The Word "Killing" (was Re: regret)

Tue Apr 24 05:12:52 PDT 2007

I have been following this threat with interest, but I am a bit confused
about Prof. Alexander's objection to the use of the word "killing".

First, let me say that I believe that language is important, and as a
teacher I try to be quite deliberate with my use of language in class.  I
aim to be even-handed and to use neutral language when lecturing.  At the
same time, when engaging in Socratic dialogue, I deliberately use more
loaded language to support whichever side of the argument I am making. I
believe it is important to confront students with contrary arguments stated
in strong terms, and that necessarily involves using somewhat loaded
language.

Second, I understand Prof. Alexander's objection to words like "baby" and
"child" insofar as these terms seem to take sides about the moral status of
the fetus and may suggest fetal personhood, which (as she notes) is not
"common ground."  [I would note, however, that while these words may not be
neutral in a legal discussion, they seem wholly unobjectionable to me other
contexts.  As an expectant father, for instance, I regularly refer to our
fetus as our "child" and our "baby," as does my wife.]

My confusion is with Prof. Alexander's objection to the term "killing."
>From a physiological standpoint, think it is indisputable that a) the fetus
is a separate (albeit not independent) living biological organism, and b)
abortion ends the life of - i.e. "kills" - that organism.  Just as a certain
type of disinfectant may "kill" a bacterium, or a pesticide may "kill" an
ant, an abortion "kills" a fetus.  To say this is not to make any claim
about the moral status of the fetus or whether abortion is/isn't/can/can't
be a morally permissible act.  Rather, it is to make an accurate descriptive
claim.

In sum, while I understand how the use of the words "child" or "baby" to
describe a fetus at certain points in its development could be characterized
as "taking sides" on the issue of abortion (or, at least, on some of the
moral and ethical issues that inform our various views on the subject), I do
not see how the use of the word "killing" is anything but a physically
accurate description of what occurs.

JHA

------ 
Jonathan H. Adler 
Professor of Law 
Director, Center for Business Law & Regulation 
Case Western Reserve University School of Law 
11075 East Boulevard 
Cleveland, OH 44106 
ph) 216-368-2535 
fax) 216-368-2086 
cell) 202-255-3012 
 <mailto:jha5 at case.edu> jha5 at case.edu 
http://www.jhadler.net
SSRN: http://ssrn.com/author=183995

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Janet Alexander
Sent: Tuesday, April 24, 2007 2:00 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: regret

Professor Volokh was quite ready to take after Professor Pollack for an
off-the-cuff remark that is in fact a staple of op-ed page discussions.
Although she apologized repeatedly (and unnecessarily) for the comment, he
suggested in several different posts that if she made such statements in
class she was an unethical teacher.  When Professor Scaperlanda used loaded
terms such as "choosing to have her partially born child brutally killed,"
Professor Volokh apparently saw no potential pedagogical problem.  Rather,
he intervened to protect Professor Scaperlanda from my objection.  

Americans have widely divergent moral and religious views about abortion.
Under our Constitution the government must make its decisions about abortion
legislation without establishing religion.  Up until now, except for some
dissenting opinions the Supreme Court has attempted to write its decisions
in secular language and has avoided terms like "murder," "baby," and
"brutally killed" regardless of Justices' personal beliefs.  I hope that in
class discussions constitutional law teachers are at the least respectful
toward the established law and do not give the appearance of requiring their
students to believe that women who exercise their constitutional right to
reproductive freedom are "killing their children."  

Professor Volokh's analogy to the death penalty, with respect, is not apt.
Everyone agrees that convicted felons sentenced to death are fully-formed
human beings and are "persons" in the eyes of the 5th and 14th Amendments,
and that such executions are "killings."  There are, of course, questions
whether execution itself is a barbaric practice, whether particular methods
of execution are cruel and unusual (or "brutal"), or whether it is
appropriate hyperbole to call the death penalty "government-sanctioned
murder" even though it is not technically murder.  But "person" and
"killing" are common ground.  The physiological facts of fetal development
are also common ground, but the conclusion that a developing fetus is a
"child" or a legal person, or that terminating a pregnancy is "killing," is
not.  The Supreme Court has never held that a fetus is a "person" for
purposes of the 5th/14th with separate protectable legal interests.  So
using terms like "baby," "child," "killing" as if they were factual
descriptions ignores the law.  For many of us, those terms are no more apt
for abortion than they are for contraception and we are entitled to a
government that does not force others' religious views on our reproductive
choices.  

Professor Scaperlanda's analogy to "killing a puppy," which he made in an
off-list email to me "in the spirit of dialogue," is even less to the point.

Janet Alexander

At 11:09 AM 4/23/2007 -0700, Volokh, Eugene wrote:

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    I appreciate Prof. Alexander's concerns, which she is certainly entitled
to air.  And if the list had a general practice of not using "argumentative,
polemical characterizations," Prof. Scaperlanda might be reasonably expected
to tone the characterizations down a bit.  (Likewise, if he wishes to do so,
for rhetorical reasons, I would certainly understand.)  

    But given the nature of past list discussions, it seems hard to me to
condemn Prof. Scaperlanda, who doubtless sincerely and not unreasonably
believes that the intact D&X of a second-trimester fetus is "brutal killing"
-- a position that others may disagree with, but hardly strikes me as
outlandish or patently unreasonable, even to those who see it unreasonable
to treat the destruction of a few-day-old collection of cells as "brutal
killing" -- for using such a description.  

    I take it, for instance, that a death penalty opponent would be
entitled, given the practice on the list, to call execution by electrocution
"brutal murder," even if many do not believe execution to be "murder," do
not believe that killers condemned to death have a right to life, and do not
believe electrocution to be particularly brutal.  Perhaps less vivid or
conclusory terms would be more conducive to persuasion; perhaps not; but I
doubt they would violate list standards as they have developed.  It seems
the same is true as to the actions involved in intact D & X of a
second-trimester (or third-trimester) fetus.

    Eugene

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Janet Alexander 

Sent: Monday, April 23, 2007 9:36 AM 

To: Scaperlanda, Michael A.; Lynne Henderson; Andrew Koppelman 

Cc: conlawprof at lists.ucla.edu 

Subject: Re: regret 

Dear Professor Scaperlanda, 

        Would you kindly spare the rest of the list these argumentative,
polemical characterizations?  You have made your point -- you think intact
D&X is immoral.  Others on the list do not agree and have quite different,
though perhaps equally strong, views about the morality of the Supreme
Court's decision.  I have tried to spare the list the responses that have
gone through my mind each time I read some such propagandistic phrase as
"brutally killed."  I am afraid I am going to have to resign from the list
if this doesn't stop. 

        Janet Alexander

Janet Cooper Alexander 

Frederick I. Richman Professor of Law 

Stanford Law School 

Stanford CA 94301-8610 

650.723.2892

At 08:12 AM 4/23/2007 -0500, Scaperlanda, Michael A. wrote:

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Lynne, are you suggesting that the psychological harm the mother suffers in
choosing to have her partially born child brutally killed is similar to the
harm suffered when one chooses "Stanford over Yale, law over medicine"?  Or,
did I miss understand you? 

Michael 

Michael Scaperlanda 

Associate Dean for Research 

Edwards Family Chair in Law 

University of Oklahoma College of Law 

300 W. Timberdell Rd. 

Norman, Oklahoma 73019 

Ph.    405.325.4833 

FAX   405.325.0389

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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892

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