What Is Prolife Legislation?

What is "Pro-life Legislation"?

For over a hundred years, abortion had been a crime in the statutes of all states and territories of the United States. But for various reasons, especially the moral decline of society, abortion was decriminalized in recent generations -- first in Colorado in 1967, then in a handful of other states the next few years, and finally in the whole country with the U.S. Supreme Court's Roe v. Wade decision on January 22, 1973.

Americans opposed to the killing of preborn babies formed organizations to make their voices heard. Some of these organizations focus on educating the public about the issues, some on offering help to the women going into abortion chambers, some on offering help to women after they have had abortions, some on electing pro-life legislators, etc. Regardless of their particular focus, however, all pro-life organizations favor the passage of certain kinds of "pro-life" laws, since it is the law -- i.e., the Supreme Court's ruling -- that now permits abortion.

The question is: What kind of law is truly "pro-life"? Colorado Right to Life Committee believes that such laws must be carefully written so as not to fall into the trap of reinforcing the premise that underlies legal abortion.

Amendments 5 and 14 of the United States Constitution state that no person shall be deprived of life (and liberty and property) without "due process of law." The 14th Amendment adds that all persons shall have "equal protection of the laws." Those "clauses" are understood to mean that the "right to life" is "guaranteed" by the Constitution to all persons equally. If a law were to allow the taking of the life of a person who had not been convicted in a "due process" trial of a capital crime, such a law would be "unconstitutional."

The underlying premise of legal abortion

In the early 1970s, most of the Justices of the U.S. Supreme Court wanted to legalize abortion, but they knew that to do so would violate the Constitution. (For substantiation of this idea, see the article "The Abortion Papers" by reporter Bob Woodward in the Washington Post of January 22, 1989.) Then a case came along, Roe v. Wade, that gave the Court a way to overcome this dilemma. The case involved a Texas statute that prohibited abortion generally, but allowed it to save the life of the mother. The Court explained that a law which allowed the child to be killed, even to save the mother's life, either (1) violated the due process and equal protection clauses of the Constitution or (2) implied that a preborn child is not a "person." The Court then ruled that a preborn child is "not a person in the whole sense."

This is exactly the rationale that the Supreme Court had used in its infamous Dred Scott decision of March 6, 1857. The Justices wanted to keep slavery legal, so they ruled that human beings of African heritage were not "persons"; as such, they were not entitled to the protections of the Constitution and could be bought, sold, beaten, and even killed.

Just so in 1973: If preborn children are not "persons," their "right to life" is not "guaranteed" by the Constitution and need not be protected by the government. This was just what the pro-abortion Justices wanted -- the perfect rationale for legalizing abortion. In fact, in the Roe decision itself, Justice Harry Blackmun actually wrote that, if the "personhood" of the fetus could be established, then the case for legal abortion would "collapse."

The absolute, non-negotiable criterion

The "non-personhood" status of the child, then, is the very basis of the pro-abortion position, since it denies the "unalienable" right to life of the child.

To restore that right to life, then, a law that is truly "pro-life" must state or imply that the preborn child is to be considered a "person" and therefore accorded the same "due process" and "equal protection" rights that other persons have.

A proposal that would allow the killing of any child, for any reason, would mean that the child does not have the same Constitutional rights as "persons" and therefore is not a "person." And if the child is not a "person," then the issue is not whether or not it is acceptable to kill preborn children, but under what circumstances it is acceptable to do so.

"Anti-abortion" laws

Since Roe, many "anti-abortion" measures have been introduced in Congress and in the states (as either legislative proposals or citizen initiatives), including measures aimed at:

  1. Regulating abortion clinics
  2. Requiring parental involvement for teenagers' abortions or requiring that certain information be given to all women seeking abortions
  3. Banning abortions generally, except to protect the mother's life or health or unless the child was conceived by rape or incest or unless the child is "defective"
  4. Banning certain types of procedures, such as "partial-birth" abortions, or abortions after a certain time of gestation
  5. Protecting preborn babies from violence other than abortion

Although these measures are well intentioned and may even decrease the number of abortions, some of them fall into the trap of confirming the basic premise that underlies legal abortion; namely, that the preborn child is not a "person."

1. Laws to regulate abortion "clinics"

Some proposals require abortion "clinics" to do certain things that they do not do now. Such measures might have an emotional value in harassing abortionists, but they could give away the store by actually approving the licitness of abortion. For example, some laws require that the "medical procedures" being done in abortion "clinics" and that "disposal of medical waste" be carried out according to the "highest standards" of the medical profession. Once the state is satisfied that certain standards are being met, it licenses the clinics.

Consider that the "medical procedures" that are being done are acts of killing innocent human beings, and the "medical waste" that is being disposed of is the dead bodies of these innocent victims. If the "high standards" of the medical profession are followed (says the law), then the killing can continue. To make matters worse, the killing continues with the formal approval of the state. That is, the license issued by the state is -- literally -- a "license to kill."

Under such a law, the victims clearly do not have the Constitutional protections of -- and cannot be considered -- "persons." And the pro-abortion position is validated.

But clinic licensing could be accomplished without endorsing the abortion premise. For example, many abortion facilities are not now required to report fully on the abortions that they perform. Laws could be written to require that they do so. States could then "license" the facilities on the basis of fulfilling these reporting requirements; if a facility failed to report as required, the license could be withheld and the "clinic" closed down. But note that the license is being issued for fulfilling reporting requirements, not for fulfilling killing requirements.

2. Laws requiring parental involvement and "consent"

Because many abortions are performed on teenage girls whose parents do not know that their daughters are pregnant, "parental consent" measures are introduced to require that the girls' parents consent to the abortion. And because many women seeking abortion are ignorant about the development of the child they plan to kill (as well as other aspects of the issue), "informed consent" measures are introduced to require that the women be given factual information.

These laws might result in a decrease in the number of abortions: If teenagers knew that their parents would find out about their lifestyle, they might become more responsible; and if women knew the facts of fetal development, more of them might choose not to kill their babies.

But imagine a law that said, "No one may kill a grownup without the consent of the victim's mother or grandmother." The same courts that allow abortion would, of course, strike down such a law, precisely because "grownups" are "persons" who have a "right to life," regardless of who "consented" to the killing.

Similarly, a measure that allows -- or worse, requires -- someone's "consent" to the killing of a preborn baby would actually reinforce the notion that the babies are not "persons."

A truly pro-life law could require that, before performing an abortion, an abortionist notify -- but not require "consent" from -- the parents of a teenager that she is seeking the abortion. And a law could require that, before performing an abortion, an abortionist give certain information to -- but not require "consent" from -- every woman seeking an abortion. Such laws would reduce the number of abortions (and the amount of teen sexual behavior) as effectively as do "consent" laws. But without the "consent" language, they would not give approval to the killing, thereby reinforcing the "non-person" status of the baby.

3. Laws banning abortions, but with "exceptions"

Some "anti-abortion" measures would outlaw abortions -- except those to protect the life or health of the mother, or when the pregnancy is the result of rape or incest, or when the child is "defective" in some way.

But imagine a law that said, "No one may kill a grownup unless the grownup's presence is the result of someone else's violent act or unless the grownup is ‘defective.'" As with the "consent" proposal above, the courts would strike down such a law, because "grownups" are "persons" who have a "right to life," regardless of how they came onto the scene or of any physical handicaps they might have. Similarly, a measure that allows the killing of a preborn baby if he or she was brought into existence by rape or incest or was somehow "defective" would mean that the child does not have the same protections that "grownups" have; that is, that the child is not a "person."

It must be understood that there is never a "necessity" to perform an abortion to save the mother's life. Certain medical procedures may be indicated for certain conditions, such as a salpingectomy to remove a tubal pregnancy or a hysterectomy to remove a cancerous uterus. While these may have an unintended, secondary, abortifacient effect, they are not "abortions" per se; they are other "medical procedures" that are indicated by genuine medical pathologies -- and pregnancy is not a pathology! Even spokespersons for the abortion industry have admitted publicly that an "abortion to save the life of the mother" is a non-issue.

How, then, to allow such procedures as salpingectomies or hysterectomies that may truly be indicated? In the early 1980s, the National Right to Life Committee endorsed what it called "Unity" language for pro-life legislation. That language became part of the Colorado State Constitution on January 1, 1985, after the voters approved it in the November 1984 election. Here is Article V, Section 50, of the Colorado Constitution, with the "unity" language:

"No public funds shall be used by the State of Colorado, its agencies or political subdivisions, to pay or otherwise reimburse, either directly or indirectly, any person, agency or facility for the performance of any induced abortion, PROVIDED, HOWEVER, that the General Assembly, by specific bill, may authorize any appropriate funds to be used for those medical services necessary to prevent the death of either a pregnant woman or her unborn child under circumstances where every possible effort is made to preserve the life of each."

This language gives equal "personhood" status to both the mother and the preborn child. Measures to make abortion illegal could use such language to counter the charge of those who say that some women might "need" abortions to save their lives.

4. Laws banning certain abortion procedures or abortions after viability

Congress and several states have passed laws to ban the horrendous procedure known as "partial-birth abortion," in which the child is delivered, except for his or her head, through the birth canal. The abortionist then stabs the back of the skull and sucks out the brain tissue before completing the "delivery" of the now-dead baby. (The federal measures have been vetoed by President Clinton, and most of the state measures have been enjoined by courts.) Other lawmakers have introduced measures prohibiting abortions after a certain point in the pregnancy, usually the point of "viability."

But all of these measures run up against a problem: Roe requires that abortions be available throughout pregnancy if they are "necessary" to preserve the mother's "health," which Doe v. Bolton, the companion to Roe, defined to include virtually any reason a woman might offer ("physical, psychological, emotional, familial, and the woman's age"). So drafters of such measures often feel that they must include a "health exception" to the ban on such abortions.

It is true that the "health exceptions" in such measures are usually very restrictive. Instead of allowing abortions for the reasons listed in Doe, the measures usually limit them to cases involving "serious risk of substantial and irreversible impairment of a major bodily function." (Doe's open-ended definition notwithstanding, this language was not rejected outright by the Supreme Court in a 1992 case -- which does not mean that it may not be rejected in a future case.) But however restrictive the language may be, the fact is that it allows the killing of the child, thus reinforcing the "non-personhood" status of the child.

5. Laws protecting preborn babies from violence (other than abortion)

In recent years, some women who were pregnant and wanted the babies they were carrying have been the victims of acts of violence -- either accidental or purposeful -- in which their babies were injured or killed. Many of these women have sought prosecution against an assailant (or just damages) for their loss, but courts have actually refused to allow such actions to proceed, since, under Roe, the baby is not a "person."

In both Congress and some states, lawmakers have introduced measures to protect preborn babies from such violence. These measures could have three positive effects: (1) they could actually protect the children; (2) they could give the mothers some relief; and (3) they would suggest that these children are indeed "persons" and should be protected like other "persons." (Pro-abortionists oppose such laws vehemently, especially for the third reason.)

But because abortion -- the ultimate act of violence -- is now legal, such measures must exclude that particular act of violence from the type that would be punishable. For the time being, that exclusion may be necessary. But the laws should not be drafted in such a way that they seem to approve of the abortions that they have to exclude.

Conclusion

Ideas matter. The one idea that is essential to the legality of abortion is that the child is not a "person," as that word is used in the Constitution. Any law that allows the killing of any being either states or implies that the being so killed is not a "person." In order to be truly "pro-life," then, a law must not fall into the trap of reinforcing this idea.