Wednesday, November 16, 2005

Erwin Chemerinsky: law professor and completely ignorant regarding basic human biology

On Monday, Hugh Hewitt interview John Eastman from Chapman University Law School and Erwin Chemerinsky from Duke University Law School. During the interview, Chemerinsky showed his complete ignorance regarding whether the unborn are human beings or not.

Here are some excerpts from Radioblogger's transcripts:

I understand you regard the fetus as a child. I don't. But the question shouldn't be for you or for me. It should be for each woman to decide for herself whether to continue or terminate her pregnancy.....

But there is not now, nor will there ever be any consensus on the question of when somebody becomes a human being. I do not believe that a fetus before viability is a human being. You do. But the question is who should decide that?

How about biology? How about science? Shouldn't biology tell us what something is biologically? Since when do individual humans get to decide if another living being is a human being or not? Why are individual women the sole arbitrators of whether something is a human being or not?

Towards the end of the interview, Eastman smartly asked Chemerinsky, if it's not a human being then "What else is it?" Not surprisingly, Chemerinsky provides no answer. I've yet to come across a pro-choicer, who uses the "it's a potential human being" line, who can also explain what the unborn are currently or actually.

Besides not understanding that scientific community has been in agreement about whether the unborn are human beings or not for decades, Chemerinsky's way of thinking is quite poor.

"We don't have a consensus, therefore let the woman decide."

I could use the same silly argument for newborn children. Peter Singer and others don't believe newborn infants are persons. Therefore, we don't have a consensus. Therefore, the woman should decide whether their newborn child is a person or not and whether they should live or die.

Someone could also use the same argument to prove that slaves don't deserve the same rights (something that Eastman points out during the interview).

If we had to have a complete consensus to decide whether each individual human being deserved to live then we wouldn't have much of a world and we wouldn't have many human beings in it.


  1. Anonymous9:25 AM

    I agree that it is logically consistent that a discipline (biology) would have jurisdiction over concepts that fall into its category (biological things). However it seems here you are employing concepts out of their normal context of use. Biologists want to biologically understand the question: What is Life? For example, a biologist will say that a human blastocyst is genetically human but not morphologically human. Genetics are important, but without a properly functioning body the organism will not develop. In addition, there is a distinction between connotative and denotative meaning that you are confusing. When biologists use the word human, they are referring to the entity that is part of a technical language and classification system. When you use the word human, you are implying a set of values associated with that term. That’s fine to do, and we all do it from time to time. But you can’t simply appeal to a technical language, which does not share your value presuppositions, as proving your point.


  2. Hi ganch,
    Thanks for leaving a comment. How is a human embryo not morphologically human? Sure they don't look like fully grown human but that doesn't mean that they don't have human bodies. Their bodies just look different at a different stage of development in the same way that my body looks much different than a newborn child's body.

    Why am I including values when I say human being? "Isn't whether something is a human being" or not a different question than "Are all human beings valuable?"

    Chemerinsky wasn't just asserting that the unborn aren't worthy of legal protection. He was asserting that they aren't worthy of legal protection because he ignorantly believes they aren't human beings.

    My point in the post wasn't to prove that human beings are valuable. It was to show how Chemerinsky was ignorant of basic biology and his arguments were poor.

  3. Anonymous10:08 PM

    Hi JJ

    Organ and limb formation happen later in development for humans. The 4-chambered heart is completed around 7 weeks post-conception. Neural growth and connections begins about 3 weeks post-conception and continues on until around 3 years post-natally.
    Until implantation in the uterine wall, the embryo is basically a hollow ball of cells.

    I agree with you that your current body looks different than a newborn, but that is more of a question regarding proportion, rather than a difference in kind. That is, you basically have the same bodily form as a neo-nate, just bigger. On the other hand, you look nothing like a 2 week old embryo.

    I may be misunderstanding your reply about values, but the question "Are all human beings valuable?" already implies a value stance. In other words, a developmental biologist qua scientist would never ask this kind of question. Therefore the term "human being" in that sentence means something very different from what a developmental biologist would refer to.


  4. Hi Ganch,
    Just because older humans look different than younger human doesn't mean that embryos aren't human in the morphologically sense. At different stages of development, humans look different but that doesn't mean we're not humans. Plus, your argument wouldn't work for Chemerinsky - he says the unborn prior to viability (approximately 22-23 weeks) aren't human beings. The unborn at this stage look just like newborn children, only smaller in proportion.

    I'm not sure I understand your last paragraph. You're correct if you're saying that the question "Are all human beings valuable?" or even the question "Are human beings valuable?" isn't a question for a biologist.

  5. Anonymous10:08 AM

    Hi JJ

    Let me put the matter differently. If I ask you the question: “What is a morphological description of a human being?” you may reply, “A bipedal entity with a 4-chambered heart, large neo-cortex area of the brain, etc.” Are any of these qualities found in a 2-week old embryo? No. Therefore the 2-week old embryo is not morphologically a human being. Now, you may rightly respond that the 2-week old embryo will develop these qualities over time, and that is true. These qualities are found later on in embryonic development, at different times. However, many vertebrates and some invertebrates go through embryonic developmental stages. Therefore this quality of morphologic development is not unique to human beings, therefore is an imprecise way of distinguishing between humans and mice, for example.

    Your comment, “At different stages of development, humans look different but that doesn't mean we're not humans” is a correct one if you change the argument to focus on some other aspect of the developing embryo, such as the genome. Is this the claim that you are making?

    In the last paragraph of my previous post, I was pointing to the different ways that you use the term “human being.” There is a scientific definition, as well as a moral or ethical definition. You seem to conflate the two when you appeal to science to buttress your moral argument.


  6. Hi Ganch,
    I might say that's what a grown human being usually looks like but I wouldn't use that description. Why?

    That description eliminates tons of human beings who've lost legs or weren't born with any. Just because the embryo doesn't look like a grown human being doesn't mean they aren't morphologically human. The unborn aren't morphologically fully developed human beings because they aren't fully developed human beings not because they aren't morphologically human. Millions of pre-teens girls haven't undergone the dramatic effects of puberty. Their bodies are different morphologically than grown women but that doesn't mean they aren't morphologically human.

    If something is a human being then he or she has the body of a human being.

    When I use "human being" - I'm using it in the merely scientific sense.
    Don't I have to appeal to science to prove that the unborn are human beings? If the unborn aren't human beings, then I think I have no basis for a moral argument because killing the unborn is no morally worse than removing a tooth. But if the unborn are human beings, then I have a starting point for my moral argument. Chemerinsky ignorant assertions attempt to take away the objective facts on which my moral argument would start.

  7. Anonymous1:09 PM

    Hi JJ

    That’s a good point. I would reply that those who are born congenitally deformed in some way reveal an interesting dilemma: why do prosthetic devices exist? One answer might be that people who are born missing a leg, for example, may want an artificial leg to approximate some kind of human experience that people born with two legs experience. I am not making any value claim here. I am merely pointing out that the existence of prosthetics demonstrates that there is something about the human experience (in this case having 2 legs, whether organic or artificial) that is connected to morphology.

    I think you might be confused about my scientific usage of the term “morphological,” which literally means “body form.” So your example about adolescent girls undergoing puberty does not make sense. A 14-year old female is morphologically the same as a 60-year old female, with differences in proportion. I assume that in your example you are referring to the onset of menstruation, which is an endocrinological or physiological change, not change in fundamental body form.

    Your statement: “The unborn aren't morphologically fully developed human beings because they aren't fully developed human beings not because they aren't morphologically human” is slightly awkward, and I’m not sure what exactly you are claiming here. Here’s my translation of your statement: Unborn humans do not have human bodies because they have not finished developing, not because they do not qualify for the category ‘morphologically human.’ If I got it right, this is a tautology. “Morphologically human,” as I stated in my previous post, can encompass a developmental argument. That is, we develop the human form, or morphology over time. However, this means that a blastocyst, which has no internal organs or limbs, can’t be considered morphologically human. It is correct to say: “This entity has the morphology of a blastocyst.”

    This line of reasoning leads you to make the following statement: “If something is a human being then he or she has the body of a human being.” This is strategically a smart move, because it allows to posit the category of “human being” prior to any particular bodily form of that human, i.e. the blastocyst. While this is a smooth move for our discussion, it avoids my claim that it is precisely having a human body that is significant for our understandings of the experience of humanness. In other words, why would we want prosthetics if we were born without a leg?

    I find the following statements very interesting: “Don't I have to appeal to science to prove that the unborn are human beings? If the unborn aren't human beings, then I think I have no basis for a moral argument because killing the unborn is no morally worse than removing a tooth.” Why would you think this? Were not unborn children considered morally significant prior to the onset of modern science (circa Enlightenment – 17th CE)? Why appeal to a technical language that does not share your value presuppositions?

    I apologize for my lengthy post, but I am enjoying this discussion with you.


  8. Hi Ganch,
    I would argue that prosthetic devices exist because of functionality. Having a prosthetic leg wouldn't make a non-morphological human being into a morphological human being - it would merely help him walk. Plus, there are many people without arms or legs who choose to go without prostetics (my memory is especially noting a young man who wrestled fairly succesfully with arms that stopped at his elbows and legs that stopped above his knees). From what I remember from some show (maybe the Today Show or Dateline) was that he tried prostetics when he was younger but felt uncomfortable with them.

    Doesn't body form change over time though. Girls develop breasts - isn't that a body form change?

    I guess I should have explained that better. The unborn have human bodies - they just don't have the bodies of fully grown human beings - Why? It's not because they're not morphologically human - it's because they're not fully grown. You can't expect a human who is not fully grown to have the body of a human that is fully grown. Unborn humans who are at different stages of development have bodies that appear different from other unborn and born human beings because they're at a different stage of development. Their bodies looks different because bodies at different stages of development look different not because they aren't morphologically human. Just wondering -in your opinion, when do the unborn become morphologically human?

    But a blastocyst is just a word to describe a human being at a certain stage of development - just like an embryo, fetus, infant or adolescent. That's like saying "This entity has the morphology of an infant."

    Prior to the scientific understanding of what the unborn were - I don't think they were valued as much because no one was sure if they were alive. For example, quickening was an important stage back in those days because the feeling of movement told people that the unborn were alive - before that they really weren't sure.

    Science can't tell us if something is valuable or not - it can tell us what someting is scientifically and then from there we can make moral/ethical arguments regarding if an entity should be protected by law. If science told me that the unborn were an unnecessary part of the mother (like a wisdom tooth or appendix) then my position on abortion would be much different because my ethical position holds different values for things that are human beings and things that are unecessary parts of human beings.

    No need to apologize. I'm also enjoying this discussion.