The Alabama Abortion Bill and the Vulnerability of Roe v. Wade

The Alabama Human Life Protection Act signed into state law on May 15th seems to have engendered a noticeable increase in intensity beyond the usual aggrieved progressive response to the introduction of restrictive abortion laws. [1,2] This is somewhat curious, since this is only one of several bills introduced in states this year to restrict abortions. [3] I suspect it is because the sponsors of the Alabama abortion bill have stated that their intent is to directly challenge Roe v. Wade, and that they will focus on the personhood of the baby in the womb:

“It was about creating something that was meant to go all the way to the Supreme Court and it also needed to have the most value when talking about a pro-life bill if you are going to try and pass it,” Collins said. [4]

“The point is it acknowledges there is a baby, there is a person there,” Collins said. “Under Alabama law right now, that baby, that presence, is already acknowledged under current law.” [5]

Although we see every new candidate for the federal judiciary, especially the conservative ones, solemnly intone their fidelity to precedent in the legal system, the composition of the Supreme Court is changing thanks to President Trump, and it may be the case that more conservative justices will find a way to rectify the flawed reasoning established by Roe and subsequent abortion cases.

Personhood

As the Court itself in Roe stated:

“If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. [6]

However, that Court proceeded to reject personhood for the unborn child for two reasons: that existing references to “person” in the Constitution were found to have been applied only in a “post-natal” sense, and also that there was relatively freer access to abortion in the 19th century, indicating that the legal history would not have sanctioned such access if the child in the womb was considered a person.

“All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn.”[7]

This specious argument, of course, does not prove anything. The fact that prior Constitutional language addressing “persons” did not happen to apply to pre-natal existence does not imply any intent by Constitutional authors to deny pre-natal personhood. The Court makes no attempt to explain why those other, “non-natal,” Constitutional references to a “person” would preclude personhood for the unborn child. And with regard to freer access to abortion in the 19th century, what an anachronistic and unconvincing approach to take: reaching back a century, when much less was known about life in the womb, to rationalize rejection of personhood for that life.

The Court then went on to throw up its hands and blame its inability to decide upon the humanity of the unborn child on doctors, philosophers, and theologians:

“We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” [8]

By deciding that the unborn are not persons, the Court backed itself into a corner by taking the irrational position that the unborn child only becomes a fully human person, deserving of human rights, when it manages to exit the womb of its mother. This is tantamount to the Court waving a wand and trying to convince us that some magic descends upon a baby as it is being born, and that magic is what gives it humanity and makes it a person. This is absurd. Think about the wild logic the Court is proposing here. The Court would have you believe that full humanity hovers somewhere outside of the mother ready to whoosh into the baby as it is being born. This magical bestowal of personhood follows no coherent set of rules: a premature baby has this vitally important attribute, while an older baby, just short of full term, but not yet born, unfortunately, does not have it. But we all know the obvious truth and can see the elephant in the room: a child’s humanity has nothing to do with the manner and timing of its birth.

The Court could have gone in another, more judicious direction with the concept of personhood. The Court could have recognized that human life is initiated at conception, and that this human life initiated at conception is new and genetically unique. That is certainly not a proposition that anyone can deny. And the Court could have decided that such initiation itself is enough to warrant establishment of personhood. That at least would have been a decision that had some logical consistency, and would not have lead to the conclusion that the establishment of personhood is to be governed by nothing more than the decision as to whether or not a child should be born.

The Invocation of Natural Law

The Alabama abortion law is not only noteworthy for its focus on personhood, but also for the way in which it justifies personhood. The natural law principle of equality among men, as expressed in the U.S. Declaration of Independence, is used in the Alabama abortion law to make the case for the humanity of the unborn child:

“In the United States Declaration of Independence, the principle of natural law that “all men are created equal” was articulated. The self-evident truth found in natural law, that all human beings are equal from creation, was at least one of the bases for the anti-slavery movement, the women’s suffrage movement, the Nuremberg war crimes trials, and the American civil rights movement. If those movements had not been able to appeal to the truth of universal human equality, they could not have been successful. [9]

This is a particularly appropriate approach, because the Roe Court failed to acknowledge the natural law grounding of our Declaration of Independence and Constitution with respect to the right to life. In its review of abortion history, the Court noted that Christian theology and canon law accepted Aristotle’s theory of delayed animation up until the 19th century, and that therefore there was Christian agreement that abortion prior to animation would not be homicide. [10] Although this appears to imply that the Christian Church would have approved of abortion until the 19th century, the truth is quite the opposite:

“Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law.” [11]

This quotation from the Catechism of the Catholic Church is not exclusively a statement of religious belief specific to Catholicism. It is an element of the natural law tradition which was employed by the Founders to lay the foundation for the rights guaranteed by the Constitution. It was no accident that the right to life was the first of only three natural rights proclaimed in the Declaration of Independence. And as succinctly expressed by Mitchell Kapagian, an abortion law which transgresses the natural law results in disaster:

“The legalization or institutionalization of a practice or policy such as abortion-on-demand does not make it moral because the natural law and God’s justice have greater weight than Supreme court decisions. Roe v. Wade is just as immoral, cruel, and inhumane as the Dred Scott decision that sanctioned slavery and classified blacks as the “chattel” or property of slave-owners.” [12]

Since the Roe Court ignored the natural law, denied the personhood of the unborn child, and could not find itself able to hazard a guess as to when life might begin, it proceeded to establish an arbitrary point, viability, at which the State has an interest in the protection of “potential human life:”

“This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb.” [13]

The capricious nature of this arbitrary approach to assigning humanity to the child in the womb is readily illustrated when we consider the conditions under which abortion is permitted under Roe. In spite of the avowed interest in the protection of viable human life in the womb, Roe authorized abortion for the health of the mother even if the baby would be viable outside the womb.

“For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except [emphasis added] where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” [14]

And then the broad definition of the “health of the mother” in Doe v. Bolton resulted in nothing less than abortion on demand:

“But in Roe‘s companion case, Doe v. Bolton, the Court defined “health” to include “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being” of the mother. In most states, that is broad enough to permit virtually any abortion in the seventh, eighth, or ninth months of pregnancy if any of these reasons is invoked.
[15]

“Some state legislatures, and even the federal government, have been able to incrementally legislate such things as parental notification laws or bans on partial birth abortion, but none of those operate to ban abortion completely at any stage of pregnancy. Even states with late-term “bans” on abortion must include – because of Roe – an exception for the life and health of the mother.” [16]

So with one hand, the Court conferred some limited valuation on the life of the unborn child, affirming that the state has a compelling interest in the preservation of “the potentiality of human life,” beginning at the point of viability. Then, with the other hand, the Court crushed that same semi-valuable life, allowing the concern for health of the mother to override any protection of that life. The supposed “balancing” is meaningless. As a result, since 1973, almost 61 million abortions have been performed in the United States. [17] There has very obviously been no exercise of compelling state interest on behalf of unborn human life as purportedly intended by the Court in Roe.

The Alabama abortion bill improves upon this sorry situation to a certain extent, by minimizing the health risks which would justify abortion:

“It defines a serious health risk as a condition requiring an abortion “to avert [the mother’s] death or to avert serious risk of substantial physical impairment of a major bodily function.” It only includes emotional and mental illnesses if they have been diagnosed by a licensed psychiatrist and “there is reasonable medical judgment that she will engage in conduct that could result in her death or the death of her unborn child.” “[18]

While this language should significantly reduce abortions in Alabama, it has to be recognized that it still falls short of the natural law standards it professes to uphold. If the child in fact deserves the protections of personhood, and is to be considered fully human, then its life, when weighed against the mere health of its mother, should prevail. Yet even this bill continues to view the human life of the unborn child to be of lesser value than that of its mother.

In fact, it seems to be generally taken for granted that, despite the Court’s avowal of the compelling State interest in protecting the “potentiality of human life” in the womb, when the life of the mother is on the line then the life of the child is forfeit. What is the moral justification that determines that the preservation of the life of the mother is so valuable that it merits the deliberate destruction of an innocent child? The answer, of course, is that there is no such justification.

It does not help that many Christian denominations have also abandoned the natural law. This defect is well represented by the following quotes from the Baptist position on abortion:

“We affirm that God is the Creator of all life, that human beings are created in the image of God, and Christ is Lord of life. Recognizing this gift of life, we find ourselves struggling with the painful and difficult issue of abortion.”

“As American Baptists we oppose abortion, as a means of avoiding responsibility for conception, as a primary means of birth control, without regard for the far-reaching consequences of the act.”

“We grieve with all who struggle with the difficult circumstances that lead them to consider abortion. Recognizing that each person is ultimately responsible to God, we encourage men and women in these circumstances to seek spiritual counsel as they prayerfully and conscientiously consider their decision.” [19]

This is amazing. The lead statement here affirms that all human beings are created in the image of God, which is a clear recognition of the natural law with respect to human life. And so the logical conclusion would be that we humans, especially those of us who call ourselves Christians, would never presume to destroy an innocent unborn human being created in the very image of God. Yet, stunningly, after all the hand-wringing displayed by the above protestations of the agony of the abortion decision, these Christians cannot bring themselves to decisively condemn abortion.

This unwillingness to commit to the right to life is even harder to understand when we clear away the denial and directly face the reality of abortion and admit that it involves the killing of an innocent child. This, in itself, is a terrible evil. The evil is amplified by the lamentable cooperation of the child’s own mother in that killing. It is evil with an extra and agonizingly perverse twist. It is so jarring an example of violence because it is in complete and absolute opposition to the naturally intended norm, which is the love and nurturing that can only be provided by a mother.

What sort of grim and harsh reality do we now inhabit, when a mother’s womb, which should be the safest of all safe places, has instead become the most dangerous place on the planet for an unborn child?

It Is Time

It is time for the States which value the life of the unborn to undertake a concerted effort to throw off the shackles of the 1973 and subsequent abortion rulings. The shaky legal rationale underlying Roe is ripe for assault. It is high time to end the massive destruction of human life masquerading under the label “termination of pregnancy.” It is also time to acknowledge the severe damage that has been done to women who undergo abortions and who suffer the consequences in silence. The harm includes increased risk of cancer, multiple types of immediate complications, increased risk of ectopic pregnancies, and severe negative psychological reactions. [20, 21] Tragically, the U. S. medical establishment has chosen to turn a blind eye to the compelling research, especially from India, indicating that abortion is a strong causal factor for breast cancer. [22]

Progressives are experts at keeping the abortion debate confined to slogans which deceptively mask the truth of abortion. They like to insist on “a woman’s right to choose,” but they never want to acknowledge the grisly reality of what is happening when a woman “chooses” to destroy her child. They like to talk about “a woman’s right to control her own body,” yet they completely ignore the fact that the body of the baby inside her womb is not part of her, but rather a genetically distinct and biologically separate human life. Abortion is about two bodies, not one.

The Alabama abortion bill has the potential to force the Court to reconsider its indifference to the natural law, and to therefore implement actual rather than illusory protections for the right to life of the unborn.

References:

1. Stern, Mark Joseph. “Abortion Bans Are Wildly Unpopular. How do Republicans Keep Passing Them?” Slate. June 4, 2019. https://slate.com/news-and-politics/2019/06/alabama-abortion-ban-unpopular-republican-voters-oppose.html

2. Hay, Andrew. “Alabama boycott builds as states retaliate against abortion law.” Reuters. May 16, 2019. https://www.reuters.com/article/us-usa-abortion-alabama-boycott-idUSKCN1SM2V8

3. Lai, K. K. Rebecca. “Abortion Bans: 9 States Have Passed Bills to Limit the Procedure This Year.” New York Times. May 29, 2019. https://www.nytimes.com/interactive/2019/us/abortion-laws-states.html

4. Beck, Caroline and Sell, Mary. “Alabama Republicans Expect Challenge if Abortion Bill Becomes Law.” TuscaloosaNews.com. April 7, 2019. https://www.tuscaloosanews.com/news/20190407/alabama-republicans-expect-challenge-if-abortion-bill-becomes-law

5. Wise, Justin. “Alabama GOP lawmaker files bill that would ban nearly all abortions.” The Hill. April 2, 2019. https://thehill.com/homenews/state-watch/437059-alabama-gop-lawmaker-files-bill-that-would-ban-nearly-all-abortions

6. Roe v Wade, 410 US 113, 156-157, (1973)

7. Roe v Wade, 410 US 113, 158, (1973)

8. Roe v Wade, 410 US 113, 159, (1973)

9. Alabama Human Life Protection Act, HB 314, Regular Session, (2019) http://alisondb.legislature.state.al.us/alison/searchableinstruments/2019RS/bills/HB314.htm

10. Roe v Wade, 410 US 113, 133-134, (1973)

11. United States Catholic Conference, Inc. – Libreria Editrice Vaticana. Catechism of the Catholic Church. San Francisco: Ignatius Press, 1994, paragraph 2271.

12. Kalpagian, Mitchell. “The Right to Life and the Natural Law.” University Faculty for Life, accessed June 12, 2019, p.5. www.uffl.org/vol 9/kalpagian9.pdf

13. Roe v Wade, 410 US 113, 163, (1973)

14. 10. Roe v Wade, 410 US 113, 164-165, (1973)

15. “Fact Sheet: Do You Know Roe?” USCCB: Issues and Action: Human Life and Dignity: Abortion. July 2018. http://www.usccb.org/issues-and-action /human-life-and-dignity/abortion/upload/Do-You-Know-Roe_07-18-18.pdf

16. Hausknecht, Bruce. “Sorry Snopes, But New York’s Abortion Law Means on Demand Any Time Before Birth.” Focus On The Family. January, 2019. https://www.focusonthefamily.com/socialissues/life-issu…Sorry Snopes, But New York’s Abortion Law Means on Demand Any Time Before Birth

17. “FS01 Abortion in the US” NRLC. January, 2019. https://www.nrlc.org/uploads/factsheets/

18. West, Perry. “Alabama bill would ban all abortions except for ‘serious health risk’.” Catholic News Agency. April 3, 2019. https://www.catholicnewsagency.com/news/alabama-bill-would-ban-all-abortions-except-for-serious-health-risk-86880

19. “American Baptist Resolution Concerning Abortion and Ministry in the Local Church.” American Baptist Churches USA, accessed June 12, 2019. https://www.abc-usa.org/policy-statements-and-resolutions/AMERICAN BAPTIST RESOLUTION CONCERNING ABORTION AND MINISTRY IN THE LOCAL CHURCH

20. Reardon, David C. “Major Physical Affects Related to Abortion. ” Abortion Facts. January 19, 2018. https://www.abortionfacts.com/reardon/Major Physical Affects Related to Abortion

21. Reardon, David C. “The After Effects of Abortion.” Abortion Facts. January 19, 2018. https://www.abortionfacts.com/reardon/After Effects of Abortion

22. “The abortion-breast cancer link.” LifeFacts, accessed 11 June, 2019. https://www.lifesitenews.com/resources/abortion/the-abortion-breast-cancer-link