Should the law prohibiting abortion allow for exceptions? Specifically, to save the life of the woman and in cases of pregnancy due to rape or incest? A law incorporating such exceptions is advocated either because its proponents feel that such exceptions are justified and called for, or because they believe no other law is possible, that a law that mandates an exceptionless prohibition stands no chance of passage. They then argue that it is better to have a law that bans almost all abortions, and saves many lives, than the present situation (in the United States, and in much of the rest of the world) in which there is, in effect, abortion on demand. "Better to save most babies and allow a few to be killed, than to allow the number of abortions we have today."
The motives of such people are noble. They want to save as many lives as possible. And surely it is better to save some than none at all. If a thousand innocent people are about to be exterminated by the Nazis, and we can rescue only some, we should, of course, do so: better to save some than none at all. But is an abortion prohibition with an exception clause parallel to this?
In analyzing the question of exceptions. I will begin with the rape/incest case, then discuss the "life of the mother" case, and finally the question of exceptions regarding the IUD and other abortifacients.
A law is enacted that says, in effect: Abortion is wrong; it is prohibited, except if the woman is pregnant due to rape or incest. Then abortion is permitted. What it says is that it is wrong to kill almost all babies in the womb, but all right to kill a few. For a child conceived in rape or incest, the law says, "You may kill this child for the benefit of his mother."
Even in the case of rape or incest, there is a child present, a real person, essentially like the rest of us. Abortion is murder, and remains murder when the victim is conceived in rape (or incest). The child is absolutely innocent, completely her own person, not a part of her father's character, just as she is not a part of her mother's body. Even assuming abortion benefits the woman, we cannot kill one innocent person to benefit another. The child has no duty to give up her life to try to benefit her mother, and we may therefore not force her to do so by killing her. If we do not kill the rapist for his crime, still less should we kill the child who has committed no crime. Abortion for rape is not a solution because it is an assault on the woman, a cure that aggravates the disease, and because it does not address the real problem of rape pregnancies (the social stigma against the woman and her child). And finally, abortion in the case of rape is more of the same: first a horrible violence against the woman, then a horrible violence against the child. For all these reasons, abortion in the case of rape (and incest) is not justified.
The child in the womb conceived in rape or incest has the same right to have her life protected by law as anyone else has. This means there can be no exception in the law for rape or incest. There are two fundamental reasons for this, one concerning the principle at stake, the other, the practical effects. The second follows naturally from the first.
First, the question of principle. A law that incorporates the rape/incest exception means that murder is given the blessing of law in certain cases. "Yes, go ahead, you can murder this child, since his conception was due to rape." The law can never allow murder. A law that does so is not only a gross injustice in itself but also a contradiction to the very meaning of law, the upholding of what is right and just in the public domain. That is, the whole law prohibiting abortion would be fatally flawed by this exception clause. Such a law could never be a genuine prohibition of murder of the child when it makes an about face and says, "Yes, you can murder this child." The exception clause would mean the breakdown of the entire law. It would no longer have a foundation to stand on. It would not be like the removal of one checker from a board of checkers, leaving the rest intact. It would be like removing the foundation of a building: the whole building would collapse. For the foundation of the law banning abortion is that abortion is murder. If the law allows murder, it has destroyed itself.
Such a law admits that abortion can be justified under certain circumstances, namely rape or incest. But if in these circumstances, why not also others? The question is surely a reasonable one. And with it we come to the second part: the practical effects of a law that allows the rape/incest exception. There are six specific points:
Such a law will be challenged. On what basis is abortion to be prohibited in all other cases? Is it because there is a child there, and abortion is murdering that child, and the law may not allow murder? But that applies equally to the child conceived in rape. If abortion in such a case is allowed, the reason just given can't be the basis of the prohibition. By allowing murder, the law defeats itself. It invites a challenge that is not only perfectly reasonable, but cannot be met by those who agree with the exception law.
That is, in proposing or agreeing to an exception law, we would surrender everything that is essential to protecting any infant in the womb. We would forfeit our chance to enact any legal protection for preborn infants. We would grant our opponents who favor allowing abortion the idea that the child may be killed for the benefit of another. Granted, we would be conceding this in only one area, but it would be the crack in the door.
If the exception for rape or incest is granted, should we then have another exception based upon pain and trauma from other causes? To deny such a request at this point would be impossible. If trauma and pain due to one cause are to serve as a reason for permitting abortion, then the similar trauma and pain for another cause must be given the same privilege. There is a further, very serious problem. How much pain and trauma are to be counted as sufficient? How are they to be measured? Who is to decide? The decision will be left to a psychiatrist and other doctors. In practical terms, it will mean that a woman seeking an abortion has only to find a doctor willing to certify, in his professional judgment, that she needs an abortion for psychological reasons. When she does, no one will be able to dispute this doctor's claim. We will no longer be able to appeal to the state for protection for the innocent. We will have surrendered that element in the law that allows for exceptions.
The first of the two fundamental reasons for rejecting a law with exceptions, namely, that it violates principle, is no idle or stubborn clinging to the abstract, in disregard for practical consequences in the real world. On the contrary, the principle that all persons must be respected, that all murder must be condemned by state law, is needed for practical reasons. Abandoning the principle has disastrous consequences in the real world, consequences which flow directly from the surrender of the principle.
It may be claimed that abortion for rape is essentially different from all other abortions to benefit the woman, because in rape she was unjustly coerced. The presence of the child in her represents an injustice, and therefore she may remove him. Two wrongs, however, do not make a right; I cannot try to undo a wrong done against me by doing another wrong - e.1 2ially murder - against another person. The woman cannot try to undo the wrong done by killing the rapist, or the innocent child. Allowing such killing in the name of undoing a wrong is a violation of the principle that all innocent persons must be respected and protected. Holding fast to this principle is not only important in itself but also essential for practical reasons.
Will a rape exception law require proof that the woman was actually raped? If the answer is yes, there are insuperable objections and difficulties. She may be unable to prove it for lack of witnesses. The rapist might not get caught; and even if he is, it is her word against his, with no proof. Forcing her to go through court proceedings is wrong and unrealistic. Even if it were expected, and the woman were forced to submit to it before she could get the abortion, it would take too long. The baby would be far along in development and suffer a late-term abortion. The proceedings might even take longer than the pregnancy itself, thus nullifying the whole intent of the law.
It is clear from this that no requirement for proof could be written into the exception law. This means that a woman could legally claim an abortion on the basis of rape without proof. The mere claim of rape would suffice. It is easy to predict what will happen. Women who feel they need an abortion could claim rape and get their abortions. Family members and others who feel the woman needs an abortion could pressure her into claiming rape. We would be back to where we are now: abortion on demand.
It may be charged that I take a cynical view here, saying that women will lie in order to get an abortion. Those women who claim abortion as a right will understandably see in the restriction to rape clause an unwarranted intrusion into their privacy, a provision in the law put there in order to appease those who want to forbid abortion. They will feel justified in trying to evade this restriction. "If a woman who has been raped can get an abortion, why can't I?" The same applies if it is others who pressure her into an abortion. If we surrender the principle that abortion must be prohibited as murder, that every child in the womb is entitled to the same protection of law that we are entitled to, we really have no answer to this question. In comparison with the horror of abortion itself, and the terrible violation of justice of allowing some preborn persons to be killed with the blessing of the law, a woman lying in order to obtain an abortion is very insignificant indeed.
We are now in a good position to see the essential difference between a genuine concern to save as many people as possible rather than none at all, and a law prohibiting abortion that allows exceptions for rape and incest. A thousand innocent people are condemned to die by the Nazis. We have several trucks, that together hold two hundred people. We can make only one trip. We take two hundred, saving them. We are unable to save the rest. But we do not compromise those eight hundred that we cannot save. We do not say to the Nazis, "It's all right, you can kill these people." But that is precisely what the exception clause in an abortion law would say. A law containing such a clause does not merely fail to save, as in the case of the shortage of trucks, it gives a positive sanction to killing. It enshrines it in the law. That is what is so objectionable, first as a violation of principle, then in its practical consequences, which are essentially the unfolding of the violation of the principle. The exception law must be rejected because written into it is the idea that some persons may be murdered.
It is sometimes said that a law need not, often cannot, include all that should be prohibited. Granted. But the crucial thing, in the present context, is that the law cannot incorporate an immoral principle, such as "You may kill the child if he was conceived under certain conditions." The very purpose and meaning of a law prohibiting abortion is to protect every child, to prohibit murder. An exception for rape is a contradiction to this, a negation of the very essence of the law.
An exception law delivers the message that it's all right to have an abortion under certain circumstances. With this the whole edifice of state protection for preborn persons collapses. "This must mean that abortion isn't really murder, else it wouldn't be allowed in some cases." These are the thoughts that will naturally suggest themselves to people if the law to protect preborn persons contains exceptions.
The practical effects of such a climate of opinion are easily predictable. An exception law will not be respected. It is a law that contains an inherent contradiction, for it is a law that both wants to prohibit murder (in most cases) and also to allow it (for rape and incest). And the exceptions will be widened. Why shouldn't they be, once the idea is accepted, and enshrined in the law, that a benefit for the woman can justify abortion? The exception law would not save most babies as its advocates expect. It would leave us where we are, with a legal system that sanctions murder.
"A law containing a rape and incest exception is all we can get. There seems to be a consensus for that, but not for an absolute prohibition on abortion. Most Americans oppose abortion on demand, but only a minority supports an absolute prohibition."
First, there is every reason to be confident that if the American people fully realize what an abortion is, they will demand an absolute prohibition on abortion, no exceptions. We must make clear the reality of the child in the womb. We must publicize pictures of the child that show he is one of us and may not be destroyed for any reason. We must publicize pictures of the results of abortion. The full impact of the horror of abortion should silence any thought of exceptions. How can one stare abortion in the face and still suggest exceptions?
Second, a law with exceptions is not only a violation of fundamental principles, it is also useless; its practical consequences will be abortion on demand. If we settle for an exception law, we may not get another chance to enact a real prohibition on abortion. We will have compromised ourselves to ultimate defeat. We cannot let this happen. Therefore an exception law is not only useless; much worse, it is something that may close the door to any real protection for preborn persons.
Should the law allow an exception to save the life of the mother? This question has, in effect, already been answered. Abortion is murder, and murder can never be sanctioned by the law. We cannot kill the woman to save the child. Equally, we cannot kill the child to save the woman. We may not be able to save both, we may have to withhold treatment from one if it cannot be given to both, but we may never deliberately kill the one to save the other.
The law should incorporate the three principles discussed earlier, in chapter 10. I propose it include the following section:
If complications arise, all reasonable efforts must be made to save both the woman and the child. Each must be respected and treated equally as a person. Neither may be killed for the benefit of the other, or in an attempt to save the life of the other.
Let us turn finally to the question of exceptions regarding the IUD and other abortifacients. The same principle applies here too: there can be no exceptions, all preborn persons must be given legal protection.
Suppose, however, that a law prohibiting abortion that includes a ban on all abortifacients cannot be passed, that only a law prohibiting surgical abortions, including prostaglandins, can be enacted. Isn't it better to save most of the vast number of babies being killed by these methods, and forego legal protection for tiny infants who would be killed by abortifacients, than to have nothing at all? In addition, enforcement of a ban on abortifacients would pose great difficulties.
This is a difficult question. Let me suggest the following points:
Any law that is passed must be free from all the objectionable compromises discussed above in regard to exceptions for rape and incest. It cannot be a law that contains an expandable loophole.
Specifically, it cannot be a law that explicitly allows early abortions (abortifacients). It could only be a law that omits mention of abortifacients and focuses on outlawing the savagery of surgical abortions. It would have to be a law that represented a real parallel to the example above, of saving some potential victims of Nazi extermination while failing to save others because it is impossible to do so.
If such a limited law could be formulated and enacted, it would have to be seen as a temporary measure. We would have to work vigorously to extend its prohibition to all preborn persons.
We should not, however, assume too readily that a law including a ban on abortifacients cannot be enacted. We must make full use of all the arguments and evidence available to us, primarily all that which makes it clear that a person begins his existence at conception-fertilization, that the zygote-embryo-fetus is a person all the way through and does not become one gradually. We should supplement these arguments with the probability argument (if there is any significant chance that the zygote is a human being essentially like the rest of us - and surely there is - we may not destroy him.); as well as with the "no difference" argument (if the child is to be killed, what difference does it make whether he is killed earlier or later? Either way he is deprived of his entire future life). All of these provide an abundance of reasons to help people realize that a tiny human being near the beginning of his existence is a person too, essentially like the rest of us, and therefore entitled to the same protection of law.
We cannot compromise on this. The most we might do is work in stages, first enacting a law that recognizes the personhood of the victim of surgical abortions, then also the personhood of the victim of abortifacients. There is some parallel to this in the case of slavery in America. The first stage was freeing the slaves from their bondage, the second stage was granting them equal status as persons in society and under the law. Necessary as this second stage is, it was wise to begin with the first stage if the two could not be accomplished together. Just as it was better that blacks be freed from slavery, but without full civil rights, than continuing to be slaves, which is an even greater violation of their civil rights and their dignity as persons. So too it is better to save many babies by giving them legal protection, than to continue the present horror in which no preborn babies are given any protection of law.
But it must be stressed that in such cases legal recognition and protection of blacks and preborn persons - there can only be stages, and not compromises of principles. We could never concede that a black person is not fully a person, or that a tiny infant is not fully a person. If it takes time to awaken people to the full impact of the evil in both cases, we must work in stages. The first stage must be accomplished in such a way that it naturally leads to the second. Abortion by D & C, saline, etc. means killing a small child and must therefore be outlawed. Abortifacients also mean killing a child, merely a smaller child, and must therefore also be outlawed.
There is a difference between a rape exception law and the two-stage procedure tentatively suggested here. A two-stage procedure with no compromises on principle goes in the right direction. A rape exception law goes in the wrong direction. The two-stage procedure affirms that any being who is a person must be given equal protection of law; it only leaves open whether a zygote is such a being. The rape exception law must be condemned precisely because it denies the principle that any being who is a person must be given equal protection of law. The two-stage procedure is thus open to full recognition of preborn persons from the very beginning of their existence at conception. The rape exception law, by its exception clause, closes the door to any genuine and effective legal protection for preborn persons.
posted by: gesn (reply)
post date: 01.28.04 (1:32 pm)
Your arguments only hold water to someone who believes that life beging at conception and not birth. (which is the essential root of the abortion debate IMHO) For anyone who does not agree with your supposition, your treatise carries no weight.
Should the law prohibiting abortion allow for exceptions? Specifically, to save the life of the woman and in cases of pregnancy due to rape or incest? A law incorporating such exceptions is advocated either because its proponents feel that such exceptions are justified and called for, or because they believe no other law is possible, that a law that mandates an exceptionless prohibition stands no chance of passage. They then argue that it is better to have a law that bans almost all abortions, and saves many lives, than the present situation (in the United States, and in much of the rest of the world) in which there is, in effect, abortion on demand. "Better to save most babies and allow a few to be killed, than to allow the number of abortions we have today."