Ronald Dworkin coins the idea of detached and derivative objection. The idea of detached and derivative objections may support the idea that abortion could be condemnable and immoral. His view however admits of some instances where abortion could be done validly. Most common of these exceptions is abortion by reason of or as a result of incest or rape, or when the life of a woman is at stake that there is no other option but to remove the fetus inside the womb. While both concepts are interrelated to a certain extent, caution must be observed in their application.
Ronald Dworkin distinguishes the “detached objection” from derivative objection. The detached objection basically is based on human sanctity at every stage of life, starting from conception to its termination. The fetus while intimately connected with the mother's womb, has some intrinsic value of human life distinct from the mother that should also be protected.
Having an intrinsic value, its existence can be viewed as separate and distinct from that of the mother. It is a separate and distinct life which forms inside the womb to be formed and developed. It necessarily possesses the potentialities of a human being which may be fully realized and actualized if given the chance to be born. However, Dworkin admitted that detached objection is more of a theological argument which cannot be simply used in debates, arguments or in the secular affairs of the state.
The religious belief cannot simply superimpose in the legislative affairs due to the policy of separation of church and state. Being a theological belief, it is therefore a matter of personal belief which others may not necessarily follow. Others may prefer to assert their right and dominion over their body disregarding some religious precepts and beliefs.
Derivative objection, on the other hand, is founded on the idea that a fetus, being a separate being, has a right and interest of its own. The right and interest of a fetus is that of being born, and be alive. However, such right and interest of a fetus does not automatically accrue to its existence especially in the earlier stage. The derivative objection notes that “to posesses a right, something must first possess an interest, and to possess an interest, a thing must be sentient”(Goldblatt, 2002).
For Dworkin, it still “scarcely comprehensible to a pre-sentient fetus to have such a right to life. The pre-sentient stage is set at the stage prior to the end of the second trimester. Hence, while being separate and distinct, the fetus has no right to assert, and which the public and the State can properly protect, and the mother remains to have complete freedom over her own body, including the disposition of the parts thereof. At such stage, he can certainly impose her choice.
The Dworkin's paradigm introduces a liberal view for states to apply and allow abortion to certain circumstances. Such paradigm does not impose a total impossibility of abortion, although it encourages that life should be respected and protected to the utmost. It does not close doors to individual freedom of women to bear the child but put freedom of choice as one primordial consideration.
Same view or principle can be applied to euthanasia. The sanctity of life, in a religious perspective, of a vegetative person remains with him. However, this conflicts with the idea of the right and interest of a person to die through some painless means. The detached argument cannot be used in case one chooses to die painlessly as basically this involves a purely personal right in lieu of one's interest to die painlessly.
Dworkin's work puts high regard on the sacredness of life on persons. However, such paradigm belong to theology and religion which could scarcely find application in the secular world. We are nevertheless left with no option so as to see life's value amidst the secular and the ordinary. After all, in an objective and secular perspective, the value of life even to a helpless fetus can be determined.
Dworkin would insist to endorse, despite the sacred-life of the fetus, on the pro-choice view on abortion basically based on two grounds. First , he certainly respects and upholds the freedom of choice of women over and above theological or religious conviction. Freedom of choice must be exercised especially at times when the life of a woman is at stake, or when the fetus was formed by involuntary or immoral means which would only put the woman to utmost humiliation and ridicule. Dworkin would somehow offer some leeway for women to exercise some degree of freedom at times when their life and interest are at issue. Women who bear the burden of pregnancy should not be ultimately compromised. Abortion must not be regarded and treated generally as an absolute taboo. An option must be provided for a woman to choose for her own good, and only for some good reason.
Second, the common understanding regarding abortion has long been imposed principally by religion which does not necessarily apply at present time. Freedom not to follow such religious precepts must be afforded to women just as one can freely choose and repudiate his religion. Theological arguments and beliefs has no moment and place in the secular affairs of the state. It should be left therefore to t he individual person whether she believes in it or not. Religious is a matter so personal that the state cannot intrude or interfere. More so, religion can only move within its bounds and should not intrude to the affairs of those not belonging to its congregation. It can by no means be used as a defense against abortion.
I believe like Dworkin that a fetus has some rights, and such rights must be protected by the state. When such rights accrue in favor of the fetus, the state must afford full protection for its development and survival. But this should not be treated as the hard and fast rule as abortion must allow possible exception. At the early stage, the fetus may be removed or withdrawn from the mother's womb when warranted by the circumstances. Within such stage, the mother may make or be allowed some leeway and prefatory period within which to think of the possibility of continuing with the pregnancy. The woman's choice must be respected, as she has the liberty to determine what se wants and desires to do over her bodily existence.
At all times, this freedom of choice afforded to women as policy of the state within the pre-sentient period of the fetus must be exercised with utmost care and caution. Arbitrary and whimsical choice of merely removing the fetus should somehow be discouraged. Though the state may not have the power to prevent a women to remove the fetus at the pre-sentient stage, the state must however, promote, advertise and popularize the responsible and concerned use of choice. When no infirmity, threat, worries, or problems are posed to the woman bearing the child, such choice may necessarily be discouraged.
The Current Constitutional Law on Abortion
Roe versus Wade, 410 U.S. 113, decided by the United States Supreme Court in the year 1973 is the celebrated case on abortion which lays the basic policy of US Constitution on abortion. The decision is very much controversial as it draws reactions form pro-life and pro-abortion groups. Penned by Justice Harry Blackmun, the decision was claimed to have taken a conceptual leap fro the decision of the United States Supreme Court in the 1965 case of Griswold v. Connecticut, regarding the use of contraceptives.
The case involves a pregnant single woman who assailed the constitutionality of the Texas abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. The issue in the case basically involves the legal personality to sue and the illegality said law. The court ruled that Roe has the capacity to sue and ruled that the Texas Law “violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy”(Roe v. Wade). The Supreme Court basically prescribes the following guidelines to observe:
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163, 164 (Roe v. Wade).
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163, 164 (Roe v. Wade).
(c) For the stage 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 necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164-165 (Roe v. Wade).
The decision also stresses that the choice of a woman to abort the fetus inside her womb cannot be the subject of an injunctive relief even by the husband or the father of the child, or from the parents. The woman cannot be prevented or proscribed form exercising her decision-making right even in matters of procreation. The choice remains under the sovereignty of the woman who has the full discretion over her affairs. It is perhaps only the right of the fetus that could validly prevent the woman but only until such fetus acquires the necessary constitutional personality to be entitled to the protection of the State.
The decision was primarily based and founded utilitarian principles. Legally however, the decision was anchored on the right to privacy of women laid and established in the Fourteenth Amendment under the due process clause. Right to privacy involved basically refers to the right of women to determine and choose in her moment of private decision making whether to continue to bear the fetus formed within her womb or withdraw the same there from. The people (women) basically enjoy “a constitutional right to private decision-making in certain personal matters that no legislation could rescind”(Griswold v. Connecticut).
The leeway given by the United States Supreme Court on women's privacy for private decision making on personal matters is not without any limitation. It is when such choice does not become purely personal anymore that such right can no longer be exercised. The choice no longer remains as purely personal when, even in the private and solitary moment of the mother, the child has developed and becomes capable of sensation. In other words, the freedom afforded the women to exercise their choice is only at the initial stages of pregnancy or the so-called pre-sentient stage of the fetus, which take place at the end of the second trimestral of pregnancy.
The allowance of abortion in the first two trimestral simply implies that the fetus is not yet a well defined person which can be constitutionally protected. This view was taken from Ronald Dworkin who avers that the fetus at the pre-sentient stage has no right to speak of, as such right creating some interest to live and to be born cannot yet accrue to the fetus being devoid of feelings or sensation. The fetus at the pre-sentient stage remains to be an integral part of the woman's body which the latter can rightfully terminate or remove.
The Roe v. Wade decision can be regarded as a pro-choice decision. It basically respects the private decision of a woman, where the issues involved are for herself alone. The State cannot interfere in such an occasion that being protected and enshrined in the constitution, as the Supreme Court would say. The woman has absolute sovereignty over her private affairs, as in the eyes of the law, the fetus has no distinct personality whose rights and interest may intrude and interfere in the sovereignty of its mother.
It is at the time when the fetus becomes sentient that it gains and obtains legal personality which the state has the obligation to protect. As in Dworkin's paradigm, it is when the fetus attains an interest and right to life and to be born. In case of abortion at this stage, there can be no murder or killing to speak off since the fetus is not one separate and distinct human being but a mere extension of the woman's body. After the pre-sentient stage, the fetus qualifies as a person which should be guaranteed it right for equal protection and cannot just be discriminated against. It can no longer be deprived of its life, liberty and property without due process of law.
The decision moreover derived its foundation form the First Amendment re non-establishment of religion clause. Most arguments against abortion are based on religious precepts and principles. Upon the enactment of the First Amendment, the church can no longer interfere in the secular, worldly, and ordinary affairs of the state and the people. The State leaves it to the discretion of private individuals if they adhere to such precepts or principles or not. The State at all times upholds and respect the basic right to choose of the people free from intrusion or interference.
The Supreme Court's decision on this issue constitutes as precedence or the so-called stare-decisis. This limits the jurisdiction of the laws and the courts to intrude and interfere over purely personal choice of procreation of women in all states. The decision has shaped and established the policy in the US as the US Supreme Court defended the validity of Roe v. Wade decision eloquently on the same ground in the Supreme Court's majority ruling in the 1992 case of Planned Parenthood v. Casey. Certainly, all abortion laws in the United State, while not totally repealed, should stand in conformity with the ruling of the Supreme Court in the case of Roe v. Wade. On the Unconstitutionality of Death Penalty
ARGUMENT FROM “CONTINGENT REALITIES”
The United States Supreme Court's stance over the issue on death penalty has been consistent that the death penalty is not unconstitutional in itself. It becomes unconstitutional only under certain circumstances attending its enforcement and implementation. Unconstitutionality may take place when the death penalty was carried out with procedural arbitrariness, racial bias, and economic discrimination against the person convicted. However, when free of such infirmities and unfairness, the death penalty may be held to be valid.
The argument from “contingent realities — human nature, cultural attitudes, fact about the criminal justice system, and the wording of the death penalty statutes then on the books — insured that there would always procedural unfairness in trial courts' decisions about who was to live and die”(Johnson). It is not basically the wordings and the meaning of the law that has problem. It is basically the administration of the laws being susceptible and vulnerable to biases and lapses that violates the rights of the person to due process and equal protection of the laws.
One room of bias or unfairness opens a room for doubt and shatters the very foundation of conviction. In the celebrated case of Furman v. Georgia, Justice Blackmun argued against death penalty with “worries about racial and economic discrimination, and the dangers of executing the innocent”(Ibid). Hence, the constitution allow the imposition of death penalty being constitutional, but only in a manner that is fair, just and careful.
The argument from contingent realities is one that can be readily used by judges, justices and advocates against death penalty. It is an argument that can be resorted into to serve one's moral conviction against death penalty. Its basic principle is grounded upon the vulnerability and lapses of rendering judgment sentencing a person under pain of death penalty. Justice Blackmun in the celebrated case of Collins v. Collins argues that it is but hard to determine whether a person really deserves to die as the problem is “that the inevitability of factual, legal and moral error gives us a system that fails to deliver the fair, consistent, and reliable sentences required by the Constitution” (Collins v. Collins).
The death penalty may be allowed by the no less than the constitution itself, however problems arises in terms of its enforcement, execution or imposition. The basic structure in the administration of justice requires an absolute certainty in judgment that is free from prejudice, unfairness and discrimination. Such however cannot be met by the courts. To further death penalty at the present structure would be to deny the convicts of their right to due process, or to be heard free from biases, influences and discrimination. Moreover, the innocence of the accused could not be established by courts which it is supposed to protect.
The argument from contingent realities does not only use such legal or administrative infirmities but even sociological and moral factor that would affect the judgment against the convicts. The mind of judges as human beings is not free form influences and biases. Chances are, there is a possibility that the judge, to a certain degree would substitute the truth and facts with his prejudice. In which case, a doubt can easily be cast as to the guilt of the person as the prejudice or bias of the judicial officer in visible.
There is always no guarantee that the imposition of death penalty is based on the guilt of the person beyond reasonable doubt. The problem of administering justice in the real world rests on the imperfect, overworked, biased, and all too finite human beings who must make decisions about who is to live and who is to die. The discretion of the judiciary is overshadowed with dilemma of the absolute truth attending the guilt and liability of the person so convicted.
Stand on Capital Punishment
The constitution must itself recognize in its provision the sanctity of life and the dignity of the human being. The Constitution must recognize the value of human life itself as one endowed with possibilities. Just as the constitution is made and promulgated by the people as free and rational beings, it must give in return the respect and regard due to the people. Regardless of his previous criminal act, the constitution must give opportunity for such criminal to change and reform himself for the better.
The inhumanity of death penalty is basically founded on the reduction of man to only one criminal act without taking into account the other possible acts which could possibly make such convict good even inside the jail. It is but improper for the person to be judged only for one act which led to his conviction for a crime. One act is not determinative that a person is already bad and criminally perverse. It must not be conclusive upon the entire personality and character of a person. A person should be understood to be capable of directing his action towards self-realization and self-fulfillment. What is important is that the state must not cease in giving him the opportunity even under the pains of imprisonment. Death penalty basically deprives a person of his right to improve his faculties and realize his potentialities. It immediately terminates the vast potentials of a person.
Penalty should be carried out for the reformation of criminals. It must not be an instrument of inhumanity that does not offer any hope for a change to any criminal. The temporary or permanent deprivation of liberty of criminal must be used by the government for the improvement and development of criminal that they may, nevertheless be helpful or useful to society.
Moreover, judgment imposing the penalty of death cannot be said to beyond any error. Certain factors affect the status of the decision. The judgment of conviction will always be open to suspicion and serious doubt by reason of several circumstances surrounding the premises of the case. To protect the innocence of individuals, and to avoid any possible error, death penalty must be abolished in order that no possible innocent individual may be put to death. As often said, It is better to free one thousand guilty person than imprison or kill one innocent. It is basically for the absolute protection of innocent persons that death penalty must be abolished.
On the Equal Protection Clause of 14th Amendment
Distinction between Concrete and Abstract Intent The Equal Protection Clause, included in the Fourteenth Amendment to the United States Constitution, provides that "no state shall… deny to any person within its jurisdiction the equal protection of the laws." The Equal Protection Clause can be seen as an attempt to secure the promise of and commitment to the proposition that "all men are created equal".To ensure the stability and peace of the States by reason of unrest due to despotic moves of government leaders, the people enacted the 14th Amendment in order to assure the people that their rights will be protected under the law.
More concretely, the Equal Protection Clause marked a great shift in American constitutional ism. Before the enactment of the Fourteenth Amendment, the Constitution protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgement by state governments — henceforth they could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means, of course, has been the subject of great debate. And the story of the Equal Protection Clause is the gradual explication of its meaning.
The abstract intention of the 1866 Congress is basically protect the people against discrimination by reason of race, creed, color, gender or other discriminatory classification. The clause basically affords to citizens of the United States equal treatment from the government in the protection of all rights of the citizens regardless of race, creed or color. This is in line to the underlying principle that “all men are created equal”.
The concrete intention of 1866 Congress leads towards the misinterpretation of the principle of “Separate but Equal”. This interpretation allows segregation by color which prohibits the commingling of black with the white people or vice versa. The black cannot just enter into places intended only for whites. It was justified at that time that despite segregation, the people are given equal civil rights and privileges only that admixture or commingling is proscribed. The courts then allow such as but proper classification without violation of the equal protection clause.
In its most notorious post-war reinterpretation of the Equal Protection Clause, Plessy vs. Furguson (1896), the Supreme Court upheld a Louisiana Law that required the segregation of blacks and whites on railroads and mandated separate railway cars for members of the two races. The Supreme Court, ruled that the Equal Protection Clause had been intended to defend equality in civil rights, not equality in social arrangements. All that was therefore required of the law was reasonableness, and Louisiana's railway law amply met that requirement, being based on "the established usages, customs and traditions of the people.
How does this very abstract philosophical consideration fit into the Court's decision in Brown v. Board of Education? The case of Brown v. Board of Education 347 U.S. 483 (1954) interpreted 14th Amendment not not on the basis of conditions existing when or before the Fourteenth Amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the Nation. The decision extensively and progressively considered the demands and nature of education as it requires the exchange of ideas among student of different races and walks of life. Hence, the Supreme Court concluded through Justice Warren that:
To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone…. We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.
The Supreme Court, in Brown v. Board of Education, stresses that the idea of segregation simply does not and should not exist in the academic institutions and schools. While the government may provide equal amount and quantity of services, facilities, administration, and other tangible considerations, yet the essence of education basically lies on the intangible factors.
Discrimination may still exist despite equity in terms of tangible factors, yet the segregated group would be denied of their right and opportunity to compete, to improve his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession. With the continued segregation, the other may have the feeling of being inferior as no sense of competition existed within the school atmosphere.
The abstract philosophical consideration of the 14th amendment came fit to the interpretation in Brown v. Board of Education on the ground that the basic nature of education necessarily requires that no boundary should be set between two races. Education knows no bound that knowledge even requires the participation, cooperation and active involvement of everyone. One is not an opponent in learning but a partner for the free flow of ideas. The meaning of equal protection clause in Brown v. Board of Education was a great conceptual leap to equal protection clause as the barriers brought by segregation has been abolished.
- Brown v. Board of Education, 347 U.S. 483 (1954)
- Goldblatt, Mark, (2002). “Liberty, Logic and Abortion”, Philosophy Now, Retrieved November 22, 2006. http:www.philosophynow.org/archive/articles/36goldblatt.htm
- Johnson, Jeffrey. “The Argument form contingent realities and the constitutional case against the death penalty”, East Oregon Univ., Retrieved November 22, 2006.
- Madison , P.A. (October 29, 2006) A Dummies Guide to Understanding 14th Amendement. Retrieved, November 22, 2006.
- Roe v. Wade, 410 U.S. 113, Decided, January 22, 1973.
- Roland, Jon, (Sep. 24, 2000). “Intent of the Fourteenth Amendment was to preotect all rights”,
- Retrieved November 22, 2006. www.constitution.org/col/intent_14th.htm
- Tribe, Lawrence, (May 16, 2003). “On the edges of life and death”, New York Times Archives, Retrieved, November 22, 2006. query.nytimes.com/gst/fullpage.htm.