Pro-Choice or Pro-Life? Chapter 2, Cause and Effect.
Gregg Zegarelli Esq.
Managing Shareholder at Technology & Entrepreneurial Ventures Law Group, PC
A female human being is not born pregnant. A female becomes pregnant by causation. Therefore, a women's state of pregnancy is an effect.
In the course of human events, we experience many effects. Sometimes, the causes for those effects matter to society, and sometimes the causes do not matter.
For example, if we see a dead person, and if we ask the cause of death, the answer might be, "blunt trauma to the head." This is the scientific cause, but not necessarily the social cause. It might be that the dead person is the victim of a crime, or perhaps the dead person is actually the criminal, killed by someone in self-defense. It tends to make a difference to society if the causal facts are that the dead person is the criminal rapist who was killed by a woman while defending herself, or if the dead person is the victim of an assault.
Society tends to seek to discover the causes for effects with the intention to manage the social causal context for the future, to achieve civil order; or, sometimes, less nobly, simply to seek retribution, to punish, or to impugn.
In the law (being the rules of association of a group), sometimes intention is important as a causal fact, and, sometimes not. If a man has your umbrella, whether he had the intention to convert it to his use is relevant to the claim. ("Why did you take it?") However, if a man is trespassing on your land, then his intention to be on your land is not relevant to the claim. ("I don't care why you are trespassing, get off my land.") For this reason, trespass is considered to be "strict liability" (liability without fault). As famously said by the U.S. Third Circuit Court of Appeals, in favor of my clients in Borings v. Google, "Google was either on Plaintiffs' land or it was not...."
Legal standards of review for causal facts tend to be developed based upon what is deemed to be socially "fair," in accordance with the rules of group association. Our experience teaches us, in the determination of this "fairness," the legal standards for claims upon causal facts in a free state, and the legal standards in a slave state, tend not to be the same thing. What is fair for a master, or a lord over others, tends to have its own standard of imposition. Power tends to resolve to its own biased sense of justice, and voluntary submission to a master, or lord, is not the same as respectful civil participation in a democratic republic.
By definition, freedom and slavery are antitheses of each other, but, we know that they inter-relate in degrees of gray, rather than in black and white binary absolutes. This is because the rights of the individual and the rights of the group are balanced by contention. Laws tend to be limits upon individual freedom, seeking a constrained social effect, by external imposition. Even the most free society, to endure as such, tends to accept some social constraints for the overall benefit of necessary social order.
But, we are careful to observe how what is purported merely to be an intended constraint on freedom, becomes enslavement, in effect. For example, if an individual has nine options, and if the law should eliminate, by constraint, six of those options, the constraint might simply be that, in effect: a limited constraint on individual freedom, there still being fair choice. However, if all the options are eliminated by legal constraint (or perhaps if there are only two options with one option eliminated by legal constraint), then the individual, otherwise free, has no choice and is enslaved, in effect, by the causation of external imposition of law.
When we scrutinize human choice within the context of freedom, a presupposition is required. That is, whether the human being starts with the freedom in question by presumptive natural gift. Lawyers particularly understand the subtlety of, "all, except..." versus "none, except...," because the first word sets the presupposition by default general rule; to wit: "We have no choices, except...," "We have all choices, except..."; "Everything is a human being, except...," "Nothing is a human being, except..."; "We are born free, except...," "We are born as slaves, except... ."
Freedom, as a natural gift (presupposing it exists as such), tends to be a function of what a being can do while all alone, without taking or giving external imposition. Therefore, we conclude that religion, spirituality, and matters of conscience are the highest and most protected individual freedoms, since an individual being can have those while all alone (with God or gods for the theists, or simply by conscience for the atheists).
As to a woman's impregnation, science and experience prove that she cannot accomplish it alone. Moreover, upon the birth of a child, a mother is not alone, which is true by definition. Therefore, we know that the cause of a woman's impregnation is social (taking two), and the effect of a woman giving birth is also social (creating two). However, what is in the middle, between impregnation and birth—being the process of gestation—well, as to that, a woman can do, while all alone.
If a pregnant woman were alone on a deserted island by a ship wreck, having previously become pregnant, she would be in complete control of how or whether to maintain her pregnancy. She might decide to continue the pregnancy. Or, she might ingest some leaves that she knows would terminate the gestation, use some tool, or do anything she wanted regarding her pregnant body. There would be no one external to judge her choice, but, if at all, a matter of her own conscience. Moreover, even if the man who impregnated her were on the island with her, and without assuming his domination by physical power and external imposition, the woman would still be in complete control of her decision to continue the gestation. And, if there were unrelated persons on the island, the pregnant woman would perhaps be even less influenced by them, in light of her own comparative right of conscience.
Indeed, on this island, the woman's conscience would be more important to her than the external imposed judgment of anyone else. The effect of the woman's pregnancy is personally known to her and only to her, and she would freely judge for herself whether the cause of her pregnancy (or anything or anyone else) should influence her choices regarding gestation. Such as no person can be a heretic to his or her own dogma, for this purpose, the pregnant woman is her own religion. "Mulier prefaegnans est religio sua."
[Note: Note I did not use the terms, "pregnant with child" or "father," as the terms "child" and "father" are defined terms that presume judgment. We cannot define anything without judgment, definitions being a socially adjudicated construct of language and communication. Even the term "conceived" has a distinct connotation from "impregnated," the former term being more rhetorically abstract, as "a nation so conceived" is not the same as "a nation from impregnation" and lends itself to a biased antiquated connotation of moral conclusion, such as "Behold, Mary, you will conceive in your womb and ... name him ‘Jesus.'" [ONE: 42] "I AM," said Jesus, refusing external definition and simply asserting the true fact of self—although we know that he has been called many names, by a full range of external judgments. The empirical fact is that the woman is pregnant. With what she is pregnant, can traverse many definitions, some scientific, some social. As to the social definitions, the scientifically defined "zygote" or "embryo" may be socially defined as "human being," "child," or the "potentiality to a child," as determined by the adjudication, or choice, as to what the fact of a thing is, for external definitional purposes. Indeed, facts are stubborn things, but we have choices regarding definitions. A fact is something, a definition could be anything.]
In our deserted island example, there is no law, but only conscience. And conscience being some match of conduct to a set of rules of conduct—to the extent any "morality" exists, it is self-defined, and self-enforced.
Now, the immediate contradiction to the implications of the island example is this: "Well, if the pregnant woman is on a deserted island, such as it always is with no-law deserted islands, she might abort the gestation, or, alternatively, birth the child and then cook the child and eat it for desert, there not being any law, but only conscience." And, such as it is for the relative moral self-righteousness of cannibals, it would be true.
In fact, that is true, until such time as the child could defend itself with some form of power, and, by contradiction, establish a social order by imposition of law to constrain the child-eating mother. The trick, of course, is that child would never be able to do so, in light of the fact that it already had been eaten by the child-eating mother. The child needs help.
But, in the contradiction above, the term "child" was used, and we recognize that there is a natural bright-line cognizable difference after the actual birth of a child that simply does not exist prior to birth. And failing to recognize the distinction is social dysfunction, because, as an empirical fact, it is incontrovertible.
Indeed, let us say that there is another group on the island, becoming aware of this pregnant woman, and this group rejects cannibalism, by its own relative moral self-righteousness. What can that primitive society do after birth of the child that it cannot do prior to the birth, if it disagrees with the woman's own conscience?
Only after the actual birth of the child, can that primitive society take possession of that child without physically touching the mother. Prior to birth, the unrelated third-party must impose itself upon the body of the impregnated woman, but not afterwards. Afterwards, the primitive society can use the power of its own self-righteous morality to abduct the child (using some theory) without ever needing to touch the mother. The mother may object, but she is not touched, and, in this simple fact, there is material social difference.
Righteousness is a matter of mind, possession is a matter of body, and external imposition upon either, or the latter by justification of the former, through external power and force, is nothing less than a matter of freedom and slavery.
As to the rules of group association in the United States, the Revolutionary War was intended to conquer slavery of the mind, and the Civil War was intended to conquer slavery of the body. The effect of those causes, being the goal of law in the United States, is simply this: To accomplish the greatest individual freedom matched to the least necessary civil order.
But, moving on with the deserted island... Let us say that the grouping on the island grows; therefore, the rules of association become more complex. Society, through the external imposition of force of law, determines by its collective moral self-righteousness, effectively to touch the impregnated woman's body, against her consent, in a form otherwise not permitted by the rules of trespass, assault, or rape, should any person or a smaller group do it to her.
Now, in such a case, as to the woman—from her own perspective—the touch upon her body without her consent does not matter who or why—be it a man, woman, group, government, or with any intention—in the woman's own final assessment, all she knows is that there is an effect of external imposition of physical contact upon her body, without her consent, by force (or rape, if we should define it as such), based upon someone else's mind of external self-righteousness, regarding the gestation process that she is otherwise naturally free to do all alone. She might say, "I don't care who or why, get off my body."
To take a step back, we remember that the period of gestation under scrutiny starts at the cause by impregnation by another person, progressing, in degrees, to the effect of birth in creating another person. (This progression is suggested by the custom to say, "Best wishes" to a pregnant woman, rather than "Congratulations"—as the former term implies only a conditional social potentiality resulting from a gestation progression.)
Accordingly, because the two sides of the gestation progression are touched by social cause and/or social effect, unlike pure matters of conscience or religion, for this context of gestation, society is necessarily implicated, either before the fact, or after the fact.
We cannot escape two irrefutable civil facts of life underpinning the contention between the individual woman and society: the impregnated woman has touched society to become pregnant, and the pregnancy—but for an intervention by voluntary or involuntary cause—will naturally effect a birth of a child, both having social implications. Therefore, it is irrefutable, if not self-evident, that the impregnation of a woman has social implications.
But, we must be careful, because the social implications do not simply regard a child that exists by the accepted definition following birth, but the one that may or may not exist, depending upon the choice of civil definition, in light of some degree of physical properties by gestation, existing solely within the physical scope of the impregnated woman's body, for a physical process that she can perform alone.
Such as it is for the "pregnant woman being her own religion," she is studying this religion in her own home, and we must try to determine the merits, or relative strength, of the implications of her doing so vis a vis society, and whether society needs to impose force, and effectively to enter her without her consent, to achieve necessary civil order. That is, is it really basic necessary civil order society desires, or is it really the imposition of disguised conformed moral righteousness?
For this analysis, we may be assisted by inverting the facts thusly, the woman saying, "Society, I will cause a child to emigrate from within the walls of my physical body into our group without your permission." For this inverse case, the woman is imposing by offense, and society defends to maintain civil order. Although perhaps not determinative, seeing what something clearly is not, helps us to determine more clearly what something is. For our actual case, the woman would not be causing the emigration, but preventing it.
As to the degree of society's interest vis a vis the impregnated woman's interest, regarding the process of gestation, there are two extremes: one extreme is that the woman has complete choice through the external physical birth, and the other extreme is that, upon impregnation, the woman has no choice, thereby being supplanted by society's choice. This is the pure binary contradiction of extremes—no exceptions, either way.
For this contention, as a question of civil resolution, the woman and society must negotiate, as neither stated extreme position balances the respective interests. Understanding that physical gestation is a matter of degree, the competing civil interests are, presumably concomitantly, also a matter of degree. It is not all black and white. "Black and white, so easy to say, but judgment rests in shades of the gray."
By a fair negotiation of balancing entwined interests, by degrees, it cannot be "all or none," which does not respect self-evident facts of contending interests. Therefore, we have either "all, except..." or "none, except..."; or, "Woman's choice, except..." or "Society's choice, except..." which are inverse functions of each other, with the predicate as the general rule.
But, any exception to a simple absolute introduces something significant, and critical: the inquisition of facts. The exception must be externally adjudicated; that is, whether the facts meet the socially defined legal standard.
Let us say that the factual social cause of impregnation is the only type of exception that permits the woman's choice of terminating gestation. It is no longer satisfactory to society simply to say that "sexual intercourse" is the cause of pregnancy, such as, "blunt trauma to the head" was not satisfactory in the example above. Society will necessarily inquire into the substantive social cause of the pregnancy, being the factual context of the woman's sexual intercourse. And, this inquest will occur irrespective of the predicate general rule, or whether the woman or society has the burden to prove the exception. Even the woman's voluntary sexual intercourse will always be legally at issue.
Experience teaches us that there are innumerable shades of gray to the social causes for the effect of a woman's pregnancy, even in her voluntary circumstances.
For example, a man and a young woman may factually have had "voluntarily" sexual intercourse, but the social policy may be that a woman is too young to have consented; therefore, the pregnancy is the cause from rape by statutory definition. Or, it may be that a man and woman voluntarily had sexual intercourse, but are too close in socially defined consanguinity, being pregnancy from the cause of incest. Or, it may be that the woman has repeatedly terminated gestation by the cause of repeated voluntary sexual activity (perhaps with some external moral judgment of "promiscuity," however that term is socially defined). Or, it may be that a young woman was in love, regrets a choice for sexual activity, which would never be repeated, but, alas, that pregnancy was caused by the choice of voluntary sexual intercourse. Or, it might be a married couple who did not expect pregnancy, tried to avoid it, and cannot manage the future of it, but, again, alas, that pregnancy was also caused by the choice of voluntary sexual intercourse. The effect of such a legal standard spawns a public body of evidence and precedent—under intrigued if not salacious scrutiny by society—that includes humiliation by lack of consent by failed vasectomies, and broken condoms.
On the one hand, experience teaches us that an unforgiving external command for these excuses in all cases, particularly over a deep human need and inclination (with ever-evolving implications back to the man, since it takes two), causes a woman to be placed into a state of unhappy fear and misery, if not terror. And, by our human experience, we know that such a rule of absolute prohibition causes the impregnated woman to be effected wretched by civil law and baits her into blame, lies and dark escape.
On the other hand, if the civil social standard for a pregnant woman provides an effective "no fault" option for a woman to effect a termination of gestation, irrespective of intention and factual social causation—even if for limited time—then none of these causal facts are socially relevant for that purpose. The woman chooses based upon her personal context, without civil (or moral) inquisition, remembering that the goal of the law is not to punish or to impugn the woman, but simply to preserve the greatest individual freedom matched to the most basic necessary civil order.
Experience teaches that laws beget laws. More laws will cause and effect more police, and more police will cause and effect more arrests, and more arrests will cause and effect more investigations, and more investigations will cause and effect personal inquisitions, and more personal inquisitions will cause and effect more trials, and more trials will cause and effect more jail-time, and more jail-time will cause and effect more jails. Making more slaves and prisoners of women (and men) by a dysfunction of principles. And, the effect is to cause more unhappy social civil disorder than the civil order that the legal standard seeks to constrain.
The law does not exist to force people to become their best, to do their best, or to think their best. Contrary to the wishes, inclinations, or the desires of some, the law is a least common denominator, with the empirically unknown yielding to the presupposition of freedom. It must be so, in a free-thinking society, to endure this diversity of choices in establishing definitions.
No woman should be a slave, as Abraham Lincoln said, "Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife.?I need not have her for either, I can just leave her alone." The right to be left alone is the greatest freedom. So, to leave the woman alone: at least for a fair amount of time for her to make a choice, such as is otherwise granted by nature. And, in doing so, eliminating the presumptive self-righteous inquisitions that history teaches are a catastrophe in a free-thinking society.
Life, such as it is or may be, concedes to the seminal principle of our civil governance; to wit: To cause the effect that preserves the greatest individual freedom—within the context of a free-thinking group of diverse people—matched to the most basic necessary civil order.
We understand that a free-state will never be as ordered?as a police-state or a slave-state. The cause of freedom has that effect.
"Mulier prefaegnans est religio sua." ("A pregnant woman is her own religion.")
See also:
"Mulier prefaegnans est religio sua." ("A pregnant woman is her own religion.") ~grz
*?Gregg Zegarelli, Esq., earned both his Bachelor of Arts Degree and his Juris Doctorate from Duquesne University, Pittsburgh, Pennsylvania. His dual major areas of study were History from the College of Liberal Arts and Accounting from the Business School (qualified to sit for the CPA examination), with dual minors in Philosophy and Political Science. He has enjoyed Adjunct Professorships in the Duquesne University Graduate Leadership Master Degree Program (The Leader as Entrepreneur; Developing Leadership Character Through Adversity) and the University of Pittsburgh Law School (The Anatomy of a Deal). He is admitted to various courts throughout the United States of America.
Gregg Zegarelli, Esq.,?is Managing Shareholder of?Technology & Entrepreneurial Ventures Law Group, PC.?Gregg is nationally rated as "superb" and has more than 35 years of experience working with entrepreneurs and companies of all sizes, including startups,?INC. 500, and publicly traded companies.?He is author of?One: The Unified Gospel of Jesus,?and?The Business of Aesop? article series, and co-author with his father,?Arnold Zegarelli, of?The Essential Aesop: For Business, Managers, Writers and Professional Speakers.?Gregg is a frequent lecturer, speaker and faculty for a variety of educational and other institutions.?
The statements or opinions made in this article are solely the author's own and not representative of any institution regarding which the author is affiliated.
? 2019 Gregg Zegarelli, Esq.?Gregg can be contacted through?LinkedIn.
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