Dominic Wilkinson has an interesting commentary at "Practical Ethics" on the relatively recent Alabama Supreme Court ruling that embryos are not excluded from protections for children under Alabama law; but much of the interest is the way he keeps trying to slip things into the argument. The key point in his argument is the following:
But the problem with the ruling (and with an Alabama constitutional amendment passed in 2018) is the conflation of two ethically distinct meanings of “child”, and hence two different sources of concern.
One sense of a “child” is that of the progeny of parents. Such offspring are (in almost every case) loved and treasured. If a child is harmed or lost it is profoundly distressing to those parents and potentially other family members.
But a second sense of a “child” is of an immature human being, living and growing outside a mother’s body, with a special right to our nurturing, care and protection. If such a child is harmed or dies, there is a significant loss to that child. Even if there were no parents who loved or cared for this child, we should identify this loss as morally significant.
These two different senses of a child can come apart.
It's the least important aspect of this passage, but I can't help but admire the smoothness with which the parenthetical comment is slipped into the discussion as if it were a secondary side issue rather than part of the point. State supreme courts do not decide issues on abstract ethical considerations the way Wilkinson seemingly wants them to, and a state court certainly cannot overrule the state constitution, on which its authority entirely depends. Even if we assume there is a conflation of two different things, if the state constitution establishes that conflation in law, then the ruling is correct not to distinguish them. However, there is no conflation here, and couldn't be, because of the way law works. The amendment in question explicitly affirms "the rights of unborn children, including the right to life"; this means that the constitutional law explicitly recognizes (or grants, if you prefer) rights for a legal category of "unborn children"; whether you think this coheres with some prior metaphysics or is an artificial category created by the law itself, it means that Wilkinson's second sense is entirely irrelevant. What would be relevant would be an argument that this legal category of "unborn children" is not useful, or appropriate, or practically convenient, or some other such thing; but this is not Wilkinson's argument. Wilkinson's argument is that it is not a real category, and even if this were right, it doesn't matter.
Consider the well-worn example of whales and fish. Whales are not biologically fish, but mammals; but in many cases over time whales have been categorized as fish for this or that legal purpose. This is because legal classifications are not theoretical classifications but practical classifications. They are not about the way things really are, but about what is practically convenient, useful, or desirable for purposes for which law is a means. Anyone who protests, "But whales aren't fish!" has simply not said something relevant. If you don't want whales to count as fish under (say) an environmental fishing law, you need to argue that this would be a bad classification for applying the law as it is for the purposes the law is intended to achieve. That is the only classification that is under consideration; appeal to any other classification as somehow determinative is an ignoratio elenchi. So here: Wilkinson is making the wrong kind of argument for his conclusion.
This is an extremely common problem when academics discuss legal and political matters: they talk about them as if they were abstract and theoretical rather than constructed and practical. The one can be relevant to the other, but the relevance needs to be established, not assumed.
It is worth, however, noting that Wilkinson never actually defends the claim that there are these two senses of 'child', conflated by court and constitution, and this is relevant to the argument he actually makes, because it's not at all clear that the second sense he gives is an actual sense of the word 'child'. Is there any common use of the word 'child' in which the sense of the word includes things like" a special right to our nurturing, care and protection"? We certainly do think that children have such special rights and indeed, this could even be said to be an obvious truth; however, I think it is an unusual view to claim that this is true by definition. It is certainly possible that a given sense of the word 'child' could only apply to beings "outside a mother's body"; this is different from saying that being outside a mother's body is part of the sense of the word. In fact, what is at dispute between Wilkinson and the people is criticizing is nothing about the senses of the word 'child', but about whether those beings to whom the word as used in Alabama law applies have rights like the right to life -- and it is simply a matter of fact that they do. It's right there in black and white. Wilkinson just thinks that they shouldn't have rights, and is arguing that they should be stripped of the rights the law currently gives them.
The reason Wilkinson wants to argue for this distinction of senses is that he wants to say that the sense used by court and constitution in Alabama is an unjust imposition by a minority of religious conservatives:
There are, of course, different views about when a child (as offspring) becomes a child, with rights and in need of ethical and legal protection.
One problem with laws that refer to “unborn children” is that they simply assume that these two senses of child are the same, when that is open to debate and question. But the other massive problem is that they impose one particular answer to the question, an answer believed by a relatively small number of religious conservatives, on others (religious and non-religious) who do not share that belief. And that is profoundly unjust.
It is indeed open to debate and question; it is open to debate and question like literally everything else in law. I can take any law whatsoever, and any term in that law, and question and debate whether we should be using that term in that sense or something else. But this is not a problem with law; this is just how human law works. It's a fact about how constitutional and statutory laws are made and changed. It would be obviously absurd to argue that a law is problematic merely because further discussion might lead us to change it, or because some people want a law that says something different. Any law by any human legislature is open to debate and question because every such law needs to be assessed, and in at least some way continually assessed, by standards higher than itself.
As for the rest, of course, we come back to the parenthetical I mentioned at the beginning; Wilkinson is not criticizing some arbitrary usage but a usage that he himself admits is established by a constitutional law that was voted on and approved in popular ballot by the people of Alabama. Now, of course, it could also be repealed by the people of Alabama in pretty much exactly the same way. But it is certainly not "a relatively small number of religious conservatives" but a large enough portion of the population to get it on the ballot and vote it into the state constitution. People who wanted to vote against it could have voted against it; if they didn't for some incidental reason, and they have the numbers Wilkinson claims, they can certainly vote it out. When the amendment was approved in 2018, it got about 59% of the vote, so it's not impossible that a significant shift could give a different result; but 59% of voters is not "a relatively small number of religious conservatives" but about as good a support as most successful constitutional amendments get. Of course, it could be that in Alabama it's mostly "religious conservatives" who vote, but if you are going to claim it's unjust for voters to vote for policies that non-voters disagree with, you're going to run into some complications arising from how democratic societies work. Is it profoundly unjust for people in Alabama to vote for a change to their own constitution, just because the people who were outvoted think it a bad change? This is certainly not plausible.
And, of course, the question is what the alternative would be. Wilkinson seems to advocate that his own view of how rights are to be distributed should be imposed on religious conservatives, who very clearly do not share it. And Wilkinson's own view, which involves some very specific claims, is likely shared only by a relatively small number of people in Alabama. (It is a common situation in politics for all views to be held by only a relatively small number of people; in order to get majorities, you often have to get very generic, which is a strategy that can only be done when specific conditions make it practicable, or do a lot of horse-trading to get people to overlook their objections. Neither usually works on charged political topics like this.) Why does Wilkinson, who doesn't even seem to be American (I think he's Australian, although he's currently at Oxford), get to overrule a majority of Alabama voters on a matter of Alabama law? It's unclear. This wouldn't be an issue except for the fact that the "other massive problem" that Wilkinson is slipping into the argument without defense is not a criticism about the content of the claim but a purely structural criticism -- a relatively small number of people imposing views on a larger group of people who don't agree with them. The "other massive problem" argument is not an argument that the law is unjust because it is wrong but because it imposes "one particular answer" to a question on people who don't agree with that answer; which is a problem, because every possible move on the board is "one particular answer" and will have people who don't agree with that answer. One could appeal, of course, to majority vote -- but in 2018, at least, the majority vote was for the "one particular answer" that Wilkinson is accusing of being imposed by a small minority.
This is, of course, the problem with the tactic of arguing by slipping things in; the things you slip in tend to be obscure and inadequately argued.
