"THE LEAST OF THESE MY BRETHREN"
Why Pro-Life Legislation
Should Not Contradict
By Judie Brown and Brian Young
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
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
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
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
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
"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
* 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"
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
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
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
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
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
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
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
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
Generally speaking, these issues fall under the heading of "doing what you
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
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,
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"
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
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
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
Even if one casts aside concerns about the propriety of basing life-and-
death legislation upon opinion polls, frequently, the practice doesn't even
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"
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
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
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
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-
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
The harm comes in the creative interpretation abortionists give to such an
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
[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
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
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
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
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
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
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
According to the author of these classifications, "horizontal" measures
should be flatly avoided by the pro-life movement, but "vertical" measures
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
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?
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 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
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
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.
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
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
The message can be that no abortion should be subsidized by taxpayers;
therefore, public funds, facilities, and employees should not be used for
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
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,
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.
Copyright 1990, 1993, 1994 by:
American Life League, Inc.
P.O. Box 1350
Stafford, VA 22555