Amendment 48 and Personhood: Reply to Laugesen

Here I extend a debate over Amendment 48, which would define a fertilized egg as a person in Colorado’s constitution. I also want also to summarize the major issues, so hopefully the piece will be of interest even to those who haven’t followed that debate so far.

A few days ago the Colorado Springs Gazette published an editorial endorsing Amendment 48. I wrote a reply, which Wayne Laugesen of the Gazette answered. Even though Laugesen is wrong on this issue (though I often agree with him on other matters), it has been a pleasure to debate the matter with someone who takes objections seriously and thinks though the implications of the arguments.

The Language and Intention of Amendment 48

Again, Amendment 48 would not merely define a fertilized egg as “human,” “life,” or even a “person.” Rather, it would grant a fertilized egg the same legal rights as a born infant, the rights to life, liberty, property, equality of justice, and due process of law. Furthermore, the explicit goal of the sponsors of Amendment 48 is to outlaw all abortion, except when the woman certainly would otherwise die. That’s bad enough, but the measure logically also prohibits certain forms of birth control, medical research, and fertility treatments, as Diana Hsieh and I review.

Laugesen answers that federal and state law would continue to keep abortion legal, and that the political climate is not right for such far-reaching prohibitions. However, the advocates of the measure have promised a long-term fight to overturn Roe v. Wade as well as state laws allowing abortion, and Amendment 48 would grant them a powerful weapon in that fight.

If Laugesen doesn’t think Amendment 48 could eventually ban abortion, I’m at a loss to understand why he favors the measure. It’s a bit odd to endorse a measure that one thinks will have consequences dramatically different than what the sponsors of the measure anticipate. As I argued previously, the problems that Laugesen seeks to address aren’t even real problems, and if they were they could be addressed with delimited statutes.

The Conditions of Personhood

What are the necessary and sufficient conditions of personhood? Obviously a person is alive and human (though if we were to discover intelligent life elsewhere presumably “person” would become the broader concept). But many other things are alive and human, in the sense of containing human DNA, including my kidney and every cell in my body. So those conditions are necessary but not sufficient.

A person must have the genetic code capable of creating or sustaining an independent existence. Notice that it’s not true that each person has distinct DNA (and I think I’ve misstated this point myself), for identical twins start out as the same fertilized egg and then split apart from each other. So unique DNA is not even a necessary condition of personhood. But DNA capable of forming and sustaining a human body is necessary.

Part of the difficulty of thinking about a fertilized egg is that it is in some respects unique. It shares some similarities with with other human cells and organs, yet it has the distinctive capacity to develop into a born infant and then an adult human (in the right conditions). It is this distinctiveness that draws some to equate fertilization with personhood. Yet that is a mistake. The only options are not “living human never-person” and “living human person.” A fertilized egg is a third sort of thing: it is living and human with the potential for turning into a person. But a potential is not an actual. It is ludicrous to equate a zygote, a mass of undifferentiated cells with no organs, with a born infant, and declare that both should be legally indistinguishable.

Laugesen claims that only superstition can mark the onset of personhood, if we reject the point of fertilization. This ignores the obvious, blindingly bright line: birth. Something dramatic happens at birth. No longer is the fetus completely contained within the body of the woman, completely dependent on her at the biological level for oxygen and sustenance. At birth, the fetus becomes a separate baby, able to breath with his own lungs, digest food with his own organs, and, notably, leave his mother. A born infant is still highly dependent in the sense that somebody must provide him with nutrition, warmth, etc., yet a born infant is radically independent relative to a fetus in that the born infant is a physically separate biological entity.

Personhood implies legal rights, as Amendment 48 recognizes. Yet, to have legal rights, individual rights, one must be an individual in the basic physical sense. A fetus has no such independent existence. And that matters very much. For instance, if a woman needs cancer treatment that might harm the fetus, even though the woman might not otherwise die before delivery, the woman has every right to get that treatment, even if it kills the fetus.

Laugesen is correct that the development of a fertilized egg to a late-stage fetus is a continual and gradual one, without any momentary lines of demarcation. The brain develops slowly; it does not just pop instantly into the fetus’s head. However, that does not imply that a fertilized egg is the same thing as a late-stage fetus. The two are radically different. One is just a few cells, the other has all the organs that an adult person has.

It is this distinction that draws Leonard Peikoff, for instance, to a discussion that centers on early-term abortions:

The status of the embryo in the first trimester is the basic issue that cannot be sidestepped. The embryo is clearly pre-human; only the mystical notions of religious dogma treat this clump of cells as constituting a person.

We must not confuse potentiality with actuality. An embryo is a potential human being. It can, granted the woman’s choice, develop into an infant. But what it actually is during the first trimester is a mass of relatively undifferentiated cells that exist as a part of a woman’s body.

This points to two additional factors that are necessary for personhood: developed human organs and physical separateness (i.e., birth). Consider, for instance, that if a woman’s body expels a living fertilized egg, we do not consider that she has given “birth” to a “child.” We don’t hold a funeral complete with a miniature coffin. (As Hsieh and I point out, most fertilized eggs are naturally flushed out of a woman’s body; we do not consider this to be some sort of horrific tragedy, as we would if all fertilized eggs truly were people.)

Together, those conditions of personhood — life, human DNA, developed organs, and physical separateness — are sufficient for personhood. If something doesn’t have those four characteristics, it’s not a person.

Peikoff answers those who would equate a potential person with an actual one:

If we are to accept the equation of the potential with the actual and call the embryo an “unborn child,” we could, with equal logic, call any adult an “undead corpse” and bury him alive or vivisect him for the instruction of medical students.

The entire case for granting personhood status to fertilized eggs rests on the fallacy of equating a potential with an actual.

The Meaning of “Human”

Laugesen claims, as I’ve heard before (and as Kristi Burton, sponsor of Amendment 48 has also claimed), that the meaning of “person” and “human” are indistinguishable. That’s clearly wrong. For instance, we say that a kidney is a human organ, but we don’t claim that a kidney is a person. As Hsieh and I have argued, the advocates of Amendment 48 routinely equivocate on the term “human,” jumping from “containing human DNA” to personhood for no good reason. One finds this dual meaning of “human” whether one turns to the Oxford English Dictionary or Dictionary.com.

A Zygote Versus a Felon

Laugesen argues that, as we can restrict the life and liberty of a murderous felon, so we can restrict the life and liberty of a zygotic “person.” However, the comparison falls apart because a zygote is not a person. If a zygote were a person, it would be quite unjust to treat a zygote as though it were guilty of first-degree murder. A murderer has willfully removed himself from civil society. Notably, to be criminally punished one must be found guilty according to “due process of law” — a right granted to fertilized eggs by Amendment 48.

A fertilized egg is not a person. Amendment 48 is wrong in its assumptions and frightening in its implications.