The Word "Killing" (was Re: regret)
Trevor Morrison
trevor-morrison at lawschool.cornell.edu
Tue Apr 24 07:49:28 PDT 2007
In the same spirit, I'll just note that it wasn't
me who compared aborting a fetus to applying
disinfectant to a bacterium. I agree that the
analogy is unhelpful. And thus I also think that
whether "brutal killing" are the right words to
use when describing an abortion procedure does
not depend on whether it's technically accurate
to say that the application of disinfectant kills a bacterium.
Michael agrees, I think. And so he defends his
word usage on other grounds. I think those other
grounds are the right place to have the debate,
though in truth I see no prospect of any list
member changing any other member's mind.
Trevor
At 10:36 AM 4/24/2007, Scaperlanda, Michael A. wrote:
>Trevor: If the five, six, seven, eight, or
>nearly ninth month old fetus is in fact no more
>than a bacterium (a disease infecting and
>invading the woman's body), then I am well
>rebuked for throwing such a "rhetorical
>punch." But, I take it that most "pro-choicers"
>think of the fetus as more than a bacterium. If
>it is only a bacterium, then abortion isn't a
>"tragic choice," or a choice that ought to be
>"safe, legal, and rare." If one concedes that a
>woman faces a difficult choice (including the
>"moral" component of the choice) because the
>entity - the fetus, the living human organism
>described as an "unborn child" in Carhart II
>- is more than a bacterium, then I stand by my
>description as not only factually accurate but
>also rhetorically fair. Prof. Alexander,
>however, seems to contest the factual accuracy
>of my statement not just its rhetorical effect.
>
>In the spirit of dialogue,
>
>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
>
>
>----------
>From: conlawprof-bounces at lists.ucla.edu on behalf of Trevor Morrison
>Sent: Tue 4/24/2007 9:04 AM
>To: Jonathan H. Adler; conlawprof at lists.ucla.edu
>Subject: Re: The Word "Killing" (was Re: regret)
>
>But there's more than that going on here, isn't there?
>
>Jonathan's point, if I understand it, is that
>"killing" is appropriate here to the extent
>that, and only to the extent that, it is also
>appropriate when speaking of what a disinfectant
>does to a bacterium. But is that really an
>equation that goes on in most people's
>minds? When my wife and I give our six
>month-old daughter an antibiotic to deal with an
>ear infection, we don't typically speak of
>"killing" the bacteria causing the infection; we
>talk about "getting rid of" or "clearing" the
>infection. We speak that way, I think, because
>the word "kill" often (perhaps not always, but
>often) has considerable rhetorical resonance
>beyond a simple description of something that
>happens just as much to a bacterium as to a
>fetus. This is all the more so when "killing"
>is preceded by a word like "brutal." (I confess
>that when the infection had kept our child and
>us up for four nights running before we resorted
>to the antibiotic, I did feel tempted to use
>"kill" and a host of other more violent terms to
>describe what I'd like to do to the
>infection. But that's another matter.) We each
>know this intuitively, don't we? When Michael
>Scaperlanda wrote the words "brutal killing" to
>describe an abortion procedure, how many of us
>thought, "yes, just like what an antibiotic does
>to an ear infection, or disinfectant to a germ?"
>
>I short, I think it was the intentional
>deployment of the rhetorical punch that
>typically comes with these words, not any
>technical inaccuracy, that Janet was objecting to.
>
>
>Trevor W. Morrison
>Associate Professor of Law
>Cornell Law School
>116 Myron Taylor Hall
>Ithaca, NY 14853
>ph. 607.255.9023
>fax 607.255.7193
>SSRN author
>page: <http://ssrn.com/author=372569>http://ssrn.com/author=372569
><http://ssrn.com/author=372569>
>
>
>
>At 08:12 AM 4/24/2007, Jonathan H. Adler wrote:
>>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>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:
>>
>>Content-class: urn:content-classes:message
>>Content-Type: multipart/alternative;
>> boundary="----_=_NextPart_001_01C785D2.8031E2C9"
>>
>> 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:
>>Content-class: urn:content-classes:message
>>Content-Type: multipart/alternative;
>> boundary="----_=_NextPart_001_01C785A9.AAEC6DC4"
>>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
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu
>>To subscribe, unsubscribe, change options, or
>>get password, see
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>>
>>Please note that messages sent to this large
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>>
>>Janet Cooper Alexander
>>Frederick I. Richman Professor of Law
>>Stanford Law School
>>Stanford CA 94301-8610
>>650.723.2892
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu
>>To subscribe, unsubscribe, change options, or
>>get password, see
>><http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>Please note that messages sent to this large
>>list cannot be viewed as private. Anyone can
>>subscribe to the list and read messages that
>>are posted; people can read the Web archives;
>>and list members can (rightly or wrongly) forward the messages to others.
>
><http://ssrn.com/author=372569>
>
Trevor W. Morrison
Associate Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
ph. 607.255.9023
fax 607.255.7193
SSRN author page: <http://ssrn.com/author=372569>http://ssrn.com/author=372569
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