Wednesday, 05 August

22:26

The Legality of Selling Fetal Tissue [John V. Gerardi]

In light of the recent slew of videos from the Center for Medical Progress showing Planned Parenthood executives discussing the sale of fetal organs from aborted children, a lot of people have been asking whether the sale of fetal tissue is actually, technically illegal.  I thought I’d do a bit of a quick dive into the law to explain the central issues involved.

First, let’s look at the text of the operative statute:

42 U.S. Code sec. 289g-2

(a) Purchase of tissue

It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human fetal tissue for valuable consideration if the transfer affects interstate commerce.

. . .

(e) Definitions

For purposes of this section:

(1) The term “human fetal tissue” has the meaning given such term in section 289g-1 (g) of this title.

(2) The term “interstate commerce” has the meaning given such term in section 321(b) of title 21.

(3) The term “valuable consideration” does not include reasonable payments associated with the transportation, implantation, processing, preservation, quality control, or storage of human fetal tissue.

Let’s go over some basic legalese for the non-lawyers out there.  First, the U.S. Congress has authority to create laws regulating commerce between the states under Article I, Section 8 of the Constitution, called the Commerce Clause.  As a result, when Congress wants to regulate something through a statute, they will place a “jurisdictional hook” in the bill to stipulate that the law is regulating an activity “to the extent that it affects interstate commerce.”  By mentioning “interstate commerce,” the bill explicitly demonstrates that Congress has the authority or jurisdiction to regulate the activity in question.  Thanks to expansive Supreme Court interpretations of the Commerce Clause throughout the 20th Century, essentially any sale of goods has the potential to “affect” interstate markets.  Thus, this statute regulates any sale of fetal tissue that takes place throughout the country.

Next there’s the term “valuable consideration.” This is a basic term in the law of contracts and sales.  Essentially, to have a valid and enforceable contract, there must be bargained-for “consideration” from both parties to an agreement.  “Consideration” can mean any form of detriment to oneself: payment of money, providing a good, performing a service, agreeing not to do something you have the right to do, etc.  “Valuable consideration” is essentially a synonym for “consideration”–it means anything with any value whatsoever.  As long as there is some consideration on both sides of a contract, it is legally enforceable, even if one side is clearly giving far too much or too little.  The amount of consideration either party offers is generally irrelevant to contractual validity.

In this case, the text of the law explicitly defines “valuable consideration” as not including the reasonable costs for transportation, implantation, processing, preservation, quality control, or storage of human fetal tissue.  Essentially, the law seems concerned with not wanting people to profit off of the sale of the tissue, or to create a market for it.  The tissue should only be donated for medical testing purposes, and the only money to be exchanged in the transaction should be used to offset the legitimate costs associated with providing the tissue: transportation, storage, etc.  When the legislation was introduced, former Congressman Henry Waxman from California stated, “It would be abhorrent to allow for the sale of fetal tissue and a market to be created for that sale.”

This takes us to the critical question: what is payment for storage, transportation, processing, etc.; and what is valuable consideration to purchase fetal tissue?  According to the New York Times, it is a grey area, and certain entities will charge thousands of dollars for the sale of various kinds of tissue without technically running afoul of the law (or at least without being prosecuted for it).

The most recent Center for Medical Progress video, released yesterday, indicates that Planned Parenthood doctors would alter their manner of performing abortion procedures in order to provide different fetal specimens for research, and that different prices would be charged for different specimens.  In addition to the questionable medical ethics of altering the manner of performing an operation for any reason other than the safety of a patient, the latest video strongly indicates that the importance of certain kinds of specimens to researchers, rather than the difficulties associated with their storage or transportation, are key factors in determining the prices Planned Parenthood charges.  That, it seems to me, runs afoul of the statute.  There is valuable consideration being paid for the specimens themselves, not payment to offset the costs of their transport.

Whether or not the sale of these tissues technically falls afoul of the law, the Center for Medical Progress videos have demonstrated that a genuine market does now exist for these tissues.  Whether or not the law is being broken, people are making a lo of money off of the procurement, transport, and sale of these tissues, and Planned Parenthood is intimately involved in creating that market.


19:00

Freedom as Choosing the Good, Against the Nihilists [The Josias]

by Peter Kwasniewski

All the same, one might enquire how what happens under the impulse of desire can be self-determined [i.e., voluntary] when desire leads one to what is outside oneself and has deficiency in it; for that which desires is led, even if it is led to the good. And a difficulty must be raised about intellect itself, whether, when its activity is what it is by nature and as it is by nature, it could be said to have freedom and anything in its power, when it does not have it in its power not to act [for the sake of the good]. . . . But then how can there be freedom when even these higher beings [intellects] are slaves to their own nature? Now, to speak the truth, where there is no compulsion to follow another, how can one speak of slavery? How could something borne towards the good be under compulsion, since its desire for the good will be voluntary if it knows that it is good and goes to it as good?

—Plotinus, Ennead VI.8

The connection between choosing the good and attaining greater freedom is not easy to set forth deductively. Let us begin with the end. Willing and final causality are utterly wed to each other. Where there is a natural power, there is a natural purpose. There is no willing that is not for some end; there is no voluntary end which is lacking a moral content. This moral content, the object of the act of willing itself, is what gives the species or type to the action. The moral content, the intentional target of the deed, is what enables us to classify an act of killing as murder or as self-defense—the former punishable, the latter praiseworthy.

The will is a power that inclines towards the good apprehended by reason. That the will can choose false goods or lesser goods over genuine or higher goods is due to the fact that reason is capable of viewing things from many different angles, and can therefore see some limited good in what is nonetheless evil for the whole man. If a good is cognizable, reason can apprehend it and the will can choose it. Hence, we may glimpse the answer to the question, Does choosing the good necessarily lead to more freedom? Freedom is the perfection of the natural faculty of will; the ultimate perfection of a faculty results from its proper use, its being put to the right use again and again. If a state of freedom (self-command) is the result of choosing what is objectively best, namely the genuine good, then freedom should be defined as a perfection of the will when it has chosen consistently well. In light of this, we see the extent to which the will’s perfection depends upon the condition of man’s reason, how reason views various desirable things. If reason is in good estate, the will is the first beneficiary.

Is the truth of things the object of the intellect? Is the goodness of things the object of the will? If one answers “no” to either question, one is compelled to maintain either that there is no natural end to the intellect and the will, i.e., the power is wholly indeterminate and has no orientation whatsoever, or that the end is arbitrarily chosen and set up, in the manner of an idol. Either position destroys objectivity and morality, leaving us with no way of arguing against any intellectual or moral position, however absurd, cruel, or disgusting. Any human being who takes his own life and the lives of other people seriously implicitly accepts an objective order (however difficult it may be to articulate it) by which the wiser and better person can judge the actions of others who offend against the principles of this order. Try to think or live as though there were not a built-in predetermined purpose to your faculties; it will not work. The orientation to goodness is not a gloss on the dark purposelessness of nature, nor is it a condition that compromises freedom. In order to be truly free, does one have to be free to create oneself? Contemporary existentialists look upon all determination or form as irrational impositions over which the individual has no control; the individual, they say, ought to be absolutely free to determine what and who he will be. This is none other than a doctrine of uninhibited metaphysical license that has as its counterparts political anarchy, ethical relativism, and intellectual nihilism.

Is it problematic, on the other hand, to say that one is free to determine the way in which one will realize his own good—that one can choose what is to count as happiness for himself in this life, even though happiness is the end all men desire by nature? Such an individual does not lose his freedom, if, with an eye towards happiness, he can choose the manner of life he wants to lead. What sort of freedom is the existentialist looking for—freedom to create new worlds, to pursue unhappiness as an end, to annihilate himself, to experiment with the space-time continuum? Even God has an end, namely, Himself, the Goodness that is He. Judging from the remarks of some philosophers, one would think the very notion of an end is arbitrary and stifling. Yet nothing can exist without ordering to an end; it is against the nature of being itself. One cannot think “being” without co-thinking “end”—another way of saying, with Aristotle, that the formal cause cannot be divorced from the final cause. In short, only nothing has no purpose.

Moderns assert that to have freedom is to be able to determine oneself absolutely. To be free, they hold, one must be able to give oneself an end. But what else could this mean, except to give oneself a nature—which amounts to creating oneself? The very thing which distinguishes creation from making is that the maker (or poet) only makes some part or aspect of the thing made, whereas the creator brings the whole thing, including its act of being, into being. Now to bring a thing into being means to bring a “this something” into being; there is no creatio without some boundaries as to the appetites and abilities characterizing the creatum. To create is to give being to something—and this something, even to be a something, must have a certain form and thus a certain end, since form and end are unintelligible apart from each other.

It seems to me, therefore, that to speak of a rational creature, a creature having as its highest reality a power by which to apprehend the true and the good, which nonetheless does not have as its necessary end the resting in that very truth and goodness, is to speak without meaning. It is to say that a creature is made capable of partaking in the perfections of its origin, yet is left wholly on its own as to the end towards which it will be inclined to go, or without determination as to whether or not it will even have an end. I do not see how any sense can be made out of that.

All men desire happiness, or, if the word reminds you too much of Hollywood, substitute another term: completion, fulfillment, enduring bliss. There is nobody who does not will this end, because to be rational is to be the sort of creature that (a) is capable of knowing or being aware of itself; (b) in knowing itself recognises that there is such a thing as the full possession of and rejoicing in what is good, viz., happiness; (c) upon glimpsing the possibility of happiness, desires it ardently as a way of reaching the zenith of what it is; and (d) strives always to reach this maximum actuality. The question of what exactly is taken as the end should not be mixed up in this discussion. We are only concerned with the universal question: what does it mean to live a human life? It means to work for one’s completion. We should not ask why man desires this end; for how could he not? A creature endowed with the power to partake of truth and goodness necessarily tends towards that which he takes to be true and good. This is not compulsion or slavery, this is simply a precondition of all action and passion. If a man did not naturally want something, he could never move himself to want anything voluntarily. We never deliberate about means until some end is fixed; we would never deliberate at all were there no distant target which was seen as the ultimate justification of our actions. If we designated our final end, if we created our own natures, action could not be other than totally arbitrary, neither right nor wrong, and neither describable in itself nor communicable to others. We could not act in concert with other human beings; we could not even act as a single subject of a life of action. Each man would be his own species, or non-species; each act would be an isolated fact with no prelude, no postlude, no context. And then we would have to ask: could love or hatred, the most basic of our responses to the world and its inhabitants, survive in this metaphysical wilderness?

A large impediment to accepting the Thomistic account is the routine failure to distinguish between the end as given generically, and the end as “coloured” by a particular person’s life, choices, habits, opinions. Our perceptions of what makes for happiness can differ dramatically, as is obvious from living in a world where some people would identify fulfillment with (say) endless and unfatiguing electronic entertainment. Because reason can have different apprehensions of the good, the will can tend towards different goods in the right or the wrong order, putting lower goods above higher ones, or, albeit more rarely, higher goods above lower ones when it is not appropriate to do so. The will is not automatically harnessed to the natural and supernatural means of human perfection, nor is the intellect prepackaged with instructions as to what will ultimately fulfill it. This is why Aristotle says that education counts for just about everything, together with habituation to virtuous or vicious actions (and, as Christians, we can add the presence or absence of grace). If men can mentally locate their fulfillment in wealth or pleasure, the two most common follies of our fallen race, then they can go about living as though wealth or pleasure really were the final end for which they exist. There has been a conscious decision, a choice or free act to orient oneself to some “x” as constitutive of happiness, where “x” can be anything that is perceived to have some degree of goodness in it.

Perhaps, after all, the modern replies: to have freedom to choose what I will construe to be my happiness is no freedom at all, if I am still naturally made for a certain final end and will be miserable if I do not choose it.

Yet is this argument sound? Consider some examples. Is the murderer not free because he commits an action that will make him miserable? Is any man less free for doing something stupid? In one sense, of course, he is not as free as he might be if he were acting in a way that would perfect him rather than damage him, but he is free as long as the origin of action remains in him and is not the result of instinct, chance, or coercion. If this freedom were not real, would there be any basis for distinguishing between manslaughter and murder, as criminal investigators and courts of law do on a daily basis? It seems as though moderns need to go back to school with Socrates in the Gorgias. The entire point of having morals, of striving to be virtuous, is to live in such a way that one will not be miserable. To be tending towards happiness or misery is, at least on the natural level, within our power.

The modern may still object that if the rational creature has been given a will, it should be free to choose what it is going to be for. That is perfectly true if by “choosing what it is going to be for,” one means the choices all men make about what goods to pursue here and now, what to construe as happiness, for what (or whom) am I living my life. It is obvious that not only are we free to do this, we are always doing it. Our experience of freedom is undeniable and all-pervasive: we are in charge of ourselves whenever we say “I could do this or that or neither, but I choose to do this.” All of a man’s life is taken up with decisions about this step or that, this object or that. Reading the plays of Sartre, one might almost begin to think that such decisions are irrelevant and somehow too ignoble to be taken seriously as free acts! Comparatively speaking, speculation about the final and absolute good is a luxury for the few who are capable of bearing the strain of concentration. Most people carry on from day to day trying to be happy in some fashion, without rising to the level of secondary reflection where we pose the question “what’s it all for.”

On the other hand, if by the statement “the rational creature should be free to choose what it is going to be for” one means that a rational creature should be free to endow itself with an end or have authority over its orientation to the good, then I say: impossible. Doing so would involve defining what is actually good, producing goodness as an artist produces an artifact. The creature would cease to be a creature; it would become God, and a strange God at that, since there would no longer be any such thing as “the good.” All would be chaos, relativity, meaninglessness. But the Good Itself cannot be defined by the creature; not even God defines the Good. He is the Good, He cannot be otherwise, and there is no need for Him to be able to be Not-Good in order for Him to be free.

The existentialist is worried about preserving the creature’s freedom. If he were thinking rationally, he might rather turn his mind to the problem of God’s freedom. For on his view, God not only could not be free, He would be the most unfree being of all—He would be a total and complete slave. Yet what fool at this point would not blush from embarassment and retire to his room, eager to find a less ridiculous position?


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MonTueWedThuFriSatSun
28293001020304
05060708091011
12131415161718
19202122232425
26272829303101
September 2015
MonTueWedThuFriSatSun
31010203040506
07080910111213
14151617181920
21222324252627
28293001020304
August 2015
MonTueWedThuFriSatSun
27282930310102
03040506070809
10111213141516
17181920212223
24252627282930
31010203040506
July 2015
MonTueWedThuFriSatSun
29300102030405
06070809101112
13141516171819
20212223242526
27282930310102
June 2015
MonTueWedThuFriSatSun
01020304050607
08091011121314
15161718192021
22232425262728
29300102030405
May 2015
MonTueWedThuFriSatSun
27282930010203
04050607080910
11121314151617
18192021222324
25262728293031
April 2015
MonTueWedThuFriSatSun
30310102030405
06070809101112
13141516171819
20212223242526
27282930010203
March 2015
MonTueWedThuFriSatSun
23242526272801
02030405060708
09101112131415
16171819202122
23242526272829
30310102030405
February 2015
MonTueWedThuFriSatSun
26272829303101
02030405060708
09101112131415
16171819202122
23242526272801
January 2015
MonTueWedThuFriSatSun
29303101020304
05060708091011
12131415161718
19202122232425
26272829303101
December 2014
MonTueWedThuFriSatSun
01020304050607
08091011121314
15161718192021
22232425262728
29303101020304
November 2014
MonTueWedThuFriSatSun
27282930310102
03040506070809
10111213141516
17181920212223
24252627282930
October 2014
MonTueWedThuFriSatSun
29300102030405
06070809101112
13141516171819
20212223242526
27282930310102
September 2014
MonTueWedThuFriSatSun
01020304050607
08091011121314
15161718192021
22232425262728
29300102030405
August 2014
MonTueWedThuFriSatSun
28293031010203
04050607080910
11121314151617
18192021222324
25262728293031
July 2014
MonTueWedThuFriSatSun
30010203040506
07080910111213
14151617181920
21222324252627
28293031010203
June 2014
MonTueWedThuFriSatSun
26272829303101
02030405060708
09101112131415
16171819202122
23242526272829
30010203040506
May 2014
MonTueWedThuFriSatSun
28293001020304
05060708091011
12131415161718
19202122232425
26272829303101
April 2014
MonTueWedThuFriSatSun
31010203040506
07080910111213
14151617181920
21222324252627
28293001020304
March 2014
MonTueWedThuFriSatSun
24252627280102
03040506070809
10111213141516
17181920212223
24252627282930
31010203040506
February 2014
MonTueWedThuFriSatSun
27282930310102
03040506070809
10111213141516
17181920212223
24252627280102
January 2014
MonTueWedThuFriSatSun
30310102030405
06070809101112
13141516171819
20212223242526
27282930310102
December 2013
MonTueWedThuFriSatSun
25262728293001
02030405060708
09101112131415
16171819202122
23242526272829
30310102030405
November 2013
MonTueWedThuFriSatSun
28293031010203
04050607080910
11121314151617
18192021222324
25262728293001
October 2013
MonTueWedThuFriSatSun
30010203040506
07080910111213
14151617181920
21222324252627
28293031010203
August 2013
MonTueWedThuFriSatSun
29303101020304
05060708091011
12131415161718
19202122232425
26272829303101
July 2013
MonTueWedThuFriSatSun
01020304050607
08091011121314
15161718192021
22232425262728
29303101020304
June 2013
MonTueWedThuFriSatSun
27282930310102
03040506070809
10111213141516
17181920212223
24252627282930
May 2013
MonTueWedThuFriSatSun
29300102030405
06070809101112
13141516171819
20212223242526
27282930310102
April 2013
MonTueWedThuFriSatSun
01020304050607
08091011121314
15161718192021
22232425262728
29300102030405
March 2013
MonTueWedThuFriSatSun
25262728010203
04050607080910
11121314151617
18192021222324
25262728293031
February 2013
MonTueWedThuFriSatSun
28293031010203
04050607080910
11121314151617
18192021222324
25262728010203
January 2013
MonTueWedThuFriSatSun
31010203040506
07080910111213
14151617181920
21222324252627
28293031010203
December 2012
MonTueWedThuFriSatSun
26272829300102
03040506070809
10111213141516
17181920212223
24252627282930
31010203040506
November 2012
MonTueWedThuFriSatSun
29303101020304
05060708091011
12131415161718
19202122232425
26272829300102
October 2012
MonTueWedThuFriSatSun
01020304050607
08091011121314
15161718192021
22232425262728
29303101020304
September 2012
MonTueWedThuFriSatSun
27282930310102
03040506070809
10111213141516
17181920212223
24252627282930
June 2012
MonTueWedThuFriSatSun
28293031010203
04050607080910
11121314151617
18192021222324
25262728293001
May 2012
MonTueWedThuFriSatSun
30010203040506
07080910111213
14151617181920
21222324252627
28293031010203
March 2012
MonTueWedThuFriSatSun
27282901020304
05060708091011
12131415161718
19202122232425
26272829303101
February 2012
MonTueWedThuFriSatSun
30310102030405
06070809101112
13141516171819
20212223242526
27282901020304
December 2011
MonTueWedThuFriSatSun
28293001020304
05060708091011
12131415161718
19202122232425
26272829303101
November 2011
MonTueWedThuFriSatSun
31010203040506
07080910111213
14151617181920
21222324252627
28293001020304
July 2011
MonTueWedThuFriSatSun
27282930010203
04050607080910
11121314151617
18192021222324
25262728293031
April 2011
MonTueWedThuFriSatSun
28293031010203
04050607080910
11121314151617
18192021222324
25262728293001
March 2011
MonTueWedThuFriSatSun
28010203040506
07080910111213
14151617181920
21222324252627
28293031010203
November 2010
MonTueWedThuFriSatSun
01020304050607
08091011121314
15161718192021
22232425262728
29300102030405
August 2010
MonTueWedThuFriSatSun
26272829303101
02030405060708
09101112131415
16171819202122
23242526272829
30310102030405
June 2010
MonTueWedThuFriSatSun
31010203040506
07080910111213
14151617181920
21222324252627
28293001020304
January 2010
MonTueWedThuFriSatSun
28293031010203
04050607080910
11121314151617
18192021222324
25262728293031
December 2009
MonTueWedThuFriSatSun
30010203040506
07080910111213
14151617181920
21222324252627
28293031010203
November 2009
MonTueWedThuFriSatSun
26272829303101
02030405060708
09101112131415
16171819202122
23242526272829
30010203040506