The Word "Killing" (was Re: regret)

Tue Apr 24 09:25:51 PDT 2007

We are talking about second and third trimester abortions because that is what the Supreme Court was addressing in Carhart II.  If referring to the woman as "mother" is disrespectful, put that on the Roe Court, not me.  Is the Roe Court's motive "cruel and disrespectful?  How do you know? 

________________________________

From: Johnsen, Dawn Elizabeth [mailto:djohnsen at indiana.edu]
Sent: Tue 4/24/2007 9:59 AM
To: Scaperlanda, Michael A.; Trevor Morrison; Jonathan H. Adler; conlawprof at lists.ucla.edu
Subject: RE: The Word "Killing" (was Re: regret)

At the risk of stating the obvious (but I feel it merits a reminder):  9 out of 10 abortions take place in the first trimester (and virtually none in the "eight or nearly ninth month"--so what is the point of that reference?); people feel very differently about abortion--including whether an abortion at, for eg, 6 weeks is a "tragedy"--and that is an essential point of leaving the decision to the individual (for many people it depends on the timing and circumstances); and whatever one's moral view of abortion, many (appropriately in my view) share the the goal of "safe, legal and less frequent" (I think "rare" is unrealistic) through comprehensive and accurate sex education programs, contraceptive availability, programs that support healthy pregnancy and childbearing (health care, living wage, etc.).  Telling a woman who has a first trimester abortion that she was a "mother" and has killed her unborn child in my view is cruel and  disrespectful, and the motive behind such language is obvious. 

Dawn Johnsen

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Scaperlanda, Michael A.
Sent: Tue 4/24/2007 9:36 AM
To: Trevor Morrison; Jonathan H. Adler; conlawprof at lists.ucla.edu
Subject: RE: The Word "Killing" (was Re: regret)

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

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
        jha5 at case.edu
        http://www.jhadler.net <http://www.jhadler.net/>  <http://www.jhadler.net/>
        SSRN: http://ssrn.com/author=183995

________________________________

        From: conlawprof-bounces at lists.ucla.edu [ mailto: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 <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 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.

        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

        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> 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20070424/a5f8bd49/attachment.htm