Crowter (now married and known as Heidi Carter). Heidi and Aidan have Down’s Syndrome.

Section 1(1)(d) of the Abortion Act 1967 provides that the performance of an abortion will not be a criminal offence ‘when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith… that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.’

Heidi and Aidan said that this provision ‘“perpetuates and reinforces” negative cultural stereotypes about people with handicaps by sending a message that their lives are less valuable’, and accordingly falls foul of Articles 8 and 14 of the European Convention on Human Rights (ECHR). (In this post I use the language of ‘disability’, ‘disabled’ and ‘handicap’ because those are the terms used by the Court of Appeal in its judgment).

Article 8 is the most elastic of the ECHR articles.  It broadly confers a right to live one’s life as one chooses, subject to the constraints necessary in order to live that life embedded in society. Article 14 provides that ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ There can be an actionable breach of Article 14 without a breach of any of the other articles of the ECHR, but the relevant discrimination has to be within the ambit of one of those articles.

Heidi and Aidan’s argument was substantially based on two European Court of Human Rights (ECtHR) cases.

The first was a decision of the Grand Chamber of the ECtHR in Aksu v Turkey. The applicant, who was of Roma origin, complained about passages in an academic work which, he said, depicted Roma people as “engaged in illegal activities, [living] as ‘thieves, pickpockets, swindlers, robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers’ and … polygamist and aggressive”.  He also complained about the definitions of the Turkish word çingene (“gypsy”) in two dictionaries which included a pejorative sense of “miserly”.  He claimed in a Turkish court that the promulgation of those stereotypes infringed his right to a private life.

The ECtHR decided that his Article 8 rights had not been violated, saying that the Turkish court had been entitled to find that his characterisation of what the academic work said about gypsies was inaccurate, and entitled to find that the dictionaries were legitimately performing their role of recording language as actually used.

Heidi and Aidan, though, relied on what the ECtHR court said about the applicability of Article 8. The relevant passage in the Aksu judgment says:

‘The Court reiterates that the notion of ‘private life’ within the meaning of Article 8 of the Convention is a broad term not susceptible to exhaustive definition. The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of the person’s physical and social identity. The Court further reiterates that it has accepted in the past that an individual’s ethnic identity must be regarded as another such element….. In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group.’

The second case relied on by Heidi and Aidan was Lewit v Austria, which applied this passage in Aksu. In Lewit a survivor of the Mauthausen concentration camp complained about an article in a right-wing journal in Austria about the conduct of survivors in the aftermath of their release in 1945, describing them as ‘robbing and plundering, murdering and defiling’ and as criminals who ‘plagued’ the surrounding country.  There was no remedy in Austrian law.  The Strasbourg court held that the survivor’s Article 8 rights had been infringed.

Heidi and Aidan contended that although in Aksu and Lewit the ECtHR was concerned with different social groups, the principle stated in them is applicable to cases of disability, which is equally an aspect of a person’s ‘physical and social identity’, and accordingly that negative stereotyping (of a sufficiently serious degree) of those with Down’s syndrome ‘or other serious disabilities’, will interfere with private life if and to the extent that it impacts on an applicant’s ‘feelings of self-worth and self-confidence’.

Underhill LJ, giving the lead judgment in the Court of Appeal, said that he had ‘no difficulty accepting the general proposition which [the appellants derived] from Aksu or that it is applicable in principle to those with serious disabilities.’

Nonetheless, the Court of Appeal found that Article 8 was not breached. Why?

Underhill LJ, in considering Aksu, assumed that the author of the book had in fact described Roma people in the way the appeallant alleged.

He distinguished Aksu and Lewit from Heidi and Aidan’s case on the basis that:

‘the negative stereotype in question applied directly to the group to which the applicant belonged – Roma people and Mauthausen survivors – and their value as members of society was thereby directly impugned.  The present case is different.  Section 1 (1) (d) is not concerned with the group to which the Appellants belong – that is, those born with serious disabilities – and does not explicitly promote any negative stereotype about them: it is concerned only with the unborn.’

In argument, Heidi and Aidan, anticipating this objection, had contended that s. 1(1)(d) sent the message that the lives of those who are in fact born with such a handicap are of lesser value, and accordingly clearly, though implicitly, disseminated a negative stereotype about the living disabled.

Underhill LJ’s response to this was as follows:

‘As I have already said, I accept that the Appellants, and no doubt many other seriously disabled people, genuinely perceive that section 1 (1) (d) sends such a message; and from their perspective I find that perception understandable.  However, that is not the only possible perspective.  Others draw a clear line at the moment of birth and deny that permitting the abortion of a foetus with a serious disability implies anything about the value of the lives of the living disabled.  That point was made explicitly, and with evident sincerity, by those promoting or defending section 1 (1) (d) in the Parliamentary debates: see para. 15 above.  The CEDAW Committee likewise evidently regarded its position as consistent with “not perpetuat[ing] stereotypes towards persons with disabilities”.   The truth is that whether section 1 (1) (d) is perceived as sending any negative message about the living disabled depends on the perspective – itself no doubt reflecting the circumstances and values – of the particular individual.  Its terms cannot be equated with explicit or unequivocal statements of the character of “gypsies are criminals” or “concentration camp survivors behaved like bandits” such as were before the ECtHR in Aksu and Lewit.’

He went on to observe that the perception of the appellants that the present state of the law devalued them ‘cannot itself constitute or evidence such an interference: the interference must derive from something in its terms or its effect which, applying an objective standard, unequivocally conveys that message.  The existence of a legal right cannot depend solely on the subjective perception of the putative victim.’ It would, he said

‘have very undesirable consequences if the perceived implications of a statement or measure, rather than its explicit or otherwise unequivocal meaning, could constitute an interference with Article 8 rights.  Most people belong to groups the membership of which is important to their sense of identity.  Obvious examples apart from the present case are groups defined by gender, ethnicity, religion or sexual identity; but that is far from being an exhaustive list.  It is not uncommon that measures or statements which do not on their face promulgate any negative stereotype about such groups may nevertheless be perceived by their members as having implications which devalue their identity or value: identity issues are notoriously sensitive.  It would have a serious impact on public decision-taking and public debate, including the values of free speech protected by Article 10, if perceptions of that kind were sufficient to constitute an interference with Article 8 rights.’

The Article 14 argument got nowhere, the court finding not only that there was no interference with Article 8, but that s. 1(1)(d) did nothing which directly impacted on the identity or self-worth of disabled persons who have actually been born.

The argument that prevailed, therefore, was John’s argument in my supercilious opening. And Jane’s response – ‘Eh?’ – is surely the only coherent one. For, with the greatest possible respect to the Court of Appeal, the argument is palpable nonsense.

It is obvious that saying that it is legitimate to decide to kill a person or potential person who is innocent of all wrongdoing ‘disseminates a negative stereotype’ – or (let’s call a spade a spade) to say that someone is better off dead disseminates that stereotype. It is obvious too that saying this is significantly more negative than the denigration of Roma people and holocaust survivors referred to in Aksu and Lewit. The fact that the statute is not the only source of a negative stereotype is neither here nor there.

 Does the fact that the statute deals with a disabled fetus rather than a born disabled person lessen the negative impact on the born disabled person? Of course not.

The English law distinguishes for various purposes between born persons and embryos and fetuses in utero. That distinction is reflected in Strasbourg jurisprudence too: see Vo v France.  The law is reluctant to accord non-born persons the legal and ethical status of born persons – a reluctance based primarily on the desire to protect the law relating to abortion and embryo manipulation. For the purposes of this post I do not take issue with that distinction in those contexts. But the distinction has no logical place in cases such as Heidi’s and Aidan’s which relate to the effect on born humans of statements about unborn humans. One does not have to assume anything at all about the legal personhood of a fetus in order to make a statement about a characteristic of that fetus which is profoundly and forseeably hurtful to a born human.

Underhill LJ’s assertion that ‘The existence of a legal right cannot depend solely on the subjective perception of the putative victim’ is, in this context, misconceived. Heidi and Aidan’s legal right under Article 8 (which, on proper analysis, I am sure they possess) does not depend on their subjective perception, but on the only possible, and entirely objective, understanding of the message resulting from the statutory position that Down’s syndrome fetuses can be aborted up until term.

Suppose that Parliament passed a law saying that a fetus could be aborted until term solely on the grounds of being female. Or gay. It is inconceivable that this would not be regarded as in breach of Article 8 on the grounds of offence to born females/gay persons. What we see in Heidi and Aidan’s case is yet another example of the law of abortion being subject to special rules of construction which do not apply in other domains of law (the law relating to consent to treatment is another example of a domain where abortion is treated differently).

What should be done? Heidi and Aidan have indicated their intention to pursue their case in the UK Supreme Court and, if necessary, in Strasbourg. We will have to see what comes of that. But were the issue to find itself before the UK Parliament, by whatever route, a good first step (though it would not deal with Heidi and Aidan’s primary concern), would be to say that abortion for disability should not be permitted beyond the time limit for other abortions – 24 weeks gestation. There can be few disabilities thought to justify abortion which are diagnosed so late that abortion is not possible within that time limit. Were the law to be changed along those lines it would at least remove one small element of the offence to disabled people embedded in the existing law.

Acknowledgment

I am grateful to Heloise Robinson for her thoughts.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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17 Responses to Abortion in Wonderland

  • Paul D. Van Pelt says:

    Interesting account. I do not know if any case having such a fact pattern has been heard in the United States or is under consideration. Having been away from a civil rights/paralegal career for over a dozen years, and not keeping up with change(s) in disability legislation, I could not address those matters. The last law I had working knowledge of is/was the Americans with Disabilities Act of 1990. At my retirement, in 2008, there had been no case that I knew of which paralleled this one. From 1990 forward, there was a strong advocacy for persons with disabilities in my home state. I cannot say how true that may have been elsewhere. United States Code is very different to English law, and I can only suspect that in this (formerly) sensitive area, America’s legal approach would be likely to err on the side of caution. Having suspected this, I also need to recognize that respect for persons with disabilities seems to have eroded here. Designated parking spaces for persons with disabilities are repeatedly occupied by unauthorized vehicles. The unspoken claim appears to be: if you are a person with a disability, you ought not to be driving anyway.

  • Ian says:

    Which wrongs need righting? If there is any answer to that, then relative ethics exists, because, often, a wrong becomes seen as a right. Approaching the same question from a logical perspective and multiple conclusion logic can put in an appearance, or appear more complete in its existence.

    It as seems eminently plausible that if a freedom of choice may only exist where values which effect the choices made are openly and consciously recognized during any decision process then multiplicity necessarily exists. If that is not so then freedom is significantly eroded or disappears as the main driver becomes limited within the accepted yet unacknowledged value set.

    To introduce the full point to be made it is necessary to look at apparently predominant cultural attachments within the UK and the long standing irrational paradoxes which become visible. Those cultural paradoxes are often highlighted by the debates on this list.
    One of those is the difficulties of educational attainment. Many question how there can be any attainment if a hierarchy of different educational levels is not created, this is considered irrespective of the needs of the social group (for the legal case that would be the nation state) in question, and is driven by a need to measure. Given that any social group itself has innate needs if it is to survive and prosper, those needs often require a broad suppression of educational attainment in order to meet structural social requirements (irrespective of which part of the political divide – or even a complete consensus – those requirements arise from). This would also include educational situations (educational institutions (as social group) requirements) where students may require informing about their own decisions (sometimes effectively making it for them by the method of, or mere presentation of, particular knowledge), because they have not themselves found a sufficient knowledge set to individually make the right decision).

    Such paradoxes of freedom become illustrated in the current ongoing (social) conversations on life and death (abortion/assisted suicide/intellectual attainments) and how free choice by the individuals who are concerned may be maintained or controlled (depending upon point of view).

    The ongoing inequities involved in the abortion debate this particular thread is focused upon illustrate this quite well. Morality is concerned with life (not necessarily limited to human life, but it frequently is). The various laws covering this particular area mainly become limited to human life, and its value to the social group (the nation state, in this case the UK). A required logic of interpretation often demands clear points to exist in legal cases, but the finding in this case has probably muddied the waters because as reported in various media, it allows child destruction to take place up until an imprecise moment – the time of birth. The definitions for the time of birth appear to rotate around the sustainability of independent life. Apparently in these cases and that sense, up until the time the umbilical cord is cut and/or the fetus breaths on its own abortion would appear to be legally acceptable. Many moral worldviews will baulk most strongly at such a thing, yet there it appears. The life in question for these cases becomes perceived as less socially valuable, which is what the presented case, as reported in the media, appeared to be attempting to achieve a clear focus upon (infanticide). The perspective applied in this aligns with the articles challenge to Underhill LJ’s assertion.

    The meaning applied to the word value in the conceptual statements are formative of the espoused views in the case and debate, each applied meaning creating radically different perspectives. Is life valued or does life have value. Individuals often say they value life. It should be of no surprise that social groups frequently then merely reflect the words a majority of individuals say without necessarily being cognizant of the change in meaning applied to the word value in its transfer to a social setting, and of even less surprise that many social group focused worldviews about the value of life gravitate around the various social meanings applied to value purely as a measure.
    For the sake of maintaining a clear contrast, the freedom of choice for expectant mothers has been deliberately avoided when constructing this.

    Bringing that all together and a portion of a very broad cultural/moral paradox becomes visible where using the control of any truthful moral rectitude to delay social progress which could allow more broadly based outcomes, rather than a short term fixing of attention, is seen as a simple answer. Or maybe being viewed as the rigidity of regulation revealing flexibility or change is required.

  • discern says:

    Charles Foster wrote: “It is obvious that saying that someone is better off dead ‘disseminates a negative stereotype’.”

    Where in the Court of Appeal’s recent decision is a “better off dead” claim made? A choice to abort a fetus with certain properties can be made based on reasons separate from any “better off dead” claim.

    • Paul D. Van Pelt says:

      The better off dead assessment does not need to be attributed to Foster. Or, the English court, itself, which may be flawed in its’ judgment. If you follow this blog topic, as I imagine you will, you may note my remark on eugenics, and, if you are experienced enough, may connect the dots or follow the bread crumbs. As to my reference to Eric$ moralometer, see his blog, the Splintered Mind. Discernment is a beautiful thing.

  • Paul D. Van Pelt says:

    I read the post and other comments so far again. After consideration, I decided to bring up a subject from past dark territory. If I don’t, someone else surely (ding!) Will. This story revives old controversy. I am referring to eugenics. Until reading this post, one—this one—would not have envisioned a resurrection. But, with the topic being what it is, it seems pertinent to examine history. Another blogger has introduced the notion of a moralometer.
    I remade some remarks about that on his comments site. This story suggests we may need this device, sooner than later. However, as with other related difficulties attending AI research and prospects, the likelihood of a workable model appears remote. Dark territory. Indeed.

  • Charles Foster says:

    Discern: thank you for your observation. The Court of Appeal does not say that a person with Down’s syndrome is ‘better off dead’, but the rationale of permitting abortion for Down’s Syndrome can be summarised as: taking all considerations into account (including maternal and other familial wishes and the perceived burden on society of a person with Down’s syndrome) the death of a fetus with Down’s syndrome is morally and legally justifiable. And accordingly that in a specific case where abortion has been chosen, the balance of interests lies in favour of the non-existence of that person or potential person. I’d have thought that it’s pretty uncontroversial to say that that assertion ‘disseminates a negative stereotype’ – and does so to a greater degree than the denigration discussed in the cases of Aksu and Lewit.

  • discern says:

    Charles Foster: First if, as you now say, the “The Court of Appeal does not say that a person with Down’s syndrome is ‘better off dead’” then I suggest you edit your post to make that very clear. Otherwise your text comes across as misrepresenting the content of the decision.

    Second, you now formulate a candidate intepretation of the decision’s rationale. I doubt that it is the best interpretation. But even if it was the best interpretation I would still not agree that such an assertion disseminates a negative stereotype. I think most abortion decisions aren’t primarily about the child that may come to exist per se but rather about how the prospective parent sees their own future playing out and if a future as a parent is what the person on reflection wants, in the particular circumstances they’re in. I think there are many acceptable reasons for a particular person to not become a parent at all, or at some particular time, or in the face of prospects for a future parenthood that perhaps would be different from what the person earlier had anticipated. I think abortion in all such cases is acceptable, it is up to the person to decide.

    • Discern: thank you once more. I don’t think that the sense of the original post was remotely unclear, but have spelt out the point even more explicitly.
      You say: ‘I think most abortion decisions aren’t primarily about the child that may come to exist per se but rather about how the prospective parent sees their own future playing out and if a future as a parent is what the person on reflection wants, in the particular circumstances they’re in.’ This is obviously true, but beside the point. If someone’s wishes about their own future can result in a death, that necessarily means that the life of the person killed is considered less weighty than the wishes. Whether that conclusion is right or wrong, it means that the life is denigrated – that a negative stereotype is promulgated. Or a stereotype that is negative at least relative to the wishes of the parent(s).

      • discern says:

        Charles Foster: “If someone’s wishes about their own future can result in a death, that necessarily means that the life of the person killed is considered less weighty than the wishes. Whether that conclusion is right or wrong, it means that the life is denigrated – that a negative stereotype is promulgated.”

        I reject several of your claims there.
        1. Abortion is not killing a person, since no fetus has developed the cognitive capacities necessary for personhood.
        2. Aborting a fetus is not a denigration of life nor a negative stereotype promulgation.

        What’s more, notice how the claims you’re now making no longer involves Down’s in particular. You appear to now claim that all abortions (actions that “result in a death”) are wrong because (purportedly) denigrating and stereotype promulgating. That’s quite different from where you started.

        • Discern: thank you.
          Re your point 1: It is, of course, far from universally agreed that ‘cognitive capacities’ are necessary for personhood. If for some reason you’re interested in my views on this, they are set out in detail in a book by me and Jonathan Herring: ‘Identity, Personhood and the Law’: Springer, 2017. For what it’s worth, I would regard killing someone in PVS as the killing of a person. And I suspect that most people would agree that killing a person in PVS was morally significant, even if they wouldn’t ground that significance in an account of personhood. But in any event you’ll see that I make my point in this post by reference to persons and potential persons.
          Re your point 2: Well, we’ve discussed that.
          Re your point 3: Yes, very obviously these observations relate to conditions other than Down’s Syndrome. They don’t necessarily (though they may tend to) call into question the practice of abortion per se. You’d have to do a good deal more work to make the argument do that. The post was concerned, as was the Court of Appeal, with the question of discrimination. A fetus with a condition such as Down’s Syndrome can be aborted to term. A fetus without such a condition cannot. The difference is striking. And strikingly offensive to people with Down’s Syndrome and other ‘disabilities’ that are thought to justify late term abortion.

          • discern says:

            Charles Foster:
            1. “It is, of course, far from universally agreed that ‘cognitive capacities’ are necessary for personhood.”

            If you think there is no such universal agreement then you shouldn’t, by your own standards, assert that a certain moral claim is “obvious” when that claim in fact (a) relies on another such far from universally agreed on personhood account and (b) would not be true if that personhood account turned out to be false. But that’s what you do.

            As your book I think your text and comments here show basic flaws in reasoning and lack in providing anything close to sufficient arguments for the strong claims made and I take this as some evidence that your book is not worth reading.

            “But in any event you’ll see that I make my point in this post by reference to persons and potential persons.”

            You didn’t originally. You edited in a mention of potential persons after I pointed out the problems with the “better of dead” sentence, which you’ve now removed. (When editing a published text in the face of feedback it is common practice to acknowledge the changes in a footnote.) Merely using the word “potential persons” is also not an argument. You now mention PVS cases and analogies from such cases to others is an interesting line of argument much discussed in the bioethics literature. If you want to try a particular such line of argument, and reply to others, then go ahead, but that’s not what you’ve done in this text.

            2. As I see it you merely asserting “denigration!” without any argument several times is not really a discussion.

            3. “Yes, very obviously these observations relate to conditions other than Down’s Syndrome. They don’t necessarily (though they may tend to) call into question the practice of abortion per se. You’d have to do a good deal more work to make the argument do that.”

            That doesn’t make sense. You on the one hand seem to hold a super relaxed standard when it comes to handing yourself the conclusion that abortion is wrongful discrimination in the Down’s case but, on the other hand say “a good deal more work” is needed to conclude anything about other abortion cases. That’s inconsistent, since the attempt at argument you’ve provided for the former, namely the sentenced in the comments that started with “If someone’s wishes about their own future can result in a death …”, has no premise that involves Down’s in particular and applies (if it were a sound argument) equally to all cases of abortion.

            “A fetus with a condition such as Down’s Syndrome can be aborted to term. A fetus without such a condition cannot.”

            But again the argument you did provide in the comments made no appeal to that difference. Furthermore that difference in time span for allowed abortions is by your own account not the big problem here, since you in the text say it is only “one small element of the offence”.

  • Paul D. Van Pelt says:

    For everyone commenting here, and most especially for the originator of this post. The foundation of the blog is Practical Ethics. If I read it right. So, 1. Rather than pontificate on a legal finding—those are, as we well know—flawed; Do we need to focus elsewhere? 2. My allusion to eugenics appears to have fallen short, ergo, useless. 3. If what I have alleged about interests, preferences and motives is right, morality and ethics are meaningless ,when we think about the utilitarian greater good…defective humans should not be born, and, fetal development, as a practical matter, is not human life—yet.
    All of this speculation on my part is only a follow-up to what I have been following. Morality and ethics may have, sometime or other, dealt with theoretical absolutes. Insofar as this is NOW, what, then? How many ways can we have it? More than one is wrong—seems to me.

  • Discern: thank you yet again.
    As to your point (1): the original post said: ‘One does not have to assume anything at all about the legal personhood of a fetus in order to make a statement about a characteristic of that fetus which is profoundly and forseeably hurtful to a born human.’ In my response to you I indicated, in an attempt to make the issue clearer, that in the domain of PVS one might see the patient as having moral significance without having recourse to the notion of personhood. The post and the associated comments are not intended to be an exhaustive treatise on the issue of personhood. Or abortion. Or PVS.
    As to (2): I think it is sufficiently obvious to most readers what is meant by denigration for them to follow the argument. It was certainly clear enough to the Court of Appeal, whose reasons for finding that there was no material denigration were crystal clear, if rather curious. You’ve made me more fond than I was before of the ‘better off dead’ formulation, and I’ve put it back. The two ways of expressing the point – one crude and workaday, one more philosophical – come to precisely the same thing.
    As to (3): It is interesting that you concede so readily that my argument (which many find intuitively attractive) should apply without more to the rest of abortion. If, as appears, you are an enthusiastic proponent of abortion, I’d have thought that you’d have wanted to restrict my argument to its own set of facts. You may be right that it cannot be so restricted. I myself would have thought that it is not beyond argument that different considerations apply to an embryo/fetus before 24 weeks of gestation. But the full arguments either for or against that position are well beyond the scope of this or any other mere blog.

    • discern says:

      I see that you haven’t replied to several specific critiques in my previous comment. I’ll then just comment on your newest claims and after that step back and wait until your replies catch up sufficiently.

      After your newest text update you have one section ending with this sentence: “For, with the greatest possible respect to the Court of Appeal, the argument is palpable nonsense.” Then in the next sentence which, given its placement, must be interpreted as an elaboration of why you think the courts argument is nonesense, you say “to say that someone is better off dead disseminates that [negative] stereotype.” The straightforward interpretation of that sentence for a reader is that you there assert that the court does make a “someone is better off dead” claim – since you don’t present it as merely your own interpretation nor give evidence for thinking that is a sound interpretation. Thus you’re back to misrepresenting.

      As for your comment that “different considerations apply to an embryo/fetus before 24 weeks of gestation”: First, if that is your view and if you think it makes a big difference for your argument then your text should be revised to include it. Second, you would then also have to argue for that view. What is it with week 24 that makes a big moral difference with regard to a purported denigration effect on other, already existing individuals compared to abortion in week 23, 22, and so on down?

      “It is interesting that you concede so readily …”

      You seem to think that that counts in your text’s favor, but on the contrary. You thought you had a narrow argument but the text you actually wrote fell short and left you with no good argument for anything at all.

  • Charles Foster says:

    Discern: thank you again.
    Your request is essentially: ‘Abortion ethics and law: Discuss’. To repeat: That is not possible or appropriate in a blog – let alone one dealing with the narrow issue of discrimination. There is a huge amount to say. You’ve previously suggested that my and Jonathan Herring’s book on identity and personhood isn’t worth reading, but should you nonetheless want to know more about what I think more generally about abortion, my publications aren’t hard to find using any of the usual search methods.
    In our discussion it would be helpful to quote me correctly: You say: ‘As for your comment that “different considerations apply to an embryo/fetus before 24 weeks of gestation”’….’ I actually said something very different, which was: ‘I myself would have thought that it is not beyond argument that different considerations apply to an embryo/fetus before 24 weeks of gestation.’

  • discern says:

    “Your request is essentially: ‘Abortion ethics and law: Discuss’. ”

    No, it is a request that you adhere to the intellectually honest norm of not making stronger claims than you’re willing and able to provide sufficient arguments for. You attack with confidence and without qualifications (the court produced “palpable nonsense”! they “say that someone is better off dead”!) but when pressed for arguments you come up mostly empty pockets and deflect with “it’s all so very complicated and uncertain” type of excuses. Bad fit.

    “it would be helpful to quote me correctly”

    Ok, here goes. As for your comment that “I myself would have thought that it is not beyond argument that different considerations apply to an embryo/fetus before 24 weeks of gestation”: First, if that is your view and if you think it makes a big difference for your argument then your text should be revised to include it. Second, you would then also have to argue for that view. What is it with week 24 that makes a big moral difference with regard to a purported denigration effect on other, already existing individuals compared to abortion in week 23, 22, and so on down?

  • Ian says:

    Discern said: What is it with week 24 that makes a big moral difference with regard to a purported denigration effect on other, already existing individuals compared to abortion in week 23, 22, and so on down?
    This appears as a particularly interesting question.
    In the circumstances being discussed the court case is clearly expressing a social group response (interpretation of a regulation) – which historically has been more concerned with the fitness of the group than the niceties of any particular life, or potential life.
    Ignoring the scientific arguments regarding abilities in sustaining embryonic life and looking to a still contentious but less immediately volatile area and the question could be:
    What is it that makes a moral difference with regard to consuming the seed/germinated seed of life forms and consuming the animal flesh of more mature forms of life? Oxford University apparently saw the consumption of animal flesh as ethically uncertain enough to positively promote vegetarian dishes in their restaurants; But have not yet questioned further. The issues contained in that action appear to be just as personally affective as social, because the action taken by the social group reduces individual freedom of choice by increasing social pressures towards achieving a particular goal.
    Responding to Paul, social groups have clearly in the past practised, and continue to practice, actions which amount to eugenics, just as they also use ethnic cleansing and other controls to attain a more simply controllable population.
    The moral question raised by the courts decision in this case appears to me to be of that ilk.
    In a world based view of survival of the fittest, the physically fit are perceived as deserving to survive. The same appears in world based views based upon intellectual fitness, clarity in a specified language, method or mode of communication; as a hierarchy of expectations becomes applied.
    Avoiding this very point by directing attention to the interests of individual parents becomes deceptive when it is the social groups decision to deliberately promote that situation. These things do generate elitism by promoting a particular progression and hence mode of thought in social group and individual even where that may not be an original, or real, intention. If at the time the actions are seen as ethical by the social group, or even moral, then that is a measure of the social groups position within a development cycle, just as it is for individuals. For those who strongly disagree with this assertion look openly and squarely to the wider environment as it affects the discussion regarding only Downs syndrome families and consider the effects on living and emotionally resonant people.

    Late abortion promoted for Down’s syndrome (The use of the word promoted is a considered one, see the social pressures issue applied by the vegetarian menu above.)
    Frequent separation of people with Down’s syndrome within communities
    Forced sterilization for people with Down’s syndrome (or sterilization without full and free consent)
    A genetic fix for Down’s syndrome.

    Each one of these things may be argued to be in the best interest of…. And all together create the restaurant atmosphere referenced above. Being even cruder where are Down’s syndrome people truly situated in the social food chain?

    What could be perceived as an obviously pointed social comment by Landseer in his painting ‘On the downs’ may be partially revealing of the long standing perception of this issue, which UK society continually fails to deal with in a way recognizing the inherent humanity and (where ethical consideration does take broadly based emotions into account as well as logic) consideration for the other. Sadly the evidenced response by UK society over the decades and centuries, is to avoid/ignore or disbar those laws which may support minorities, in ways perceived to be maintaining and improving the social group as a whole. Ergo a broader morality becomes denied as an ethical frame of reference is constructed confirming and supporting what is perceived as being for the greater good of the social group.

    And yet… for the UK, this particular court finding can be easily discerned as out of step with the elucidated level of social development. So is that the result of a high level of cynicism and duplicity or is it reflective of a multiplicity of worldviews. Perceived in this way the UK’s snails pace social progress continues, but mostly within a limiting emotional vacuum (as evidenced by the form of my own observational comments, which whilst not always completely comprehended become measured from a fixed point creating particular reactions.) as the snails shell created by the shorthand of symbolism and metaphor facilitate a defensive perspective which allows the denial or reinterpretation of available evidence.

    Reading Hegel’s conceptions about God illuminates him experiencing a not dissimilar difficulty. He described what may be seen as the warp and weft of the social life being God, or perhaps gods work, a mental defence still seen today. The metaphorical masking by Hegel (or perhaps the blindness of a strong faith) of that insight into a social phenomena created a fixation less likely to allow open and inquisitive inquiry arguably delaying the eventual formation of a social science and probably a firmer faith in the works, of God, or humanity.

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