Simone Weil, the great twentieth-century French philosopher, famously argued that the Iliad is the only true epic the Occident possesses, that it was carried forward by the tragedy of Aeschylus and Sophocles, and that the Gospels were the last “marvelous expression” of the spirit of the Greek epic.  For Weil the distinction of the epic poem consists in its exploration of the reality of “force.”[2]  Weil defines force as the Je n’ais se quoi which turns the one subjected to it into a thing.  The ultimate subjection to force is to become a corpse, which is the destiny of every human being because all human beings are material.  The inescapability of this doom, and how it colors human love and sorrow, is at the heart of the epic. 

 

In this essay, we take our cue from Weil and propose to explore the treatment of the dead in Homer’s Iliad, Sophocles’ Antigone, and the Christian Gospels.  The goal is to reflect on the common experience of the characters in these stories of death and disposal of dead bodies.  The corpse is at various times desecrated and accorded great respect.  What is the meaning of this?  I want to suggest that we can draw insights and lessons from these stories about the common experiences surrounding death like grief, anger, the sense of justice, and the dignity of the dead.  We shall conclude with some reflections on implications of the discussion for one recent bioethical and legal controversy over the disposal of dead bodies.  Let us first turn to the one Clement of Alexandria called the “oldest of poets,” Homer, and that oldest of poems, the Iliad.[3]

 

The Dignity of the Dead in the Iliad, the Antigone, and the Gospels

In the bitter war between the Trojans and the Greeks, there was at least one thing that seemed to be universally agreed to: the dead ought to be disposed of with dignity.  When Hector proposes a duel, he stipulates that his body be returned to Troy if killed, and promises reciprocity for whomever the Greek champion is, should he be slain.  As it turns out, Hector’s contest with Ajax ends in a draw.  Immediately after the contest, old Nestor, the Greek king reputed for his wisdom and sage counsel, gave a speech.  Nestor recounted how many dead Greeks lied on the battlefield, whose souls had gone down to Hades.  He called upon the kings to cease battle the next day in order to burn the corpses and enable the army to return the bones of the dead home to their families for burial.  Meanwhile, Priam, king of the Trojans and reputed by Homer as a “peer of the gods in counsel,” called for a messenger to go to the Greeks to call for a ceasefire to properly dispose of the dead.[4]  Priam expresses the view shared by Greeks and Trojans, that desecration of a dead naked body is the “most piteous thing” that can happen to a mortal.[5]  When Agamemnon, lord of the Greek host, hears Priam’s proposal, he replies that no one should begrudge the consolation of fire to dead corpses.[6]  In the following scene, the corpses are disposed of with mourning and grief.  Later, the goddess Hera voices the view of the gods that burial is the “privilege of the dead.”[7] 

 

Yet, there is a significant shift in the narrative of the Iliad in Book 16 regarding a steady escalation of savage desire to defile the dead—a practice on which Homer is not morally neutral.[8]  When the Trojan warrior Sarpedon is mortally wounded by Patroclus, he implores Glaucus to protect his body and armor.  Glaucus then prays to Apollo for healing, to enable him to prevent the Greeks from defiling Sarpedon’s body.  Patroclus’ subsequent speech calls upon the Greeks to rally precisely in order to despoil the body and work shame upon it.  The Greeks are able to acquire his armor but Zeus intervenes and sends Apollo to take Sarpedon’s body back to his homeland for proper burial.

 

Patroclus’ death sets forth a chain of events that intensifies desires to defile the dead.  When Patroclus is killed, a battle between the Greeks and Trojans ensues over his body.  Hector eventually claims Patroclus’ armor—and desires to behead him and feed his body to the dogs of Troy.[9]  At one point, Hector is able to seize Patroclus’ feet to drag him away and the Greeks are only just barely able to fight him off.  Patroclus’ death is the event that finally spurs Achilles to join the battle.  But neither rage nor the desire to defile is apparent Achilles’ first reaction to the news of his death.

 

a black cloud of grief enwrapped Achilles, and with both his hands he took the dark dust and strewed it over his head and defiled his fair face, and on his fragrant tunic the black ashes fell. And himself in the dust lay outstretched, mighty in his mightiness, and with his own hands he tore and marred his hair… Then terribly did Achilles groan aloud…[10]

 

Strikingly, Achilles’ resolution to kill Hector as a matter of just repayment is initially made in relative sobriety.  This is evident when he critically reflects on the passion of anger itself and the strife among gods and men that gives rise to it.  Anger has a honey-like sweetness when it burns in human breasts, but it also gives off blinding smoke.  Achilles resolves to restrain his anger toward Agamemnon and enter the fray or is it that he will redirect his rage toward Hector? 

 

The report from the goddess Iris that Hector intends to stick Patroclus’ head on a pike only adds to the intensity of Achilles’ desire to do battle.  When Achilles is able to recover Patroclus’ body, the first thing he does is shed “hot tears.”[11]  But he vows not to perform funeral rites for him until he has taken Hector’s head and armor, and cut the throats of twelve Trojan sons at the funeral pyre.[12]  Homer highlights the rage toward Hector welling up in him now, comparing Achilles to a lion whose cubs have been snatched away.  Yet, Achilles is extremely anxious that the condition of Patroclus’ body will deteriorate while he is exacting vengeance.  He expresses his worry that the body will be shamed by rot and maggots.  He turns his mind fully to battle only after his mother Thetis assures him that she will preserve Patroclus’ flesh from putrefaction while Achilles fights.[13]

 

When Achilles and Hector finally meet, Hector seems to suspect Achilles’ savage desire to mutilate his body.  Hector calls upon him to mutually pledge that the victor of their duel will honor the dead body of the vanquished.  Achilles refuses and frames their contest as a matter of justice, a payback for the sorrow and death that Hector inflicted on the Greeks.  Achilles goes further.  After vanquishing Hector, but before Hector expires, Achilles informs him that he will desecrate his body and honor Patroclus with burial. 

 

You will dogs and birds tear at terribly, but to him will the Achaeans give burial.[14]

 

Hector’s dying reply is to implore Achilles not to do this, and instead take a large gift of treasure from Troy.  Not only does Achilles reject his pleas, he voices an even more savage desire:

 

I wish that somehow wrath and fury might drive me to carve your flesh and myself eat it raw because of what you have done, as surely as their lives no man that will ward off the dogs from your head…dogs and birds will devour you utterly.[15]

 

Achilles drags Hector’s body back to camp to begin the funeral rites for Patroclus.  The ensuing lamentations of Hector’s father Priam, his mother Hecuba, his wife Andromache, and Troy generally over the desecration of Hector’s body is contrasted with the mourning of the Greeks.  The latter weep but do so in the context of an elaborate funeral ceremony for Patroclus, which includes the Trojan sacrifice.  After the funeral, Achilles makes a habit of dragging Hector’s corpse around Patroclus’ grave each morning for twelve days.  But marvelously the body remains incorrupt—the gods have preserved it.  Achilles relents and returns the body only after Zeus sends a message that Achilles’ actions are angering the gods and Priam pays a large ransom.  Hector’s funeral is the final scene of the Iliad.

 

The epic’s greatness lies in its insights into human nature and the human experience.  Here I will consider four insights into sorrow, justice and anger, the relationship of the soul to the body, and the experience of a transcendent standard of the just and the good in conscience. 

 

First, the epic gives insight into the experience of grieving sorrow, πένθος or penthos.  The loss of human life dear to one is an evil befallen and present to the person.  The first thing Achilles does is to wail.  Tears follow as the natural effect of sorrow.  The weeping of Achilles for Patroclus continues at various times over the next several days.  The tears shed are proportioned to the love borne for the departed in life.  Great love must be accompanied by great sorrow in the experience of loss.  Sorrow is accompanied by the need to cry.  Tears are paradoxically a kind of comfort insofar as tears are a sort of venting of a vexed spirit.  But Achilles himself sees that sorrow has its season.  He tells Priam that ceaseless wailing is not availing—it cannot bring back the dead.  An essential part of sorrow’s season is a proper burial.

 

Second, is the insight into the relationship between justice and anger. Agamemnon steals Briseis away from him.  Achilles fumes at the offense and sits out the ensuing battles, bringing disaster to the Greek host.  Hector slays Achilles’ most beloved comrade.  Achilles vows to avenge him with bronze, human sacrifice, and mutilation.  As Agamemnon saw from the beginning quarrel, the driving force in Achilles soul is θυμός or thumos.[16]  Thumos—translated variously as “heart” or “spirit” or “spiritedness”—is the part of the soul associated with the chest.  It is the seat of a range of desires regarding difficult things, such as hope, despair, fear, daring, and the desire for honor.  It is also the seat of anger and its flames are stoked by perceived injustices.  We share thumos with the brute animals.  Recall that Achilles is compared to the lioness who experiences anger when her cubs are attacked.  Animality is necessarily attached to the experience of meum and tuum, an experience that flows from the separateness of bodies.  Animals are thus subject to injury.  The passion of anger sparks in animals a motion to attack a present evil such as a threat to the good of bodily health and integrity.  Anger is, therefore, a passion essential to the flourishing of animals rational and non-rational, because it functions to move us to protect endangered goods.

 

But, as Achilles himself acknowledges in the moment of sobriety, anger can lead the person astray.[17]  Just as smoke in a house fire disorients the one trapped inside, inhibiting the organs of sight and breath, so the smoke billowing from Achilles raging chest is morally blinding.  Achilles’ concern for the body of Patroclus indicates his belief in the dignity of the dead.  This is not limited to only those he considers his own—family, friends, and countrymen.  After all, he shares the belief of the Greeks and Trojans that Zeus is the father of men and gods, and therefore the basic kinship of all human beings.  Zeus could not with reason hold Achilles to account if it were otherwise.  But until Priam’s visit, Achilles’ rage drives him to defile Hector’s corpse.

 

Achilles’ drive to repay Hector is an example of anger’s capacity drive a person to go beyond what justice would require.  Achilles frames his action as repayment, a balancing of the scales.  But, Hector did not defile Patroclus’ body—even if he intended to (an intention Iris reported was driven by Hector’s own thumos).  Whatever Hector’s intentions in that moment, he had apparently repented of it by the time he proposes the covenant with Achilles.  Like a small forest fire spreads into a destructive conflagration, so Achilles’ anger burns beyond the confines of the just.  Achilles even ponders eating Hector’s corpse—necro-cannibalism.  For a moment, an even greater shame than one’s corpse being eaten by beasts is considered.  Savage rage, untutored by reason, finally ends in man becoming a corpse-eating beast. When unleashed from the order of reason and the moral law, the passions debase human beings beyond recognition. 

 

The third insight is into the reason for the dignity of the dead body.  Achilles is visited by Patroclus’ spirit, “in all things like his very self, in stature and fair eyes and in voice.”[18]  Patroclus tells Achilles that he must bury him forthwith that he may cross the River and pass through the gates of Hades, and gives him instructions on how he wants to be buried.  In the epic tradition, the immortal soul survives the death of the mortal body and is destined for an afterlife. The soul is the principle of the life of the body, such that its departure always dovetails with death.  We see the seeds here of a philosophical anthropology in which the human person is a body-soul composite.  The soul is the form of the body, which unites, integrates, and orders it toward its proper functioning.  Accordingly, its departure entails the decomposition, disintegration, and lack of function characteristic of corpses.  The importance of the form does not denigrate the body, however.  This is evident in the solicitude of the corpse.  It bears dignity because of the relation it had and continues to have to the departed soul.  Thus, Patroclus continues to be concerned about the proper disposal of his body, even though

 

never more again shall I come back from out of Hades, when once ye have given me my due of fire.[19]

 

The persisting real relation between body and soul is further evidenced in that the rest of Patroclus’ soul is hindered by the condition of his corpse.  In Hades, souls are differentiated according to their merit on earth.  Odysseus remarks that the afterlife must be great for Achilles, who has a place of honor.  Achilles replies he would rather be a servant on earth than a ruler in Hades.[20]  There is a lack, a longing for fulfillment not available, which gnaws the spirits in Hades.

 

The fourth insight is into the conscience as the voice of a transcendent standard of goodness made known or enforced by the gods.  To be clear, the gods in the Iliad are anthropomorphized.  They experience the full range of human passions: jealousy, lust, anger, sorrow, etc.  They are also often portrayed as self-interested and quarrelsome.  Yet, I suggest that their experience of emotions—such as anger over the mistreatment of Hector’s body—itself gives witness to a standard of goodness to which even the gods are subject.  Thelps make sense of how Achilles comes to relent and return Hector’s body.  Initially, it appears that it is simply the will of Zeus, the irresistible say-so of the strongest god that moves Achilles. 

 

So let it be; whoever brings ransom, let him bear away the dead, if indeed wholeheartedly the Olympian himself so commands.[21]

 

But, if the sheer will of Zeus were sufficient, apart from any consideration of the inherent good of treating the dead with dignity, then why would Zeus need to also send Hermes to counsel Priam in how to move Achilles’ thumos?[22]  Hermes tells Priam to remind Achilles of his own father, and in so doing, have pity on Priam, a father who has lost all of his sons in the war.  Achilles is said by Zeus to not yet be “hardened in sin,” in defiance of the standard enforced by the gods.  While shame was not in his heart, Achilles had not yet hardened his heart to the point where he would not change course.[23]  The reminder of his own father thus brings him to tears—only now does Achilles take pity on Priam.  Achilles then goes on to reflect on how the lots of men are to have good and evil admixed in their lives.  Priam was blessed with wealth and kingship, and many sons—but he has had to watch them all die.  Achilles’ own father was blessed with estate, wealth, kingship, and a goddess for a wife—but he had only one son who will die away from home.  And Achilles regrets that he will not be able to “tend him as he grows old.”[24]  Achilles is reminded of the rightness and goodness of family members grieving for and burying their own.  A convicting awareness of this seems to be the essential concomitant of Achilles’ decision to return Hector’s body.  The reminder in Achilles’ conscience is traceable to the action of the god.

           

Contrast the hard-hearted Creon, whose lust for power obscured his reason until it was too late.  In Sophocles’ Antigone, Creon decrees that Polyneices, son of Oedipus who unsuccessfully attacked his fatherland Thebes, would not be buried. 

 

To be left unburied, unwept, a feast of flesh

For keen-eyed carrion bird.

…

By dogs and vultures, a horror for all to see.[25]

 

In Antigone we see reinforced the idea that thumos is sparked by injustice and that the gods make known the requirements of a transcendent standard through human conscience.

 

            That order did not come from God. Justice,

            That dwells with the gods below, knows no such law.

            I did not think your edicts strong enough

            To overrule the unwritten unalterable laws

            Of God and heaven, you being only a man.

            They are not of yesterday or to-day, but everlasting,

            Though where they came from, none of us can tell.

            Guilty of their transgression before God

            I cannot be, for any man on earth.[26]

 

 

That transcendent standard, as unwritten, is not seen by corporeal eye but is known by reason, that “greatest gift of all.”[27]  The standard is unchangeable—it is not subject to repeal or alteration by human will.  Conscience’s judgment, an act of reason, functions as a sort of rational guardian.  It exhorts Antigone to do the honorable thing and perform the duty to bury her brother.  The conflict can be framed as an unjust positive law stubbornly enforced by a man who identifies the state with his own will against a righteous dissenter in order to maintain his power, or because she is a woman or both.  Creon makes misogynistic comments about Antigone’s sex as a reason not to relent, and at one point asserts a positivist principle that the king’s say-so ought to bind the conscience whether it is right or wrong.

 

The conflict between Creon and Antigone can also be seen as a clash of rival judgments of conscience about what morality truly requires.  Creon contends that the dead bodies of evil persons don’t deserve the same treatment as those who died well.  As Creon frames this argument, Polyneices violated the law of the gods by attacking Thebes:

 

            A man who came to burn their temples down,

            Ransack their holy shrines, their land, their laws…

            Is that the sort of man you think gods love?[28]

 

Here, Creon offers a cognizably moral argument.  Indeed, tyrants are wont to fashion some sort of moral justification for their policies.  Why should the attacker of the city, its laws, and its gods be accorded an honor equal to Eteocles, who defended it?  Antigone’s reply is that an honorable burial is due to him regardless.  The idea of universal human dignity, attaching to criminal and innocent alike seems to be invoked here.  But either Antigone is inconsistent or she does not assume universal dignity because she later reasons that, had Creon outlawed the burial of her son or husband, she would have obeyed, since she could always find a new husband or have another child.  Her parents are dead—she cannot get another brother.  So Polyneices is owed the fraternal act of love. 

 

Why does Antigone say this?  I would suggest it is a reflection of the Greek preoccupation with the universal form.  For Plato, the Forms or Ideas of things are the really real, and they abide in eternity.  The individual horse or tree is but a pale reflection of the Idea of Horse or Tree.  Aristotle brought these forms down to earth in his theory of substantial form.  Form is the giver of being.  It is that what that makes a thing to be.  It is in the thing, not apart from it—its reality as a universal is in the mind.  But Plato and Aristotle were alike in their focus on the features of the form as a universal.  What is good for man?  Who is the man of virtue? What is the just polity?  Similarly, Sophocles’ Antigone seems to be thinking of her duty as a sort of instantiation of the Form of Sisterhood.  That form is impossible to instantiate in another material relationship.  But the Form of Wife or the Form of Mother could be.  Antigone’s reasoning thus loses the particular for the universal.  This seems to undermine her reply to Creon’s argument for according burial according to merit because her position seems to logically require aground in the dignity of all individual particulars.

 

Antigone’s stance thus is left in doubt until the old blind prophet Teiresias visits Creon, to attempt counsel where Antigone, the Chorus, and Creon’s son Haemon had failed.  Teiresias now supplies a response to Creon:

 

            Mark this my son: all men fall into sin

            But sinning, he is not forever lost

            Hapless and helpless, who can make amends

            And has not set his face against repentance.[29]

 

Teiresias’ words are directed to Creon for his good.  Like Achilles, Creon can still subdue his passions and change course, release Antigone from the tomb, bury Polyneices, and avoid calamity.  But the deeper point should not be missed.  Even if, arguendo, Polyneices fell into sin in attacking Thebes, and even if that could suffice in his case to wholly strip his corpse of its dignity, that is not sufficient to conclude he knowingly acted against that which he believed to be just and had confirmed his heart in evil in the end.  At the very least, it seems complicated given that Eteocles had violated their agreement to rotate rule in Thebes.  Teiresias’ visit to the stubborn Creon itself is a lesson in erring on the side of maximal mercy and extreme hope about the deaths of sinners.  All are due a proper burial—and we can’t deny it on the basis that the dead was a sinner, for we all have sinned.  And about whom can we safely assume that they died confirmed in sin?

 

The last “marvelous” expression of the epic tradition begins with the Annunciation to Joseph that Mary will conceive and bear a son, whom they shall name Jesus, and he will save his people from their sins.  In this story, death itself is conceived as entering the world through sin.  Life could now come only by God entering the world.  The God-man Jesus proclaimed a mission to sinners and to forgive sins, to defeat what sin begat.

 

The epic themes discussed so far are apparent in the narratives.  The story of Lazarus shows us the Jews honored the dead with burial and that the God-man shares in our sorrow and grief for the loss of the beloved.  Jesus’ own tears affirm the essential proportionality between love and grief.  The clearing of the Temple shows us the thumos even of the perfectly self-governing man can be stoked by injustice.  Christ’s parables and sermons clarify the requirement of the transcendent standard of the Hebrews to love one’s neighbor as oneself—the law of love written on the heart.  The Greek epics were tragedies in large part because of the tragic clashes of rival loves of one’s own.  The temptation to imagine one’s enemies as less than fully dignified human beings proved powerful.  The parable of the Good Samaritan teaches that love is not limited to the ties of blood, the nation, or one’s countrymen.  The radicalness of the Sermon on the Mount is the claim that the law of love extends to all human beings, even one’s enemies. 

 

And of course, the Paschal mystery, Jesus’ death and resurrection, entails a new understanding of the meaning of death of the body for the believer.  Jesus descends into Hades and preaches the Gospel to the souls of the just dead.  His mission to save sinners was not complete until this was done.  The resurrection of Jesus, in the self-same body that underwent the Passion and Crucifixion, confirms and indeed elevates the dignity of the human body.  Whereas the Greek epics had ended on the note of lament—Andromache foresees enslavement of the Trojan women and the hurling of her infant Astyanax from the battlements; Antigone, Haemon, and Creon’s wife die by suicide and Creon despairs—the Gospels don’t end with the death of Jesus and the despair of the apostles.  The Gospels relate that two women—Mary Magdalen and Mary—were the first witnesses to the empty tomb.[30] 

 

Why are you seeking one who is alive, here among the dead? He is not here, he has risen again.[31]

 

The Resurrection constitutes a victory over the death of the body.  The spirits in Hades are shades, not fully themselves because separate from the body.  Achilles’ preference to live on earth can now be seen as at root a desire for reunion of soul and body which the older Greek imagination could not conceive.  The epic chorus had sung of man as master of the earth, its creatures, and countless arts—only death of the body could man not escape.[32]  This was the heart of the tragic fate of man—even if the soul survived the body, it could never fully be itself, for every human person is a body-soul composite.  The promise of the Resurrection is the restoration of man through the raising of dead bodies, and a comedic end to all things.  This was already apparent in the second beatitude, which promised comfort to those who mourn.  The solicitude for the dead in Christian burial practices is thus grounded in a belief in the dignity of the human body proclaimed in the Paschal mystery.

 

So far, we have sought to uncover the roots of some human experiences surrounding death and proper disposition of the dead body.  The common thread through the epic tradition was that the dead body was deserving of dignified treatment, through proper funeral rites of cremation and/or burial.  Such was a matter of duty for the grieving:  the dead are owed something in the order of justice.  In Achilles’ case, the wrath spurred by a debt he owed to Patroclus led him to temporarily forget the duty the Trojans owed to their dead.  Creon placed his own power over the duty of a family to bury its dead.  In both cases, messengers of the gods deliver and accuse the consciences of the players regarding the justice and goodness of disposing of the dead with dignity.   

 

Contemporary Implications:  Fetal Disposition

A number of states in the U.S. have recently become concerned with the disposal of dead unborn bodies.  In 2015, the Center for Medical Progress (CMP) released undercover videos that shocked many Americans. The videos showed Planned Parenthood higher-ups discussing the purchase and sale of dead fetal body parts.  While it is true that the videos were edited down to a shorter duration, they were not the misleading hit jobs some media outlets portrayed them to be. The full transcripts were made available, and they confirm that characters in the abortion industry were interested in profiting from the sale of dead fetal parts. CMP’s videos led to an investigation, a multimillion-dollar settlement, and the shutdown of two bioscience companies in California that were unlawfully engaged in for-profit trafficking of fetal parts. Planned Parenthood was under federal investigation in 2018.

 

It is illegal under 42 US Code 289g-2 for someone to knowingly solicit, acquire, accept, or transfer fetal tissue for profit.  When this language was passed by Congress, Representative Henry Waxman (D) declared that it would be “abhorrent” to permit a fetal tissue marketplace—and years later reaffirmed his commitment to prosecuting violations of the law.[33]  But is abhorrence at such a practice rationally warranted?  Leon Kass has written how there can be a wisdom of repugnance as, for example, in the context of cloning.  Kass was not asserting that “revulsion is an argument.”  Rather, his point was that repugnance in many cases is an “emotional expression of deep wisdom.”[34]  We have seen the grounds in the deepest annals of the human experience for abhorrence at the practice.  Creating a marketplace for dead unborn bodies puts a price on something that resists commoditization.  The human body has a dignity that transcends price.  We give witness to this truth in our grief and experience in conscience of the need to properly bury the dead.  Of course, calls have intensified in recent years to create a national marketplace for organ sales—calls that imply the body is a commodity.[35]  But such arguments typically posit or assume a Lockean notion of the body as one’s property.  And, as Kass has shown, such a claim entails a range of aporiae that vex such a claim:

 

What kind of property is my body? Is it mine or is it me?  Can it—or much of it—be alienated like my other property, like my car or even my dog?  And on what basis do I claim property rights in my body?  Is it really “my own”?  Have I labored to produce it?  Less than did my mother and yet it is not hers.  Do I claim it on merit?  Doubtful: I had it even before I could be said to be deserved.  Do I hold it as a gift—whether or not there be a giver?  How does one possess and use a gift?  Are there limits on my right to dispose of it as I wish—especially if I do not know the answer to these questions?  Can one sell—or even give away—that which is not clearly one’s own?[36]

 

While much more could be said on this question, it is sufficient to remark that it is not obviously true that human beings are owners of their bodies in the way that they are owners of their cars.  Rather, the epic tradition we have been considering relates the experience that we are our bodies in some fundamental sense. 

 

The foregoing discussion indicates that the reason for repugnance at the selling of fetal tissue and the reason for repugnance at grotesque disposal methods is at root the same.  Several states have taken steps to require the humane disposition of fetal remains.  For example, Texas passed SB 8 in 2017, which provided that fetal remains at healthcare facilities were to be disposed of by interment, cremation, incineration followed by interment, or steam disinfection followed by interment.  To be clear, these disposition methods were already lawful in Texas. The law simply removed the options of grinding fetal remains and flushing them in the sewer system or discarding them in landfills. 

 

In an opinion in January 2018, a US District Court issued a preliminary injunction.[37]  One of the considerations he placed great weight on was the potential to raise costs.  This, despite three strikes against this argument.  First, the abortion facilities expert and the Texas Department of State Health Services estimated an increase of less than $5 per abortion.  Second, charitable non-profit groups such as the Texas Catholic Conference of Bishops have volunteered to perform the burials free of cost.  And, third, the Supreme Court has held that regulations constitute an undue burden only when they incur “significant” costs.[38]

 

But there is another argument the judge gives that deserves comment.  According to the District Court, the Supreme-Court-recognize constitutional power of the states to express their “profound respect for the life of the unborn” does not include a power to express its respect for his or her dead body.  This is a truly radical claim.  It completely ignores an entire tradition of the human experience of a proportion between love of human life to grief over human death, of justified anger over mistreatment of the dead, of rejecting materialist philosophical anthropology, and of hearkening the conscience’s witness to the moral law.  The court’s reasoning might be laughable if it hadn’t careened over the fine line between humorous and the horrifying.

 

The court goes on to argue that permitting Texans, through their representatives, to enact the modest proposal of disposing of the unborn dead humanely would prescribe a controversial pro-life orthodoxy regarding the personhood of the unborn and might thereby make women feel ashamed of getting an abortion.  But why should anyone who denies fetal personhood care what pro-life citizens want to do with what they take to be mere biomedical waste?  If abortion removes mere “tissue”—a clump of cells more akin to a tumor than a person—then it wouldn’t make any difference if the pro-lifers want to waste their time eulogizing it.  If the fetal remains are morally worthless, then there is no rational ground for shame.  Hence, there seems to be a betrayal of the revenge of conscience among those who worry that burial, particularly religious burial, will offend abortive mothers.  Those who make this argument, and deny fetal personhood, give witness to that transcendent standard common to all human experience, which cannot not be known.  In other words, it is absurd to maintain both that fetal remains are morally worthless and that their burial is sufficiently meaningful to merit moral objection.

 

Planned Parenthood v. Casey inaugurated an experiment in practical legal relativism about human life.  It insisted that the truth about human life could not be coerced by the state.  Among the Court’s affirmations: “reasonable people will have differences of opinion about these matters,” “some of us…find abortion offensive to our most basic principles of morality, but that cannot control our decision” efforts to overturn Roe “may proceed from principles worthy of profound respect,” etc.[39]  Whatever its shortcomings, the Casey Court seemed to recognize that there is a rational warrant for the essentialist view of personhood, that the personhood of an entity depends on the kind of thing that it is, not its immediately exercisable capacity to perform some activity.[40]  The Casey Court fashioned a compromise of sorts between the essentialist and performativist viewpoints: a woman has a right to determine whether the entity growing inside of her is a person or not.  She can affirm it is a person or deny it is a person.  Whatever her belief, that is her truth.  Meanwhile, those who are essentialists about personhood are permitted to nibble around the edges, as it were, regulating abortion in modest ways that do not occlude her ultimate private choice. 

 

But, having made her choice, the abortive mother’s “truth” has carried the day: from her perspective, the morally worthless non-person has been killed.  To annul a sizeable majority of citizens’ capacity to humanely dispose of what they take to be a person is to prescribe the deniers’ view of unborn personhood as the orthodox one.  In its blinding passion to enthrone abortion as a positive good rather than permit it as a tragic necessity, the court ultimately makes the same mistake Achilles and Creon made.

 

_______________________

[1] I would like to thank Carl Springer and Stephen Beck for helpful comments and suggestions on an earlier draft of this article.

[2] Simone Weil, The Iliad, or the Poem of Force, Chicago Review, 18:2 (1965), 5-30.

[3] Clement of Alexandria, Stromata, Book 5, Ch. 1.

, trans. A.T. Murray, revised by Willia F. Wyatt, Loeb edition (Harvard University Press, 1999) Book 7, Line 365-6.  Citations to Iliad[4] line and page numbers are in this edition.

[5] Iliad, Book 22, p. 459.

[6] Iliad, Book 7, p. 345.

[7] Iliad, Book 16, p. 197.

[8] See Charles Segal, The Theme of the Mutilation of the Corpse in the Iliad (Lugduni Batavorum E.J. Brill, 1971).

[9] Iliad, Book 17.125-7.

[10] Iliad, Book 18, p. 289.

[11] Iliad, Book 18, p. 305.

[12] Iliad, Book 18, p. 311-3.

[13] Iliad, Book 18, p. 311-3; 19, p. 337.

[14] Iliad, Book 22, p. 477

[15] Iliad, Book 22, p. 477-9.

[16] Iliad, 1.173.

[17] Iliad, Book 18, p. 295.

[18] Iliad, Book 23, p. 497.

[19] Iliad, Book 23, p. 499.

[20] Odyssey 11.486-93.

[21] Iliad, Book 24, p. 573.

[22] Iliad 24.467.

[23] Iliad 24, p. 565, 575.

[24] Iliad, Book 24, p. 603.

[25] Sophocles, Antigone in The Theban Plays, trans. E.F. Watling (Penguin, 1947), p. 127, 131.

[26] Antigone, p. 138.

[27] Antigone, 144.

[28] Antigone, p. 134.

[29] Antigone, p. 153.

[30] It is notable that this would not have been a very prudent way to fabricate a story to hoodwink the Jews, since Mosaic law required two male witnesses to establish the truth of a testimony.

[31] Matthew 28:5-6.

[32] Antigone, p. 135-6.

[33] See “Fetal Tissue: Is it Being Sold In Violation of Federal Law?” Hearing Before the Subcommittee on Health and Environment of the Committee on Commerce. House of Representatives. 106th Congress, 2nd Session.  March 9, 2010.  Online at https://www.gpo.gov/fdsys/pkg/CHRG-106hhrg63102/html/CHRG-106hhrg63102.htm. 

[34] Leon Kass, “The Wisdom of Repugnance,” The New Republic, June 2, 1997, p. 20.

[35] See, e.g., Virginia Postrel, “With Functioning Kidneys for All,” The Atlantic, July 2009 issue.  Online at https://www.theatlantic.com/magazine/archive/2009/07/with-functioning-kidneys-for-all/307587/; Benjamin E. Hippen, “Organ Sales and Moral Travails,” Policy Analysis No. 614 (March 20, 2008).  Online at https://object.cato.org/pubs/pas/pa-614.pdf. 

[36] Leon Kass, Life, Liberty, and the Defense of Human Dignity: The Challenge for Bioethics (Encounter Books, 2004), 190.

[37] The full opinion is available online https://www.scribd.com/document/370278451/Ezra-Fetal-Rule-Block-Tempat:

[38] See Whole Women’s Health v. Hellerstedt 136 S. Ct. 2292 (2016), at 2317.

[39] Planned Parenthood v. Casey 505 U.S. 833 (1992), 850-1, 867.

[40] For philosophical defenses of this view, and critiques of the performative view of personhood, see Robert P. George and Patrick Lee, Body-Self Dualism in Contemporary Ethics and Politics (Cambridge University Press, 2009); Christopher Kaczor, The Ethics of Abortion: Women's Rights, Human Life, and the Question of Justice, 2nd Edition (Routledge, 2014).