Although science and religion still haven't reached a conclusion, Washington recently decided to pronounce a fetus a person -- specifically to have the courts treat it as a murder victim if it is destroyed in the commission of a federal crime. Will this make it more likely illegal by the time today's newborns reach childbearing age?
Pro-life and pro-choice advocates have both made recent advances in the fight over abortion, but pro-lifers seem to be ascendant right now. Many Americans are so tired of the three-decade long debate that they might fail to notice that the Bush administration and the Republican congress are stealthily -- and steadily -- chipping away at Roe v. Wade, the Supreme Court ruling that gave abortion constitutional protection.
George W. Bush last week signed into law the opportunistically-named "Laci Peterson" act. The law, named after a pregnant California woman murdered along with her unborn son, can result in double murder charges for a criminal attack on a pregnant woman that results in terminating the pregnancy. It defines a developing fetus or embryo as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb."
This kind of wording is the worst nightmare of reproductive rights advocates; they have long dreaded that a recognition of "fetal rights" would be the first step to undermining a woman's right to choose, unraveling the federally-guaranteed legality of abortion.
Sen. Rick Santorum, a Pennsylvania Republican, maintained in Roll Call (subscription) that:
Opponents of this legislation will argue that this bill is just an attempt to undermine Roe v. Wade. The Unborn Victims of Violence Act specifically does not permit prosecution in cases of abortion, medical treatments of the mother or child, or the actions of a woman with respect to her own unborn child.
As William Saletan argues in Slate, the act specifically excludes abortion from its broad sweep:
But the exemption is plainly illogical. Imagine a federal ban on gay marriage that stipulated, Nothing in this section shall apply to a daughter of the Vice President of the United States. A gay marriage is a gay marriage. A child is a child. Once the embryo is defined as a child, and killing it is defined as killing a child, abortion at any stage of pregnancy becomes murder "immediately in theory, and eventually in law.
Linda Feldmann of the Christian Science Monitor argues that the act, which passed three times in the House in six years before finding Senate approval, was part of a GOP campaign ploy:
As a matter of law, the UVVA is not likely to have wide-reaching impact, because it applies only when a fetus is harmed during a violent federal crime against the mother, such as an attack on federal land or a terrorist strike. The harming of a fetus during a crime has long been recognized in state law as a punishable offense; 29 states have laws protecting fetal rights, though not all cover the entire pregnancy.
Politically, the bill served the purpose of putting the Democrats' presumptive nominee, Sen. John Kerry, on record with his vote against the act. Mr. Kerry supported an amendment to the bill that would have imposed the same penalties as the bill that passed, but would not have recognized the fetus as a person and separate victim.
An alternative to the sweeping law was proposed by Democratic Sen. Diane Feinstein, whose amendment used the vague term "pregnancy" instead of the more specific "fetus." Despite the intention to create a more narrowly-interpreted law, her choice of language was a mistake. Just as abortion foes play on emotions by calling pea-sized embryos "babies," those in the NARAL camp downplay the potential humanity of a pregnancy to emphasize the woman's plight and to promote family planning to bring children into the world with good intentions rather than by accident.
Cathy Young of the Boston Globe explains:
In other words, the semantics matter. Today, the bill's prolife supporters may assert that it will not affect abortion rights; in the future, they may well use its logic to advocate a ban on abortion, arguing that it's absurd to make the personhood of the fetus contingent on whether the woman wants to go through with the pregnancy.
A Newsweek poll from last June found 84 percent of respondents favoring criminal charges with additional penalties for causing a woman to miscarry during an assault. And Feinstein's backers surely would agree with the repugnance of destroying a pregnancy once the fetus is viable outside the womb, which happened when
Tracy Marciniak's husband savagely beat her, causing a ninth month miscarriage. People like Marciniak deserve justice not only for their own physical wounds, but for losing the chance to become a mother.
Yet the new law makes no distinction between a pregnancy that is near its delivery date and one that is less than one millimeter in size and has no chance of growing on its own with current technology. After all, some half of pregnancies results in miscarriage before the second trimester, and eight percent end by the twentieth week.
A Chicago Tribune reader and father Jim McNelis writes, half-jokingly, to that paper:
Could a death certificate be issued before the birth certificate? Should we apply for a new Social Security card once my wife is pregnant? Can I take a tax exemption for each fetus? Will my insurance company offer life insurance for the fetus? Shall the fetus be counted on the federal census?
My wife and I have endured multiple miscarriages, so God has taught us not to count our eggs before they hatch, so to speak. But we apparently have a lot to learn from the feds.
Meanwhile, the fuzzy distinction about when to humanize a fetus is being played out in three U.S. District courts, which are deciding the viability of a federal ban on so-called "partial-birth" abortions, on hold since the law was signed last year by Bush, to the chagrin of feminists finding ominous symbolism in the all-white, all-male members of Congress present at the ceremony. Reproductive rights advocates are more likely to make advances for their cause in the Nebraska, California and New York courts challenging the Partial-Birth Abortion Act.
To determine whether women's lives really are at stake when the controversial procedures are performed, the Justice Department tried to force hospitals to release the identities and details of women whose abortions fell under the partial-birth category. Federal judges in Chicago and San Francisco have blocked hospital abortion records from being released to the courts, but the University of Michigan must hand over its files, with patients' identities blacked out, to a New York district court. If the feds weren't valuing abortion patients' privacy, did they at least have their well-being in mind?
A San Jose Mercury News editorial doubted such, and hoped that the courts would consider the law's "fatal flaw" of not examining its impact on women's health, adding, "politicians are inserting themselves into what should be a private decision made by a woman in consultation with her doctor."
Done up to 5,000 times a year, the dilation and extraction procedure is rare, reserved for medical emergencies such as pregnancy-induced diabetes, that could threaten a woman's life. Yet the vaguely written law against it could wind up outlawing 140,000 abortions performed at earlier stages by other methods.
A Nebraska U.S. District judge questioned whether lawmakers really had the health of women in mind when they approved the ban on late-term abortions, which are carried out by pulling a fetus by its feet from the uterus and puncturing its skull. "I have to tell you that I don't see that Congress spent nearly as much time as you in honestly trying to give me a fair picture of the medical situation," said Judge Richard Kopf, who repealed the partial-birth abortion ban in Nebraska seven years ago.
A New York doctor quoted in the Monterey County Herald said he had ''fears of being prosecuted and having to face imprisonment" for a law so poorly written that even some miscarriages might violate it.
Left out of the debate are those women who, if the ban holds, will be forced to carry a fetus that lacks a brain or heartbeat to full term. Carrying such non-viable fetal materal in utero for nine months inflicts undeserved psychological, physical and economic burdens for which a woman could seek no relief.
Pro-life activists charge that overzealous abortionists are eager to pluck the fruit from a womb at any stage for financial gain. Many of the more than 1 million American women who have abortions each year might scoff at this myth, remembering the race to make a decision about potential motherhood in the few weeks between a positive result on a drugstore test kit and week nine of a pregnancy.
Will such choices, made legally, become a thing of the past in the United States? Ominous editorials in the New York Times are warning that the pro-life victory enacted last week doesn't bode well for reproductive choice.
Tom Teepen of the Cox News Service predicts, "With courts tilted the way President Bush's judicial nominees lean, that could lead to some forms of birth control and to some current medical research -- stem cell, for instance -- being declared murder."
In the Connecticut Law Tribune, attorney Sarah Weddington, who won Roe v. Wade 31 years ago, notes that the balance of the Supreme Court balance will affect the result:
if president George W. Bush is re-elected and replaces either [Justices] O'Connor or Stevens with an anti-choice candidate, the stage would be set for a reversal of Roe...
The vulnerability of the Roe v. Wade decision has recently been underscored by revelations in the memoirs of Justice Harry Blackmun, which say that the court was prepared to reverse Roe in Casey v. Reproductive Health Services. Justice Anthony Kennedy changed his view, and Casey was drafted to weaken but not reverse the effect of Roe.
Rep. Denise Majette, a Georgia Democrat, wrote in Roll Call (subscription):
Each woman with an unplanned or problem pregnancy must face the issue anew. Terminating a pregnancy has never been an easy decision to make. However, it must remain enshrined as a fundamental right. Today, a woman's right to terminate her pregnancy is fragile - and reproductive rights, since becoming an essential part of the vocabulary of the freedoms we in this country enjoy, have never been compromised to such a great extent.