Amici Curiae briefs filed for University Faculty For Life to the U.S. Supreme Court on "fetal personhood"

Dianne N. Irving
July 2, 1993
Reproduced with Permission


"Amici Curiae briefs filed for University Faculty For Life to the U.S. Supreme Court", J.M. v. V.C. et al, U.S. 92-1934 (1993), on "fetal personhood" (July 2, 1993); also filed for Alexander Loce, and Tina Krail et al., v. The State of New Jersey, U.S. 92-1934, and 93-1149 (October Term 1993).

Dianne N. Irving, M.A. Ph.D. and Daniel M. Gray, Esq. Copyright July 2, 1993 (date received in the U.S. Supreme Court) [edited for corrections and WordPerfect June 23, 2004 by DNI]

[NOTE: The same brief was filed for a second U.S. Supreme Court case, (No. 93-1148) Alexander Loce, and (No 93-1149) Tina Krail et al v. The State of New Jersey, October Term, 1993; see next page]


In The Supreme Court of the United States
October Term, 1993

No. 92-1934

J.M., INDIVIDUALLY, Petitioner,

V.C., et al., Respondents.

On Petition for Writ of Certiorari to the Supreme Court of the State of New Jersey

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE AND BRIEF AMICI CURIAE OF UNIVERFSITY FACULTY FOR LIFE, AMERICAN ASSOCIATION OF PRO LIFE OBSTETRICIANS AND GYNECOLOGISTS, CHRISTIAN LIFE COMMISSION OF THE SOUTHERN BAPTIST CONVENTION, HOLSTON BAPTIST ASSOCIATION, LIBERTARIANS FOR LIFE, NATIONAL FEDERATION OF CATHOLIC PHYSICIANS GUILD, PROFESSOR ANTHONY ANDRES, REV. BENEDICT ASHLEY, JAMES J. CARBERRY PH.D., PROF. WILLIAM F. COLLITON, JR., M.D., F.A.C.O.G., PROF. JOHN M. FINNIS, F.B.A., REV. JOHN F. HARVEY, PROFESSOR DIANNE N. IRVING, PH.D., MR. BRENDAN KELLEY, PROFESSOR C. WARD KISCHER, PH.D., HANNA KLAUS, M.D., F.A.C.O.G., PROFESSOR DOUGLAS W. KMIEC, J.D., PROFESSOR WILLIAM E. MAY, PH.D., PROFESSOR RALPH McINERNEY PH.D., EDMUND d. PELLEGRINO, M.D., PROFESSOR CHARLES RICE, J.D., EDWARD SHERIDAN, M.D., F.A.P.A., PROF. RICHARD STITH, J.D., PH.D. IN SUPPORT OF PETITIONER

Attorneys for The University Faculty For Life

Daniel M. Gray, Esq. 2000 L Street, N.W., Suite 200 Washington, D.C. 20036 (202) 416-1694

Mark F. DiGiovanni Counsel of Record One Logan Circle 18th St. and Benjamin Franklin Parkway
Philadelphia, PA 19103


In The Supreme Court of the United States
October Term, 1993

No. 93-1148

ALEXANDER LOCE Petitioner, v.

THE STATE OF NEW JERSEY Respondent.

No. 93-1149

TINA KRAIL, LORI CHADWICK DEBORAH SMOLDORE AND JEANNIE HENDERSON Petitioners, against THE STATE OF NEW JERSEY Respondent.

On Petition for Writ of Certiorari to the Supreme Court of the State of New Jersey

BRIEF AMICI CURIAE OF University Faculty for Life and Members of Congress, Hon. James Barcia, Hon. Thomas Bliley, Hon. Thomas De Lay, Hon. Jay Dickey, Hon. John Doolittle, Hon. Robert K. Dornan, Hon. Bill Emerson, Hon. Duncan Hunter, Hon. Earl Hutto, Hon. Henry Hyde, Hon. Robert Inglis, Hon. Peter T. King, Hon. John Lindner, Hon Ileana Ros-Lehtinen, Hon. Christopher H. Smith, Hon. Barbara L. Vucanovich; and,

ORGANIZATIONS: Americans Against Abortion (Palmdale, Texas), American Association of Pro-Life Obstetricians (St. Louis, Missouri), American Life League (Stafford, Virginia), Associazione-Famiglia Domoni (Rome, Italy), Christian Life Commission of the Southern Baptist Convention (Nashville, Tennessee), Doctors for Life (Kranskop, South Africa), Family Life Apostolate Program (Palo, Philippines), Family Life Counseling Association of Kenya (Nairobi, Kenya), Georgetown Ignatian Society (Washington, D.C.), Jewish Anti-Abortion League (New York City), Jews for Morality (New York City), Juventud Pro Mexico (Mexico City D.F.), Libertarians for Life (Wheaton, Maryland), Missionaries of Charity (Calcutta, India), Priests for Life (U.S.A.), Right to Life League of Southern California, Society for Natural Family Planning (Erode, South India), St. Thomas More Lawyers Association (New Orleans), The Missionary Image of Our Lady of Guadalupe (Iloila City, Philippines), World Federation of Doctors Who Respect Life (Kinsasha, Zaire); and,

INDIVIDUALS:

Attorneys for The University Faculty For Life

Daniel M. Gray, Esq. 2000 L Street, N.W., Suite 200 Washington, D.C. 20036 (202) 416-1694

Mark F. DiGiovanni Counsel of Record One Logan Circle 18th St. and Benjamin Franklin Parkway Philadelphia, PA 19103


QUESTION PRESENTED:

Whether the human being, whose life begins at conception as demonstrated by scientific and medical consensus, is also a legally protected person from fertilization through adult death.

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Scientific/medicine

Philosophy/bioethics/law/theology

STATEMENT OF INTEREST OF THE amicus curiae

This case is pending before this Court on Petition for Certiorari from the Supreme Court of New Jersey. The University Faculty For Life files this amicus curiae, in support of the instant petition.

The University Faculty For Life (UFL) founded in 1989 is comprised of more that 400 faculty members from 80 colleges and universities in the United States. UFL encourages scholarly research on bioethical and social science issues and seeks to ensure that public policy on abortion is grounded on current and reliable scientific, medical, philosophical and other scholarly information. UFL favors human life, disfavors abortion and urges the Court to grant this Petition for Certiorai so that the Court for the first time since Roe v. Wade can consider the scientific consensus that now exists on when the life of a human being begins.

SUMMARY OF ARGUMENT

The Petition for Certiorari ably presents clear and convincing scientific and medical evidence that there is now a consensus that the life of every human being begins at fertilization. UFL, amicus curiae, supports and adopts Petitioner's position with regard to the scientific concurrence of when the life of a human being begins. In support of the Petitioner UFL argues here that there is no distinction between a human being and a human person from fertilization on. However, some argue that there is no human person present until the 2-cell, 5-6 day, 14 day, various brain-related ("rational attributes", or sentience), or early childhood stages of human development - and therefore no Constitutional rights and protections are due until those developmental stages. UFL argues against such claims and for "personhood" at fertilization, because the accurate scientific evidence and an objectively based philosophy demonstrate this; whereas the arguments for "delayed personhood" are based on inaccurate science, and theoretically and empirically refutable philosophical definitions. UFL's arguments are important, because they not only confirm the Petitioner's argument that there is a scientific and medical consensus that the life of every human being begins at fertilization, but also that the term "human being" is co-extensive with the term "human person" from fertilization on. There is no real scientific or philosophical distinction between a human being and a human person, and therefore a human being is due Constitutional rights and protections at fertilization.

ARGUMENT

The case of J.M. v. V.C. pending before this Court squarely addresses the issues of the rights of a child prior to birth, when the life of a human being begins, and whether the government has the power to limit the natural and inalienable right to life of innocent human beings. University Faculty For Life (UFL) adopts and supports the position of the Petitioner that there is now a scientific consensus that the life of every human being begins at fertilization. Consonant with this scientific consensus, this brief in support of the Petitioner for Certiorari demonstrates that every human being is simultaneously a human person from the moment of fertilization. No real valid scientific or philosophical distinction can be made between a human being and a human person after fertilization. Arguments for "personhood" at various biological markers events during human embryogenesis or after birth cannot be sustained either scientifically or philosophically.

A. The Correct Science And A Realistic Philosophy Demonstrate No Distinction Between A Human Being And A Human Person

First, it is important to understand that our argument is based only on logic, science and philosophy - not on religion or theology.

Second, it is critical for this Court to understand immediately the logical outline and some unexpected but necessary logical conclusions of the alternative arguments, many of which already appear in the literature. It is claimed that certain (different) degrees of physiological development are the physiological preconditions for the capacities of "rational attributes" or "sentience" - i.e., the preconditions for "personhood". But the specifically humanly functioning physiological precondition for all of those physiological preconditions is the functioning human zygote itself at fertilization. Thus these arguments for "preconditions" fail.

Or it is claimed that a human person should be defined only in terms of the actual exercising of either (1) "rational attributes", or of (2) "sentience", or brain integration. However, empirically, the exercise of either full "rational attributes", sentience or brain integration cannot take place until years after birth; and many higher primates are more sentient than normal human infants or young children. Therefore many populations of human beings would not be persons, and this Court would be required to permit: the denial of health care or other legal benefits and protections; or their treatment as "animals", e.g., used in experimental medical research or religious sacrifices, or unrestrictedly harvested for organs; or the infanticide of normal healthy human infants and young children. Such human populations would include: patients with Alzheimer's or Parkinson's disease, multiple sclerosis, the mentally ill, the depressed, alcoholics, drug addicts, the comatose, etc.

Given these critical logical precisions we will proceed with our argument. Accurate scientific evidence demonstrates unequivocally that the life of every human being begins at fertilization. Although fertilization is a process, that does not mean that within that process there is no point in time and space when an individual human being begins. All growth and development is a "process". The "23" chromosomes of the sperm which are different from the "23" chromosomes of the ovum combine during fertilization to form a human zygote with "46" chromosomes. These chromosomes are qualitatively different from either parent, and are the specific number characteristic of the human species1 (and not simply of the genus "animal").2

Immediately the human zygote produces specifically human proteins and enzymes;3 no genetic information is gained or lost; and this genetic information cascades throughout embryogenesis.4 Thus the human zygote ultimately directs and is the cause of virtually all of the processes of human development after fertilization, including:5 molecular information, methylation, cell division, totipotency, differentiation, implantation, formation of the primitive streak, nerve net and full brain integration - and all developmental and growth processes after birth. Physiologically there is no break or distinction during the entire continuum of human development (even if there is twinning). Therefore scientifically it is clear that the human zygote formed at fertilization is specifically and characteristically a new real existing individual human being. Even if some human zygotes are spontaneously aborted, such external circumstances do not change the internal "nature" of the human zygote - i.e. it is still a human being.

There must be a direct relationship between these scientific facts and any objectively based philosophical definition of a "human being", for if our philosophical concepts do not accurately reflect reality, then they are more like fantasies or "wishful thinking". Not all philosophical definitions are relative. Some are empirically based; others are not. It is possible to have an objectively based philosophical definition of a human being if a realist method is employed.

A realist philosophy begins its deliberations and grounds its concepts and definitions on this accurate science, and checks back to it to determine the truth or falsity of those concepts and definitions.6 If there is a correlation between the concepts and definitions with the scientific evidence, then they are true; if not then they are false. Philosophical definitions use terms which reflect the "nature" of a thing, and the "nature" of a thing is determined empirically by observing the specific and characteristic kinds of actions and functions a thing performs. This is the obvious reasoning principle behind any basic scientific research: function follows form.7 Thus sodium burns orange, and cobalt burns blue - or beta hemolytic streptococcus can only be grown on specific culture medium containing blood, but not on other mediums. Birds can fly, but human beings and gorillas cannot; giraffes can produce "giraffe" proteins and enzymes and giraffe embryos, but corn stalks or human beings cannot. This is how things are scientifically categorized into natural kinds.

Applying this principle, a realist draws from the accurate embryological information to explain and determine what has taken place, and if and when a human being exists. It concludes philosophically from the above scientific facts that at fertilization a substantial change (i.e., a change in "natures") has taken place. Before fertilization, only a sperm and an ovum exist. A sperm or an ovum each contain only "23" chromosomes which cannot produce specifically human enzymes or proteins or functionally develop into a human zygote or human being even if implanted singly in the womb. They must have combined and recombined before this can take place. After fertilization a different "nature" exists - i.e., a human being, and subsequently there is only accidental change (i.e., only a change in growth and development).8 The human zygote now contains "46" chromosomes, produces specifically human enzymes and proteins, tissues and organs, and does not gain or lose any genetic information. Only human growth and development take place - and only through the agency of the genetic and other information ultimately contained in the original human zygote. Thus at fertilization the matter is "appropriately formed"9 - it is humanly formed and it is functioning and acting humanly. Philosophically we conclude, then, that a human being exists after fertilization.

We can also conclude philosophically that the human zygote possesses the potency10 (capacity or potential) to direct its own continuous development. This potency or capacity is possessed by an already existing individual human being. Therefore, the human zygote is not a "possible" or a "potential" human being or human person - i.e., one that does not yet exist - but an already existing and functioning human being with a potency to develop itself further.

Thus methodologically starting with and checking back to the accurate scientific evidence in determining if and when a human being exists, we can realistically and philosophically conclude that at fertilization a "human being" exists, with the potency to develop itself continuously throughout all of embryological development. We have determined this by the way in which it acts and functions, as verified by the accurate scientific information.

But is it also a human "person"? It is interesting that just as the law does not distinguish between a human being and a human person, neither does a realist philosophy. Definitionally there is no philosophical distinction between a human being and a human person, because the terms are co-extensive.11 The definition of a human being includes the entire complex concrete being - including the characteristic "vegetative" and "sensitive" powers, and the "rational" power of thinking and choosing - as well as the human body. Thus there are no real "splits" among the human powers, nor between those powers and the body. Therefore, if there are no splits, the entire human being - including all of his or her powers - must be present simultaneously when the human being begins, at fertilization. The human zygote (or embryo or fetus) not only possesses the real and presently existing capacity of a human being; it is also exercising that capacity by acting in a human - i.e., a "rational" - way.

This is confirmed once again by the accurate scientific evidence. At fertilization the matter is actually "appropriately formed" as "human", and the human zygote directs the formation of specifically human enzymes and proteins, tissues and organs throughout embryological development. If there were only "vegetative" powers present, the human zygote would not "know" how to direct the formation of specifically human enzymes and proteins -only "vegetative" ones. If there were only "sensitive" or "animal" powers present, the human zygote would not "know" how to direct the formation of specifically human tissues and organs - only "animal" ones. However, scientifically we observe that specifically human proteins and enzymes, tissues and organs are produced from fertilization on.

If the human being is scientifically demonstrated to be present at fertilization; and if specifically human products and organs are formed from fertilization on; and if a human being is realistically defined inclusive of all of its powers (which cannot be split from each other or from the body); then all of these powers must be present when the human being is present - at fertilization - including the "rational" power of thinking and choosing. This is actually indicated empirically by the formation of specifically human proteins and enzymes, tissues and organs from fertilization on.

Thus there is no scientific or philosophical distinction between a human being and a human person. A human being who is simultaneously a human person is present at fertilization, and acting humanly. Since every human being is Constitutionally due his or her rights and protections, and since the life of every human being begins at fertilization, then every human being is due those rights and protections from fertilization on - including the unborn child of J.M.

Next Page: B. Arguments For "Delayed Fetal Personhood"
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