skepticNot only on abortion, but on virtually all “life” issues – abortion, euthanasia, assisted suicide, et al. – the “pro-life” argument is always at least implicitly founded on the principle that what is at stake is human life. And if the “pro-life” position is persistently examined, one finds that what this position means by the phrase “human life” always involves, explicitly or implicitly, the religious belief that human life means “ensouled” life: the form of life that uniquely merits protection is life which is human in the sense of being uniquely endowed with a (usually eternal) soul. This definition of “human life” has three immediate effects: (1) it begs the question of at what point life becomes human by being endowed with a soul, (2) at what point human life ceases to be human by being deprived of a soul, and (3) the problem of writing into the civil law a “pro-life” ideology on all the life issues – again, not just abortion – that, on its own terms, would be in facial conflict with the “establishment” clause of the First Amendment. Because of point (3) alone, any strict “pro-life” position, translated into civil law, would almost certainly be unconstitutional. So for the “pro-life” movement, appealing to “personhood” – defined as “possessing a soul” — is a constitutional dead-end. For purposes of the “public square”, “personhood” must be defined in non-religious or religiously neutral terms.

o Abortion

Historically, rather than grasp the Tar Baby of souls, “ensoulment”, etc., courts have wisely chosen to deal with the issue in much more prosaic and much less esoteric terms by combining a deference to precedent and a generous reading of the constitutional, especially Fourteenth Amendment, text, especially the “due process” clause, so as to balance off the woman’s liberty interest of a right to privacy, her doctor’s right to practice his profession freely (deriving from earlier cases like Griswold v. Connecticut and Eisenstadt v. Baird), and the state’s no-less-compelling interest in protecting potential human life. (The “potential” adjective is obviously important!) This was certainly true with the “big three” abortion cases: Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey.

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Conspicuous only by its absence is any reference in these and like opinions to souls, “ensoulment”, personhood, etc. In all fairness, it should be explicitly said that this omission does not amount to a denial that such entities exist. Rather the issue is non-justiciability: souls, “ensoulment”, and the “metaphysics” of personhood are not addressable by the rules of constitutional reasoning and evidence. Discourse on such topics properly belongs only on the “Church” side of Mr. Jefferson’s “wall of separation”. So the “pro-life” movement is only shooting itself in the foot by continuing to argue that Roe, Casey, etc. should be overturned because the fetus is “human from the moment of conception,” for that is a judgment that, regardless of its merits as religious doctrine, simply cannot be made on the “State” side of Mr. Jefferson’s “wall”.

o Euthanasia / Assisted suicide

The personhood and “ensoulment” issues are equally questionable as a basis for opposing euthanasia and physician-assisted death (PAD). But in this case, there is the additional possibility of perpetuating useless suffering – which runs counter to virtually all versions of the religious teachings underwriting such opposition, all of which emphasize the value of compassion. This puts an even sharper edge on the “personhood” question. There are three possibilities:

(1)    The dying / terminally ill person is mentally competent (by prevailing legal and psychiatric standards) and is therefore morally autonomous. (Moral autonomy – the capacity to decide issues of right and wrong for oneself, within broad parameters.) If the person is morally autonomous, then she has the right to decide for herself whether or not to terminate her life, and the criteria for making that decision. In states with “death with dignity” laws on the books, this requires that the actual act of euthanasia be carried out by the person herself, not by the direct intervention of a doctor. Even if the dominant religious tradition views suicide as a sin, there is no constitutional justification for imposing this belief on the dying person if that person’s belief is different. In this case, the same personhood argument that is often used against abortion tends to backfire and support the case for euthanasia by physician-assisted death. The concept of personhood is a two-edged sword.

Embryo,_8_cells

(2)    The dying / terminally ill person is not mentally competent and therefore the decision to terminate (or not) devolves upon someone else. The above argument still applies but, in this case, to the person who must decide whether or not to euthanize, hopefully in accordance with the dying person’s last wishes.

(3)    The dying / terminally ill person is not mentally competent by virtue of “brain death”. This is the most difficult case, especially in the absence of a “living will”, because it is ethically almost identical with the case of an unborn child. In particular, approaching the question from the standpoint of “personhood” is equally futile. The lack of a religiously neutral definition of “personhood” at the end of life poses the same problems as the lack of a religiously neutral definition of “personhood” at its beginning.

But, to be strictly fair, I should admit that the lack of a religiously neutral definition of “personhood” entails some consequences that I – no less than even the most ardent “pro-life” people – find distasteful. Say what you will about the ethical work of Prof. Peter Singer, DeCamp Professor of Bioethics at Princeton, he follows his secular, non-theistic premises about human personhood to their utmost conclusions in books like Practical Ethics and Rethinking Life and Death. But especially in the latter, even Singer tacitly flinches from the inevitable conclusion that, given the lack of a “bright line” standard for personhood, anyone’s life can be terminated at any stage of one’s life.

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Hence the following concession, perhaps surprising in that it comes from me: the “life” issues and their requirement for a strict definition of the meaning human personhood constitute the most formidable case yet, “establishment” clause notwithstanding, for (some type of) religious definition of human life.

Skepticism is the chastity of the intellect, and it is shameful to surrender it too soon or to the first comer: there is nobility in preserving it coolly and proudly through long youth, until at last, in the ripeness of instinct and discretion, it can be safely exchanged for fidelity and happiness. — George Santayana

James R. Cowles

Image credits:

5SoulS by MaewRS

DNA molecule and zygote: public domain

8 thoughts on “Life, Death and the “Establishment Clause”

  1. I was going to mention birth control, in that you would *think* that people who are ‘pro-life’ would emphatically be in favor of birth control by protecting a ‘potential life’ from possible abortion later. But, of course, this is usually not the case, as we see by the popularity of the abstinence-only movement. It boggles the mind.

    In addition, if we (as a society) are defining ‘personhood’ as having a soul, then how will the rights of intelligent animal species like chimps, apes, dolphins, whales and elephants (just to name a few) ever become sacrosanct?

    Liked by 1 person

  2. Wouldn’t you think that any “pro-life” legislation would also have to apply to the death penalty, war, corporate-driven poisoning (as in Flint water and other ecologically harmful practices that cost human lives)? There seems to be a lot of inconsistency surrounding the value of human life…without even asking the question of why human life is more valuable than other forms of life.

    Liked by 1 person

    1. Yes … though conservatives have never been renowned for consistency on “life” issues, e.g., supporting the death penalty while opposing abortion & opposing BOTH abortion and birth control. But some people — even including many conservative Roman Catholics — DO get it and advocate a consistent “life” ethic. Frankly, though, from a strictly constitutional standpoint, I am admittedly a little nervous about my own admission, at the end of the column, that SOME kind of religious criterion might be needed to serve as a “bright line” on “life” issues. My nervousness is that someone would seize on a “natural law” religious justification for such a “bright line” and “natural law” ethics has a checkered record, at best, in this regard. E.g., there were “natural law” arguments justifying slavery, women not voting, and child-labor laws.

      Liked by 2 people

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