Exceptions: Abandoning 'The Least of These my Brethren'
EXCEPTIONS:
ABANDONING "THE LEAST OF THESE MY BRETHREN"
Why Pro-Life Legislation Should Not Contradict Pro-Life Principle
By Judie Brown and Brian Young Revised 1994
About the Authors
Judie Brown is President of American Life League and author of two books. She has been involved in pro-life work since 1970. Judie is an articulate spokeswoman for the defense of human life without exceptions.
Brian Young of Los Angeles is Senior Vice President, Government Affairs, American Life League. He worked in Congress for six years-five years with Congressman Dornan and one year as counsel to the Senate Subcommittee on Aging, Family and Human Services.
Brian also served three years as Administrative Director of the American Legislative Exchange Council, and worked three years for President Reagan's Political Action Committee. He has been a member of the California Bar since 1976.
Introduction
Pro-lifers face confusion in the ranks.
Today, in the face of hostility from judges, politicians, and the media, a spirit of compromise is tempting the right-to-life movement to play "lifeboat" with the lives of the preborn.
Like the "values clarification" game where players designate who in a lifeboat must die to increase the other passengers' chances of survival, legislation is being drafted and advocated that explicitly asks the right- to-life movement to sacrifice politically unpopular babies so that others might live.
In short, situation ethics has forced its foot in the door of the pro-life cause-and created a house divided.
For years, pro-lifers have rightly chided officials who claim to separate their personal beliefs on abortion from public policy. One is reminded of John Lofton's comment about the politician whose morality was so intensely personal, he wouldn't even impose it upon himself.
Inevitably, the public wonders, are these "personally opposed" politicians really as much against abortion as they say they are? After all, if they truly believe abortion is the taking of a human life, how can they say it should be legal?
Today, many dedicated, sincere activists for the preborn have put aside their own deeply held beliefs about the sanctity of human life-if only for a little while-in hopes of gaining a "political victory." Like the politicians who are "personally opposed to abortion, but..." pro-lifers who advocate "exceptions" to protective legislation have tried to separate their personal convictions from their actions.
The result of this development is a muddled message: rhetoric that says all human beings, including the preborn, must be equally protected-and bills that say in plain black and white that certain babies should be specifically excluded from legal protection.
For the pro-life movement to have any credibility-and any political potency- it must act consistently with its stated beliefs. And since its inception, the movement's fundamental tenet has been that all preborn children, as persons, have the right to life from the moment of their creation.
The simple truth is that the right-to-life movement is, at heart, a moral crusade. If moral principle is divorced from its actions, this crusade will have no basis upon which to demand protection for human life, much less exist. Certainly, the public (ultimately a more important audience than politicians) will be less likely to accept statements from people who don't practice what they preach.
Now, as never before, each and every person who fights for the rights of preborn babies needs to reaffirm his or her motivations and goals. It is this essay's intention to assist in this effort by providing a critical examination of current issues, tactics, and strategies in pro-life circles- and to assure the pro-life activist that he or she does not have to compromise principle to achieve political victory.
In fact, given the pro-life goal of social and legal recognition of personhood, compromising principle will virtually destroy all hope for success.
The Personhood Principle
Are preborn children persons? Do all persons have the right to life?
The affirmative answers to these two simple questions provide the rock of unity for the pro-life movement.
In their wisdom, our Founding Fathers recognized that all persons are endowed by their Creator with the unalienable right to life. This means that each person's life is provided to him or her by God and the right to that life cannot be transferred to another.
Thus, in seeking protection for the preborn, the pro-life movement has consistently sought the government's acknowledgment and protection of what all human beings already possess: the right to life.
Legislation that explicitly excludes certain classes of babies from protection because of their parentage, physical development, or other reasons clearly eliminates personhood as the basis for the securing of human rights.
Indeed, if all persons have the right to life, as the Declaration of Independence states and as the pro-life cause argues, there is no logically consistent rationale for specifically excluding certain innocent lives from legal protection.
Under a bill that contains "exceptions," a baby who is conceived by rape or incest, or has a physical or mental disability, or whose mother can find a doctor who will say that her health will be severely affected by the pregnancy is simply not entitled to equal protection under the law. Such a measure divides people into classes and gives the state legal power to treat those classes differently.
That certain people have rights and others do not is the exception-laden bill's unmistakable, if unintended, announcement to the public. When the right-to-life movement itself proposes such a measure, the movement sends the loud and clear message that while for the last 20 years it may have talked about the sanctity of all human life, today it regards this standard as a political albatross.
Politicians read pro-life "exception" proposals and receive an additional message. They then know that the right-to-life movement can no longer require them to adhere to the personhood principle either. The political pressure to protect all babies is gone.
Does this mean, then, that every bill drafted by a pro-life group must attempt to save all the babies immediately? Of course not.
Pragmatism Without Compromise of Principle
"Adherence to principle is all very well and good," some might say, "but it's politically impossible to save all preborn children right now. Isn't it better to save some lives rather than none?"
Of course it is-many baby girls and boys may be saved by legislation that indirectly affects abortion. But this indirect or incremental approach to stopping abortion does not have to abandon principle to reduce the number of deaths.
"Principle" and "political victory" are not mutually exclusive.
Advocates of exception bills complain that "no exceptions" pro-lifers will not support any legislation unless it stops all abortions immediately. This is simply not true. Without compromise, we can support:
* Providing support or recognition to pregnancy centers that offer women assistance, not abortion;
* Reforming medical malpractice laws to provide protection to the surviving victims of abortion;
* Stopping public employees' health insurance coverage for abortion;
* Prohibiting all other public funding and the use of public facilities and employees for abortion;
* Disinvesting public pension funds from companies that manufacture or distribute RU-486;
* Reducing the "when in doubt about fetal abnormalities, advise abortion" impulse in doctors by making "wrongful life" and "wrongful birth" lawsuits impermissible
None of these bills would stop all abortions, yet these and other measures are ways to reduce the number of abortions without denying the personhood of any child. Furthermore, they do not reinforce the notion that preborn babies may be legally aborted if they happen to belong to the wrong "class" of people.
Instead of proposing a bill that says it's legal to kill preborn babies with handicaps, why not work to reduce the financial incentive of clinic doctors and owners? If laws are amended to allow more abortion victims to recover for damages, will not this serve as a financial disincentive to abortionists?
Likewise, if a pharmaceutical company knows that billion-dollar state pension funds will withdraw their investments from a firm that produces RU-486, will that company not be discouraged from involving itself with the French abortion pill?
If outright abortion prohibitions are unrealistic in the cur-rent political climate, there is no harm done to the personhood principle by attempting protection for babies on an indirect basis.
"No exceptions" does not mean "all or nothing."
The danger to pro-life principle (and credibility) lies in declaring that certain types of children are not entitled to legal protection.
For instance, a bill to ban public funding of all abortions would protect only a small fraction of preborn babies. However, it would apply equally to all categories of children whose mothers might seek state-supported operations. It would not save all babies, but neither would it deny personhood to any class of preborn humans.
On the other hand, a bill to bar public funding, except in cases of rape or incest, would explicitly deny the rights of personhood to innocent children simply because they were conceived during the commission of criminal acts. The basis for such a measure could no longer be that the state cannot subsidize killing. Its premise now would be that the state may underwrite the taking of whichever innocent lives it wants. Again, exceptions would deny equal protection to state-selected babies.
Of Hostages and Burning Buildings- Analogies to Legislation
Exception bill supporters often draw analogies to support their legislation. Such comparisons usually pose a question involving a rescue scenario. For instance, one analogy asks:
If you were negotiating with terrorists for the release of hostages, wouldn't you accept an offer to free only the women and children and then keep working to free the men?
The obvious answer is, yes, of course, anyone would accept the offer to release the women and children. As noted above, as long as one does not deny another person's right to life, it is better to save some lives than none.
Does such an analogy validate exception bills, however? No. All that such comparisons do is provide support for an incremental approach to stopping abortion.
In the hostage scenario, for example, the acceptance of the release of the women and children is consistent with a step-by-step approach to ending the crisis.
If the negotiator communicating with the terrorists were to employ the tactics used in exception bills, though, he would say something like, "Yes, we accept the women and children and will keep working for the release of all the innocent prisoners, but in the meantime, you won't be prosecuted if you kill any of the men."
Exception bills don't just prohibit certain abortions, they explicitly state that other abortions shall be legally permitted. They cannot be likened to running into a burning building to save as many lives as possible-unless one enters the building with the intention of saving only certain classes of people.
Analogies simply validate an indirect or incremental approach. The question then becomes, what is an acceptable incremental approach?
Compromise of Principle-A Temporary Step Toward Total Protection of the Preborn?
Some may argue that denying personhood to certain babies by advocating an exception-laden bill is only a temporary measure toward the ultimate goal of outlawing abortion.
Yet, how does one "temporarily" abandon a principle?
Clearly, if adherence to a "principle" is selective, that "principle" is nothing more than a convenience and is not to be taken seriously when invoked.
Further, if one believes that "principle" depends upon the circumstances of a given situation, one engages in situation ethics, a belief system where absolute truth (such as the Ten Commandments) does not exist. Treading upon this ground is morally dangerous as well as pragmatically unsound for the right-to-life movement. How can the movement maintain unity if each of its members determines which of its "principles" will be honored at any given time?
More importantly, if the pro-life movement does not consistently uphold the rights of all preborn children, it has no basis upon which to demand the protection of these children. Children of rape (or any other "exception") cannot be treated as nonpersons by the right-to-life movement one year and persons the next. It is simply not logical-and such political maneuvering destroys the moral basis for the pro-life position.
Let's Talk Tactics
If one is not convinced that the abandonment of principle will destroy or even seriously damage the credibility of the pro-life argument, not to mention the fervor of the pro-life movement, there are other issues to consider.
Generally speaking, these issues fall under the heading of "doing what you can now."
There is nothing inherently wrong with "doing what you can now." In fact, it is a moral imperative-but one should not abandon his or her moral beliefs in the process.
It is also vitally important to bear in mind the long-term effects of "doing what you can now." Certain tactics can possibly win a battle, but ultimately lose the war.
Pass a Bad Law Now-Amend It Later?
The first rationale for drafting exception bills or other measures that would deny personhood to any class of babies may be paraphrased as:
Our goal is to protect all babies. That's not politically feasible this legislative session, so we'll protect those babies that we can, and come back next year with an amendment to save more lives.
Again, the "incremental" or "indirect" approach and the "personhood principle" are not incompatible, so long as one does not deny rights to politically unpopular classes of children along the way.
The particular incremental approach embodied in the above statement, however, is based upon an assumption that is dubious at best-that a legislature would be disposed to voluntarily endure another tumultuous, painful session after having passed what would be perceived as a "major abortion bill."
Generally speaking, once a legislature approves what it considers to be a comprehensive reform bill, regardless of the subject matter, it is usually not eager to tackle the same topic for quite a while. When the subject is one as controversial as abortion, only truly dedicated pro-life legislators will want to become involved again. The non-committed, perhaps ambivalent lawmaker whose vote was crucial to the passage of the first bill will not want to touch the subject of abortion again with a proverbial ten-foot pole.
Legislators do not regard abortion as a pleasant topic. When they address it, they receive lots of letters that demand responses. They must answer lots of phone calls-emotional, angry phone calls. They are put on the spot. They are labelled and called names. They are targeted at election time. In short, to lawmakers, abortion means more work and even more grief.
The abortion question is simply one that most legislators will avoid, if at all possible. And the easiest way to avoid an issue is to say, "We dealt with that last year."
To suggest that a bill that compromises the personhood principle, especially one that is promoted as solving almost all of the abortion problem, can be made more restrictive by amendment in succeeding years is, at best, unrealistic.
Suppose for the sake of argument, however, that a sympathetic committee chairman agrees to hear a bill that would amend last year's compromise measure. What then?
Can an all-out assault be mounted by the battle-weary pro-life grass roots again? Will political pressure from constituents be brought to bear on wavering legislators a second time? Will pro-life lawmakers have any more favors to extract in this session?
All things considered, the exercise will not be easily or willingly repeated year after year. This is especially true in light of the fact that the opposition's strengths-media support and money-do not fatigue as easily as pro-life volunteer efforts.
Compounding the problem will be finding a message to "sell" legislators on the need for amendments. A lawmaker will reasonably think, "If the pro-life movement was comfortable with the aborting of Down's syndrome children last year, why is it unhappy about it this year?" Indeed, what could be the justification for rejecting what one accepted only 12 or 24 months ago?
One may counter that a scenario of "friendly persuasion" and arm twisting would not be necessary for a state to adopt abortion bills annually if the legislature in that state is solidly pro-life. However, if a legislature is solidly pro-life, why not pass a solid bill in the first place?
Where Have All the "No-Exceptions" Politicians Gone?
Part of the fallout from exception bills is that their promotion by pro- lifers will ultimately cost the right-to-life movement the political muscle it will need to ever achieve protection for all babies.
It is only logical that if a local right-to-life group writes and advocates a bill with exceptions, it will have to support (or at the very least not oppose) a politician who backs their proposal. How could an advocacy group demand that a legislator take a stronger position than it does?
This means that a pro-life group that drafts exceptions-type measures can no longer demand that a politician maintain a "no exceptions" position on abortion.
What's more, candidates who do advocate a "no exceptions" stand receive no political benefit for their courage. Politicians who favor exceptions will now receive the same pro-life support as those who defend the rights of the "hard case" babies.
The net result of "pro-life" bills with exceptions is that they create an environment where there is no political reason for a legislator or a candidate to seek protection for all preborn children. If anything, this exception-laden, so-called "moderate and reasonable" approach to legislation makes the "no exceptions" official look "extreme and unreasonable."
Clearly, a "no exceptions" position could not remain politically viable for very long under these circumstances. And if staunch pro-life politicians disappear, how could right-to-lifers ever hope to amend away the exceptions they helped put into law?
Will the Supreme Court Like the Law Three Years From Now?
Advocates of "exception" bills correctly argue that any abortion measure will be reviewed by state and/or federal courts.
However, they then claim that legislation must be written to conform to the perceived requirements of the current United States Supreme Court as discerned from recent opinions.
This reasoning is a classic example of building a house on shifting sand.
Suppose, for example, that today's Supreme Court might require that health- of-the-mother or disabled child exceptions be attached to any abortion restriction. How is this a relevant factor? Today's Supreme Court will not render a judgment on any proposal passed this year.
If experience is any guide, a bill that becomes law and is subsequently challenged in court (and history shows that virtually any abortion law will be legally tested) will be adjudicated by the nation's highest tribunal in two to four years. Time and the Supreme Court will not stand still.
The questions fairly leap out. How does anyone know who will be on the Court in two to four years? And how does anyone know that current justices' opinions won't be modified in the intervening years? Certainly, abortion decisions will be rendered in the coming three or four terms that will set even newer, perhaps clearer standards for what the Court considers constitutional.
To claim that legislation passed today will meet the constitutional requirements of the future is unjustifiable speculation.
The drafting of legislation to satisfy the perceived requirements of one or two "swing votes" on the Supreme Court brings into question the entire issue of what should be the basis for pro-life legislation.
Since the Supreme Court has decided to legislate the abortion issue (rather than declare that protection for the preborn already exists in the Constitution), the temptation to construct measures to please individual Supreme Court justices is strong. However, ignoring for the moment the practical problems cited above concerning the "tailoring" of legislation to satisfy the Court, is this practice really what the Founding Fathers had in mind when they created the separation of powers?
The legislature, not the judiciary, is supposed to write the bills. Alas, even though today's mercurial judicial branch is drafting, in effect, its own abortion code, the question remains, should the pro-life movement rely on the Supreme Court as its ultimate legislative guide and authority?
Do Polls Grant Personhood?
Considering what should be the basis for legislation leads to the next rationale for "exception" bills: namely, that bills with life-of-the-mother, rape, incest, health-of-the-mother, fetal disability, or other exceptions reflect current public opinion on abortion as evidenced by opinion polls. Thus, says the argument, bills with exceptions will be irresistible to uncommitted legislators and put the pro-abortion forces on the defensive.
There is, of course, no problem with being politically astute and attempting to frame issues in such a way as to make them politically palatable to a wide range of people.
However, here, where a bill would say that some babies may live and some may be killed by virtue of public opinion polls, the very core of human dignity is offended.
It is bad enough that state legislators even have to vote on whether innocent people are allowed to live. What does it say about the right-to- life movement when it actually frames proposals on this "thumbs up, thumbs down" mentality?
Even if one casts aside concerns about the propriety of basing life-and- death legislation upon opinion polls, frequently, the practice doesn't even make sense.
Most opinion polls cited to justify the use of "exception" legislation are national polls. They represent a sampling of opinion from all 50 states. Yet, a bill will only cover one state.
What this means, for instance, is that the citizens of Idaho would be asked to base their law on the opinions of people in New York, California, and Florida. Yet, logic would dictate that if someone wanted to mold Idaho legislation to public opinion, the opinions used should be those of the citizens of Idaho.
This is a minor point, however. Regardless of whether one uses national or state opinion polls to declare that certain classes of babies may not be protected, the idea of taking a poll to see who shall live offends the sanctity of human life. While the pro-life movement may be forced to play in the legislative arena in order to protect preborn babies, it must not promote the notion that the shedding of innocent blood is a "yea or nay" proposition.
Pragmatism Devoid of Principle-Is It Logical?
Thus far, this essay has addressed the principles and recent strategies involved in pro-life legislation. However, if one believes that he may be able to save over 90 percent of all preborn babies by ignoring or rationalizing away the importance of principle, the enticement may be strong enough to take a completely utilitarian approach to this moral issue.
Before throwing principle to the wind, though, it is important to review again the gap in logic created by "exception" legislation.
In her article "Facing the Hard Cases" (Human Life Review, Vol. IX, No. 3, p. 19), Mary Meehan writes of how exceptions undermine the position of the right-to-life movement. She cites a telling anecdote from the historic Doe v. Bolton legal action decided in 1973:
A key case was provided by a Georgia statute that permitted abortion in cases where pregnancy would endanger a woman's life or cause serious and permanent damage to her health, where the unborn child apparently had a serious and permanent defect (either mental or physical), and where pregnancy was due to rape. The lawyer, who defended the Georgia statute before the U.S. Supreme Court in 1972 had great difficulty explaining the state's commitment to protect the unborn in view of the exceptions allowed. One of the justices under- scored the weakness of her case when he asked: "Is there any other statute in Georgia which says under certain conditions you can kill somebody?"...
In asking his question of the Georgia lawyer, the justice had struck the Achilles heel of exception statutes with a sledge hammer. Most anti-abortion groups have not forgotten that lesson. [Meehan, cited above, at pp. 19-20.]
Ms. Meehan's article is from 1983, yet her words are very appropriate for today. For although it is safe to say that no one who is part of the right- to-life cause favors the abortion of any child, the advocacy of "exception" bills continues inside the movement.
The great tragedy here is that by proposing and supporting "exception" legislation, one abandons principle (and the babies of rape, incest, disability, etc.) for very little in return.
It is time to take a pragmatic look at exceptions.
The Disabled Child Exception
Perhaps the most surprising exception advocated for "pro-life" legislation is one that would allow the abortion of babies who "would be born with profound and irremediable physical or mental health disabilities."
Regardless of how one may attempt to argue that this clause, or any other wording of a disability exception, would permit just a few abortions of only the most handicapped children (which is, to say the least, highly debatable), one is still left with an inescapable fact: the clause denies rights to persons on the basis of their handicaps.
The argument framed by a disability exception, then, becomes, which handicapped children will have a right to life?
That this eugenics-tinged argument is offensive and contrary to the principle of personhood is readily apparent. Yet, if this provision were enacted, who exactly would be aborted? It is difficult to predict.
Preborn children with "physical or mental disabilities" deemed "profound and irremediable" could be aborted under such an exception. Would not Down's syndrome be termed "profound and irremediable"? Would not a host of "disabilities" become "profound and irremediable" if a woman wanted an abortion and an abortionist were willing to accommodate her?
Some disability exceptions also require that a physical or mental disability be "incompatible with sustained survival." This, of course, raises the question, what is sustained survival?-Six months? Five years? Twenty years? If someone's projected lifespan were a maximum of 40 years, could he be aborted under a disability clause?
And while pondering which disabled children would be considered suitable to be allowed to live, additional factors complicate the question: the reliability of prenatal testing; the possibility of misdiagnosis; or the uncertainty of a diagnosis. Then there is the "odds" question-if there is a 70 percent chance of a child being born with a disability, would the abortion be permitted? How about a 50 percent chance of a disability? Five percent?
The more one delves into the problems raised by a disability exception, the more one realizes its central problem, its inhumanity. There has only been one perfect individual in history. The rest of humanity has disabilities to one extent or another. If the right to life is dependent upon physical or mental stature (or political popularity), many people are in big trouble.
The disability exception also raises deep questions with regard to the issues of infanticide and euthanasia. How would the right-to-life movement reconcile its acceptance (even if only temporary) of the killing of disabled people before birth and its refusal to accept their termination after birth? Why should the movement be "political" on preborn persons and "noncompromising" on those who are born?
As a society, the United States has become more sensitive to its handicapped citizens. Congress recently enacted civil rights protections that reinforce the belief that all persons are entitled to equal protection under the law. The disability exception is a giant leap backward in the recognition of all persons' rights.
The Rape Exception
The rape exception is one of the most commonly discussed with regard to abortion legislation. The exception's popularity and political appeal derive from the public's general abhorrence of the crime of rape. With an event so horrifying, so offensive, the temptation is strong to want to do away with anything-even a child-that brings to mind this violation of an innocent woman.
Yet, if innocent life is to be protected, the child conceived by rape must be allowed to live.
The preborn child is not responsible for the crime committed upon his or her mother. If aborted, this child would receive a punishment far greater than anything given to the rapist. The baby would be killed for the sins of his or her father.
The ordeal of a woman who carries the child of a rapist cannot be minimized. However, the injustice suffered by the rape victim does not diminish the fact that to kill a child is unjust. And the abortion of the child produced by rape does not erase the scars of the violation. The trauma only compounds- where there was one victim, there are now two.
That rape rarely results in pregnancy is well documented, but the fact that very, very few pregnancies result from rape would not necessarily mean that very, very few abortions would take place under a rape exception.
Ferris B. Lucas, Executive Director of the National Sheriffs' Association, stated in 1977 concerning federal legislation:
We do, however, wish to comment on the...provisions that would allow federal funds to be paid for abortions performed for treatment of rape or incest victims only...The wording would lead a person desirous of an abortion to make false reports to law enforcement agencies which would have to be checked and investigated at some length. These crimes are not easy ones to prove or disprove and resultantly require many manhours of investigation.
Of course, after an incident of rape is alleged or reported, the abortion may take place prior to the completion of any investigation.
The rape exception raises an additional, perhaps unexpected problem. The woman who becomes pregnant from rape faces a second victimization from her rapist-he can defend himself by alleging that she is claiming rape only to obtain an abortion or receive public funding for one.
Finally, an honest discussion of the rape exception must take note of the role racism plays in the exception's popularity. The great unspoken fear among some whites that a black man could rape a white woman and thereby create an interracial child certainly fuels support for the availability of abortion for rape victims. Mary Meehan (in the Human Life Review article cited previously) writes of instances where the National Abortion Rights Action League has subtly exploited race prejudice in promoting abortion for cases of rape.
Yet, the answer to this fear is not to cave in to racism-it is to uphold life. Ms. Meehan quotes Dr. Carolyn Gerster at the 1982 National Right to Life Convention in calling the abortion of a child because his father is black "intrauterine lynching." The child of the rapist is entitled to equal protection in the womb as well as after birth.
The Incest Exception
Incest frequently has similarities to the crime of rape. In fact, unless an adult woman consents to the act, an incestuous union may also be categorized as rape.
With incest, as with rape, justice demands that a child not be punished for the sins of his or her father; and clearly, the abortion of a child of incest would not take away the anguish, shame, and pain of the woman or girl who is victimized.
Further, abortion does not end any form of abuse. In the case of incest, abortion can empower the abuser.
Incest may involve multiple violations that continue unreported for years. Abortion in these cases is more of a convenience, if not a relief, for the man involved-the evidence of his crime is destroyed.
After the child is killed, the incest can continue, while the destruction of the young woman's spirit and soul becomes all the more devastating.
What the victim of incest needs is not abortion, it is intervention-a third party to help.
The incest exception also involves issues relating to the disabled child exception. Some studies indicate that inbreeding may increase the chances that a child will be disabled. Here, it is important to remember that such a consideration is not applicable to all cases of incest. If the perpetrator is the victim's stepfather or other non-blood relative, a genetic "defect" in the child produced would be no more likely than it would be in a non- incestuous union.
Still, the fact must be faced that an incestuous act, or for that matter any sexual union, may produce a child with a mental or physical disability. The basic question again arises, should the right-to-life movement say abortion is permissible if the preborn child is less than physically perfect? (See: The Disabled Child Exception, supra.)
The Life-of-the-Mother Exception
Perhaps the most readily accepted and understandable exception to any abortion statute is the one to protect the mother's life. Most laws prohibiting or restricting abortion make allowances for pregnancies that "endanger the life of the mother."
However, thanks to modern medicine, even this exception is not necessary to protect women's lives.
Dr. Roy Heffernan of the medical school of Tufts University stated in 1960:
...anyone who performs a therapeutic abortion is either ignorant of modern medical methods or unwilling to take the time and effort to apply them. [Thomas J. O'Donnell, Morals in Medicine (Westminster, MD: Newman Press, 1960), p. 159; as quoted by Hadley Arkes in First Things (Princeton, NJ: Princeton University Press, 1986), p. 398.]
Alan Guttmacher, the late Planned Parenthood official and abortion advocate, wrote in 1967:
...it is possible for almost any patient to be brought through pregnancy alive unless she suffers from a fatal illness such as cancer or leukemia; and if so, abortion would be unlikely to prolong, much less save life. [The Case for Legalized Abortion (Berkeley, CA: Diablo Press), p. 9; as quoted by Hadley Arkes in First Things (Princeton, NJ: Princeton University Press, 1986), pp. 397-398.]
Obstetrician and gynecologist and former abortionist Bernard Nathanson, M.D., P.C., flatly stated in 1990:
The situation where the mother's life is at stake were she to continue a pregnancy is no longer a clinical reality. Given the state of modern medicine, we can now manage any pregnant woman with any medical affliction successfully, to the natural conclusion of the pregnancy: the birth of a healthy child. [Written statement to the Idaho House of Representatives' State Affairs Committee, February 16, 1990.]
Conditions do exist, however, where life-saving treatment of a mother necessarily results in the death of a preborn child. These treatments, though, are legally and morally not considered abortion.
If a pregnant woman suffers from cancer of the uterus and her condition is such that treatment cannot be safely postponed until a viable baby can be delivered, the woman could legally receive medical care even if the law allowed no abortions whatsoever. In spite of the fact that radiation treatment or actual removal of the uterus would result in the death of a preborn child, such an action is not an abortion because the intent of the procedure is not to destroy the baby-it is to provide the best care possible for the mother without directly attacking the child.
Similarly, if conception results in an ectopic (tubal) pregnancy requiring diseased tissue in the Fallopian tube to be removed (thereby necessitating the removal of the child with the tissue), the operation is not an abortion because there is no intent to commit one. The diseased tissue (which must be giving evidence of active hemorrhaging) not the baby, is the target of the doctor. The absence of a life-of-the-mother exception would not prevent life-saving treatment from being administered.
One may ask at this point, "If there are no cases where a woman's life is threatened by pregnancy, what harm could come from a life-of-the-mother exception?"
The harm comes in the creative interpretation abortionists give to such an exception.
Under the Hyde Amendment, federal Medicaid money may be used to provide an abortion where the life of the mother would be endangered if she carried her child to term. In 1986, the Inspector General of the U.S. Department of Health and Human Services issued a report (Control No. 14-60150) concerning some 207 abortions performed in Ohio and Colorado for which doctors received Medicaid reimbursement.
[The report] showed that of 207 "life-of-the- mother" abortions, 179 were performed in physicians' offices! HHS found that 182 were not coded as involving medical complications-surely strange where a woman's life was in danger!
Further, according to the Inspector General's report, three "physicians" who performed 89 percent of the 207 abortions under review "said that pregnancy was more life-endangering to a mother than an abortion, so they signed the certifications on that basis..."
A Colorado abortion clinic director claimed that "his extensive research has showed [sic] that carrying a pregnancy to term is about 100 times more life threatening than having an abortion. He, therefore, considered any pregnancy life-threatening and used that as justification for certifying that the mother's life was endangered. ...[A] review of the medical records for 15...abortions showed that the psychiatrist who evaluated the patient routinely claimed that "if this woman was forced to carry this pregnancy to term it might well present a threat to her long-term mental health and even possibly to her survival." [Robert G. Marshall and Judie Brown, "Are Exception Clauses Pro-Life?" A.L.L. About Issues, July-August, 1987, p. 25-26.]
Law professor Charles Rice quotes Dr. Michael Burnhill of the National Abortion Federation as saying on the April 22, 1980, MacNeil/Lehrer Report that a life-of-the-mother exception would permit him to perform whatever abortions he thought were "medically necessary." This would include abortions to preserve the mother's "health," which he defines as a "condition in which one can actively participate in one's total life, that you are not a cripple or an invalid" (The Human Life Amendment [American Life League, 1986], p. 19).
Basically speaking, if the medical profession, as a whole, adopts the views of the doctors mentioned above, a life-of-the-mother exception would result in abortion on demand. If every pregnancy is viewed as a threat to a woman's life, any abortion then becomes justifiable under a life-of-the-mother exception.
The Health-of-the-Mother Exception
The problems with this exception are similar to those of the life-of-the- mother exception: the "health" exception is not medically necessary and creates a potentially large loophole.
If killing a child is not necessary to save a mother's life, how could it be necessary to protect her health? Indeed, a study done in Hawaii after the repeal of the abortion law there found no "medical" reasons given by respondents as to why they had had abortions. (See Steinhoff, Smith, and Diamond, "Characteristics and Motivations of Women Receiving Abortions," in Abortion: Hearings [Senate] 2, pp. 736-39, as quoted in James T. Burtchaell, Rachel Weeping [New York, NY: Harper and Row, 1984].)
The medical establishment itself has not been able to determine objectively when an abortion is "necessary" for health reasons:
A clear definition of what constitutes a medical indication for pregnancy interruption remains to be established. It is our opinion that the medical advice for termination of pregnancy has to be carefully evaluated in each patient, taking into account a variety of factors...objective factors ...subjective factors...financial considerations, social considerations...It should be recognized, however, that fetal factors should never enter into a consideration of a "medically indicated" abortion...[Norbert Gleicher, M.D., and Uri Elkayam, M.D., "Birth Control and Abortion in the Cardiac Patient," in Cardiac Problems in Pregnancy: Diagnosis and Management of Maternal and Fetal Disease, edited by Uri Elkayam, M.D., and Norbert Gleicher, M.D., (New York, NY: Alan R. Liss, Inc. Publishers, 1982), p. 307.]
What these doctors are saying (in a medical text, no less) is that non- medical considerations may be used to determine when an abortion is "medically indicated." One must ask, if the medical establishment has no objective standard as to when abortion is "medically indicated," how is anyone, especially a court of law that relies on expert medical testimony, to determine what is or what is not an abortion justified by health considerations?
Recently, some "pro-life" bills have attempted to restrict abortions allowed by health exceptions by using language such as "severe and long-lasting physical health damage." However, the fact remains that the very people who profit from the abortion industry, doctors, will define what is "severe and long-lasting physical health damage" if this language is adopted into law. How narrowly can they be expected to define these terms?
The "Known to Be Pregnant" Problem
In addition to the various "exceptions" occasionally included in abortion restriction bills, there is another loophole not uncommon in pro-life proposals. It may be found in a measure's definition of the term "abortion."
Many bills define "abortion" as taking place only when a woman is "known to be pregnant." That is, for an abortionist to be found in violation of the law for performing an abortion, he first would have to know that the woman in question is carrying a child.
At first glance, this appears non-controversial. However, with such a definition in place, a great many first-trimester abortions could never be prosecuted. These abortions could be performed as "menstrual regulation."
Today, if a woman misses a period or two, she may visit a doctor for the purpose of "menstrual regulation." The physician may then perform a suction evacuation of the uterus known as "menstrual extraction," "endometrial extraction," or "uterine aspiration." The lining of the uterus, and any preborn child who may be present, is thereby removed.
This procedure may be performed upon a woman without first obtaining a pregnancy test-thus, a woman may receive an abortion without actually being "known to be pregnant."
Currently, "menstrual regulation" is performed up to 56 days after a woman's last menstrual period. The potential for abuse of this procedure is enormous.
To quote a pro-abortion publication:
Today, a woman faced with a possible but unconfirmed and unwanted pregnancy can walk into a health services clinic or doctor's office and often within twenty minutes have her endometrial lining extracted...[and] since menstrual induction can be performed before a positive pregnancy test is obtainable, it is hard to prove that menstrual induction is an abortion procedure. [Holtrop & Waife, Uterine Aspiration Techniques in Family Planning, 2d Ed., The Pathfinder Fund, 1979.]
According to the United States Statistical Abstract, more than 800,000 abortions (over 50%) are performed each year before the ninth week of pregnancy. If abortion-restricting legislation is passed that requires a woman to be "known to be pregnant" before an operation is considered an abortion, all of these 800,000-plus abortions could still be performed using "menstrual extraction" techniques.
Consider this scenario:
A woman believes she may be pregnant, obtains a positive result from a home pregnancy test, and then decides she wants an abortion. The woman visits a "family planning counselor" who "gives her information on her options."
The woman then proceeds to the physician to whom she was referred by her "counselor" complaining that she has missed one or two periods. The doctor recommends "menstrual regulation." The woman says nothing about her positive pregnancy test and the doctor, knowing full well that the possibility of pregnancy exists, doesn't ask. The physician performs a suction procedure without first obtaining a pregnancy test (thereby, incidentally, reducing his costs). An abortion has taken place.
A week later, the woman experiences remorse. She attempts to have criminal charges brought or to file a civil action for damages (depending on the penalties for abortion) against the physician. The abortionist wins because he has an absolute defense: he didn't "know" the woman was pregnant.
This scenario could be replayed continuously in a mockery of the intent of the law's sponsors. A prosecutor or plaintiff would be helpless to build a case against an abortionist who purposely makes a practice of not "knowing" whether any of his patients are actually pregnant.
A statute, then, containing the "known to be pregnant" clause in its abortion definition could permit virtual abortion on demand during the first eight weeks of pregnancy, when more than one-half of all abortions occur.
One may ask why pro-life legislation would have this clause in the first place. According to an author of one such bill, abortion must be defined this way so as to avoid the issues raised by abortifacient/contraceptives such as the intrauterine device. If a woman must be "known to be pregnant" for an abortion to take place, then any abortion that is caused by a so- called "contraceptive" is, legally, not an abortion.
In short, measures may contain the "known to be pregnant" clause because their sponsors do not wish to deal with abortions caused by "contraceptives." Yet this "political" decision brings about a lose/lose situation-by not addressing the killing of the youngest, tiniest children, such a strategy also writes off the lives of those who may be terminated by "menstrual extraction."
The Viability Trap
Measures that establish viability (or a corresponding number of weeks of gestation) as the point at which babies may be protected are a double-edged sword that could fail to protect not just younger preborns, but the born as well.
Phrased another way, if the idea were to take hold in legislatures and society that viability is a suitable standard for establishing personhood, there would be no stopping the euthanasia/pro-death movement.
Viability is a subjective term that could apply not only to the early stages of a person's life, but also to adulthood. If viability generally means being able to survive on one's own, then those in comas, those who are terminally or even seriously ill, or those who for whatever reason cannot care for themselves could all be considered non-viable persons.
If a human's rights, then, were dependent upon his or her viability, countless born as well as preborn persons could simply be defined out of existence by legislatures or the medical profession.
The personhood principle holds that one's age or stage of development has nothing to do with whether or not one is a person with rights. Viability statutes, while they do not explicitly state that certain preborn babies may be legally aborted, certainly do harm to the rule that all persons, regardless of age, have a right to life.
The "Horizontal/Vertical" Distinction Lacks an Important Dimension
One pro-life leader has taken to categorizing abortion legislation; two of the categories are "horizontal" and "vertical."
So-called "horizontal" bills are those that would establish protection for preborn babies at viability or at a certain number of weeks of gestation. "Vertical" bills are defined as those that would stop "abortions done for certain reasons."
According to the author of these classifications, "horizontal" measures should be flatly avoided by the pro-life movement, but "vertical" measures highly promoted.
Well...yes and no, respectively.
As noted earlier in this essay, viability/age bills (called "horizontal" legislation) set an artificial standard for determining the protectable rights of human beings: one's ability to survive or one's age. Under these measures, one must earn his or her right to life-something akin to "survival of the fittest."
Clearly, so-called "horizontal" legislation should be avoided if the personhood principle is to be established in the minds of the public and of legislators.
Should "vertical" bills be advocated, however?
"Vertical" bills, again, are those that prohibit "abortion for certain reasons." In theory, such measures would not explicitly allow selected abortions to take place legally, merely prohibit a defined classification of abortion. In reality, though, most such measures don't work that way.
For instance, bills that prohibit "abortion as a method of birth control" are not just "vertical" measures that ban abortions done for reasons of "birth control," they contain exceptions that specifically permit certain babies to be aborted without penalty.
Under these bills, abortions done ostensibly to protect a woman's life or physical health, or because the baby has a disability, or because the baby was conceived by rape or incest, are declared legal.
The "vertical" category clearly includes bills that propose exceptions. Why, then, is it that the author of this "horizontal/vertical" classification system opposes "horizontal" bills, yet supports "vertical" legislation?
Numbers.
He says that bills to stop "abortion as a method of birth control" would allegedly stop more abortions than would bills to prohibit abortions performed after 12 weeks of pregnancy.
Numbers and images.
He reasons that since legislators are more inclined to protect late-term babies, it would be very difficult, politically, ever to obtain protection for younger preborns once, for example, abortions after 12 weeks of pregnancy were banned. However, this problem would not affect the "abortion for birth control reasons" bill, he claims.
He writes that pro-lifers could return to the legislature to delete the measure's exceptions because many of the "hard case" abortions it would allow tend to be those of late-term babies. How he would argue, though, for making illegal the abortions that he previously declared in his own legislation should be legal is not explained.
Even assuming, though, that one could prevent 90 percent of all abortions with one bill, would that fact alone justify drafting or advocating a measure that declares certain babies may be legally aborted?
Is not how one stops abortions important?
For instance, a great many abortions could be stopped by destroying abortion facilities. It would be easily foreseeable, though, that such violent activity would jeopardize the lives of innocent people within or near the facilities, as well as violate laws and property rights. Does the fact that a great many abortions would no longer take place justify the taking of even one innocent life in this case? Of course not.
The number of lives spared from abortion should not be the sole measure by which tactics are judged. In legislation, as in life, principle must be the guide. To use a cliche, the end does not justify the means.
A Note on "Consent" versus "Notification"
Which is better-parental consent or notification? Spousal consent or notification? Informed consent or simply requiring that a mother be informed prior to an abortion?
Upon casual consideration, there might not appear to be much difference between consent and notification. The subject demands more than casual consideration, however, for there is a very important distinction between these two very popular categories of legislation.
To briefly summarize-"consent" proposals violate the principle that the right to life is unalienable; notification measures are valid expressions of the rights of parents, spouses, and patients.
The consent of one person to another's killing does not legitimize or legalize the taking of that human life. This is because no person or government possesses the authority to sanction the taking of innocent life. As the Declaration of Independence states, the right to life is unalienable- it cannot be transferred.
Because there is no right to consent to another's killing, then, "consent" legislation is really not consistent with a pro-life ethic.
Is there a mechanism, though, to involve parents, husbands, and others, or to insure that a mother knows the true nature of abortion? Yes, its name is notification.
Notification does not declare that a person must approve of an abortion before it may occur. It grants no right to any person to authorize the killing of a preborn baby. It simply states that certain people have a right to know that a child to whom they are related is facing the possibility of imminent death-and that the mother of that child risks health complications for herself.
Notification statutes, in principle, do not violate either the sanctity of human life or condone its destruction. In addition, such measures are independently justifiable as protecting the rights of people who would be affected by abortion: the preborn child's father and/or grandparents-even the mother.
This issue covers not just parental and spousal notification, but "informed consent" as well. If the right to life is truly unalienable, a mother has no right to consent to the killing of her child. Still, a woman may be properly notified of the development of her child, of the abortion procedure to be used and its potential risks and complications, and many other facts.
And while notification is not really an abortion issue, but a parents'/ spouse's/patient's rights issue, it does have a dramatic impact upon human behavior regarding abortion.
A study of Minnesota Department of Health data has shown that during the four years of a Minnesota parental notification law's enforcement, the pregnancy and abortion rates for teenagers decreased significantly (James L. Rogers, Ph.D., Robert F. Boruch, Ph.D., George B. Stoms, B.A., and Dorothy DeMoya, D.N.Sc., "Impact of the Minnesota Parental Notification Law on Abortion and Birth," American Journal of Public Health, Vol. 81, No. 3 [March 1991] 294-298).
Thus, while consent laws may seem to be "more pro-life" than those requiring notification because they would appear to make abortion more difficult to obtain, in fact, they are not.
Notification statutes have proven to be an effective way to reduce the demand for and the performance of abortions. And they are based upon sound principle. Notification measures protect a valid right to know-not a non- existent right to approve of another's killing.
Implications and Perceptions
Some may have read all of the preceding material in this essay and still said to themselves, "Principle is fine and dandy, but how can you say that a parental notification bill doesn't violate personhood and an 'exceptions' measure does? Don't both bills 'allow' abortion?"
Yes, both of these types of legislation would "allow" abortion to continue to take place, but there is a crucial distinction between the two-the exceptions bill would specifically legalize abortion in some cases; the notification measure would only regulate a process that was made legal by a different law or a court decision.
The personhood principle is violated when the words of a legislative proposal actually declare certain abortions or all abortions to be permitted by law-authorizing the killing of even one innocent child is inconsistent with the fact that all babies are persons with rights.
Personhood is also violated when a measure's language explicitly states that the bill will not apply to abortions performed on certain classes of babies-spelling out different treatment for certain children in this way denies the inherent equality of all persons.
Yet, in cases where the words of a bill do not violate the personhood of any baby, the average person may still receive the impression that, for instance, a notification measure or a clinic regulation proposal is really saying that abortion is acceptable so long as it's done "properly."
A bill's implied message, then, is something that pro-lifers must carefully weigh when thinking about legislation.
Informed decision-making, parental notification, or clinic regulation bills in no way (if drafted properly) deny the personhood of any child, yet they could be perceived as implying that abortion is tolerable if done in accordance with the rules they establish.
In this sense, then, so-called "regulatory" bills could, in an indirect way, diminish the personhood argument. If legal and social acceptance of the preborn's personhood is the goal of the pro-life worker, the public's perception of legislation is not an insignificant consideration.
Conclusion
In politics, one usually hears of "principle" and "pragmatism" as opposing forces. Conventional wisdom dictates that a person must compromise his or her fundamental convictions in order to achieve limited success in the imperfect world of politics.
Indeed, politicians do compromise their positions, even their beliefs, as much to avoid defeat as to gain victory.
The pro-life movement, though, while participating "in" the world of politics, is not "of" it. Because the pro-life cause is based upon and fueled by moral truth, it cannot betray that truth by promoting a measure that declares the killing of certain innocent lives to be legal.
If it is to succeed, the pro-life movement must maintain its status as a moral crusade, not become a backroom political caucus.
The public knows that fundamental truths are unchanging. Unless they have firm convictions about an issue being debated, people are likely to view the side that never wavers as the side that is morally correct.
Today, the right-to-life movement is wavering while pro-death partisans defend their own "hard cases" on the so-called principle of "choice."
When opinion polls show that three-fourths of the American public support parental notification legislation, does the pro-abortion lobby seek compromise? No, they launch a campaign to repeal parental involvement laws.
When an even greater percentage of the public opposes sex selection abortions, do Planned Parenthood, the National Organization for Women, the National Abortion Rights Action League, and their ilk concede that aborting a child for its sex is offensive and that since a law against such a practice wouldn't really stop any abortions anyway, maybe they would not oppose such a measure? No, they say that because of the principle of "choice," there can be no limits whatsoever on any abortion.
Just as the politician who "flip flops" loses credibility with the public, so will a movement that acts in direct contradiction to its basic premises. The pro-aborts know this. Pro-lifers must not forget it.
How, then, should the battle be waged?-By remembering at all times that the ultimate goal is not passing legislation, but changing hearts and minds. If respect for human life is restored to society, laws protecting all persons will naturally follow.
This does not mean, though, that pro-lifers should wait for popular culture to recognize the personhood of preborn babies before working in the legislatures.
The law is a tremendous moral teacher. What is written into a government's code is inherently a statement of "right and wrong," what some like to call an "imposition of morality." As such, the legislative process serves as a forum that not only educates and persuades lawmakers and the public, but also shapes values and beliefs.
Legislation, then, is the pro-life movement's banner, its statement of policy. It tells elected officials and potential candidates what right-to- lifers expect of them. It also delivers a message to the public.
This message can be that abortion is dangerous to women; therefore, women must be assured of legal avenues to seek redress for injuries sustained by abortion.
The message can be that no abortion should be subsidized by taxpayers; therefore, public funds, facilities, and employees should not be used for abortion.
The message can be that all human life has value and meaning; therefore, so-called "wrongful life" or "wrongful birth" lawsuits have no place in our society.
Finally, the message can be that abortion kills a living person; therefore, abortion should be illegal. This message, which ultimately applies to every proposal outlined above, as well as others, must also stress that because all persons in America are guaranteed equal protection under the law, no one should be legally killed simply because he or she is handicapped, unwanted, or unpopular.
Abortion can be stopped. But it can only be stopped by speaking the truth.
It is absolutely imperative that pro-life groups, when offering legislation to protect the innocent, act consistently with the two simple truths, all preborn babies are persons, and all persons have the right to life.
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Copyright 1990, 1993, 1994 by: American Life League, Inc. P.O. Box 1350 Stafford, VA 22555 (703) 659-4171
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