From: Brennan.J.Murphy.53@nd.edu (Brennan J. Murphy)
Subject: Abortion and DNA
Followup-To: alt.abortion.inequity
Organization: University Of Notre Dame
Date: Tue, 6 Oct 1992 20:06:18 GMT

I am posting this, with permission, for Professor Manier.  The article
first appeared in the campus publication, Common Sense.  Responses to the
article may be addresses to either Prof. Manier at his mailing address or
John Thurber, the editor of the paper at John.J.Thurber.1@nd.edu.  Please
do not send your replies to me--I am only a punk college kid that wants to
observe the dialogue sparked as a result of the posting.


"DNA FINGERPRINTING" AND ABORTION,
A HIGH TECH FOG 
Edward Manier

	For the last two decades, the din of the abortion controversy has
diminished the habit of careful listening essential to the art of genuine
conversation.  Many now think of American political life in the terms used
around 1835 by the famous lawyer and historian Alexis de Tocqueville, who
described France as crippled by divisions between lovers of liberty and
lovers of religion, between noble and generous spirits and lovers of
independence, between apostles of enlightenment and honest citizens.  Since
Roe  much intelligence and good will has been diverted from epoch marking
crises by a division between those who hold human life sacred and
inviolable and those who hold that autonomy and independence in life's
major decisions is the right and privilege of every morally responsible
person.  Paradoxically, this division has also drained energy and
intelligence from the formulation and implementation of policies which
might have been expected to unite lovers of life and lovers of
independence: nurturing children and strengthening their parents'
capacities for nurturance;  reducing infant mortality, improving delivery
of prenatal care; encouraging flex time, providing family leave enabling
the care of infants or older children in crisis, day care and after school
care; equal employment oppor- tunity and equal pay for women,  social
compensation for domestic child care by a parent; reduction of violence
against women and children. Why has this paradoxical division so transfixed
and distracted us?  

	At Notre Dame, the most raucously expressed answer is that articulated by
the professorial elite of the religious right, holding newly conceived life
and markets free of constraints protecting the opportunity for everyone to
flourish in the same high regard.   Focussing dramatic attention upon
graphic images of fertilized human eggs and the earliest stages of
pregnancy, they insist no moral division is thinkable  where nature  speaks
definitively.  They rally Operation Rescue, absolve "sidewalk counselors"
of the need for conversational skill, legitimate the capitulation of a
sympathetic judiciary to the "overwhelming weight of the evidence," and
generally debase the coinage of political debate.  

	Transparently, the moral presupposition they hold relevant to criticism of
Roe  is the imperative protecting human life at every stage and prohibiting
killing of human beings.  But to assert this principle is to invite its
clarification and location in more encompassing moral discourse.  Is the
imperative absolutely general or limited to innocent human life?  Why? 
Since human conception may result from sexual assault, is just war theory
relevant to its implementation?  What conceptual connections link
protecting and nurturing human life?  How should the right to life be
weighed against autonomy in decisions concerning parenthood? Conversation
or negotiation on such questions could erode the broad support necessary
for political effectiveness and so the elite of the religious right strive
to suppress such discussion.  They insist that nature,  as if immediately
displayed in pictures, sonograms, dead embryos, and now DNA fingerprints,
has the first and last word.  Those who claim otherwise are said to condone
crimes surpassing genocide.  

	Blatantly exploiting tricks of litigation when these aid their cause, this
elite assert "expert" testimony establishes the state's compelling interest
in protecting human life from the moment of fertilization.   Notre Dame
Professors Charles Rice, Douglas Kmiec and James Carberry have published
("Abortuary Bombing and the Justification Defense, " The Wanderer, June 27,
1985;  and "Abortion, how law ignores science,"  Chicago Tribune, 7/14/92,
Op Ed), a legal defense of Operation Rescue and a commentary on a putative
scientific demonstration that consti-tutionally protected life begins at
the moment of conception.  Their thesis implies recriminalization of any
contraceptive with anti-gestational effects.  

	Jerome Lejeune, M.D., Ph.D., College Stanislas, Paris, identified (in
1959) non-disjunction of the 21st human chromosome as the cause of Down's
syndrome.  He has given expert testimony before legislative committees and
in civil (Davis) and criminal (Loce) cases.  Davis  involved the
disposition of seven frozen embryos, in vitro  progeny of Junior and Mary
Sue Davis (then married, since divorced).  In Loce,  Loce and a team from
Operation Rescue shackled themselves together in a medical clinic where a
woman impregnated by Loce was obtaining an abortion.  LeJeune testified
that the Jeffrey's technique of DNA fingerprinting offers "plain
observation" that a specific, unique human being is present in the
fertilized human egg.   Transcripts of these cases reveal nothing but a
poorly conceived and inconclusive thought experiment, and no empirical
evidence that has not been available since the construction of adequate
microscopes or the confirmation of the chromosome theory of the gene by
1915.  LeJeune's speculation was manipulated to provide a "high tech"
rationalization for the criminal activities of Operation Rescue.
			***			***			***

	Why would the religious right put forth such a shoddy case to buttress
their claim that human life begins at conception?  Genes do not determine
human individuality.  The phenotypic (structural, functional, behavioral)
variance in human populations is explained by genes and two crucially
significant additional classes of variables:  environment, and interaction
of genes and environment.  Development does not occur unless genes and
environment interact: read beyond the warning labels on alcoholic beverages
or the latest news about smoking and fetal development.  Human chromosomes
specifically lack information necessary for the development of the human
brain.  Inference of the presence of a specific and unique human being from
evidence that the fertilized human egg has a full complement of human
chromosomes (preformationism) has utterly no influence  in current
biological thought.  LeJeune mentions no discipline relevant to the
disputed issue: embryology, neurobiology, psychobiology, and anthropology. 


	Indices of individuality must be relatively unique but need have no other
significance, as an American's social security number or her fingerprints. 
DNA "fingerprinting" matches sample chromosomes with each other, e.g.,
matches parent with child, or suspect with evidence, relying on evidence of
the frequency of highly variable chromosome segments in specific target
populations.  For example, "In this population, the chance that two
individuals will both have this chromo-some segment (VNTR, or variable
number tandem repeat) is 0.001 or 0.00001 or 0.000001."  Choice between
alternative technologies is saddled with a zero sum tradeoff between
theoretical precision and practical reliability and accuracy.

	There are several categories of cellular DNA: 1) codes for protein, 2)
sensitiv-ity to environmental "signals" in ways that result in the
activation of segments that make protein, 3) no known function,  labeled
"junk" which natural selection has not eliminated because of low
maintenance costs.  The DNA causing the idiosyn-crasy of particular
"fingerprints" may be in this latter category.  Should we think the state
has a compelling interest in protecting it?  LeJeune's lawyers, when the
high tech fog burns off, have no defense against such ridicule.

	Neither the forensic significance nor the scientific precision of DNA
technology has produced informed consensus among biologists.  The
Massachusetts State Supreme Court refuses to admit DNA evidence, finding no
scientific agreement concerning its reliability or validity.   There is no
standardized procedure warranting the results of such tests, and no formal
system accrediting individual laboratories.  The "Jeffrey's technique" is
not used in the U.S. because its technical implemen-tation is ineffective. 
LeJeune, a typical "expert," ignores all other expert  scientific opinion
on his issue. 

	The abortion issue is intractable because we have had no national
conversation concerning the moral  rules which should be placed at the
center of public policy concerning the uses of biomedical technology in
human reproduction.  The professorial elite of the religious right either
lack the philosophical sophistication to distinguish scientific and moral
issues, or employ bluffer's rhetoric.  Their claim that the jurisprudential
theories of Justice James Wilson (1792), one of the framers of the U.S.
constitution, support their tactics,  falls with their fatuous failure to
note that Wilson, a classicist with no scientific training, thought the
"science of man" comprised human moral history,  not experimental natural
science.  (The human measure: social thought in the western legal
tradition, D. R. Kelley,  Harvard, 1990, p. 185).   The immense resolving
power of science cannot close conversation concerning such basic options as
protection  of every stage of human life (bare prohibition  of killing) ,
nurturing  human life and protecting  the nurturant capacities of all
women, or assuring equal autonomy and dignity of every human person 
(subject of some elements of a disjunction of morally relevant attributes:
consciousness, cognitive control, status as a subject in the narrative of a
family or lineage).  

	It is unforgivably naive or disingenuous to picture the human decision to
become a parent, and to bear and nurture a child, as if it did not take
place in a particular historical, social and political context.  The
religious right seek to narrow our field of vision to the consideration of
a single principle, the right to life; insist-ing this most fundamental
right overrides every other, including the opportunity to develop the
capacity to nurture human children.  There is an elementary but
catastrophic error in the confusion that isolates life as a value more
significant than nurturance.  This error is multiplied many times over
within the social agenda favored by the elite of the religious right. 
Within this agenda, only market forces and vagaries of volunteerism affect
the lottery deciding which fertilized eggs become mere products or bar
coded commodities in a society bereft of nurturing concerns.  The path to a
legitimate democratic consensus on abortion should be charted by careful
consideration of the range of legitimate moral intuitions and the current
and prospective status of public policy concerning health care for and
social protection of pregnant women, infants, children, and their
nurturers.
			***			***			***

	What form can such consensus take?  Even more importantly, by what
processes should this consensus be socially constructed?  Implications that
nature  has made this most political of decisions for us leads to violent
and terrorist corruption of the democratic process.  Conversation and
negotiation are vital elements of democratic decision making.  This  agenda
should be immediately expanded to include narratives of the experiences of
women and men who have faced the ultimately tragic decisions associated
with abortion.  For an excellent first step toward this process, see "The
sound of silence breaking: Catholic women, abortion, and the law," (T. G.
Phelps,  Tennessee Law Review , 59 (1992), 547--69) .
	
	Who favors recriminalization  of abortion, and state sponsored regulation
of all pregnant women?  A society's laws can reflect its most basic values
without deploying the full power of the state when its repressive effects
would be so overwhelmingly counterproductive.   There is no public outcry
against expenditures of significant funds for neonatal intensive care units
caring for extremely vulnerable infants delivered at 24 (or l8) weeks  of
gestation, weighing sixteen ounces or less at birth.  Can the compassion
supporting our policy concerning premature birth be extended to women who
decide pregnancy and motherhood demand unacceptable costs to their own
capacities for nurturance?   Groups rejecting programs giving women in the
early stages of pregnancy the social resources necessary for autonomous
choice concerning parenthood have no legitimate veto over the views of that
vast majority of Americans whose fundamental value is the nurturance  of
human life. 


Edward Manier
Philosophy and Reilly Center
314 Decio Hall
University of Notre Dame
Notre Dame, IN 46556
Xref: sparky alt.abortion.inequity:4247 talk.abortion:40598 soc.men:17342