Mindscan

29

I staggered around for hours after my last meeting with Brian Hades—a bizarre thing to do on the moon, where you already walk like a marionette. Could he be right? Could the robot me have taken up with Rebecca? Christ, oh Christ. I wanted her—I wanted her so badly it actually, physically hurt. I hadn’t been conscious of just how much love I’d been suppressing in order to potentially spare Rebecca any pain, but now that I didn’t have to suppress it, it was overwhelming me. Half my waking thoughts were about her; even dream I remembered involved her. I had to see her again, had to find out if there was a chance for us…

And yet, what if there wasn’t? What if all that flirting, all those lingering touches, all those kisses hello and good-bye, and even that one wonderful night of sex, had only really meant something special to me?

No. No, I couldn’t be that mistaken. There was something there—there had to be. And I had to get back to it, before that fucking—that fucking android—made his move.

How to accomplish that, though, I had no idea. But I would keep my eyes and ears open, looking for an opportunity. Until then—

Until then, Hades was right. I’d barely scratched the surface of what the moon had to offer. And now that I’d made up my mind that I was leaving it, one way or another, I might as well at least try some of the delights he’d mentioned. After all, there was no way in hell I’d ever come back up here.

And so, for starters, I tried one of the hookers. I picked a beautiful, petite Japanese lady, with big brown eyes; I chose her without thinking about it, without being conscious at first that, of course, she was the one who looked the most like Rebecca Chong.

And we did have sex, and she was very daring and very good. And Hades had been right: the low gravity made amazing stunts possible. We did it standing up, we did it pushing up on one hand, we did it in all sorts of ways, and I kept thinking of Rebecca, always Rebecca.

At the end, I was physically satisfied, and I thanked the woman. But it wasn’t lovemaking.

And it wasn’t with the woman I loved.

Maria Lopez looked up. “The defendant calls Professor Alyssa Neruda.”

A tall, slim brunette woman, perhaps sixty, and probably, of mixed Asian and European ancestry, came to the witness stand.

“You do solemnly swear or affirm,” said the clerk, “that the testimony you may give in the cause now pending before this Court shall be the truth, the whole truth, and nothing but the truth, so help you God?”

“I do so swear,” said Neruda.

“Please take a seat in the witness box,” said the clerk, “and state and spell your first and last names for the record.”

Neruda sat down. “My name is Alyssa—A-L-Y-S-S-A—Neruda—N-E-R-U-D-A.”

“Thank you,” said the clerk.

Lopez rose. “Professor Neruda, where are you currently employed?”

“Yale University.”

“In what capacity?”

“I’m professor of bioethics.”

“Tenured?”

“Yes.”

“What advanced degrees do you have?”

“I have a Medicinae Doctor from Harvard.”

“You’re an M.D.? A medical doctor?”

“Correct.”

“Do you have any other advanced degrees?”

“I have a Legum Magister from Yale University.”

“That’s a Master of Laws, correct?”

“Correct.”

“Meaning you are also a lawyer?”

“Yes, I am. Admitted to the bars of Connecticut and New York State.”

“Your honor,” said Lopez, “we submit now Professor Neruda’s curriculum vitae, which runs to forty-six pages.” She handed a hardcopy to the clerk. “Professor Neruda,” continued Lopez, “have you ever been called to present testimony in a lower-court case that ultimately was heard by the United States Supreme Court?”

“I have, yes.”

“Have any of those cases dealt with the definition of personhood?”

“Yes.”

“Which case or cases?”

“The case of Littler v. Carvey.”

“When was that argued before the Supreme Court?”

“August 2028.”

“And please remind us of who the litigants were.”

“Littler, the plaintiff—the one bringing the action—was one Mr. Oren Littler, of Bledsoe County, Tennessee. Carvey, the respondent—the one being sued—was his girlfriend at the time, one Ms. Stella Carvey, also of Bledsoe County.”

“And what, in a nutshell, please, was the gist of the conflict between Mr. Littler and Ms. Carvey?” asked Lopez.

“Littler and Carvey had been dating for approximately two years. Their relationship was an intimate, sexual one. On or about May 1, 2028, Ms. Carvey became pregnant. She became aware of this by May 25, 2028, through the use of a home pregnancy-testing kit. She informed Mr. Littler of the fact, and they agreed to marry, have the baby, and raise it together.”

“Please continue, Professor,” said Lopez.

“Six weeks into her pregnancy, Ms. Carvey and Mr. Littler had a fight. Ms. Carvey called off the wedding and terminated their romantic involvement. She also told Mr. Littler that she was going to terminate the pregnancy. Littler very much disapproved—he wanted the child born, and was willing to assume full custody of it and responsibility for it.

“Ms. Carvey refused his overtures in this direction, and so Mr. Littler got a court order barring Ms. Carvey from having an abortion, on the grounds that the fetus should be treated as a person under the law. Note that the judge issuing the injunction didn’t rule as to whether Mr. Littler’s contention was true. Rather he—and it was a he—felt Mr. Littler’s argument was sufficiently persuasive that the issue should be decided by jury.”

Lopez looked at our own jury box. “And how did the jury decide the case?”

“They ruled that given Roe v. Wade, Ms. Carvey had every right to an abortion on demand.”

“And so that was the end of things?”

Neruda shook her head. “It was not. Mr. Littler appealed; the appeals court overturned the lower court; and the case was fast-tracked to the Supreme Court.”

“Fast-tracked?” said Lopez. “Why?”

“Although none of the same justices were still sitting, the court recalled Roe v. Wade. In that case, the pseudonymous Jane Roe was suing for the right to have a legal abortion. Wade was Henry Wade, the district attorney of Dallas County, Texas, where Roe lived; he was the one who was charged with upholding the then-ban on abortion in his jurisdiction. Roe v. Wade was and is controversial in many ways, but it also stands out as a classic example of justice delayed being justice denied. By the time the Supreme Court got around to hearing Roe v. Wade, Jane Roe’s pregnancy had come to term, and she had delivered her daughter and put her up for adoption. Yes, she won the right to have an abortion, but far too late to do her any good. Because of that, the Supreme Court agreed to hear Littler v. Carvey expeditiously.”

Lopez nodded. “And what did the Supreme Court find in Littler v. Carvey?”

“In a six-to-three ruling, the court found that Stella Carvey’s unborn child was indeed a person, with the full rights ascribed to persons under the Fifth, Eighth, Thirteenth, and Fourteenth Amendments of the Constitution.”

“And therefore…?”

“Therefore, Ms. Carvey was banned from getting an abortion.”

“In relation to Roe v. Wade, how is Littler v. Carvey normally viewed?” asked Lopez.

“It’s frequently cited as the case that overturned Roe.” said Neruda.

“Making aborting embryos beyond a certain stage of development illegal again in the United States?”

“Correct.”

“And what is the status of Littler v. Carvey today?”

“It still stands as the law of the land.”

Lopez nodded. “Now, a moment ago, I said that Littler v. Carvey makes abortions illegal after a certain stage of development. Can you explain to the jury how the line between personhood and nonpersonhood was established in Littler?”

“Certainly. Littler v. Carvey turned precisely on this issue: when does an embryo become a person? After all,” said Neruda, turning briefly to face Judge Herrington, “we can’t very well decide when something ceases to be a person if we don’t know when it began to be one.”

The judge nodded his shoehorn face. “But do get on with it,” he said.

“Of course, of course,” said Neruda. “Drawing the line between personhood and nonpersonhood has represented one of the greatest challenges in bioethics. One position, of course, is that held by hard-line right-to-lifers: a new person, with the rights of personhood, is created at the moment of conception. The opposite extreme says that a new person doesn’t exist until the moment of birth, some nine months later—and, indeed, since the 1970s, there’s been a vocal faction that’s argued that even birth is too early, contending that personhood doesn’t really begin until there’s significant cognitive ability, around two or three years of age; those people find painless infanticide and abortion equally morally acceptable.”

I saw several of the jurors react in horror, but Neruda went on. “Conception and birth are, of course, precise moments in time. Although a human conception was never actually observed until 1969, we had known from animal studies for hundred years prior to that that conception occurs when the spermatozoa and the oocyte fuse.”

“Oocyte?” said Lopez.

“The female gamete. What lay people call the egg.”

Somebody near me snickered at what was presumably Neruda’s inadvertent play on words.

“All right,” said Lopez. “Conception occurs at the moment the sperm and egg fuse.”

“Yes, and that’s one specific second of time. We also, of course, routinely very precisely measure the time of birth. In fact…” Neruda trailed off.

“Yes, Professor?”

“Well, of course, there’s Mr. Sullivan, sitting right over there.”

I always sat up straight these days; there was no additional comfort in slouching my mechanical body.

“What’s significant about Mr. Sullivan?” asked Lopez.

“Well, he’s a Mindscan now, but the original him was, I believe, the first child bom after midnight on 1 January 2001, in Toronto, Canada.”

“Defendant’s ten,” said Lopez, holding up a piece of past. “A newspaper clipping for The Toronto Star from Tuesday 2 January 2001, commemorating this very fact.”

The exhibit was accepted, and Professor Neruda went on: “So, setting aside the extremists I spoke of earlier, we generally accept that a person is a person by the time they are born. But there have been fascinating cases that have tested the flexibility of this particular rubicon for ascribing personhood.”

“For instance?” asked Lopez.

“Department of Health and Human Services v. Maloney.”

“What happened there?”

“Brenda Maloney was an emotionally unstable woman in the Bronx, New York, in 2016. She had been pregnant for the standard thirty-nine weeks, and was being wheeled into the delivery room, when she saw a steak knife sitting on a tray of food destined for another patient. She grabbed the knife and plunged it into her belly, killing her baby moments before it would have been born.” Again, I saw jurors wince, and again Neruda went on. “Had Ms. Maloney committed murder?

Ultimately, the case was never tried, because Ms Maloney was found unfit to stand trial—but it did certainly galvanize public opinion. Support for the notion that an embryo did not become a person until at least birth waned considerably after that.”

“In other words,” said Lopez, “the hard-line pro-choice position—that until the baby was out of the body, it was not a person—became less tenable because of Maloney, correct?”

“That would certainly be my reading of the legal commentaries from that period, yes.”

“You’d said there were only two absolutely clear points, cleanly and simply demarked by biological circumstances for establishing personhood: conception and birth, correct?”

“Correct.”

“And Maloney—and other cases, I’m sure—made the birth marker not seem tenable in the eyes of most lawmakers and politicians, is that right?”

“Correct,” said Neruda again. “Anything but conception or cutting the umbilical cord seems arbitrary to them. Even birth is arbitrary, when you can induce it with drugs, or perform a C-section.

“In fact, soon enough we’ll doubtless have the ability to bring babies to term in artificial wombs. Take the typical sci-fi version of that: a fetus in a glass bottle full of liquid. The fetus has been growing for almost nine months. I take out a gun and shoot at the glass bottle. If my bullet hits the fetus, and goes through its heart, then I’ve performed an abortion, but if it misses the fetus, and just shatters the jar, spilling the baby out onto the tabletop, I’ve performed a delivery. It’s very hard to draw these lines.”

“Indeed,” said Lopez. “And, in fact, weren’t there legal attempts to define life beginning at a third point, namely implantation?”

“Yes, that’s right,” said Neruda. “But that was just as messy.”

“Why?”

“Well, conception doesn’t take place in the uterus, after all; the fertilized egg—to use the common parlance—normally moves down the fallopian tube into the uterus, then implants in the uterine wall. That event had sometimes been cited as the beginning of personhood, but it was rejected by the Supreme Court in Littler v. Carvey.”

“Why?”

“The march of science, Ms. Lopez. They couldn’t do it then, and we haven’t quite made it happen even yet, but we recognize, as I said before, that in principal it will be possible eventually to bring embryos to term in artificial wombs. The court didn’t want to set up a standard that said that embryos brought to term in vitro were perforce not human. They were looking for a demarcation that was innate to the embryo.”

“Well, then, given that the courts weren’t happy with the birth standard, conception seems the obvious marker to choose, no? You said it was easy to measure.”

“Oh, yes, indeed,” said Neruda, nodding. “Prior to conception, no new organism exists with forty-six chromosomes—plus or minus one, as in Down or Turner syndrome. But as soon as conception occurs, a complete genetic blueprint for an entire person is created—the new person’s sex is determined, and so on.”

“So did the court rule in Littler v. Carvey that personhood was conferred at conception?”

Neruda shook her head. “They couldn’t rule that—not without making millions of Americans into murderers.”

Lopez tilted her head to one side. “How do you mean?”

Neruda took a deep breath, and let it out slowly. “The Oxford English Dictionary tells us that the phrase ‘birth control’ entered the language in 1914. But, of course, it’s really a misnomer. We’re not trying to control birth; we’re looking to do something nine months earlier—prevent pregnancy! In fact, even though conception and birth are at opposite ends of the time span we’re discussing, we use ‘contraception’ and ‘birth control’ as synonyms.

“Now, there are true contraceptives: condoms, diaphragms, and spermicides prevent conception by the simple expedient of blocking the sperm from reaching the egg, or killing it before it gets there. And, of course, surgical sterilization of a man or a woman prevents conception, as does abstinence. So does the rhythm method if you’re very lucky and very careful.

“But the most common method of … shall we say, ‘family planning?’ … is none of the above. Rather, it’s the so-called birth-control pill—or patches, implants, and so on, that do the same job.

“Now, birth control pills sometimes prevent conception—that is, that’s one of the things they do. But they also can have a secondary effect: they prevent implantation of a fertilized egg in the uterus. If the court had ruled that life began at conception, then it would have to accept that birth-control pills can kill that life, by depriving it of the usual necessities of continued existence, which it would receive once it implanted in the uterus.

“But Americans love birth-control pills and related pharmaceuticals, which stiffen the uterine wall so that embryos won’t implant. The original birth-control pill was introduced in 1960, and we’ve been refining them ever since, so that today they have virtually no side effects. But a politically conservative country—and this one had certainly become that by this time, what with Pat Buchanan in the Oval Office—that wanted on the one hand to sanctify the unborn and on the other hand loved the convenience of birth-control pills had to come up with a definition that said life, and personhood, began after conception, so that those cases in which the pill prevented implantation rather than conception weren’t tantamount to murder.”

“And in Littler v. Carver, the court did just that, correct?”

“Correct.” Neruda had her own graphics, and they appeared on the wall screen. “The Supreme Court of these United States ruled that personhood begins when individuation occurs. For up to fourteen days after conception, a single fertilized egg can divide into two or more identical twins; indeed, the technical term for identical twins is monozygotic twins, because they were twins formed from just one zygote—one cell formed by the union of two gametes. Well, if the embryo still has the potential of being multiple individuals, or so the argument went, then it hadn’t settled down to being one particular individual, and so no specific personhood could be accorded it. Do you see?”

I certainly did, although glancing over at Karen, I don’t sink she’d gotten it yet.

“So,” said Lopez, “under the law of the land, a person is a person so long as he or she can be only one person, correct?”

I saw Deshawn react at this, his eyebrows climbing up his bald head. It wasn’t the tack we’d expected them to take at all—and it was damn clever.

“That’s right,” said Neruda. “The legal point is that once you’ve become one, and only one, individual, you’re entitled to rights of personhood.”

Lopez walked across the well and stood near the jury box. “Now, in your legal opinion, Professor Neruda, what bearing does this have on our case at hand?”

Neruda spread her arms. “Don’t you see? Karen Bessarian—or, forgive me: her maiden name would be appropriate here. Karen Cohen didn’t become a person on the day she was conceived back in—well, she was born at the end of May in 1960, so presumably that was sometime in August of 1959. Rather, she became a person fifteen days later, when that embryo no longer had the potential to become multiple individuals.”

Lopez regarded the jurors, making sure they were following. “Yes, professor,” she said. “Go on.”

Neruda smiled as she went in to deliver her punch line. “And, well, since individuation is the legal test, Karen—now Karen Bessarian—presumably ceased to be an individual in the eyes of the law not on the day on which her body actually died on the moon, but on the earlier day on which her mind was scanned and a second instantiation of that mind was made. That person who had been Karen Bessarian was, in essence, restored legally to the status of an embryo less than fifteen days old: she lost her rights to personhood the moment it could be said that she was no longer uniquely one individual. Do you see? The unique legal entity known as Karen Cynthia Bessarian ceased to exist the moment that scanning was done. And, of course, once a person is gone, they’re gone for good.”

If I’d been in my old biological body, I’m sure I would have slumped back, stunned, at this point. Lopez had made an elegant end run around our entire strategy—and she was saying that if the court were to challenge her position, it would, by necessity, be challenging the logic underlying current abortion laws. One glance at Judge Herrington confirmed that that was the last thing he wanted.

“Let’s take a break,” he said, looking as shaken as I felt.