UDK article on cultural relativism

Originally Titled: Cultural Relativism abandons moral progress
Titled in Print: Ethnocentrism forsakes Morality
University Daily Kansan
March 5, 2003

Anthropology is not my cup of tea. I’ve taken one anthropology course in my time at the University of Kansas and I’m still enrolled in it, but my experience with the course tells me that the discipline is not suited for me.
The instructor warned us in the first few days of class not to come into the course with notions of measuring the African nations that we would study because comparisons were meaningless.
I realized that Anthropology had moved away from its traditional status of chronicling the details of other cultures, to having some sort of ethical fervor behind it. Moral language was used to describe other cultures, and the phrase “It’s right for them,’ was heard on occasion. It is now not only a standard of the field not to criticize other cultures, but a tenet that it is morally wrong to do so.
This is a common view in contemporary American society. Traumatized by accusations that we are cultural imperialists, many academics have embraced the idea that all other cultures are immune to critique and put moral weight behind the idea that each social grouping is just as good as another. The Kansas was even accused of ethnocentrism for a “Tongue in Beak” article recently, for which it apologized.
Underlying the claim that we should not criticize other belief structures is a fundamental world view that all systems of belief are equally valid. This is fallacious reasoning, and it must be rejected. We must reserve the right to use any means, even one as volatile as humor, to critique other cultures.
If we accept that all cultures are equally valid, we are committed to positions that I’d be afraid to see people support. German anti-Semitism in the 1930’s and 1940’s, including Hitler’s “Final Solution,” are merely expressions of a different, yet equally valid, moral code. Some African cultures whose reliance on spirits and witchcraft to heal disease, while rejecting the biological basis of health, result in the deaths of hundreds of thousands, and that’s OK. We could even posit a society that smiles on the practice of serial infant-raping, and we’d be unable to argue against it.
This form of cultural relativism doesn’t allow us to criticize others. It also denies us the ability to criticize ourselves.
When we act as though all beliefs were of equal validity, then we lose the concept of progress. If we cannot compare two contemporaneous societies against each other, then why can we compare them over time? The elimination of slavery on the basis of race becomes simply dry and dusty description, rather than moral progress.
Ethnocentrism is a bad thing. We shouldn’t assume that our own culture is somehow better than another. Argument will be required to show that certain aspects are better if, indeed, they are, and that’s questionable. This position does not entail, though, that we are forbidden to examine the practices of others.
Some people would accuse me of being a cultural imperialist, but note that there have been no claims that American culture is the best in all regards. We had N’Sync, ‘The Bachelor’ television series, and so much advertising that, according to National Geographic Magazine, young children can name more brands of beer than they can U.S. Presidents. And that’s not to mention the state-sponsored terrorism we carry out regularly.
At some point, people need to realize that no one’s beliefs are 100 percent correct, and that everyone, including this author, are fair game for criticism.
Just because we are all fallible doesn’t mean we are all right.

UDK Article on Ninth Circuit Court decision

Originally titled: Unpopular Court Decision Supports Liberty
Titled in Print: Ninth Circuit Court decision makes U.S. seem hypocritical
University Daily Kansan
March 28, 2003

There has been much misunderstanding about a controversial ruling by the 9th U.S. Circuit Court of Appeals. The court ruled that recitation of the Pledge of Allegiance, when led by teachers, was an unconstitutional act. Since that day, the ruling has been misconstrued by the lay public to mean that anytime anyone said the pledge, it was somehow an unconstitutional act. This is not the case.

The United States enjoys freedome of religion because of a small phrase in the Constitution that says, "Congress shall make no law respecting the establishment of religion." This phrase does not mean that Congress is only to avoid establishing a national church. It says that Congress shall do nothing that could be seen as a national endorsement of a particular religious creed.

Does the United States seem to any casual observer to endorse religion? Yes. We may give lip service to the idea that we have freedom of religion, but how free are we?

May courthouses across the United States, including teh Supremem Court, are fighting to keep up large displays of the Ten Commandments, citing them as the basis of our laws - as if we would never have figured out that it was a bad idea to kill one another. But consider Hinduism, a polytheistic religion: when the local government tells you that the laws you live under are based in an ancient document that commands you to have no other God before the God of the Bible, what does that say about your beliefs?

Congress opens with a prayer. "In God we Trust" is printed on our national money. Students were formerly forced to recite the Lord's Prayer and study scripture in public schools. There is nothing wrong with statements of religious beliefs, but to insert them by legislation into the public sphere is to give the government's stamp of approval, or endorsement, to a particular type of religion.

The 9th Circuit Court of Appeals ruled taht, when a teach leads the class in saying the Pledge, you are free not to say it with no mandated school punishment - but you are still not free. Psychological coercion plays a role in what we say and do, from the way we dress to the things we do on Friday nights. Children with minority religious viewpoints who are faced with a school full of peers and choose to refuse saying teh pledge open themselves up for ostracization and isolation. Most young children will choose to compromise their beliefs rather than face teasing and ridicule.

There is no way around it. "Under God" is a religious statement that establishes the existence of a deity and says that said deity is the sole god that watches over us. As a person of a minority religious viewpoint whose people have been persecuted for centuries, including one of the worst cases of religious intolerance in all of Western history, I now what it is like to be looked down on for being different. The pressure to conform, at least in deed, is enormous.

Ruling the phrase "Under God" in the pledge unconsitutional does not diminish the free exercise of anyone's political rights. All people, including me, are free to recite the pledge, the Lord's Prayer or scriptural passages, whenever and wherever they like, including public school buildings. The Constitution only prohibits that the goverment appears to be endorsing what I say while reciting one of those.

To have a government free from endorsement of religion is the only way to preserve the beautiful religious traditions of our country. It is not political correctness run amok; it is the necessity that allows religious persuasion, from Jew to Muslim to Buddhist to Religious Humanist, to practice their religion with the dignity that befits all religious practices. By taking this unpopular position, I, at least, will support "liberty and justice for all."

M.D.

Thesis for course on Indigenous People's Law

At What Price?:
Resistance to bioprospecting in cell lines derived from indigenous populations and the human cost of inaction




M. D.
Thesis: Law of Indigenous Peoples
Professor A. O., 04/24/07




“We’ve discovered the secret of life.”[1]
--Francis Crick, co-discoverer of the DNA molecule, February 28, 1953


I. INTRODUCTION

Since the discovery of DNA in 1953, genetics has been the frontier of medical research, and the locus from which hope could spring eternal for millions of desperate people. In the intervening half-century between its discovery and today, the biological text of humanity has slowly, but surely, revealed to researchers its secrets. So much of our DNA is understood that, as humanity marches through the beginnings of the twenty-first century, we are in a unique position to alter our very natures.[2] That such advances herald the dawning of a new era of medicine is certain. That such a new era spells relief for present and future sufferers of a whole range of diseases that have genetic bases is also certain.[3] What is uncertain is the extent to which humankind is willing to sacrifice certain values to achieve these ends.[4]

The cultural battles between those advocating the responsible use of scientific advances in genetics and those advocating a moratorium on the use of such new technologies has a storied history. Genetically altered plants and animals, human-created bacterial species, the use of embryonic stem cells, therapeutic cloning, and assisted reproductive technologies have all been met with popular resistance. This policy disagreement concerning the appropriate uses of scientific knowledge and technology has also taken shape in an arena less well known than those mentioned above: bioprospecting.[5]

Bioprospecting[6] is objected to on numerous grounds by indigenous communities around the globe, for a variety of reasons which will be explored in this paper. This article will focus on the harvesting and acquisition of cell lines derived from the genetic material of indigenous communities – a practice which has garnered strong opposition – and will chart some of the obstacles that the international community has placed in the path of researchers seeking to pursue scientific work in this arena. It is the contention of this paper that barriers erected against bioprospecting by indigenous groups, states, and international organizations violate fundamental human rights, and that this resistance to bioprospecting must end.

The truth of this conclusion will be shown in the following sections. Part II of this paper will give a brief sketch of the main arguments presented both by scientists and indigenous people regarding the practice of bioprospecting. Following these arguments, parts III and IV of this article will attempt to explain why positive application of international instruments in this arena yields little fruit. Part V clearly explicates the difficulty with applying extant international instruments to this issue, and provides an analytical framework for determining whether bioprospecting should be allowed or prohibited. Finally, Part V will also utilize this analytical framework and explain how to navigate this ambiguous legal landscape by charting an argument sounding in international law and natural law which should serve to remove the current barriers to research.

II. BACKGROUND: Scientific Interest and Indigenous Objections

A. Scientific interest in the genetic resources of indigenous communities

Scientific researchers are highly interested in the untapped sources of knowledge and genetic potential of indigenous communities. Investigations into their pharmacological understandings of the plants and animals around them have produced results that are astonishing, both for their utility and profitability. It would be warranted to suggest that these scientific and medical researchers have only scratched the surface of what indigenous communities can teach us with their less-advanced chemical and pharmaceutical understandings. Among the results produced so far are examples like the following:

Quinine, a chemical used to cure cases of malaria, was discovered from the medical lore of Andean natives.[7] This drug has been successfully used to combat rising death tolls due to malarial parasitic infections, in large part due to the declining usefulness of previous anti-malarial drugs.[8] A plant native to Madagascar, the rosy periwinkle, contains a chemical found to effectively combat certain types of cancer,[9] an important find for those suffering from cancer.[10] Indigenous communities in India have used parts of the neem tree as a natural insecticide, and the juice from the tree has been successfully used to treat scabies and other skin disorders.[11] Ethiopian tribes revealed to Western pharmaceutical companies the productive uses of the endod berry, and it has been used to treat certain parasitic infections as well as creating a crustacean-killing agent which may end the zebra mussel invasion which threatens the marine ecosystems of the Great Lakes.[12] A pair of African plants produces a sweetening agent thousands of times sweeter than sugar, but which is calorie-free,[13] holding a potential key for lowering obesity. Dozens of other significant advances, including disease resistances for staple crops and plants that produce natural insecticides,[14] have been discovered in the farming and medical lore of indigenous peoples.[15]

Examining the genetic material of peoples native to indigenous communities is a newer form of bioprospecting, and so discoveries in this arena are not yet as prevalent. Nonetheless, significant findings from this type of research have offered substantial hope for the future of research on the genetic diversity of the human species. A particularly noteworthy discovery was the finding that a part of the genetic code of members of a Papua New Guinean tribe might be able to confer a natural resistance to adult leukemia,[16] a finding that should cause hope for future generations.[17]

While the entirety of the human genotype is of interest to researchers seeking to understand and combat disease, the genetic material of indigenous communities possesses unique and special properties which allow specialized types of research that are not able to be carried out with genetic material from dominant populations. Both random and non-random mutations (both beneficial and deleterious) alter DNA between generations, and in the absence of selection pressures which eliminate members of a population the population will undergo what is known as genetic drift.[18] Smaller populations are more prone to this effect than are larger populations.[19] Further, indigenous communities are more likely to have genetic differences from dominant, larger populations due to their isolation – something known as the “founder effect.”[20] These two factors have created in indigenous people a genetic code different from that of dominant groups, allowing for useful comparative study. In short, indigenous communities, because of their size and usual genetic isolation, are tailor-made for genetic research concerning the genetic bases of diseases. Because of this unique utility, self-replicating cell-lines[21] derived from this genetic material possess nearly unparalleled research potential.

B. Objections of indigenous communities to cell-line bioprospecting

There are numerous objections that indigenous communities level at the practice of bioprospecting, ranging from the plausible (difficulty in identifying the purposes of researchers after DNA has been sent to cell banks that lend material to researchers across the globe) to the highly unlikely and far-fetched (forced sterilization for those carrying particular genes, and genetically targeted bio-warfare).[22] This article will not attempt to deal with every objection made against cell-line bioprospecting, but ink spilled to recognize some of the more plausible objections is not ink wasted. These arguments range from the inadequacy of compensation for genetic materials harvested from individuals in indigenous communities to broad denunciations of commodification of the natural world. The different types of arguments appear to be able to be divided into two categories: those which object to the manner in which commodification of the genetic material takes place, and those which object to the commodification of the genetic material itself. Each will be addressed in turn.

Many arguments from the first category of objection (those which object to the manner in which commodification takes place) will merit serious consideration from a Western legal standpoint. Some groups are concerned with the adequacy and reliability of compensation being paid for the harvesting of genetic material. International protocols regarding scientific research involving human subjects requires that the benefits to the subject at least equal the risk to the research subject.[23] Typically, since the beneficiaries of the research are not specifically the indigenous people of the community, researchers offer other benefits as an incentive to participate in the research – short-term medical attention, technology transfer, training opportunities for students, or promises of royalties for any commercial products developed from the research.[24] For an indigenous community to accurately track the resultant commercial applications of research on an international scale to watch for violations of a royalty agreement is surely difficult.[25] Finding a way to gain redress for violated agreements can be difficult, and frequently monetary damages are the only available remedy – a frequently unsatisfactory result for some groups.[26]

A second argument advanced against cell-line bioprospecting by indigenous communities relates to the overall balance of benefits created by research on their genetics. Having experience with bioprospecting in other areas (such as those listed above in Part II.A), indigenous communities realize that some of their knowledge has created vast amounts of wealth for Western companies,[27] while yielding very small accretions to wealth for the indigenous communities themselves.
This first category of arguments is quite cogent. Unless paid for participation in research in advance, finding remedies for breaches of participation agreements can be a time-consuming and expensive process. Even when agreements are made and upheld, hindsight can frequently cause indigenous communities to feel as if they have been taken advantage of in the negotiation process, due to the relative paucity of their compensation. These arguments are parsed in typically Western understandings of commercialization and capitalism, and are easily grasped.
The second category of arguments objects to cell-line bioprospecting itself (as opposed to the first category which objects to the processes by which commodification takes place). As a result of these arguments’ metaphysical and ontological natures that do not have close parallels in traditional Western thought, these arguments are frequently more difficult for Western audiences to understand. Nonetheless, these arguments are just as important and serious to consider as those from the first category.

To some indigenous cultures, the human body (and parts thereof – blood, hair, etc.) is sacred.[28] To invade the body in the name of research, or to take samples of hair or blood (common ways to obtain DNA for cell-cultures), is seen as a violation of ethical principles of the highest order. Apart from the harvesting of these materials, the use of these materials can be just as affronting to tribal sensibilities.[29] Creating cell-lines (which, absent outside negative intervention, are able to self-replicate forever) is akin to creating immortality. Introducing genetic material from one organism into another (the ultimate hope with regard to genetic engineering)[30] could violate the sanctity of the holistic nature of living things.[31] These concerns are warranted and worrisome for those indigenous peoples who highly value that which is natural.

Other groups find themselves at odds with genetic science altogether, in light of the mechanistic view the science takes of living organisms.[32] By viewing the living organism as an input/output device (change the DNA sequence, observe the result for changes), scientists might be endangering the delicate balance of nature. If living things are viewed as interrelated with everything else in an environment, the existence of ‘ripple’ effects from tampering with one part of an environment might occur.[33]

Absent traditional European concepts of individualized property ownership, some indigenous communities find the concept of alienating their genetic material to be foreign,[34] meaning that ‘consent’ obtained from individuals for their participation may not be fully informed. Some groups do not hold the concept of alienability of knowledge or genetic material to be a matter of individual consent, and require group consent to such transferals.[35] Some object to the transfer of some types of knowledge or material altogether because the ‘ownership’ of such things carries concomitant obligations and duties.[36]

In some cases, DNA samples are able to be collected from deceased (even long-deceased) individuals.[37] To some native groups, though, this represents an unconscionable violation of the sanctity of their ancestors.[38] While there are no reports of researchers taking DNA from dead individuals covertly, the case of the Kennewick Man presents an apt example from which to understand this objection. In 1996, a skeleton was found along the shores of the Columbia River in the State of Washington.[39] Scientists estimated the skeleton to be more than 9,000 years old (meaning that this individual inhabited the Pacific Northwest at the earliest part of human habitation of the North American continent).[40] The condition and age of the skeleton provided scientists and forensic anthropologists with unrivaled research possibilities that might further understanding of the natures and types of people who crossed the Bering land bridge.[41] Native American tribes in the region demanded that the skeleton be buried immediately without further scientific investigation, and found the idea of any such investigation to be a profoundly offensive intrusion into the peace and sanctity of their ancestors.[42]

III. CURRENT INTERNATIONAL LAW AGAINST BIOPROSPECTING

International law is not silent on the matter of bioprospecting, but it is quiet. While not addressing the issue explicitly, numerous international instruments have language which might bear upon the practice. Even if the international community hasn’t reached a unanimous consensus on the practice, academics and legal scholars whose voices resonate in international legal circles have made their position on the issue to be fairly clear.[43] Indeed, such is the overwhelming crush of scholarly articles against the practice of bioprospecting that a search of the relevant literature revealed no articles which appears to be a forward defense of the acts of bioprospectors, and only a handful which approach the position indirectly.[44]

International agreements are binding on states party to the agreement.[45] Even if a State refuses to ratify a particular international agreement, if acceptance of the international instrument (or provisions thereof) become the practice of the international community, the obligations of the instrument or provision can rise to the level of jus cogens – an international obligation arising from customary law.[46] The United States and the countries of Western Europe have, nearly without exception, ratified the international instruments herein discussed, and so should be considered bound by their terms on the international stage.

Among the many international instruments which impose obligations upon States signatory to the instrument, an international human rights scholar can locate documents of a specialized nature, aimed at particular situations and contexts, and documents of a more generalized nature which lay out broad organizing principles meant to guide all nations in their interactions with people everywhere. Two main generalized treaty documents bear upon the obligations of Western nations to indigenous communities: The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Each instrument has been signed by the United States (though with some reservations). Several other documents also bear upon the future potential of cell-line bioprospecting, but in each case so examined, the rights enumerated in the treaty instruments significantly overlap the rights discussed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Due to this overlap, the balance of discussion will focus on these two documents.

The Universal Declaration of Human Rights provides that human beings are born “free and equal in dignity and rights,” and that this dignity and the rights in the document are applicable to all people “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.”[47] Among the rights guaranteed by the Universal Declaration of Human Rights is the right to the “realization… of the economic, social and cultural rights indispensable for [his or her] dignity and the free development of [his or her] personality.”[48] It does not take any superb feat of legal legerdemain to argue that an indigenous community whose worldview, religion, and philosophy are threatened by biological research should be protected from such research in order to allow members of the indigenous community the ability to realize the “economic, social and cultural” rights that are necessary to develop their personalities within their particular social contexts.

The International Covenant on Civil and Political Rights[49] grants to all people under the jurisdiction of signatory states rights against medical experimentation without ‘free consent,’[50] and protects the right to the “inherent dignity” of humans.[51] The former right (against medical experimentation without consent) may have profound implications in the duties of field researchers to engage in substantial explanations about the nature of genetic materials, the uses to which they may be put, and commercial applications which may result from their research (or in some cases, even from the research of unaffiliated third-parties, if the material is to be sent to a DNA bank with lending rights). To the extent that one is persuaded that bioprospecting threatens the dignity of human persons, the latter rights of dignity will sound strongly against engaging in such research. The International Covenant on Civil and Political Rights begins its first substantive provision with a strong recognition of the right to self-determination for “all peoples” and their corollary right to “freely pursue their economic, social, and cultural development.”[52] Such a statement can be read as a ringing endorsement of the rights of indigenous communities (among others) to keep themselves free from outside intrusions which offend the precepts of their cultural and social institutions.

IV. CURRENT INTERNATIONAL LAW IN FAVOR OF BIOPROSPECTING

As mentioned above, international law is silent as to a direct condemnation or allowance regarding bioprospecting research practices. Just as one can find support for the objections of indigenous communities in international law, so too can one find support for the position of the bioprospectors who seek to engage in the genetic research at issue. Indeed, the selfsame instruments used above which seemed to be open avenues by which researchers could be barred from harvesting genetic material from indigenous communities contain language which just as easily can be construed to allow bioprospecting activities. Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights can be read in broad support of the underlying goals and methodologies of medical and scientific researchers.

Human cell-line bioprospecting research is largely confined to research on the genetic components of disease and disease resistance.[53] Ultimately the expected benefits from such research are large and should not be dismissed lightly. In Part II.A of this article, it was noted that bioprospecting had yielded a cell-line from a Papua New Guinea tribe which could confer resistance to adult leukemia. The significance of that finding may not be fully apparent without the relevant statistical context in which to place it. Over the years 1998-2003, the World Health Organization estimates that roughly 1,572,000 people died from leukemia.[54] With an average of about 262 thousand deaths per year due to leukemia worldwide, it is not surprising that researchers jump at the possibility to experiment with a new potent tool to stem the tide of human lives devastated by disease.

Leukemia is just one of the new medical advances which might be impacted by cell-line bioprospecting. Other forms of cancer, bacterial infections, and birth defects that lead to lifelong disabilities are among the diseases which may be fought with these new technologies. Even our understanding of a disease process as simple as asthma has been given new life by cell-line technology from isolated populations.[55] The broad implications of these new technologies places another right – the right to life - in direct conflict with the rights of culture and development discussed in Part III above.

The Universal Declaration of Human Rights, in its first substantive provision declares that “everyone has the right to life.”[56] While the Universal Declaration of Human Rights does not take pains to explicate the content of this right, the International Covenant on Civil and Political Rights does so quite clearly. The Covenant provides that everyone has “the inherent right to life.”[57] The article further states that “This right shall be protected by law.”[58] While at first glance, the totality of article 6 would seem to confine the right to life to instances of state-sponsored violence and the death penalty,[59] the General Comment No. 6, which provides a more in-depth understanding of the article of the International Covenant on Civil and Political Rights suggests a vastly different reading is appropriate.[60]

The commentary concerning the meaning and scope of the right to life is instructive. The narrow reading which might be inferred from a reading of the face of the document is flatly contradicted by the commentary which ascribes to the right the broadest of meanings.[61] The Office of the High Commissioner for Human Rights indicates in the commentary that the right “is a right which should not be interpreted narrowly.”[62] Moreover, “the Committee has noted that the right to life has been too narrowly interpreted.”[63] The commentary proceeds to explain that the right to life is more than the right to have the States party to the document not kill you arbitrarily. Rather, the protection of the right requires that the States party to the document “adopt positive measures” to fulfill their obligations to protect life.[64] This right extends beyond criminal and war-time contexts, and should be read to require States to “take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.”[65] (emphasis added)
That such a right is far-reaching in its implications is certain. Further, these far-reaching policy ramifications are placed in a hierarchy by the International Covenant on Civil and Political Rights. Article 4 of the Covenant allows for States to derogate from their responsibilities under the treaty in times of public emergency, provided that such derogations are not made solely for the purpose of discriminating against an enumerated list of social cleavages, like race or religion.[66] Despite allowing derogations of rights that most people would intuit as being sacrosanct,[67] the article continues on to note that absolutely no derogation (even during time of public emergency) is permitted for the right to life contained in article 6.[68] Aside from the few other rights excepted from the allowance for derogation (with which it is an equal), the right to life contained in Article 6 is in the highest echelon of international human rights under the International Covenant on Civil and Political Rights.

That the right to life should be found to be more important than other rights should not be surprising. Having the right to enjoy one’s culture or be free from arbitrary imprisonment rings hollow and futile if one is not protected in having a right to keep living. Continued existence is, after all, a necessary prerequisite to the enjoyment of all other rights.

Since States are required to enact positive law which protects life (particularly in a medical context) the existence of State barriers to medical research which could save millions of lives appears to be a violation of the obligations imposed upon a signatory State by the International Covenant on Civil and Political Rights. This reading of the Covenant is not unique to this author’s work. Other scholars have noted the expansive reading which is to be given to the Article 6 right to life found in the Covenant.[69]

V. HUMAN RIGHTS CONFLICTS AND RESOLUTION

As much as scholars, legal practitioners, and human rights workers might wish it to be otherwise, it is simply not possible to fulfill all human rights obligations to all people, all the time. In the case of aspirational goals (such as those contained in the International Covenant on Economic, Social, and Cultural Rights which provides a human right to food),[70] States party to the instrument need only satisfy the obligations to the best of their ability. Even in cases where States have the power to unambiguously fulfill their international agreements by vindicating the human rights of people in a legislative body or judicial tribunal, it must be recognized that in many situations, vindicating a human right for one party may mean violating a human right of another party.[71]

Situations where human rights can come into conflict abound. For instance, the act of quarantining people who are ill when fear exists as to the communicability of the illness, is an act seriously injurious to the human rights possessed by those quarantined. Rights of free travel and rights against government detention without charges are damaged or lost outright, and to add to the injustice of the rights-taking (from the injured party’s perspective), the rights were lost through no bad actions of the harmed party. Nonetheless, the rights-taking is done for the noblest of reasons – to vindicate the human rights to safety, security, and health of population members who are not ill.[72]

This conflict of rights can be even more dramatic in a case such as famine, wherein a number of people’s rights to life may be in direct conflict with the human property rights of someone who owns silos filled with grain.[73] Individuals with identical rights to life may be faced with situations in which there are only enough resources to sustain one of them.[74] In each of the above cases, ultimately a policymaker or judge (presuming the cases appear before a tribunal) must make a hard decision about whose rights should be vindicated and who goes away empty-handed – a particularly difficult decision if the empty-handed party must lose his or her life in the bargain.

There are three main ways in which human rights can come into conflict: Rights can conflict with identical rights held by another. Rights can conflict with different rights held by another. A right can conflict with a different right held by the party having the first right.[75] This conflict, arising out of cell-line bioprospecting, is an example of the second type of conflict. Indigenous communities’ rights to culture, religion, and development are impaired by the introduction into their communities of differing practices they may find offensive to their deeply cherished beliefs. Weighing against these cultural rights are the rights to life for (in just the case of leukemia alone) more than a quarter of a million men, women, and children each year. If the genetics of indigenous communities holds answers relevant to other disease processes (and there is good reason to suspect that their DNA holds such information, see Part II.A), the number may be many hundreds of times higher.

There is no question that a price can be placed on a human life in traditional legal circles. The very act of calculating damages in a wrongful death tort action requires the jury to do precisely that. From a policymaker’s perspective, the price used to judge a human being’s intrinsic worth must be understood and used to make difficult decisions on a daily basis. However, the case of cell-line bioprospecting is not one about putting a price on human life; it is about asking exactly how many human lives would it take to outweigh an indigenous community’s cultural rights and expectations of fair dealing?

International law is a unique legal landscape in which the rule of positive law does not hold complete sway.[76] Over the course of the past century, international law has trended away from a legal positivist understanding of law and embraced natural law concepts – concepts from which the very notion of ‘human’ rights are derived.[77] Unlike the jurisprudence of legal positivism, natural law leaves room for the objective use of pure reason to undergird the inquiry concerning making difficult policy choices.[78] It would not, therefore, be out of place to use ethical discourse to resolve the conflict. Indeed, this is precisely how a policymaker must deal with the case of cell-line bioprospecting from indigenous communities.

That a ‘higher’ law than positive law exists is not a new concept in international law. Following World War II, the victorious Allies sought to hold accountable for their atrocities Nazi officials, soldiers, and leaders.[79] The Nuremberg Trials were the result of this desire, but these judicial tribunals faced a serious legal problem – virtually nothing the Nazis did actually violated any international law or domestic statute.[80] One of the popular defenses brought by Nazi soldiers during these trials (and many others like them) was that they were not breaking the law; rather, they were following the law and their orders from superiors.[81] What law, after all, had they broken? The answer provided by the Allies, and one which still resonates in international law today, was that they had violated natural law.[82] Ultimately, it was argued that all people, everywhere, are responsible to a law higher than that made by political states, and that laws contrary to the ‘higher’ natural law do not hold sway in conferring obligation.[83] At the time, this conclusion was met with deep skepticism and fear.[84] However, intervening years have lessened the opposition to this idea, and now it is the dominant understanding of human rights that the rights are found in the natural law.[85]

The idea that a trans-cultural normative standard can be used to judge the actions of individuals or states has been met with some resistance. The most common arguments presented in the relevant philosophical journals included ideas of moral relativity[86] and emotivism[87]. Apart from a very small number of philosophers, though, these ideas have been analyzed, found lacking, and widely discredited.[88] The concept that trans-cultural standards do not exist has been so thoroughly rebuffed, and is so uncontroversial, as to present the death of these ideas in introductory texts in Ethics.[89] This article will not seek to rehash well-settled principles of other academic works, and will presume that the reader is acquainted with the dominant mode of normative discourse in both academia and lay discourse – moral realism.[90]

This author feels no particular need to address the specific cultural claims of indigenous communities. In many cases, they are clearly false, logically fallacious, or based upon primitive superstition more clearly associated with the bronze-age than with the modern era. In other cases, the cultural beliefs which cause opposition to bioprospecting are only loosely connected to any objective normative standards (such as utilitarian calculus, or categorical ethical systems like Kantianism). The cultural opposition by indigenous groups to bioprospecting need not concern the reader at this juncture, and this article will not attempt to lay out a complete analysis showing such beliefs to be inaccurate representations of the actual state of the moral world. Rather, this article will assume the contrary position for the sake of analysis - that the cultural beliefs of the indigenous groups have merit and that they should be respected. The inquiry being undertaken here, assuming as given the validity of the indigenous cultural beliefs which cause opposition to bioprospecting, is whether bioprospecting should be prohibited or allowed.

Utilitarian calculus clearly demands that all people’s well-being be taken into account equally, and that a policy-maker must seek to cause the greatest possible benefit or cause the least possible harm in his decisions.[91] Since this work assumes that loss of indigenous culture is a harm to be avoided (a position very much in contention elsewhere), the ethical question to be answered then is which harm – the damage to indigenous cultures or the loss of life for those bioprospecting would save – is the greater harm to be avoided.

Ethical prescriptions frequently contain within them the principles which underlie human rights norms – it is after all from these principles, not from the treaties themselves or our recognition of such values, that the rights derive their force and insistence in international law.[92] Why utilitarian values like “national security, public safety, public order, public health, and public morality” may outweigh usual human rights is because these values themselves contain the vindication of human rights for the far greater numbers of people.[93] Our commitment to the objective ethical truths of utilitarian policymaking should see an allowance made for the rights to engage in scientific and medical research that shows such unparalleled promise to save or improve the lives of countless millions of people. That such a position also serves to vindicate one of the highest international rights under the International Covenant on Civil and Political Rights serves only to bolster the claim.[94]

Ultimately, logic demands that life be a higher value than any other moral value. The enjoyment of all other rights, whether rights to practice a religion or to be free to speak one’s mind, is predicated upon continued existence of the self. Without freedom to remain alive, no other right can be guaranteed in any meaningful way. Regardless of the damage to indigenous culture, the lives of many hundreds of thousands of people must outweigh – and must take priority and precedence in an ethical policy-maker’s decision.

This is not to say that it is appropriate to cause any conceivable level of damage to indigenous groups. Recall that the trans-cultural normative standards require that a policy-maker reduce harm to the lowest possible amount.[95] While cultural harms cannot be avoided while protecting life in this context (due to their mutually exclusive application), it is here that the division of anti-bioprospecting arguments proposed in Part II.B of this article (cultural and economic) is most useful. The economic objections to bioprospecting (inadequate compensation, lack of accessible remedial measures, inadequate informed consent to research) are not mutually exclusive with the protection of life which must, by necessity, take precedence over cultural objections. Because the economic objections to bioprospecting can be remedied while still allowing bioprospecting to continue, it is imperative that they be remedied so as to reduce the amount of harm caused by the practice, and it is the urgent hope of this author that the international community address these objections in a timely and clear manner.

This article has not claimed that it will always, and in every case, be appropriate to engage in bioprospecting for indigenous cell-lines. In some cases, evidence may indicate that a given population’s DNA might not be worth the very real costs of collecting it. In other cases, a tribe’s affront at the spoliation of their cherished beliefs may be so great as to outweigh some small benefit expected to be received from harvesting their genetic material. Utilitarian calculus demands that all people’s interests be treated equally, and that the interests of all be taken into account, so it must be conceded that such an instance may certainly occur and that in such an instance the proper legal decisions should uphold the rights of indigenous communities over the rights of those who will die without the indigenous community’s genetic resources. Nonetheless, this author feels no hesitation to observe that when indigenous individuals enter into voluntary arrangements, in exchange for valuable consideration, to supply a medical researcher with cheek swabs, hair samples, or occasionally a blood sample drawn by a highly trained medical professional, that the bargain should be upheld even to the detriment of that person’s beliefs or to the detriment of the beliefs of others, because the damage caused by the inaction of not harvesting the DNA is so great.

VI. CONCLUSION

Genetics is one of the newest and most promising scientific disciplines to impact epidemiology and medicine in the past century. Understanding genetics has already provided scientists and medical researchers with new tools, technologies, and strategies to deal with problems that once seemed intractable. These advances have saved countless lives, increased human life expectancy, and markedly improved the quality of life for the people whose lives these new technologies and medicines have helped, and their families and friends. The potential of genetic material from isolated populations like indigenous communities can be an invaluable resource to help scientists discover new and innovative ways in which to help people live longer and healthier lives.

Harvesting this genetic material, though, can be problematic for indigenous communities with particular beliefs about nature, knowledge, and stewardship for their bodies and their environment. These cultural and spiritual worries are compounded by justified objections concerned with fair dealing and informed consent to the research. These worries are real and should be taken seriously, but do not represent the full measure of bioprospecting’s consequences. Ultimately, human lives are on the line, and no inconsequential number of them are impacted beneficially by the scientific research.

Politics, and decision making in law, is characterized by the necessity of making hard decisions that impact people’s lives, beliefs, and rights in profound and sometimes tragic ways. Whether to allow or prohibit human cell-line bioprospecting from indigenous communities is one such hard decision. Despite the difficulty posed by the dilemma, objective ethical considerations which underlie human rights require that as a general rule, bioprospectors be allowed substantial access to indigenous communities for the benefit of all.


[1] MATT RIDLEY, GENOME 38 (1999).
[2] Id., at 243. Ridley’s pronouncements are worth quoting in full. “As the third millennium dawns, we are
for the first time in a position to edit the text of our genetic code. It is no longer a precious manuscript; it is on disc. We can cut bits out, add bits in, rearrange paragraphs or write over words.”
[3] Id., at 250. Ridley cautions that while gene therapy is still a new science, cancer treatment has never
looked so hopeful – a fact that Ridley lays at the doorstep of genetic science.
[4] Id., at 243.
[5] See generally, Annie O. Wu, Surpassing the Material: The human rights implications of informed consent in bioprospecting cells derived from indigenous people groups, 78 WASH. U. L.Q. 979 (2000); Russel L. Barsh, Pharmacogenomics and Indigenous Peoples: Real Issues and Actors, 11 CARDOZO J. INT’L & COMP. L. 365 (2003-2004).
[6] Bioprospecting, also known as “biocolonialism” and “biopiracy,” refers to the act of researchers using materials, knowledge, and genetic resources from indigenous populations in furtherance of scientific goals. This paper will refrain from using the terms “biocolonialism” and “biopiracy” due to their highly prejudicial connotations, which makes them unsuited for reasonable academic use, particularly in the context of determining the moral permissibility of bioprospecting.
[7] Quinine (C20H24N2O2) is an important find for overall world health. Originally extracted from the bark of the Peruvian cinchona tree, the anti-malarial drug can save many lives. Naomi Roht-Arriaza, Of Seeds and Shamans: The appropriation of the scientific and technical knowledge of indigenous and local communities, 17 MICH. J. INT’L L. 919, 921-22 (1995-1996). This is particularly important discovery because of the prevalence of lethal cases of malaria – more than 3,000 lethal cases just in sub-Saharan African children every day (more than one million children per year). African Medical & Research Foundation, Statement of Objectives, at http://www.amref.org/index.asp?PageID=50&PiaID=1. Worldwide, malaria cases are estimated at 350-500 million (both lethal and non-lethal), and contribute to lower life expectancies and lower qualities of life for those in territories at risk for malaria. World Health Organization, Executive Summary of the World Malaria Report, 2005 at http://rbm.who.int/wmr2005/html/exsummary_en.htm.
[8] World Health Organization, Executive Summary of the World Malaria Report, 2005 at http://rbm.who.int/wmr2005/html/exsummary_en.htm.
[9] See Roht-Arriaza, supra, note 7, at 922.
[10] Malignant cancers were the second leading cause of death in the United States in the year 2000 (the most recent year for which mortality data were found), accounting for more than 550,000 deaths in the United States alone. Nearly one in every four deaths in the United States is due to cancer. Robert N. Anderson, Centers for Disease Control and Prevention: National Vital Statistics Reports, at http://wonder.cdc.gov/wonder/help/populations/bridged- race/NationalVitalStatisticsReportsVol50Number16.pdf
[11] See Roht-Arriaza, supra, note 7, at 922.
[12] Id., at 923.
[13] Id.
[14] These agricultural advances should be of particular interest to the 816,000,000 people who, worldwide, starve to death or die of malnutrition-aided disease each year. UNESCO, What the World Wants: Eliminating Starvation/Feeding Humanity, at http://www.unesco.org/education/tlsf/TLSF/theme_a/mod02/www.worldgame.org/wwwproject/index.shtml
[15] See generally, Roht-Arriaza, supra, note 7.
[16] Id., at 925.
[17] While not a cure for existent cases of leukemia, the potential to prevent adult leukemia should be celebrated. In the year 2000 alone, leukemia caused 21,339 deaths in the United States. World Health Organization, Mortality Database: Tables, at http://www.who.int/healthinfo/morttables/en/index.html
[18] Neil A. Campbell, et al., BIOLOGY 432-34 (5th ed. 1999).
[19] Id.
[20] Id., at 434.
[21] Creating cell-lines that are stable and self-replicating is a difficult and expensive process. See, Campbell, supra, note 18, at 219, 823-24.
[22] Debra Harry, et al., Indigenous People, Genes and Genetics: What Indigenous People Should Know About Biocolonialism, INDIGENOUS PEOPLES COUNCIL ON BIOCOLONIALISM, May 2000, at 25. [accessed at http://www.ipcb.org/pdf_files/ipgg.pdf]
[23] Id., at 20.
[24] Id.
[25] Id.
[26] Id.
[27] The anti-cancer drugs made using the rosy periwinkle plant from Madagascar have resulted in sales for the Eli Lilly corporation of over $100 million, annually. The profit Madagascar received for the research was quite small (Professor Roht-Arriaza characterizes Madagascar’s benefit as “virtually nothing”). See, Roht-Arriaza, supra, note 7, at 922.
[28] See, Harry, supra, note 22, at 21.
[29] Id.
[30] See, Ridley, supra, note 1, at 243. “…the obvious destination towards which genetic research is headed, the ultimate prize if you like, is a genetically engineered human being. One day, centuries hence, that might mean a human being with newly invented genes. For the moment it means a human being with an existing gene borrowed from another human being, or from an animal or plant.” Id. Such results in humans are still in the early research stages, but “… procedures that influence the germline are routine in labs working on fruit flies and mice, and researchers have done early procedures on nonhuman primates.” Gregory Stock, REDESIGNING HUMANS 2 (2003).
[31] See, Harry, supra, note 22, at 21.
[32] Id.
[33] Id.
[34] Id., at 21-22.
[35] Id.
[36] Id.; Laurie A. Whitt, et al., Belonging to the Land: Indigenous Knowledge Systems and the Natural World, 26 OKLA. CITY U. L. REV. 701, 731 (2001). “Indigenous recognition that the process of commodification may distort something’s value and significance , and result in a failure to meet one’s custodial responsibilities regarding it, is widespread. …Consider the Maori account of this. The third of the three baskets of knowledge, which form the basis of traditional Maori epistemology, contains all knowledge of the natural world (agriculture, medicine, astronomy, fishing, crafts, etc.). Such knowledge is considered tapu – sacred and set apart, or removed from profane use. It s treated with special respect, since it is also endowed with mana or power.” Id.
[37] See, Harry, supra, note 22, at 23.
[38] Id.; See, BBC NEWS ONLINE, Scientists finally study Kennewick Man (2005), at http://news.bbc.co.uk/2/hi/science/nature/4651831.stm
[39] BBC NEWS ONLINE, Scientists finally study Kennewick Man (2005), at http://news.bbc.co.uk/2/hi/science/nature/4651831.stm
[40] Id.
[41] Id.
[42] See, Armand Minthorn, Human remains should be reburied, CONFEDERATED TRIBES OF THE UMTILLA RESERVATION POSITION PAPER (1996), at http://www.umatilla.nsn.us/kman1.html. Minthorn, a religious leader of the Umtilla tribe, deserves quoting. “Our religion and elders have taught us that we have an inherent responsibility to care for those who are no longer with us. We have a responsibility to protect all human burials, regardless of race. We are taught to treat them all with the same respect. Many people are asking if there’s any chance for a compromise in this issue. We remind them that not only has this individual already been compromised, but our religious beliefs have once again been compromised. Many non-Indians are looking for a compromise – a compromise that fits their desires.” Id.
[43] See generally, Annie O. Wu, Surpassing the Material: The human rights implications of informed consent in bioprospecting cells derived from indigenous people groups, 78 WASH. U. L.Q. 979 (2000); Russel L. Barsh, Pharmacogenomics and Indigenous Peoples: Real Issues and Actors, 11 CARDOZO J. INT’L & COMP. L. 365 (2003-2004); Laurie A. Whitt, et al., Belonging to the Land: Indigenous Knowledge Systems and the Natural World, 26 OKLA. CITY U. L. REV. 701 (2001); Laurie A. Whitt, Indigenous Peoples, Intellectual Property & the New Imperial Science, 23 OKLA. CITY U. L. REV. 211 (1998); Keith Aoki, Neocolonialism, Anticommons Property, and Biopiracy in the (Not-So-Brave) New World Order of International Intellectual Property Protection, 6 IND. J. GLOBAL LEGAL STUD. 11 (1998-1999); Cindy Hamilton, The Human Genome Diversity Project and the New Biological Imperialism, 41 SANTA CLARA L. REV. 619 (2000-2001); Kara H. Ching, Indigenous Self-Determination in an Age of Genetic Patenting: Recognizing an Emerging Human Rights Norm, 66 FORDHAM L. REV. 687 (1997-1998); Meika Foster, The Human Genome Diversity Project and the Patenting of Life: Indigenous Peoples Cry Out, 7 CANTERBURY L. REV. 343 (1998-2000); David P. Fidler, Neither Science nor Shamans: Globalization of Markets and Health in the Developing World, 7 IND. J. GLOBAL LEGAL STUD. 191 (1999-2000).
[44] Andrea D. Brashear, Evolving Biotechnology Patent Laws in the United States and Europe: Are they inhibiting Disease Research?, 12 IND. INT’L & COMP. L. REV. 183 (2001-2002).
[45] David J. Bederman, INTERNATIONAL LAW FRAMEWORKS 13 (2d. ed. 2006).
[46] Id., at 24-25.
[47] Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d. Sess., pt.1, at 71, U.N. Doc. A/810, arts. 1, 2 (1948).
[48] Id., at art. 22.
[49] International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368.
[50] Id., at art. 7. It seems likely that ‘free consent’ can be read as requiring ‘informed consent.’
[51] Id., at art. 10.
[52] Id., at art. 1.
[53] Some cell-line bioprospecting is used for non-medical purposes, however. The Human Genome Diversity Project (HGDP) gathers genetic data from hundreds of different groups (including indigenous groups). According to the Morrison Institute which runs the HGDP, among possible uses for this data are understanding human relatedness, learning about human migratory patterns (using biology to confirm/disprove archaeological findings), understanding early hominid evolution locations, as well as the speed with which human DNA mutates. Morrison Institute, Human Genome Diversity Project, Frequently Asked Questions, at http://www.stanford.edu/group/morrinst/hgdp/faq.html
[54] World Health Organization, Estimates of Death by Cause, at http://www.who.int/healthinfo/statistics/mortestimatesofdeathbycause/en/index.html
[55] See, Wu, supra, note 5, at 984.
[56] See, Universal Declaration of Human Rights, supra, note 47, article 3. (Articles 1 and 2 of the Declaration do not appear to contain substantive rights. Article 1 appears to be a broad statement of principle. Article 2 indicates that rights inhere equally in all persons.)
[57] See, International Covenant on Civil and Political Rights, supra, note 49, article 6.
[58] Id.
[59] Article 6 concerns itself on the face of the document with use of the death penalty, rights of appeal and amnesty following a sentence of death, and state-sponsored genocide. Id.
[60] Office of the High Commissioner for Human Rights, General Comment No. 6: The Right to Life (art. 6) (1982), at http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3?Opendocument
[61] Id.
[62] Id.
[63] Id.
[64] Id.
[65] Id.
[66] See, International Covenant on Civil and Political Rights, supra, note 49, article 4.
[67] Some rights Article 4 allows to be derogated in times of public emergency include rights against arbitrary arrest or detention, rights to speedy trial, rights to be informed of charges pending against you, rights to be treated humanely while in government custody, rights to fair and competent tribunals in which to have claims heard, rights of equality before the law in courts, and rights against ex post facto criminal prosecution. Id.
[68] Id. Article 4 also excepts from the allowance for derogation the rights of article 7, the first 2 paragraphs of article 8, article 11, articles 15 and 16, and article 18. Id.
[69] Amy Hardberger, Whose Job is it Anyway?: Governmental Obligations Created by the Human Right to Water, 41 TEX. INT’L L.J. 533, 534 (2006). “The right to life is now read more broadly to include the prevention of murder, war time atrocities, and measures that increase life expectancy like personal health and hygiene.” Id.
[70] Office of the U.N. High Commissioner on Human Rights, International Covenant on Economic, Social, and Cultural Rights, art. 11 (1966), at http://www.ohchr.org/english/law/cescr.htm
[71] See generally, Xiaobing Xu & George Wilson, On Conflict of Human Rights, 5 PIERCE L. REV. 31 (2006).
[72] Id., at 32.
[73] Id., at 34.
[74] Id.
[75] Id.
[76] See, Bederman, supra, note 45, at 16-25.
[77] Id., at 1-6.
[78] Robert L. Hayman, Jr., et al., JURISPRUDENCE: CLASSICAL AND CONTEMPORARY 1-10 (2002).
[79] Judge Charles E. Wyzanski, Jr., Nuremberg: A fair trial? Dangerous Precedent, THE ATLANTIC MONTHLY
66-70, Vol. 177, No. 4. (1946).
[80] Id.
[81] Id.
[82] Id.
[83] Id.
[84] Id.
[85] See, Hayman, Jr., supra, note 78.
[86] Stanford Encyclopedia of Philosophy, Moral Relativism (2004), at http://plato.stanford.edu/entries/moral-
relativism. Moral Relativism is commonly understood as the idea that moral judgments are relative to the communities in which they arise. In other words, moral values hold no objective basis and cannot be properly applied to situations outside of the particular societies which created them.
[87] Stanford Encyclopedia of Philosophy, Alfred Jules Ayer (2005), at http://plato.stanford.edu/entries/ayer.
Emotivism was a theory championed by A.J. Ayer in the 1930’s and 1940’s which asserted that moral judgments were not actually asserting to be facts about the world, but rather were in truth nothing more than personal ‘rahs’ or ‘boos.’ Essentially if an individual said ‘Murder is wrong,’ the individual is in reality asserting nothing more than the internal mental state ‘I dislike murder.’ Just as the statement ‘I like broccoli’ carries no concomitant obligation upon others to like or dislike broccoli, so too does ‘Murder is wrong’ carry no obligation for others to agree with the purely personal, emotional statement.
[88] JAMES RACHELS, ELEMENTS OF MORAL PHILOSOPHY Chs. 2-3 (2006). So clearly false are the ideas
proposed by those in opposition to the existence of a trans-cultural normative standard that their discredit is explained and shown in an simple philosophy text commonly used by high schools and introductory undergraduate courses. Id. Professor Rachels provides a useful summary of the main arguments which have shown moral subjectivists (cultural relativists and emotivists) to be wrong. These include fundamental incoherence, linguistic difficulties, logical fallacies, and ethical problems.
[89] Id.
[90] Stanford Encyclopedia of Philosophy, Moral Realism (2005), at http://plato.stanford.edu/entries/moral-realism. Moral Realism is the dominant understanding of modern ethics and suggests that moral facts purport to explain actual states of the world, and are true if and only if the actual state of the world actually conforms to the asserted fact.
[91] See generally, JOHN STUART MILL, UTILITARIANISM (2005) (1841).
[92] See, Xu & Wilson, supra, note 71, at 37.
[93] Id.
[94] Id.
[95] See, MILL, supra, note 91.

Thesis for course in Comparative Constitutional Law

Divergent Ethics:
A normative comparison of the jurisprudence on abortion of Germany, Canada, and the United States













M. D.
Comparative Constitutional Law
12/18/06









INTRODUCTION

There are few subjects more apt to raise the public’s passions than abortion. No matter the ideological side taken on the issue, the emotional investment attendant to any position taken in this area often makes it difficult to have serious policy discussions. In a world in which technological advances create new situations over which litigation will arise more and more frequently, these serious policy discussions are needed more than ever. This article is an attempt to contribute to that ongoing policy dialogue, both in a descriptive and normative way.
The state of the law in the United States concerning abortion is relatively straightforward in its general form but becomes more unclear in the penumbral cases. To aid in understanding the nature of these cases at the edge, the first part of this article includes a description of current law from Canada, the United States, and Germany. Each country has a well-developed jurisprudence with regard to abortion and understanding the shape of the law in each country will provide the framework for a normative analysis.
The difficulties posed by questions of abortion, personhood, and whether rights are inherent in pre-birth humanity are unusual and frequently technical. Determining the answers to these questions often takes jurists and academics deep into the principles underlying our law and way of life. Unfortunately for those interested in forming a coherent view of law, the principles and philosophies from which judges and writers draw are varied and wildly divergent. The second part of this essay will attempt to outline several of the major philosophical positions on abortion and determine which, if any, could be proposed as being underlying each country’s abortion jurisprudence.
Finally, a note about methodology and purpose is warranted. This author views law through the lens of legal formalism, and this essay is an attempt to deduce the proper principles underlying the abortion jurisprudence of the United States with reference to the abortion jurisprudence of Canada and Germany. This analysis is meant to be a guide for judges and academics in aid of their making the proper decisions when presented with difficult cases on the margins. To the extent readers accept the jurisprudential position taken in this work, this article will serve to shine light into the grey areas at the edges of established law. Readers who reject the idea that law is derived from ethical sources, (rather than from statutory and political sources) will still find the descriptive elements to be a useful contribution to their understanding of law, though largely duplicative of previous scholarship.

PART I: CURRENT LAW OF CANADA, THE UNITED STATES, AND GERMANY

CANADIAN LAW

Canadian jurisprudence on abortion followed closely English common and statutory law until the nineteenth century.[1] Until 1803, abortion was a common law offense if done at any point after the fetus had quickened, because by the time the fetus could move it had demonstrated at least one element of independence from the woman bearing it.[2] In this respect, Canadian common law required a measure of separateness in order to vest some right in the fetus. This necessity for some amount of separateness as a requisite for rights was codified in 1803 by Lord Ellenborough.[3] Ellenborough’s law strengthened the criminal nature of abortion by making abortion after quickening a capital offense.[4] The law further extended the criminality of abortion by making abortion before quickening criminal, though without an attendant death sentence.[5] Ellenborough’s law lasted until 1837 when it was preempted by an English law.[6] The 1837 law rejected the use of the death penalty and abolished the distinction between pre- and pos-quickening abortions.[7]
In 1861, the English Offenses Against the Person Act reiterated the criminality of abortion via instruments or poisons.[8] The specific inclusion of the method of abortion in the statutory language left open the potential that some abortions (done through other means) might not be criminal. The Offenses Against the Person Act was the basis for Canadian abortion jurisprudence until 1953.[9]
The first truly Canadian law on abortion was passed in 1869 and remained largely without significant controversy until the 1960’s.[10] Due to the action of Great Britain to liberalize abortion laws, Canadian politicians followed suit.[11] A scholar who has studied this history of abortion law in Canada noted that British influence over Canadian politics on abortion, saying that “[j]ust as Canada’s original abortion law was based on British precedent, so, too, was the movement in the 1960’s to reform the law.”[12] C-150, the Canadian law that was the product of the tumultuous debate of the 1960’s, reformed Canadian abortion law in ways that were far-reaching. The law legalized abortion in cases where pregnancy would endanger or seriously and directly impair the life of the woman who was pregnant.[13]
Canada’s women and doctors operated under this law for nearly two decades.[14] Until the 1988 Constitutional decision of Morgentaler v. The Queen, the Supreme Court of Canada showed significant judicial restraint in dealing with the issue of abortion. Doctor Mogentaler’s case begins in 1973, when his abortion clinic in Montreal was raided by the police.[15] Doctor Morgentaler was arrested and charged with performing an illegal abortion on a woman. Morgentaler presented a defense of medical necessity, argued against the jurisdiction of the court, and claimed that the prosecution for performing an abortion violated the Canadian Bill of Rights.[16] Morgentaler’s main claim, though, was radical. Morgentaler claimed that “the Canadian Bill of Rights of 1960, derived from the US Constitution, imported American common law decisions into Canadian law, and thus, Roe v. Wade case law should be followed in Canada.”[17]
Morgentaler’s constitutional arguments were appealed to the Supreme Court of Canada, which dismissed them all.[18] In a double-blow against Morgentaler, the court even indicated that the trial court had erred in even considering necessity as a defense, since no evidence of an emergency existed.[19]
In 1988, Morgentaler took another bite at the apple and got a second chance to present his Constitutional arguments following a second prosecution for performing unlawful abortions. Morgentaler refined his argument in light of the new Canadian Constitutional documents of 1982.[20] Section 7 of the Canadian Charter of Rights and Freedoms (1982) provided that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”[21] Using this language, Morgentaler argued that the criminalization of abortion (even with the necessity defense) deprived women of these guaranteed freedoms.
The Morgentaler v. The Queen (1988) judgment ruled that the Canadian Criminal Code sections criminalizing abortion did violate the Canadian Charter of Rights and Freedoms in this way.[22] Moreover, the process by which the Code harmed a woman’s rights of security did not comport with fundamental justice.[23] While recognizing that the State had a duty to protect fetal life at some point, the means by which the State sought to accomplish that end were not reasonable.[24] The Canadian Supreme Court based its ultimate conclusions on the permissibility of abortion not on privacy, as in the United States, but on the right of security for all persons.[25] Being denied access to medical treatment, by way of criminalizing the treatment, violated a woman’s right to be secure in the well-being of her person.
After handing down the 1988 Morgentaler decision which ruled Canada’s law on abortion to be unconstitutional, other legal efforts were put into motion by parties on all sides of the issue. One important case decided a year after Morgentaler was filed by a pro-life Manitoba cabinet member. The case, Borowski v. Canada, sought to have interpreted the same language used by Morgentaler in his successful case before the Supreme Court of Canada.[26] The same rights found in section 7 of the Canadian Charter of Rights and Freedoms were at issue, and Borowski argued that while Morgentaler was decided correctly in terms of its interpretation of the language, that the court had failed to consider the scope of the word ‘everyone.’ Since “Everyone has the right to life, liberty and security,” argued Borowski, then these rights adhered both to the woman who was pregnant and to the unborn child in her womb.[27]
The Canadian Supreme Court declined to address the personhood of the fetus, and dismissed Borowski’s Constitutional claim.[28] The Court once again retreated into the relative safety of deference and suggested that determining who qualified to possess the rights guaranteed by the Canadian Charter of Rights and Freedoms was a job for the legislative branch, which could get the input of all of the relevant disciplines before making its decision.[29] The Morgentaler and Borowski decisions opened the door for the public to demand a new abortion law, consistent with the Charter of Rights and Freedoms, to be enacted by the Parliament, and in 1990, the Canadian Parliament adopted a new statutory law of abortion in light of the Morgentaler and Borowski decisions.[30] The proposed new Canadian law provided that abortion was criminal only in cases where a medical practitioner did not believe that the pregnancy threatened the life of the woman (even in cases where there was no immediate emergency). The Canadian Senate rejected the bill by a single vote and thus the proposed law never became an actual law.[31] Parliament has yet to achieve a consensus about how to deal with abortion and this remains the case in Canada at present.[32]

UNITED STATES LAW

American history with respect to abortion is largely uncontroversial. Prior to 1821, abortion was not prohibited nor regulated in the United States under any guise.[33] In 1821, Connecticut prohibited abortion after quickening, although unlike the Canadian experience, no death penalty went along with the crime.[34] Eight years later, New York followed suit and prohibited abortions after quickening, and provided a medical necessity exception.[35] By 1849, eighteen states had passed anti-abortion laws, and by 1900, forty-three.[36] Despite nearly universal criminality in the United States by the twentieth century, abortion was largely ignored until the 1960’s.[37]
An understanding of American Constitutional law regarding abortion begins with a case outside of the abortion context, but on which the contemporary right to an abortion rests. In Griswold v. Connecticut,[38] Connecticut had outlawed the dissemination of information about contraception, and certain medical professionals (including Griswold) had been brought up on charges of disseminating the information in violation of the law.[39] Writing for the Court, Justice Douglas articulated that the rights found in the U.S. Bill of Rights were not as clearly understood as they should be.[40] He concluded that, while the rights contained in the American Constitution were specific in many cases, the rights also had penumbras and emanations which helped jurists to see the scope of the enumerated rights as well as others which could be derived and found in the penumbras of the enumerated rights.[41]
The right of privacy was found in the penumbras of many amendments,[42] and extended to having a right to keep from government intervention the reproductive decisions of a married couple to have or not have children through the use of contraceptives.[43] The right of privacy was held to reach unmarried individuals in their right to use contraception as well.[44] This right of privacy was key to the birth of modern abortion jurisprudence in the United States.
The landmark case that first revealed that privacy extended to abortion was Roe v. Wade.[45] The Roe decision acknowledged the sensitive nature of the issues presented, and recognized the varying influences that were brought to bear in shaping people’s views on the matter.[46] Tracing a conceptual lineage back to 1891, the Court held that the right of privacy exists (as held in Griswold), and that the right of privacy extended to the right to have an abortion.[47] The Court continued on to recognize a right of the State to protect fetal life, and made clear that at some point during pregnancy, the State’s right to protect fetal life would come to outweigh the pregnant woman’s right to procure an abortion.[48]
The court adopted a trimester-style analysis and held that before the end of the first trimester, the State may not interfere with a woman’s right to have an abortion, but that after the first trimester, the State may intervene and regulate abortion in ways reasonable related to the protection of the health of the pregnant woman.[49] From the end of the second trimester through the end of the third, the State may regulate or even proscribe abortions altogether (with an exception for cases of medical necessity).[50]
Planned Parenthood v. Casey followed almost 20 years after Roe, but was just as ground-breaking in terms of its alteration of the legal landscape on abortion. Casey[51] was a revisitation of the right to abortion that Roe first provided to American Constitutional law. The plurality opinion in Casey upheld the extension of a right to privacy to abortion cases from Roe, but did so only narrowly, citing reliance on precedent as a primary reason for upholding Roe.[52]
Casey’s radical alteration was not to the extension of the right of privacy to abortion cases, but rather was an alteration in the type of analysis that should be done in abortion cases. Casey reaffirmed the Roe holding, but discarded the trimester analysis, stating that the trimester analysis “[did] not fulfill Roe’s own promise that the State has an important interest in protecting fetal life or potential life.”[53] In place of the trimester analysis used by Roe, the Court placed a two-part test.[54] The first part of the test centers on viability. Those attempts by the government to prohibit abortions (with the medical necessity exception, still) after viability will be upheld, while those done before viability must pass the second part of the test.[55] If a governmental regulation interferes with a woman’s right to have an abortion for a non-viable fetus, it will be upheld unless the regulations poses an ‘undue burden’ on the woman’s right to proceed with the abortion.[56]
These principles have been subsequently tested and upheld in the United States Supreme Court.[57] Whereas the Canadian Supreme Court discovered a right to abortion in the meaning of the term ‘security’ from the Canadian Charter of Rights and Freedoms, the United States Courts have located it in the meaning of the term ‘privacy’ as read in the penumbras of enumerated rights in the Constitution of the United States.

GERMAN LAW

The German experience is significantly different than the experience of either America or Canada in respect to abortion. Canada and the United States founded their abortion jurisprudence on security and privacy, respectively. German abortion law makes abortion illegal irrespective of how unadvanced the pregnancy.[58] Like Canada, the German Court relies on specific text from their Constitution in forming its abortion jurisprudence, but unlike Canada, Germany found that their Constitution required the State to protect fetal life more affirmatively.[59]
The German Basic Law is the Constitution of Germany. The Basic Law contains a statement that “Everyone shall have a right to life.”[60] The Basic Law also explicitly recognizes the dignity of each human being as being central to the German nation.[61] These principles emerge from Germany’s past experience with Nazism and are taken quite seriously, as a way to guard against the difficulties of German history.[62] As such, the principles occupy the first few articles of the German Basic Law, indicating their importance in the social order of Germany.
West Germany, in 1975, had created a liberalized abortion law allowing abortions during the first trimester of pregnancy as long as the woman received counseling and had the procedure handled by a medical professional.[63] This politically supported law brought West German law more in line with the law of the liberal democracies around it.[64] In 1975, a case labeled ‘Abortion I,’ the abortion statute of Germany was challenged successfully.[65] Abortion, held the Court, concerned the most fundamental value for which the State was created to protect – namely, life.[66]
The German Constitutional Court made clear that a fetus had a legal right to life that the State was required to affirmatively protect. As one scholar writes, “‘Developing life also partakes of the protection of human dignity,’ the constitutional Court asserted in Abortion I, since ‘where human life exists, human dignity attaches.’”[67] Germany took an explicit stance on when humanity is accorded rights in Abortion I. Many philosophers will contend that the ultimate question involved in the American abortion debate is when to label a pre-birth member of Homo sapiens a human being in the full sense of the term. Germany settled this dispute constitutionally, claiming that “‘Everyone’ thus includes the yet unborn person; a fetus has a right to life. ‘Life in the sense of individual existence… begins according to undisputed biological and physiological knowledge… 14 days after conception.’ Once begun, life is ‘a continuous event, which knows no sharp phases and does not contain distinct boundaries between stages of development.”[68]
Further, the Court held that the German State had an obligation to protect fetal life (a duty that allowing abortions via statute would not allow).[69] Article 1 of the German Basic Law orders the State to ‘respect and protect’ human dignity.[70] Indeed, so powerful is the State’s obligation in this regard that the Basic Law refers to this as ‘the duty of all state authority.’[71] From this, the Court concluded that the State could not constitutionally have a statute that permitted abortions except in a very limited number of cases.
These exceptions (‘indications’ in the Court’s language) are fairly narrow, but include most of the common ones found in Canada and the United States. An indication is provided in cases of threat to the woman’s health as well as for pregnancy resulting from rape and incest.[72] For general needs the Court could not foresee, they provided an indication for extreme hardship, but only when the severity of the hardship would be akin to the severity of the other indications.[73] Curiously, though, the German Constitutional Court provided an indication for a case not covered in the United States or in Canada. This indication allows for abortions in cases of severe birth defects.[74]
Despite the strict opinion of the Constitutional Court that the State must affirmatively protect fetal life by criminalizing abortion in any trimester (with only the indications as exceptions), German citizens found ways to circumvent the spirit of the law.[75] Women who wanted abortions usually tended to fall under the indications, and courts leniently interpreted what could fall under the indication for hardship.[76] Further, enforcement and implementation of the criminalizing statute varied region by region, and nothing prevented women seeking abortions to travel to areas of the country that were looser in their interpretation of the indications to procure an abortion.[77] As a final nail in the coffin of the statute created in light of Abortion I, women seeking abortions who were unable to fit within an indication frequently traveled abroad (particularly to the Netherlands) to obtain one.[78]
In 1993, the Constitutional Court of the newly reunified Germany reconsidered its previous abortion ruling from Abortion I.[79] Before reunification, East Germany’s emphasis on social welfare had found expression in a liberalized abortion law much in line with the abortion laws of the countries surrounding Germany, and much like the law originally at issue in Abortion I.[80] With reunification came the difficulty of trying to merge two divergent populations’ legal standards and ideas about justice with respect to handling the termination of pregnancy. East Germany was allowed to keep their liberalized law on abortion until a German Bundestag could find a compromise solution, which came in 1992 with the Abortion Reform Act.[81] The Abortion Reform Act allowed a woman to obtain an abortion in the first trimester of pregnancy if she attended a mandatory counseling program designed to encourage the woman to consider her responsibilities.[82] The Act also required a three-day waiting period before receiving an abortion.[83]
This law came under fire from those who had originally pushed for the West German law criminalizing abortion. Quickly after the passage of the Abortion Reform Act, the Constitutional Court again was presented with the issue of abortion in the case known as ‘Abortion II’.[84] Overwhelmingly, the Court in Abortion II overturned the Abortion Reform Act, reiterating the core ruling of Abortion I.[85] Ruling against the new law posed serious difficulties with the public, since the law was the result of a broad compromise between factions. The new law had significant public support, but the Court was forced to defend its previous ruling.[86]
Affirming the holding of Abortion I, the Constitutional Court explained that “Dignity attaches to the physical existence of every human being… before as well as after birth… Unborn life is a constitutional value that the state is obligated to protect that attaches to each human life, not life generally.”[87] Moreover, the Court held that simply making abortion illegal wasn’t enough to satisfy the duty to protect life and human dignity.[88] The German government would have to make it clear that abortion is illegal and that a duty to carry children to term existed for pregnant women.[89] The duty of the state and of its people to protect life in these fashions stood at the base of German society for the Court.[90]
The Court did soften its approach in dealing with abortion, though. While the State had a duty to make it clear that abortions were illegal, the Court recognized that this did not entail that the State had a duty to criminalize abortions generally.[91] A comprehensive system of counseling and encouragement could constitutionally be allowed to take the place of criminalization, but would need to be more stringent than the system put in place via the Abortion Reform Act. The Court asserted that “the state may validly conclude that in view of the reality of abortion in modern society, the more effective solution to the problem of unwanted pregnancy is to stay the hand of the would-be prosecutors, to make an ally and friend of the woman in distress, to foreswear threats of punishment, and to induce her to cooperate voluntarily without fear of retribution of loss of personal integrity.”[92] The system suggested by the Court is the current law of abortion in Germany.

PART II: ETHICAL THEORIES OF ABORTION AND CASES AT THE MARGINS

ETHICAL THEORIES

There are dozens of serious theories concerning the wrongness of killing in the relevant philosophical literature. To cover them in their entirety would be a project greater than that attempted in this article, and this article will leave that work for another writing or for another author. Among the many theories, several stand out as being particularly common amongst the public, and these theories are the ones on which this article will focus the majority of its discussion. The theories discussed here will be referred to as Sufferist Theory, Psychological Personhood, Future of Value Theory, and Catholic Doctrine Theory. Each will be discussed in turn via a brief summary.
What this article terms Sufferist Theory comes largely from the works of the Australian ethicist, Peter Singer. Singer posits that the line between the entities to which we owe duties and those entities to which we do not owe duties can be drawn scientifically.[93] Unlike many people’s intuitional starting place in this arena, Singer does not attempt to determine when human life begins. Rather, Singer argues that the ‘humanness’ of an entity is largely irrelevant to the determination of whether we owe that being a certain moral respect.[94] In another context in which he applies his theory commonly (the field of non-human animal rights), Singer quotes the father of political Utilitarianism, Jeremy Bentham, at length. Singer quotes, “The day may come when the rest of the animal creation may acquire those rights which never could have been with-holden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may one day come to be recognized that the number of legs, the villosity of the skin, or the termination of the os sacrum are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or perhaps the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal than an infant of a day or a week or even a month, old. But suppose they were otherwise, what would it avail? The question is not, Can they reason? nor Can they talk? but Can they suffer?”[95]
Singer’s use of Bentham in another context provides ample material from which to understand how he views the morality of harming biologically human entities. The question for Singer revolves not around whether the entity is a human being at all. Rather, the question becomes ‘Can the entity suffer?’ To Singer, the greater the ability of the entity to suffer, the more its interests must be taken into account when determining the proper course of action.[96]
A human fetus does not have the capacity to suffer in the same manner in which an adult woman can suffer, both because of the lack of nociceptors in the fetus as well as the utter lack of mental characteristics to permit non-physical pain. For Singer, this answers the question in its entirety. Abortion cannot be wrong in the earliest stages of pregnancy (because the fetus cannot suffer), and will only be wrong in the late term of pregnancy in the most unlikely of cases (since the fetus will only have the capacity to feel physical pain).
Psychological Personhood Theory is a broad umbrella under which many divergent theorists band. While each espouses a differing theory, all accept a broad underlying principle that says that what is determinative in what things we may properly kill and what things we must refrain from killing isn’t suffering, but rather a set of psychological characteristics found in things over which there is no controversy in regard to killing them. A prime example of this type of theorist is Michael Tooley.
Tooley argues that in order to harm a being, the being must have the capacity to be harmed.[97] To explain this intuitive, but easily-overlooked, concept, Tooley offers the following two statements: 1) A child does not have the right to smoke, and 2) A newspaper does not have the right not to be torn up. Tooley points out that the first statement is a candidate for debate based on our general views of appropriate moral conduct, but that the second statement is not in serious contention for any debate.[98] The reason for this is that the newspaper is not the type of entity which can possess interests.[99] An entity without the ability to have an interest in something cannot be harmed because the being does not have any stake in the outcome of a proposed action.[100]
In order to have interests, though, an entity must have the ability to have interests, and that means having desires about the outcomes of proposed actions.[101] If a being cannot desire one outcome over another, the being cannot have an interest in the outcome of the situation, and therefore cannot be harmed by any possible outcome.[102] The question then becomes, do fetuses have desires? Answering that question is difficult because it would require a psychological analysis of a being that cannot directly interact with someone analyzing it. To get at the answer indirectly, Tooley notes that in order to have desires, a being must be capable of understanding that it will continue on into the future and that actions now will have impacts on itself later, thus affecting its ability to meet its desires.[103]
Fetuses, though, do not have a continuing sense of self over time.[104] This absence of an ability to see themselves as existing over time (a capacity that even infants do not possess) indicates that fetuses do not have desires requisite to generate and sustain interests. That they cannot generate nor sustain interests means that they cannot be harmed. Since a fetus cannot be harmed by an abortion, there is no reason to stop a woman from having an abortion at any point during her pregnancy, for any reason she desires.
Future of Value Theory is a theory originally proposed by a professor at the University of Kansas named Donald Marquis. Marquis proposes that trying to understand what we can kill ethically by examining a particular context is meaningless.[105] Before we can know whether abortion is immoral, we must understand what makes killing wrong in a case about which we are sure. Marquis begins with what he views as an unproblematic assumption – namely, that it is wrong for someone to kill him.[106] Marquis accepts this assumption and then asks, ‘Why?’[107] Why is it immoral for someone to kill him? The intuitional response, and the response on which his theory rests, is that it would be wrong to kill him because there are things that he still values in his life and killing him would forever deprive him of those things which he values. [108]
Having a future in which he will value things is reason enough to ensure that it is prima facie seriously wrong to kill him. If it is wrong to kill a being because it possesses a future which contains things that it will value, then does that match with our other intuitions about killing? Marquis answers that it does.[109] It explains, he suggests, why we view killing as one of the worst crimes, and why people dying from a terminal disease view their deaths as something bad that will happen to them.[110] Additionally, it explains why we tend to see the death of a very young child as a greater tragedy than the death of a very old individual.[111] It stands to reason that the child had a future with far more to value in it than did the elderly person who could have had far fewer years left in which to value things.
Marquis makes the conclusions of his theory clear for infants and fetuses. While it may still be possible for abortion to be acceptable in a very small number of cases, overwhelmingly, abortion will be impermissible. Just as a young child has a long future ahead of her in which to value things, an infant has even more of future ahead of it.[112] A fetus has a still longer future ahead of it in which to value things so killing it is even more wrong than killing a young child.[113] In terms of value content (but not value magnitude), Marquis explains, “the future of a standard fetus includes a set of experiences, projects, activities, and such that are identical with the futures of adult human beings and are identical with the futures of young children. Since the reason that is sufficient to explain why it is wrong to kill human beings after the time of birth is a reason that also applies to fetuses, it follows that abortion is prima facie seriously morally wrong.” A system based on Marquis’ Future of Value Theory would disallow abortion in all but cases in which two futures of value were at stake, and from that point, Marquis provides no guidance on how to balance the two futures of value. Either way, elective abortion would be legally impermissible under his theory.
Finally, Catholic Doctrine Theory holds that abortion is nearly always seriously morally wrong from a religious standpoint.[114] Pope John Paul II stated the position of the Roman Catholic Church in the Evangelium Vitae – his encyclical letter on abortion.[115] Citing the need to clear the obfuscation surrounding abortion and ‘call things by their proper name,’ Pope John Paul II wrote that “procured abortion is the deliberate and direct killing, by whatever means it is carried out, of a human being in the initial phase of his or her existence, extending from conception to birth.” (italics in original).[116] As such, the moral gravity of abortion is that attendant to murder.[117]
While recognizing that most abortions are not undertaken lightly or for purely selfish reasons, the encyclical contends that reasons of protecting the health of the mother, preventing a child from being born with severe birth defects, or preventing a child from being born into conditions unsuited for children are illegitimate reasons to justify taking an innocent human life.[118] Pope John Paul II continues on, recognizing the innocence of fetal life, suggesting that not only is the fetus helpless in its physical state, but in its newness to the world around it as well.[119] Moreover, the fetus could not be considered an aggressor in any sense because it is weak and defenseless, even lacking “the poignant power of a newborn baby’s cries and tears.”[120] Making the abortion even more wrong, he explains, is the fact that the fetus is dependent on, and entrusted to the care of, the woman carrying the fetus.[121] Such an act of abortion, then amounts to more than murder. It is murder by a betrayal of a trust.
Given the totality of the scope of the Catholic Doctrine Theory argument, it is doubtful that a system based upon it would allow abortions to legally take place, even in cases where necessary to keep a woman’s life or health from being threatened. As the encyclical states, “these reasons and others like them, however serious and tragic, can never justify the deliberate killing of an innocent human being.” (italics in original).[122] It is clear that abortion will always be legally impermissible under this theory.

ANALYSIS

Canadian jurisprudence on abortion is currently in limbo. The Canadian Supreme Court has held that preventing a woman from having an abortion under some circumstances (at the very least if she requires the abortion to preserve her health or life) is inconsistent with the Canadian Charter of Rights and Freedoms because it denies women a right to security in their persons.[123] The abortion law of the United States is at present encapsulated by the following rule: The government may regulate or prohibit abortion after viability, and before viability may regulate only if it does not create an undue burden on the woman’s right to have an abortion.[124] Germany takes a harder stance, making abortion illegal in all cases except for a narrowly drawn list of exceptions and having a mandatory value-persuasion regimen a woman must complete before she may proceed with the procedure.[125]
The purpose of this essay was to try to find a coherent ethic by which future difficult cases could be judged in aid of having jurists reach the correct results without a lot of guesswork. Each country has a differing stance on abortion drawn from different national experiences. Do any of these legal positions roughly correspond with any of the four theories presented here? For any nation’s legal rules concerning abortion, whether the position matches one of the developed theories here discussed or does not match, this article can serve as a guide. Matching theories can be used to guide future decisions. If a theory does not match with the law, then it can at least be excluded from future consideration by jurists seeking the true underlying ethic of the law.
We will start with Canadian jurisprudence. Canadian abortion law is currently unknown. In the absence of a statutory crime of abortion, it may be that abortion is effectively decriminalized in Canada, at any time during pregnancy and for any reason. Clearly such a position would not correspond well to Catholic Doctrine Theory, since Catholic Doctrine Theory would proscribe abortion in all cases. Similarly, Future of Value Theory is an unlikely candidate for explaining current Canadian abortion law. Future of Value Theory would make abortion legally impermissible in a large number of cases. Psychological Personhood would explain a system that permits abortion in virtually all cases, as in Canada, but would fail to account for the Court’s underlying basis for allowing abortion in at least some cases constitutionally: a security right vested in the pregnant woman. Singer’s Sufferist theory, though, would account for this. If a fetus is unable to suffer (or if in late-term pregnancies its suffering counts for less), then disallowing abortion would cause suffering on the part of the woman seeking the abortion. Harming her in this fashion would violate her security (but not the security of the fetus).
U.S. abortion jurisprudence allows most all abortions until the fetus is viable, and thereafter severely regulates or prohibits them. This would fail to comport with Catholic Doctrine Theory or Future of Value Theory because abortions before viability are largely available. Likewise, Sufferist Theory is not a likely candidate, because abortion can be prohibited entirely even during periods in which a Utilitarian calculus would come out against the fetus and in favor of the mother. Psychological Personhood fails as well, but has a close parallel with American jurisprudence. American jurisprudence recognizes a right of privacy to reproduce or not without government interference until such time as another being (the fetus) has an interest against which the privacy interest of the mother must be weighed. Determining when the fetus becomes a person whose interests must be protected by the State is difficult, though, for deciding when the fetus truly becomes a separate being isn’t settled. Instead of using psychological criteria as does Tooley and his colleagues, American jurisprudence appears to use a physical standard: viability (when the fetus can survive outside the womb). It is possible that American jurisprudence uses a biological personhood standard to evaluate a psychological personhood claim.
Finally, German abortion law is fairly clear. Germany holds all abortions outside of narrow guidelines to be illegal and mandates that the State have an affirmative duty to protect fetal life. This jurisprudence would not fit well with Sufferist Theory, since Sufferist Theory would allow abortions based on a Utilitarian calculus that nearly always turns against fetal life. Psychological Personhood is also not a good candidate to explain German jurisprudence in this arena since Germany is not seeking to determine when along the path from conception to birth a fetus acquires rights. In Germany, this analysis has been reaffirmed by the court in Abortion I and Abortion II, saying that the human life begins at conception and that dignity coheres with the individual for the entire duration of life. Catholic Doctrine Theory comes close, in that it would take a hardline stance against abortions (since there is never a justification to take an innocent human life). However, it would not allow for there to be exceptions in cases such as the German Constitutional Court allowed. Donald Marquis’ Future of Value Theory fits these rules nicely, though. Like Germany, a system based on his theory would protect fetal life co-equal with that of adult human beings. Depending on how we judge between harms to two lives with futures of value, Marquis could allow exceptions for saving the life or health of the mother. A particularly nice fit, though, is found in Germany’s unusual allowance for abortion in cases of severe birth defects to the child. Since a child with severe birth defects is very unlikely to have a future in which they value things (compared to a child without the birth defects, or compared to the pregnant woman), it may be permissible to end their lives.

CONCLUSION

This essay attempted to lay out the differing constitutional laws regarding abortion of Canada, the United States, and Germany, and find rough matches for them among assorted ethical theories in an effort to provide jurists and academics with guidance in solving future cases. An analysis of four separate ethical theories on abortion found three of them to have parallels to the jurisprudence of the three respective countries discussed in this paper. A fourth ethical theory did not closely resemble the abortion law of any of the countries studied here.
It is the conclusion of this article that scholars of Canadian Constitutional law who are interested in abortion take some time to become more familiar with Peter Singer’s writings on the role of suffering in the wrongness of killing. Accepting this view in law may have some far-sweeping changes that may need to be examined (particularly in the realm of the rights of non-human animal species). Canadian jurists encountering difficult cases not clearly settled by Canadian Constitutional law might consider applying Singerian philosophy to better aid them in finding the answer which best comports with their previous Constitutional law on abortion.
Scholars of United States abortion jurisprudence should become more familiar with personhood theorists, both of the biological and psychological varieties. Understanding more about these theories may help Americans find a more consistent criteria for determining when a being becomes a separate entity (Is it purely biological or is there some psychological element? Is it both?). A solid understanding of personhood theories may help us understand why our privacy right gives way to the right of a fetus, and why our Supreme Court has chosen the moment of viability to exemplify that time. Is there a better time, or a better measure of when this happens? Psychological Personhood would, a la Michael Tooley, would say that there is.
Readers interested in German jurisprudence and dignity issues may want to read Marquis’ writings concerning the standard abortion arguments, why they are wrong, and why his theory fits well with many of our seemingly contradictory moral intuitions. His theory, based around entities with Futures of Value, can explain Germany’s unusual position in regard to abortion, as well as explaining some of Germany’s strange abortion quirks not found in other Constitutional law frameworks. Marquis’ theory also provides a solid foundation on which difficult cases can find a decent justification for an answer which flows from the rest of the jurisprudence on the issue.
Finding a coherent and consistent ethic on which to base a nation’s abortion law can help prepare individuals to accept and understand the right answer to a case or controversy before it is litigated. Such advance warning serves not only the interests of individuals in society who can know the types of actions in which they are permitted or prohibited to engage, but also the interests of judges and academics who can use the underlying philosophy as a way of guiding their answers to the right conclusion in line with prior precedent. In a world in which alternative reproductive technologies and genetic medicine are rising in popularity, the need to be able to anticipate solutions to these problems grows. Unusual cases are easy to come by and hard to make get rid of, but, hopefully, this article makes disposing of those cases a little easier.
[1] RAYMOND TATALOVICH, THE POLITICS OF ABORTION IN THE UNITED STATES AND CANADA: A COMPARATIVE STUDY 29, (1997).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id., at 30.
[11] Id., at 32.
[12] Id. Citing another authority, Tatalovich explains: “British influence was still strong in Canadian society during the sixties, especially in legal circles. The Canadian Criminal Code, including its abortion provisions, was adapted from British criminal law in 1892 and tended to follow the latter. The Judicial Committee of the Privy Council had served as Canada’s final court of appeal for constitutional questions until 1949, and British legal precedents were authoritatively cited in most fields of Canadian law.” Id.
[13] Id., at 34.
[14] Id., at 73.
[15] Id.
[16] The Canadian Constitution in 1975 was largely contained in the British North America Act of 1867, which defined the limits of judicial authority. Id.
[17] Id., at 73.
[18] Id.
[19] Id.
[20] Id., at 75.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] While the majority of the Court based its reasoning around the concept of security as guaranteed by the Canadian Charter of Rights and Freedoms, Justice Wilson (the first woman appointed to the high court) argued in the same vein as American jurisprudence on abortion. While not basing her argument explicitly on privacy, she nonetheless contended that the ‘liberty’ guaranteed to Canadian citizens meant that while the State need not approve of every decision made by individuals, there were some decisions that it must tolerate and respect. “A woman’s decision to terminate her pregnancy falls within this class of protected decisions” because it “will have profound psychological, economic, and social consequences for her.” This language echoes strongly the arguments made by the United States Supreme Court concerning protected areas of personal life through its explication of the doctrine of privacy rights. Id., at 77.
[26] Id., at 79.
[27] Id.
[28] Id., at 80.
[29] Id.
[30] Id., at 84.
[31] Id., at 93-95.
[32] Id.
[33] Id., at 27.
[34] Id.
[35] Id.
[36] Id., at 27-28.
[37] Id., at 28. Tatalovich suggests that there were no active prosecutions for abortion in the United States until the twentieth century. Id.
[38] Griswold v. Connecticut, 381 U.S. 479 (1965).
[39] BARRY R. FURROW, et. al., BIOETHICS: HEALTH LAW AND ETHICS 49 (5th ed. 2004).
[40] Id.
[41] Id. While the majority signed onto Justice Douglas’ opinion, Justices Warren, Goldberg, and Brennan based their analysis on the Ninth Amendment, which states that “The enumeration in the Constitution of certain rights will not be construed to deny or disparage others retained by the people.” Id.
[42] Id. Douglas located ‘zones of privacy’ in the penumbras of the rights of association from the First Amendment, the right against quartering of soldiers in the Third Amendment, and in the right against unreasonable searches and seizures from the Fourth Amendment. Douglas also indicated that the right could be seen in the Fifth Amendment’s guarantee against self-incrimination. Id.
[43] Id.
[44] Eisenstadt v. Baird, 405 U.S. 438 (1972).
[45] Roe v. Wade, 410 U.S. 113 (1973).
[46] BARRY R. FURROW, et. al., BIOETHICS: HEALTH LAW AND ETHICS 51 (5th ed. 2004).
[47] Id., at 53.
[48] Id.
[49] Id., at 54.
[50] Id.
[51] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
[52] BARRY R. FURROW, et. al., BIOETHICS: HEALTH LAW AND ETHICS 57 (5th ed. 2004).
[53] Id., at 61.
[54] Id., at 61-64.
[55] Id., at 61.
[56] Id.
[57] In Stenberg v. Carhart, 530 U.S. 914 (2000), the Court noted the principles of current abortion law in the United States, summarizing them as follows. “First, before ‘viability… the woman has the right to terminate her pregnancy.’ Second, ‘a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability’ is unconstitutional. An ‘undue burden is… shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’ Third, ‘subsequent to viability, the State in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’” (internal citations omitted) Id., at 68-69.
[58] EDWARD J. EBERLE, DIGNITY AND LIBERTY 164-65 (2002).
[59] Id., at 166.
[60] Id., at 165.
[61] Id.
[62] Id., at 166.
[63] Id., at 170.
[64] Id., at 171.
[65] Id.
[66] Id.
[67] Id., at 165.
[68] Id., at 166.
[69] Id.
[70] Id.
[71] Id.
[72] Id., at 171-72.
[73] Id., at 172.
[74] Id.
[75] Id.
[76] Id.
[77] Id.
[78] Id.
[79] Id.
[80] Id., at 172-73.
[81] Id.
[82] Id.
[83] Id., at 173.
[84] Id.
[85] Id.
[86] Id.
[87] Id.
[88] Id.
[89] Id.
[90] Id.
[91] Id., at 174.
[92] Id.
[93] PETER SINGER, UNSANCTIFYING HUMAN LIFE 188-91 (2002).
[94] Id.
[95] PETER SINGER, ANIMAL LIBERATION 7 (2002).
[96] PETER SINGER, UNSANCTIFYING HUMAN LIFE 188-98 (2002).
[97] LOUIS P. POJMAN & FRANCIS BECKWITH, THE ABORTION CONTROVERSY 210 (1998).
[98] Id., at 211.
[99] Id., at 212.
[100] Id.
[101] Id.
[102] Id.
[103] Id., at 213-14.
[104] Id., at 230-32.
[105] Id., at 344-45.
[106] Id.
[107] Id.
[108] Id., at 345.
[109] Id.
[110] Id.
[111] Id., at 346.
[112] Id.
[113] Id., at 347.
[114] JOHN ARRAS & BONNIE STEINBOCK, ETHICAL ISSUES IN MODERN MEDICINE 330 (5th ed. 1999).
[115] Id.
[116] Id.
[117] Id.
[118] Id., at 331.
[119] Id., at 330.
[120] Id.
[121] Id.
[122] Id., at 331.
[123] See Part I, supra.
[124] See Part I, supra.
[125] See Part I, supra.