The catalyst of this response can be found on Gardner’s April 1st, 2008 show which can be heard here.

“I believe that if we are going to establish the state and the state is going to have laws that protect our lives against encroachment of others, then we have to apply those laws consistently.”

Let me prefix this all by saying that this argument is aimed at Gardner’s insistence that an embryo should be covered by murder law and that applying the law consistently to a biological human life is superior to applying it with a different measure of consistency.

“Where in the continuum of life, from conception to death, do you decide there is a line of demarcation where the laws don’t apply, where the woman’s so called choice applies.”

Speaking of a zygote: “Is it human? Is it being?”

What traits must something have to in order to be deserving of or having rights? Is being human the measure we do use or should use for protecting those rights?

This question will garner many responses. What will those responses have in common; especially if one can try to take a more comprehensive look at it all? I think likely it will be sentience (as vague as that may be). Abilities such as reasoning, self awareness and the freedom of will. Their source and uniqueness in man are in question, but I do not believe we will argue that those traits are the reason we separate humans from other entities. It’s not because of our genetic makeup, as that alone does not uniquely provide those traits (theoretically.) If we found that some terrestrial or extraterrestrial entity exhibited these abilities, we’d likely extend them the same rights (assuming they are peaceful) as we do our fellow man. This sentiment is portrayed obviously in our fiction and the inverse in our lives. Data, Hugh, Spock, and others are extended rights and those without apparent brain activity are allowed to die without prosecution.

“Where do we come down consistently at when it is acceptable to end the life of a human being and when it is not acceptable to end the life of a human being.”

Given above, it seems inconsistent to apply murder laws to something which very obviously does not possess those traits: a stone, bacterium, a tree, an earthworm, a human zygote, brainless or heavily brain damned human body. Life is inconsistent in ability and justifiably treated differently. What makes the metric “human” for consistency better than that of “consciousness” when “human” isn’t consistent itself and obviously so? I’m not claiming that determining consciousness is always cut and dry. We do, however, have methods to reasonably determine that in our legal system and using consciousness as a metric seems to me to be more consistent with the idea of legal egalitarianism usually advocated in the concept of rule of law. Not to cut laws vertically based on what you are biologically but horizontally as to who you are mentally.

Following the pro-life platform strictly I see a lot of legal problems:

• Brain dead individuals would be required to be kept on life support.
• Brainless human bodies and likely individually grown organs would not be possible.
• If technology allows for transfering human consciousness would the new vessel not have protection under the law?
• If true synthetic sentient beings are discovered or created they would not be implicitly protected.
• Any use of fertilized embryos are out of the question. Stem cell research, etc.
• If embryos fertilized by scientists are not allowed because their destruction is murder what about naturally fertilized embryos which do not implant? Obviously she could have taken drugs but there could have been other factors which were under her control (diet, exercise, etc.) Miscarriages could be viewed in such suspect ways too. Would the government be expected to monitor for such situations and investigate them?
• If destruction of a blastocyst is murder, the primary component of which are stem cells, would the changing of other cells into embryonic stem cells be restricted too? Or is it only because of the stem cell’s situated in an embryo and their viability in forming a human? Would that conflict with Gardner’s dismissal of viability as a variable for considering law?
• Rape and incest? Fetus’ found to be physically and/or mentally deformed? To be consistent we’d have to force the women to carry the fetus to full term regardless of its condition or the pregnancy’s cause.
• What about suicide? Assisted suicide?

Gardner doesn’t indicate which level of government he is referring to during the conversation. Which is responsible for protecting the individual’s right to life? Given the topic was brought up because of Obama I will assume the federal government. If we are keeping with the theme of being consistent then this entire conversation is pointless given the Constitution does not discuss this supposed crime. At the state level I believe the government can both exist to protect the individual’s life and liberty in a consistent manner without defining an individual by their genetic makeup and without “laws controlling woman in many facets of their lives while pregnant.” Law does not need to be so simplistic.