In a recent encounter between Fox’s Bill O’Reilly and Comedy Central’s Jon Stewart, the two men discussed “white privilege.” O’Reilly maintained that his accomplishments had nothing to do with race and everything to do with hard work. Stewart pointed out that O’Reilly had grown up in Levittown, New York, a planned community to which the federal and local governments transferred tremendous mortgage subsidies and other public benefits—while barring black people from living there—in the post–World War II period. O’Reilly thereby reaped the benefits of a massive, racially exclusive government wealth transfer. As legal scholar Cheryl Harris observed in a 1993 Harvard Law Reviewarticle, “the law has established and protected an actual property interest in whiteness”—its value dependent on the full faith and credit placed in it, ephemeral but with material consequences.
A recent lawsuit brought by Jennifer Cramblett pursues the stolen property of whiteness in unusually literal terms. Cramblett is suing an Ohio sperm bank for mistakenly inseminating her with the sperm of an African-American donor, “a fact that she said has made it difficult for her and her same-sex partner to raise their now 2-year-old daughter [Payton] in an all-white community,” according to the Chicago Tribune. Cramblett is suing for breach of warranty and negligence in mishandling the vials of sperm with which she was inseminated, as well as emotional and economic loss as a result of “wrongful birth,” which deprived her of the whiteness she thought she was purchasing.
The story was hot news for about twenty-four hours and included an interview with Cramblett on NBC. “We love her,” she said of Payton. “She’s made us the people that we are.” Cramblett then burst into tears. “But,” she continued through clenched teeth, “I’m not going to sit back and let this ever happen to anyone ever again.”
That disjunctive, the “but” clause of her despair, was reiterated throughout Cramblett’s court papers. Despite being “beautiful,” Payton was “obviously mixed-race.” While Cramblett purportedly bonded “easily” with the little girl, she “lives each day with fears, anxieties and uncertainty.” Her community is “racially intolerant,” plus Cramblett suffers from “limited cultural competency relative to African Americans,” having never even met one till she got to college. Then there’s Cramblett’s “all white” family, who can barely stand that she is gay…and dear lord, now this? While Cramblett felt “compelled to repress” her sexual identity among family members, “Payton’s differences are irrepressible,” the lawsuit states. “Jennifer’s stress and anxiety intensify when she envisions Payton entering an all-white school.”
But the infant Payton did not make Cramblett and her partner “who we are.” They lived a confined and reprehensibly oppressive life before she was born, and it was only because of her birth that they were forced to confront it. The real question is why or how they could have been happy with their lives before.
When Cramblett asserted that her town was “all-white”—in a state, in a nation, in a world that is absolutely not—one has to wonder how on earth that can be. The sad history of housing segregation in the United States is not a long-ago tale. Bill O’Reilly’s Levittown was racially restrictive not only by the developer’s private choice; racial segregation was underwritten by federal banking policies and guidelines in the administration of the GI Bill. In the postwar era, not only Levittown but the entire United States became a land divided between “inner cities” and white suburbs because of loan practices that red-lined certain neighborhoods if blacks lived there. Ninety-eight percent of home loans issued under the GI Bill went to whites, and only 2 percent to people of color.
Levittown remains one of the best-documented examples of the long-term distortion that discriminatory mortgage underwriting had in configuring the wealth gap between blacks and whites. Black people became renters in a land of homeowners because of public policy that denied them access to the same opportunities to accumulate equity in real estate. And for those who were able to afford a home, the very fact of one’s skin color lowered its value by virtue of the big red line that would instantly pop up around it. Today, Levittown remains 89 percent white.
Cramblett has exhibited no more awareness of this political history than Bill O’Reilly. Imagine if she and her partner cared about the racism that pervades their environment, instead of suing for the cost of dealing with their “private” distress. Reframed as a civil rights agenda, it might help them to see that they face no more or less than what any black family faces in the United States. They might begin to consider their claim of individual economic damages more in terms of a civil rights claim for affirmative action and a pushback against racial stigma. Perhaps they’d find renewed community and succor by working for fair housing, or by joining the demonstrations in Ferguson, Missouri, or by pushing for same-sex marriage laws in their home state of Ohio.
Instead, Cramblett seems engulfed by the same race panic that has put the bodies of other children at risk. Little Payton dispossesses her mother by being born, taking the space of a more qualified, more desired white candidate, erupting into the world as damaged goods—a neighborhood defiled as well as a family disappointed. “God’s punishment,” according to the online hate. “Mistake,” according to the court papers. That geography of mistrust confines us all, whether trapped inside carceral walls at one extreme or gated communities at the other. We are left with a segmented society that does not know itself as whole, our reflection lost in the narrowest shards of a broken mirror.
This summer, the fiftieth anniversary of Freedom Summer, has been a very bad season for any instantiation, anywhere, of Martin Luther King’s “beloved community.” From our immobilized Congress to explosions in Pakistan, from corruption in Afghanistan to war in Ukraine, from the rise of Hindu fundamentalism in India to the ungoverned spread of the Ebola virus in West Africa, from the breakdown of negotiations in Gaza to deadly confrontations between police and unarmed citizens from Philadelphia to Albuquerque, a restless undoing boils across the globe.
As I write, I listen to a radio remembrance of the useless toll of World War I, with its millions of honorable dead. Following that, a spoken essay about the birth of the atomic age at Hiroshima. Rumination about the shooting of Archduke Franz Ferdinand is mixed with speculation about whether we are playing with fire on the dry-kindled brink of something like World War III.
“Chickens coming home to roost” is what a voice says about some catastrophe. It’s the aphorism—of which my grandmother was quite fond—that catches my attention. She always used it to describe the legacy of slavery: the way in which children are born full of light and joy, but later, when they’re old enough to work the fields, return at the end of the day with cruelty lurking behind their eyes.
My thoughts shift to the Blackwater guards who gunned down seventeen innocent civilians in Baghdad in 2007. Weeks before that incident, which proved a tragic turning point in the supposed quest to win Iraqi “hearts and minds,” the State Department had launched an investigation into the criminality and chaos for which Blackwater was already responsible. That investigation was blocked outright: Blackwater’s spokesman in Iraq told the State Department’s lead investigator that he should watch himself, because the Blackwater executive could kill him “at this very moment and no one could or would do anything about it.” The investigator was later ordered home for “disrupting” the American Embassy’s relationship with Blackwater.
I think, too, of the violent breach of medical and military ethics in our government’s attempted deployment of doctors to monitor the administration of torture at GuantÃ¡namo Bay. My scattered thoughts roll on to the general public-health emergency posed by our failed health system—including the fact that 40 to 60 percent of those who land in jails or prisons are suffering from untreated mental illness.
This in turn floats me to Rikers Island, the jail where so many of those arrested under the New York Police Department’s “broken windows” policy (which targets those who commit “quality of life” crimes and other very minor infractions) end up. Rikers is a holding facility, not a prison, meaning that the vast majority of inmates are not convicts but are awaiting arraignment or trial. Yet Rikers inmates suffer staggering rates of abuse requiring hospitalization. The use of force has more than doubled in the last five years, even as the jail population has declined. The impunity with which those beatings take place is beyond doubt, because many of the assaults have been captured in surveillance videos. Sometimes guards evade even this monitoring by beating inmates in the medical unit—often in the presence of distressed medical staff. According to a four-month investigation by The New York Times, it has been “common practice—‘normalized brutality’—for beatings to go on at the clinic, because there were no cameras there.” Despite thorough documentation by the city’s Department of Health and Mental Hygiene, by the Board of Correction, by the Department of Correction, by the Office of the Chief Medical Examiner, there have been no prosecutions of guards to date. Said the Bronx district attorney’s office: “Some of these cases, from Rikers Island in particular, some of the witnesses get scattered.”
There were witnesses to the July death of Eric Garner, however. Garner was the New Yorker who died after police throttled him as they arrested him for selling individual loose cigarettes without a license. A cellphone video of the confrontation, taken by a passer-by, has gone viral. While police maintain that they were simply “bringing a person to the ground the way we’re trained to do,” the medical examiner’s office concluded that Garner’s death was a homicide, the result of the long-banned choke hold. While the sad politics-as-usual around that incident rage on, I am most struck by the behavior of the emergency medical technicians, who stood alongside the police and did nothing, idly peering down at Garner as he lay unconscious, watching him die, administering neither CPR nor defibrillation, even as gathered onlookers shouted at them to do so.
According to the National Comorbidity Study and the National Institutes of Health, approximately 3.5 percent of the American population suffers from post-traumatic stress disorder. About 14 percent of New York City firefighters have PTSD, as well as 20 percent of Iraq War veterans, 31 percent of prison guards, more than half of all prison inmates and, according to a study by the Safer Foundation, up to 68 percent of incarcerated women.
On the radio, someone is calling President Barack Obama “chicken” for not having “gotten more involved” by sending more soldiers to Syria, Pakistan, Afghanistan, Libya, Iraq.
The witnesses scatter. The chickens come home to roost. I remain curious about the explosive histories that sent those chickens flying into distant disorder, but which we consign to oblivion as they glide back to earth, drifting like embers and ashes, the regrouping phoenixes of reiterated traumas. I turn off the radio, left with an ominous vision of flocks of mean-spirited birds, broken-winged and brooding, gathering in unnatural silence, as though before a storm.
This story originally appeared at The Nation, and is reprinted here with their permission.
The name of the Supreme Court’s latest case involving university admissions describes the battle lines: Schuette, Attorney General of Michigan v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary. When the Court found for Schuette, headlines declared the decision a landmark ruling against affirmative action. But technically, the Court did not retreat from its prior holdings: race sensitivity is still a constitutionally permissible criterion when weighing the applications of similarly qualified candidates.
The case addressed a challenge to Article I, Section 26, of the Michigan Constitution, which altered the decision-making capacity of the regents and trustees of the state’s public university system. Section 26 took away those boards’ ability to use otherwise constitutionally permissible race-sensitive criteria for admissions—i.e., a backdoor way of banning affirmative action in the state. Schuette was also a broad capitulation to an old notion of states’ rights, allowing localities to opt out of federal equal-protection measures designed to dismantle segregation. Following this ruling, states can merely override those measures, one by one. The bottom line? What is expressly permissible as a matter of the US Constitution is now forbidden in Michigan. Not only that, it has removed affirmative action in Michigan from the democratic process. Where once these policies were negotiated through elected university boards, requiring a degree of popular will, Section 26 has ended discussion with a blanket ban.
The university boards can still consider all sorts of other admissions factors. Your father wants to underwrite a chair in Old Church Slavonic poetry? Welcome to the class of 2018! Your great-grandmother’s cousin was an alumna? Walk on in! You’re an athlete? Here’s your scholarship—just don’t try to unionize, ha ha ha!
But consider another scenario. You have one place to fill and two applicants—a white kid from Grosse Pointe, and a black kid who has risen from the ashes of Detroit’s segregated, postindustrial dystopia to achieve the same scores. Put on the blindfold! We don’t see color here. According to Section 26, it’s unlawful to weigh the black kid’s distinct experiences because that would constitute either an act of discrimination against the majority white population or a grant of preferential treatment for minorities.
This matter of discriminating against the majority is something that the more conservative members of the Court have dwelled on in the past. Yet as Justice Sotomayor points out in her dissent, majorities—by definition—need no protection, because they can vote down policies contrary to their interests. What they ought not be able to do, she argues, is structure the process so that one group is burdened, as here, with no option but silence.
In Schuette, Justice Kennedy, writing for the majority, held that the Supreme Court will not strike down state laws that bar government decision-makers from considering an otherwise legal option. This decision imposes an inane double bind that makes remedying all sorts of equal-protection claims impossible. Sure enough, since the opinion was published, Attorney General Bill Schuette, the named appellant, has been pressing his appeal to reinstate Michigan’s ban on gay marriage with renewed relish.
Justice Sotomayor’s dissent presents a detailed history of the fight for full citizenship through equal protection, expositing three generations of legal struggle. First, targeted minorities won the right to vote—a goal that has been codified in law. Second is the ongoing struggle against measures designed to make voting difficult or impossible, through poll taxes, gerrymandering and so forth. The third challenge is the problem in Schuette: whether a majority may “reconfigure the existing political process in a manner that creates a two-tiered system of political change, subjecting laws designed to protect or benefit discrete and insular minorities to a more burdensome political process than all other laws.” Here, it is the restructuring of a government decision-making process that places “substantial and unique burdens” on minorities seeking to be heard.
Let us step back and consider Schuette’s significance in conjunction with other strategies that Michigan has taken to remove decision-making from elected officials. Over the last decades, state laws have been passed requiring all cities to slash personal income taxes annually, virtually guaranteeing their bankruptcy. Detroit is only the most visible example. A city’s financial distress, in turn, triggers the ability of Rick Snyder, the Republican governor driving these “reforms,” to appoint “emergency managers” in place of elected officials. The managers knuckle down and sell off public assets to make ends meet. Indeed, Michigan has slashed funds for public universities by double digits. Although race is never mentioned as motivating the cuts, the appointment of emergency managers has targeted African-American areas where long histories of economic precariousness have left the locals vulnerable and, without the ability to fund public services through tax dollars, lacking basic infrastructure.
The abrogation of democracy in the Schuette decision goes hand in hand with the reinforcement of racial inequality. While anxiety about access to higher education is, as in Schuette, perpetually styled as a battle royal between black and white, this pitting of one against the other distracts from our failure to invest in all of our public institutions, lowering the quality of life for everyone. Fear of our most needy fellow citizens getting a bigger slice of the “preferential” pie has somehow driven us to bake smaller and smaller pies served at smaller and smaller tables. We seem locked in a fight over scraps, as though unaware of the banquet of generous possibilities we might, by reinvestment, choose to build for our world.
On a warm spring afternoon at American colleges, the intoxicating aroma of surely medicinal marijuana will be floating like a soft caress in the breeze, and hard-working students will be stocking up on amphetamine cocktails to sharpen their overstressed young minds for the coming exams.
On a warm spring afternoon at the nation’s poorer public schools, children (and I mean children) will endure a daily police presence, including drug-sniffing dogs, full-body pat-downs, searches of backpacks and lockers, stops in the hallways—all in the name of searching for contraband.
Drugs are ubiquitous in this country, and yet we know that some people have the privilege of doctor-prescribed intoxication, while others are thrown into dungeons for seeking the same relief. We know that the war on drugs is heavily inflected with Jim Crow–ism, economic inequality, gun culture myths and political opportunism. We know that Adam Lanza’s unfortunate mother was not the sole Newtown resident stocking up on military-style weapons; plenty of suburban gun owners keep similar weapons to protect their well-kept homes against darkly imagined, drug-addled marauders from places like Bridgeport. We divert resources from mental health or rehab, and allocate millions to militarize schools.
The result: the war on drugs has metastasized into a war on children.
Best publicized, perhaps, is the plight of young people in Meridian, Mississippi, where a federal investigation is probing into why children as young as 10 are routinely taken to jail for wearing the wrong color socks or flatulence in class. Bob Herbert wrote of a situation in Florida in 2007, where police found themselves faced with the great challenge of placing a 6-year-old girl in handcuffs too big for her wrists. The child was being arrested for throwing a tantrum in her kindergarten class; the solution was to cuff her biceps, after which she was dragged to the precinct house for mug shots and charged with a felony and two misdemeanors.
In New York City, kids who make trouble are routinely removed from school altogether and placed in suspension centers, holding cells or juvenile detention lockups. In the old days, you got a detention slip for scrawling your initials on a desk. Now a student can be given a summons by a school police officer. If the kid loses it or doesn’t want to tell his parents, it becomes a warrant—and a basis for arrest.
According to the New York Civil Liberties Union, some â€¨77 percent of New York’s school police interventions are for noncriminal matters like having food outside the cafeteria, having a cellphone or being late. Other minor offenses like shouting, getting into petty scuffles or being on school grounds after hours fall into the category of “disruptive behavior”—an offense that can get a student suspended. Just 4 percent of police interventions are in response to “major crimes against persons.”
But what’s a teacher to do? In New York City, police officers outnumber guidance counselors by more than 2,000.
Yet as Newtown should teach us, we love our guns as much as we love our drugs. We know that even our best efforts at gun control will not undo a simultaneous and enthusiastic installation of armed overseers in our public schools. As such forces grow exponentially across the country, we keep them busy by installing zero-tolerance policies that take disciplinary discretion out of teachers’ hands and put it in the hands of law enforcement officers with little to no training in child psychology, mediation or anger management. Indeed, the NYCLU recently filed a complaint after the NYPD arrested Mark Federman, the principal of East Side Community High School, for intervening as the in-school officers hauled away an honor student.
This “school-to-prison pipeline” has emerged suddenly. Over just the last two decades, we got scared. We sent guns and billy clubs into our schools on purpose. We provided federal funds for massive surveillance systems—for cameras like they have in Oakland, monitoring every inch of school life from a command center. We slashed budgets for books, salaries, computers, psychologists, librarians and buildings. We dealt with classroom overcrowdingâ€¨by segregating those with learning difficulties, shunting them into tracks where they have no chance.
On top of that, we instituted blunt metrics by which teachers lose pay or even their jobs depending on student outcomes. If scores aren’t good—regardless of how difficult the students’ life circumstances or language challenges or learning disabilities—â€¨it is teachers who are held responsible. With so much at stake, calling the school police is one way to remove lower-performing students from the classroom on high-stakes testing days.
And with the police being given incentives for making a large number of arrests, why wouldn’t the rational officer bring charges of “disturbance of education” or disorderly conduct for catfights in the hallways, when he might beef up his salary with the easy frog-march of juvenile perps to the precinct?
The most vulnerable targets may be children of color, but this war on kids is a war on all children. Ultimately, the lack of due-process protections and human dignity in ghetto schools leaches into suburban schools. It doesn’t really matter whether one side views it as protecting against the dark side with zero-tolerance strip searches for ibuprofen, while the other side experiences it as an annexing of the prison-industrial complex onto daily life. Criminalizing children will have constitutional implications for generations to come. It is corrosive and rends the fabric of our erstwhile civil society, makes a lie of equal opportunity, and rewards authoritarian personality disorder at the expense of our humanity.
“We see what we want to see,” my grandmother used to say. This insight visited me recently after I ran across the mall chasing a woman I thought was my cousin. It wasn’t, as it turned out, but I didn’t realize that until after I had puffed up behind her, bopped her amiably on the shoulder and cried out, “Boo!”
How was it possible, I thought in retrospective embarrassment, to so wrongly misidentify someone I know so well? Empirically my experience was all too common. I’d been thinking about my cousin a few moments before and saw the woman through the lens of those thoughts. We often project our life’s associations onto the faces of strangers. Constantly—if mostly unconsciously—we familiarize them with learned stereotypes. If we are wise, we learn to take caution with our assumptions. We recognize this innate fallibility, and most of the time it doesn’t matter very much.
Oddly enough, however, we reverse that supposition in the one context where fallibility matters most: in criminal cases, eyewitness testimony is viewed as the ne plus ultra for the prosecution, despite a century’s worth of psychological and sociological studies revealing that, from Sacco and Vanzetti to Troy Davis, witnesses misperceive a startling percentage of the time. “Human beings are not very good at identifying people they saw only once for a relatively short period of time,” writes Cornell law professor Michael Dorf. “The studies reveal error rates of as high as fifty percent—a frightening statistic given that many convictions may be based largely or solely on such testimony. These studies show further that the ability to identify a stranger is diminished by stress (and what crime situation is not intensely stressful?), that cross-racial identifications are especially unreliable, and that contrary to what one might think, those witnesses who claim to be ‘certain’ of their identifications are no better at it than everyone else, just more confident.”
The costs of this phenomenon are perhaps best revealed in data compiled by the Innocence Project, which has concluded that out of 281 postconviction exonerations secured through DNA in the United States, eyewitness misidentification “was a factor in 75 percent…making it the leading cause of these wrongful convictions.” Luckily, there are substantiated ways to guard against such error. Experts have cited two main types of variables that can adversely affect eyewitness identification: “estimator variables,” the hardest to control for, which include things like the degree of lighting, distance or speed within a given crime scene, as well as the level of trauma to the witness; and “system variables,” defined as “those that the criminal justice system can and should control,” which include law enforcement tools like lineups and photo arrays. A number of reforms involving the latter have the proven capacity to boost the accuracy of witness IDs. These include “blind administration,” where an officer conducting a lineup is not aware of who the suspect is (and thus not capable of revealing his or her identity via gestures, vocal inflections or body language); “non-suggestive” lineups, made up of people who generally resemble a witness’s description, so that the suspect does not stand out; allowing witnesses to sign a statement indicating their level of confidence in their choice; and presenting members of a lineup sequentially rather than simultaneously (to mitigate the pressure to choose any kind of close-looking one when we are presented with a bunch of faces at once). Such remedial safeguards have so reduced the error rate—and so indisputably—that a number of local jurisdictions and eleven states thus far have adopted some or all of them as standard operating procedure.
It would seem logical, then, to implement these reforms universally, and for courts to screen eyewitness evidence for those basics of procedural reliability before such testimony is heard by a jury. But on January 11, in Perry v. New Hampshire, the Supreme Court rejected that notion, ruling that such a pretrial inquiry is not a requirement of due process “when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.” This is subtle language: it’s not the same as what we think of as police corruption, as in overt suppression of evidence. Rather, it relates to the kinds of situations at stake in Perry: Was the suspect the only black man in a lineup? Was he handcuffed and flanked by police? Was his image shown in photo array after photo array until he began to look familiar? If the chief investigator was the one administering a lineup, was his belief in the suspect’s guilt communicated to the witness via subtle coaching? All such factors may be highly suggestive, triggering the irrelevant associations and false memories that can lead to inaccurate results.
Perry does two unfortunate things. It undercuts pretrial examination of virtually all “estimator variables,” no matter how problematic, since those are less likely to directly involve police. And by drawing the line at “unnecessarily suggestive” actions by state actors, the ruling sets a very high bar for challenging eyewitness evidence, ignoring the hefty empirical proof that misidentification is a pervasive fact of life. Justice Sonia Sotomayor, the lone dissenter in Perry, wrote that this ruling invites arbitrary results by making “police arrangement” the “inflexible step zero.” The concerns of due process ought to be based on the actual likelihood of misidentification, said Sotomayor, “not predicated on the source of suggestiveness.” Reiterating that any preventable misidentification is a miscarriage of justice—not merely where the police are setting the stage—she underscored the Innocence Project’s concern that inaccurate eyewitness testimony is the leading cause of wrongful convictions in US courts. DNA has exonerated eight misidentified inmates on death row. If we have at our disposal simple reforms that have been proven to guard against such tragic mistakes, why on earth should we not implement them universally?
In the beginning, there was a time when doctors treated pregnant women by listening to them tell of their symptoms.
There were no visuals, no color glossies, no T-shirts with the sonogram emblazoned. There was relative quiet in the womb, which took quiet to attend to. It required listening to the woman say, "This is what it feels like."
It required a palpating of the body, a laying on of hands. Midwives and doctors used touch, eyes, ears, measuring from the outside to get a sense of what was within -- sounds, motions, clues. It was the mother-to-be whose health was indicative of the condition of the embryo or fetus.
Whether life was deemed to begin at conception or whether with quickening, the interdependence of the womb and the woman was a given.
I'm certainly not advocating that we turn back the clock with regard to obstetric medicine, but it is arresting to recall that interconnectedness in a time when "life" has become increasingly divorced from traditional contours of the human body.
We live in a time when embryos and fetuses are gaining legal rights to sue, are attaining the status of persons, are being enshrined in a molecularly sized iconography of innocents to be saved. With technology, we can make visual what no generation has been privy to before. Like satellites homing in on a secret bunker from space, we have the spyware to case the joint -- the interior of the uterus, the cells, even mitochondria, and now DNA.
With all that comes interpretation, and politics, and ideology. And lo, the birth of "the unborn." The magnified fetus becomes an external, a separate entity. Women are no longer imbued with the halo-illuminated metaphors of ripeness and enfolding that underscore so many of our religious notions about women round with child.
At least or perhaps especially in the United States, we find ourselves tangled in new definitions of separation and individuation. There has been a restructuring, of our rhetoric as well as of certain religious ideologies, that expressly pits a woman's body against her fetus.
There is, these days, a tendency to conceive of the fetus as an entire person, and a litigious little person at that, with a warrior attitude and a long list of complaints that can be asserted against the madonna in question.
We've all read about negligence actions, criminal cases, child welfare cases, all involving fetuses still in utero. But the status of the fetus is no longer the most contentious part of the debate. It's moved further and further back in the developmental cycle.
Recently the Arizona court of appeals declined to rule that a set of cryogenically frozen fertilized eggs were "persons" for purposes of a wrongful death action, saying that such a designation was for the legislature. The lawsuit was brought by a couple who had sued the Mayo Clinic after its lab lost or possibly destroyed some of the eggs. The eggs were days old, still a clump of cells; nevertheless the court was careful to craft a special category for them: "pre-embryos."
Pre-embryonic status is thus not a biological designation but rather a new legal category, a way of dodging the political controversy engendered by those who believe embryos are calling out for rescue. As John Jacubczyk, president of Arizona Right to Life, stated the argument: "Life begins at fertilization."
Although the Arizona court did not confer personhood in this case, the matter is sure to be appealed; furthermore, an Illinois court ruled this past February that an embryo is a person, a claim that is likely to make its way to higher authorities -- whether courts or legislatures -- sometime in the not so distant future.
So we should consider carefully the collective narratives that are shaping the debates. At one end, we have the Snowflakes Frozen Embryo Adoption Program, a Christian organization that has made it its mission to rescue the unused embryos that have been harvested by fertility clinics and then discarded by couples once they do achieve a successful pregnancy.
Snowflakes considers the abandonment and/or destruction of those cells nothing less than murder, and so has set out to "adopt" discarded embryos. It has rounded up women in whom to implant them, and families with whom to place the babies thus brought to term.
Mere blastemas are imbued with intent and longing; indeed, the Snowflakes website asserts that it is "helping some of the more than 400,000 frozen embryos reach their ultimate purpose -- life."
On the other side of things there is a philosophically inflected concern that if cellular "life" is equated with personhood, and personhood begins at fertilization, then the very notion of the person as an autonomous entity becomes terribly vexed.
Eggs fertilized in a petri dish and stored in a freezer are more consistent with our notions of property, of product, of artifice. From this angle, eggs in a dish are relatively artificial, a species of mechanical construct requiring tools, inventory, technology.
At the same time, there is also a commercial narrative of altruism, in which those fertilized eggs are, not unlike the Snowflakes website's take, so purposeful, so hyper-autonomous, that they can fight their way out of a petri dish with no help from a womb or a woman or even a mad scientist.
Personhood becomes an anthropomorphizing of cellular life -- the tiny but strong, the minuscule but mighty, the intelligence with design, the responsible agent, the genie in the jar that imprisons the fully formed perfect child yearning to break free. It is a very seductive story, even if it is questionable as a scientific matter. And more to the point for us in the legal community, it confuses will and determinism, potential and predestination.
But if the power of these narratives has resulted in a kind of cult celebrity status for the pre-born, or prenatal, or pre-conscious or whatever, imagine how much more creative it will get with the emerging overlays of DNA screening, of accumulating commercial interests in profiles for health insurance, in DNA banks as a tool of social engineering.
Somewhere between the extremities of the moment, we must remember that there is nothing inevitable in this course; let us not be seduced by an idealized personification of destiny. Let us not forget that one in five American children lives in poverty. And at least 130,000 post-born, not-so-perfect children ("surplus" is how Seventh Circuit Judge Richard Posner once expressed it) are available for domestic adoption at any given time. Aren't they "a person" too?