Embryonic stem cell research and the Constitution are in conflict with Roe versus Wade
Debate Rounds (2)
https://www.law.cornell.edu...), "Texas urges that, apart from the Fourteenth Amendment, (https://www.law.cornell.edu...) life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. [p160]" The question that has to be asked is, "What is the truth regarding when life begins?" Should physicians, who benefit financially from performing abortions, determine when life begins? Should philosophers determine when life begins? What role does a religious individual have in determining whether a member of our species is alive, or more importantly to them, contains a life-giving spiritual components such as a "soul"? The debate before us is have we reached that point in time where man's knowledge can address this issue? I propose that human embryonic stem cell research(http://stemcells.nih.gov...) and the United States Constitution (https://www.law.cornell.edu...) are a way to answer the topic in the affirmative.
Quark challenged me directly and out of the blue on this topic. Normally, I decline all such challenges, but this one sparked my interest since it dealt with constitutional law. Quark has restricted the voting to 4500 Elo minimum (I say this mostly to remind myself what the restriction is, since DDO doesn't provide a way to check once you accept a challenge).
As the one who is making an affirmative statement, Pro has the BoP. Pro also has the BoP because he is challenging the status quo. The Supreme Court is the ultimate authority on what the Constitution says, and the Supreme Court has ruled three separate times that the Constitution protects a woman's right to choose whether or not to have an abortion (Roe v. Wade, Planned Parenthood v. Casey, Gonzalez v. Carhart). Conclusion: Pro has the BoP.
== My case ==
Pro loses by default because he does not have the right to interpret the Constitution for himself. What the Supreme Court says *is* what the Constitution says. Justice Jackson, when he sat on the Supreme Court, once said, "We are not final because we are infallible, but we are infallible . . . because we are final." Justice Jackson was acknowledging that sometimes the Constitution has multiple possible meanings, but *some body* must be charged with making a final, binding determination of how to interpret the Constitution. Otherwise, the stability and "rule of law" would be undermined because every country-bumpkin could claim to be a constitutional scholar. Unless we have an *official* interpreter of the Constitution, it would be permissible for someone to not pay taxes and claim the Constitution permits them to refuse to pay. It is therefore incoherent to claim that the Constitution is in conflict with Roe v. Wade. By definition in our political system, Roe v. Wade was a declaration of *what the Constitution* says about abortion. As the Supreme Court stated in Marbury v. Madison, the Supreme Court gets to say "what the law is." Roe v. Wade was a statement that the Constitution protects a woman's right to choose whether or not to have an abortion. If the Constitution permits abortion, then abortion cannot be "in conflict" with the Constitution, as the resolution asserts.
Pro's main problem in Round 1 with Roe v. Wade is that abortion doctors should not get to define when life starts. However, the Supreme Court has acknowledge that "life" (whatever that means) does start at conception, but the Constitution *still* protects the right to an abortion. As the Supreme Court stated in Gonzalez v. Carhart, the Court's holding in Roe had three main components:
"First, a woman has the right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State. Second, the State has the power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering the woman"s life or health. And third, the State has legitimate interests from the pregnancy"s outset in protecting the health of the woman and the life of the fetus that may become a child."
The third component is the most relevant here. The Supreme Court has held that states may enact laws that force woman to undergo rudimentary counseling before deciding to have an abortion because the state has an interest in protecting fetal life. Pro quotes Texas as saying that states should have a right to protect fetal life. This position is *consistent* with Roe v. Wade because the state is allowed to pass laws to ensure that women are making a fully informed decision when deciding to get an abortion. The state can try to dissuade them (using non-coercive means) from having an abortion in order to protect the life of the fetus.
If you read the Supreme Court's Gonzalez v. Carhart decision, in essence, it acknowledges that the rights of two beings are in conflict: the woman's right to bodily autonomy and the fetus's right to life. In Roe v. Wade, the Supreme Court decided that a woman's right to bodily autonomy trumps the fetus's right to life prior to the fetus being viable to live outside the womb. A woman is a fully formed rational entity that can feel pain. A fetus is neither fully rational nor can it feel pain prior to viability. So the woman's rights trump. However, that doesn't mean that the state cannot impose some restrictions to protect fetal life and ensure that woman are making a fully informed decision.
: Pro is wrong to assert that Roe v. Wade dealt with when life begins. It's possible to acknowledge that life begins at conception and still permit abortion. The right to life is not absolute, and when there are countervailing concerns, the right to life can be restricted. For example, the state can conscript you into the army and make you die for it. That's constitutional (and does not violate your right to life). The conflicting concern in wartime in survival of the nation. In the abortion context, the conflicting concern is the woman's right to bodily autonomy and the woman and her doctor's right to privacy. When rights are in conflict, there's no clear answer about whose rights should trump. Some body (like the Supreme Court) must weigh the competing interests and decide whose rights win out. And the Supreme Court has done so. And their interpretation of the Constitution is final.
In Mathews v. Eldridge, the Supreme Court employed a utilitarian calculation to decide what procedural due process is afforded by the Constitution. The Supreme Court did so because it makes little sense to afford additional protections that are meaningless in practice. Banning abortion would be meaningless in practice. Elizabeth Rosenthal of the New York Times explains, "A comprehensive global study of abortion has concluded that abortion rates are similar in countries where it is legal and those where it is not, suggesting that outlawing the procedure does little to deter women seeking it. Moreover, the researchers found that abortion was safe in countries where it was legal, but dangerous in countries where it was outlawed and performed clandestinely. Globally, abortion accounts for 13 percent of women"s deaths during pregnancy."  In essence, this study proves that outlawing abortion does not save fetal life. Women simply seek back-alley abortions, which are extremely dangerous. There is thus no utilitarian benefit to banning abortion, but there are harms. Constitutional due process would not permit government action that is wholly irrational because it fails to achieve its purpose and does more harm than good.
The Supreme Court reaffirmed this approach for substantive due process in Lawrence v. Texas, holding that morality alone cannot be a basis for making certain conduct illegal (in that case, outlawing same-sex sodomy). The state must show that the law will have some sort of benefit. It cannot merely assert moral outrage at the practice it seeks to ban. Unless a state can prove that an abortion ban would be effective, it would be unconstitutional even under the "rational basis" approach taken in Lawrence.
The same utilitarian concerns apply here. Embryonic stem cells (for research) are created by fertilizing eggs in the laboratory.  This means that the embryo that is formed is never viable because it never has a mother who can carry it to term.  The embryo never becomes cognizant, so it never knows anything of the "life" that it is supposedly missing out on. The cruelty from ending a life comes from killing a cognizant being that can feel pain. If a consciousness is still in the same black nothingness that existed for you and me prior to our births, ending that life pre-consciousness is not cruel because it never attains consciousness to even realize that it has a "life" to miss out on. From the perspective of the pre-conscious fetus, it simply never existed. If my life had been ended pre-consciousness, that would be no worse from my perspective than if my parents had chosen not to fertilize my mother's egg at the exact moment required for my conception. If you tell scientists not to create embryos in a lab, those lives will *still* not come into existence. These are embryos that were donated for research. Whether stem cell research is permitted or banned, those eggs are not going to become people. So there's really no difference in outcome.
In addition, there are utilitarian harms from banning stem cell research. Human stem cells have the ability to become any type of body tissue, so "research involving human . . . stem cells . . . promises new treatments and possible cures for many debilitating diseases and injuries, including Parkinson's disease, diabetes, heart disease, multiple sclerosis, burns and spinal cord injuries."  Stem cells could be used to replace myelin in neurons for demyelinating diseases (like Parkinson's) and can be used to regrow spinal tissue for people who have spinal cord injuries. Banning stem cell research means unnecessary suffering for real, cognizant people who have these serious issues. The Constitution would not require banning such an important field of research with little to no expected benefit (see Mathews v. Eldridge). For all these reasons, vote Con.
 U.S. National Institute of Health
http://en.wikipedia.org...) shows over 120 overturned cases. I agree the Court is the final arbitrator, and the law is enforced as interpreted. This doesn't mean the decision was correct. In the words of Thomas Jefferson, "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors." (http://www.nps.gov...)
In Con"s first rebuttal, he argues that in Roe v. Wade (https://www.law.cornell.edu...) the Supreme Court "never claimed that life does not start at conception." They "danced around the issue" and ignored the question. One finds the Court referring to the unborn as prenatal life, potential life, or potentiality of human life in the majority opinion. In Justice Stewart"s opinion he takes it one step further by referring to the unborn as, "the potential future human life within her." The direct quote from Justice Blackmun in the opinion is, "We need not resolve the difficult question of when life begins." It is a matter of basic science to determine this. When life begins is critical in the debate. Con has conceded the point already. However, for others, let us remove emotion from the argument and deal with any animal of your choosing. For instance, when does a new dog come into existence? From a purely scientific standpoint, a new individual dog comes into existence at the time of fertilization (conception). The following website is a white paper regarding this issue. (http://bdfund.org...) This paper elegantly argues that it is at the time of the fusion of the sperm and egg, and not syngamy, that defines this point.
Although Con states Gonzalez v. Carhart is about the rights of two humans being in conflict, "" the woman"s right to bodily autonomy and the fetus"s right to life." The correct interpretation is the conflict between a woman"s right to choose the method used in her abortion and the Federal Government's right to prohibit it. The whole debate hinges on this issue. For this, we need to revisit Roe v. Wade. In Roe v. Wade the Court adeptly choose the XIV Amendment (https://www.law.cornell.edu...) for its ruling. It allowed the Court to define which human beings to protect. This is not unimportant as the Declaration of Independence (http://www.archives.gov...) succinctly puts who our forefathers considered should have rights, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." That order is important for without life, you can't have liberty, and without liberty you can"t have happiness.
Justice Blackmun in Roe v. Wade writes as follows regarding the 14th amendment, "The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment."
In short, the unborn have been ruled by the Court to be non persons. They have no rights under the Constitution. Therefore the States and the Federal Government have to enact laws to protect them. Is this correct? In the Preamble to the Constitution (http://www.archives.gov...) our forefathers wrote, "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." The key words which places Roe v. Wade into question are "and our posterity". The legal definition of posterity is, "All the descendants of a person in a direct line."(http://legal-dictionary.thefreedictionary.com...) Our descendants include our zygotes through our elderly population.
The IX Amendment (https://www.law.cornell.edu...) states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The word person is not used in this amendment, so the embryo and fetus are included, as implied by the Preamble to the Constitution.
Embryonic stem cell research and the Constitution are in conflict with Roe versus Wade
Human embryonic stem cells are totipotential, thus allowing them to develop into any cell in the human body. Not only this, but a search of the web shows that scientists are working on cloning human beings from these cells. This has consequences. The first (most concerning) is these human beings could be used as non-consenting organ donors. What if a human was cloned from a stem cell line previously used in multiple experiments resulting in patents? Will those patents be owned by the new cloned individual and will the companies and individuals be liable for subjecting this unique individual (unique DNA) to a period of involuntary servitude? Can punitive damages be awarded because these entities violated the Constitutional rights of that individual? Amendment XIII of the Constitution reads as follows,
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Regarding human experimentation, Congress has deemed that all federal research monies should be subject to the ethical standards of the Belmont Report quoted below. (http://www.hhs.gov...)
"However, not every human being is capable of self-determination. The capacity for self-determination matures during an individual's life, and some individuals lose this capacity wholly or in part because of illness, mental disability, or circumstances that severely restrict liberty. Respect for the immature and the incapacitated may require protecting them as they mature or while they are incapacitated."
"Finally, assessment of the justifiability of research should reflect at least the following considerations: (i) Brutal or inhumane treatment of human subjects is never morally justified."
In using the Preamble to the Constitution, Amendment IX, Amendment XIII, and Amendment XIV of the Constitution I propose that the argument that human embryonic stem cell research and the Constitution are in conflict with Roe v. Wade.
However, despite having shown that Roe v. Wade should be revisited, I shall deal with Cons" argument that the "Supreme Court has employed utilitarian calculations in the past" and which in his opinion favor abortion.
First, I agree with Justice Blackmun in the right to privacy. Second, I agree that women have a right to control their own bodies. However, like the dissenting justices in Gonzales v. Carhart (Justice Ginsburg, Justice Stevens, Justice Souter, and justice Breyer) I support their argument that women (and men) have to be responsible regarding intimacy because of the risk of creating a new human being, with individual rights including the right to life which supersedes other rights. "In cases on a "woman"s liberty to determine whether to [continue] her pregnancy," this Court has identified viability as a critical consideration. There is no line [more workable] than viability," the court explained in Casey, for viability is "the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of the state protection that now overrides the rights of the woman". In some broad sense it might be said that a woman who fails to act before viability has consented to the State"s intervention on behalf of the developing child." Where I disagree with the statement is in the last sentence. My disagreement is with the word "viability." This word should be changed to "implantation." Women do have the right to control their own bodies. They have the right to make the environment of their endometria of their uteri non-conducive to implantation of blastocysts (IUD, morning after pill). They also have the right to prevent ovulation (the pill). They can use barrier methods, and spermicidal and require their partners to do the same. The time has come for both men and women to take responsibility for their intimacy. The wanton destruction of our fellow human beings, allowed by infamous decisions of the Supreme Court, beginning with Roe v. Wade needs to end.
For the above reasons Con must concede.
As I said before, Pro has the BoP in this debate. Because the resolution is an "and" statement not an "or" statement, Pro had to prove that *both* embryonic stem cell research *and) the Constitution are in conflict with Roe v. Wade. If he fails to prove either, he loses. Pro has failed on both counts.
Let's look at the literal wording of the resolution here. Pro has to prove that "[e]mbryonic stem cell research . . . is in conflict with Roe v. Wade." So he already loses. Roe v. Wade permits abortion. Nothing in Roe v. Wade prohibits embryonic stem cell research. Vote Con due to this poor resolution drafting. I think Con meant that stem cell research is in conflict with *the Constitution,* not Roe v. Wade. But that's not what the resolution says. Vote Con right there. Nothing in Roe v. Wade conflicts with embryonic stem cell research.
In addition, Pro fails to prove that embryonic stem cell research is unconstitutional. Pro's case against stem cell research in Round 2 can be broken down into two arguments: (a) human cloning is impermissible and (b) a fetus is a potential life and is therefore a "person," deserving of protection under the Constitution. We can dispense with (a) really easily: the resolution does not deal with human cloning. Just because a clone could be made from the DNA in stem cells (or from the DNA in any human cell) does not mean that it is topical. Cloning is not the same as stem cell research. As to (b), Pro also loses because he bases personhood on *potentiality,* but he drops my analysis from Round 1 that the eggs donated for stem cell research *never* had the *potential* to be a human life. If stem cell research were outlawed, those embryos would just sit in a freezer somewhere -- unused. Unlike a natural pregnancy, when those eggs are fertilized in the laboratory, there is no mother to carry them to term. The eggs and resultant fetus never have the potential to be a human life. And if they aren't used for research, they won't be used at all. They're not going to become people. We can draw a clear line in the sand here between a natural pregnancy, which maybe has potentiality, and a fetus created in the lab for research, which clearly does not. By dropping this argument, Pro concedes that fetuses created for stem cell research lack potentiality and are therefore not "persons" under the Constitution, *even under Pro's definition of personhood.*
Lastly, Pro in essence concedes my argument that utilitarian analysis is part of constitutional interpretation as applied in Mathews v. Eldridge and Lawrence v. Texas. Pro's only attempt at a response falls flat. Pro first cites the dissent in Carhart, which you'll notice is composed of the *liberals* on the Court. The dissenting justices in Carhart thought that late-term (post-viability) abortions should be protected by the Constitution. This position hardly supports Pro. Pro also cites the majority's reasoning in Carhart, which is that women -- by failing to terminate their pregnancy pre-viability -- consent to the state's intervention post-viability. Pro then takes that logic *too far* by arguing that women who have *sex* consent to the state's intervention into their private lives to ban abortion *entirely* because (as Pro puts it) "women [must] take responsibility for their intimacy." This reasoning was expressly rejected in Lawrence v. Texas in which the Court held that sex is an intimate relationship in which the state has *no business* meddling. I don't think anyone truly believes that by having sex with someone they are ceding their autonomy to the state, so that the state can turn them into a forced incubator for nine months. Under Pro's reasoning, if a stem cell researcher who was a woman violated Pro's proposed law and fertilized an egg in the laboratory, she is responsible for creating a life and the state should be able to forcibly implant the fetus into her and force her to carry it to term. The only difference between this and natural sex is whether the egg starts out inside or outside the woman. But ultimately, the violation of bodily autonomy is similar. The only difference is our reaction to the latter would be more visceral. Lastly, and *most importantly,* what does any of this talk about consent have to do with *utilitarianism.* Remember what Pro is supposed to be answering here: that constitutional analysis includes utilitarian analysis and that banning stem cell research has no benefits (no additional fetuses become people) but has serious harms (we cannot cure Parkinson's, diabetes, and paraplegia). Pro doesn't actually respond to this argument. He merely raises an off-topic argument about consent to state intervention. Utilitarianism is about the *efficacy* of government action, and if government action cannot achieve any benefit and can only be harmful, it is said to be irrational and unconstitutional (see Lawrence). For this reason, Pro has dropped my util argument and loses on the stem cell issue alone.
Pro cites a lot of different passages. Let's dispense quickly with some of them. First, the Declaration of Independence is not part of the Constitution. Second, the Preamble is an "introduction" to the Constitution and is not a binding part of it. Third, the Ninth Amendment has been interpreted by the Supreme Court as having no binding legal effect, and more importantly, it does contain the word *person,* despite Pro's claims to the contrary. The Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the ." Pro misses the fact that "people" is the plural form of "person."
But Pro misses the point by citing to all these other amendments and the Preamble. Roe v. Wade concerned the Fourteenth Amendment, which states (in relevant part), "nor shall any state deprive any person of life, liberty, or property, without due process of law." Ultimately, Pro concedes the key reasoning in Roe v. Wade that in terms of the *legal* definition of "person" in the Fourteenth Amendment, personhood starts when you are born. How do we know this? Because the Fourteenth Amendment specifically says it in a different provision -- in the provision about birthright citizenship. Personhood and citizenship both start at birth. So the definition of "any person" in the Fourteenth Amendment means people who have been *born.* Pro may have a different *non-legal* definition of personhood that hinges on potentiality, but in the field of law, words are often used in a technical legal sense and have to be interpreted in context. The Fourteenth Amendment is quite clear that its protections extend only to people that have been born.
Think for a second how absurd it would be if a fetus were considered a "person" in the *legal* sense. It would mean that a father could sue for custody of the fetus and insist that it be ripped from its mother and implanted in a woman of his choosing. If instead we conceive of the fetus -- for legal purposes -- as being part of the mother's body, such a ridiculous custody dispute could not arise. Pro makes a lot of *lay* appeals about what personhood *ought* to mean, but fails to prove that personhood actually means "potential to become a person" in the legal sense it is used in the Fourteenth Amendment. By failing this BoP, Pro fails to show that the Supreme Court interpreted the Fourteenth Amendment incorrectly in Roe v. Wade.
Furthermore, Pro drops my analysis from last round that potentiality is not enough to inhere a "right to life." As I stated before, ending a life is cruel if the life is self-aware or can feel pain. Pre-viability fetuses are neither self-aware nor feel pain. Their potentiality to be a human under the right conditions is also not met (e.g. they don't have a willing and consenting mother to carry them to term). In addition, potentiality is absurd. Pro is arguing that even a laboratory stem cell fetus is a potential human life, but the conditions needed for it to become a human life are so ridiculous. You need to find a woman who is willing to have the fetus implanted and carry it to term, and if the lab happened to create 10,000 fetuses for research, it would be hard to find willing women for all of them. If you consider that to be "potentiality" then you should also consider an unfertilized egg or a sperm to have the same potential. The conditions needed to produce life are also unlikely, but perhaps the Constitution should allow the state to *force* us to procreate because wasted sperm and eggs are wasted human "potential." : "potentiality" is an absurd definition of personhood, particularly when you're using it as a legal definition, rather than a lay one.
In addition, Pro in essence concedes my argument that Roe cannot be in conflict with the Constitution by definition because the Supreme Court gets to decide what the Constitution says. Pro's only response is to the Justice Jackson quote. He misunderstands the quote as saying the Court is infallible and then points out the Court has reversed itself. However, the quote actually says that the Supreme Court is *not* infallible; it's decisions are just *treated* as such because it's word is *final.* Notice that Pro is saying that the Supreme Court reversed itself. Not the President. Not Congress. Not the People. The Court reversed itself. Because the Court has the final say on the Constitution. It can change its mind. But that doesn't mean that Pro's separate interpretation of the Constitution has any constitutional validity. And the Court has never reversed itself on whether fetuses are "persons." So Pro loses by default because the Constitution says what the Supreme Court says it does.
Lastly, Pro drops my util analysis here too. Banning abortion would not reduce the abortion rate, so it would be wholly irrational to do so. The Constitution does not permit wholly irrational government action (see Lawrence). So the Constitution cannot be in conflict with Roe v. Wade.
For all these reasons, Vote Con.
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Vote Placed by whiteflame 1 year ago
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