Wc 1815

ABORTION

 

Abortion is a subject that can divide people of good faith and causes debate that often degenerates into polarizing labels rather than reason. Often the resolution of such quandaries is dependant upon not seeking the answer initially but framing the question itself. My quest in this writing is not to suggest that abortion is good but, instead, question how to respond to it as a society.

Currently expansion of criminal law concerning abortion is at the forefront of Supreme Court politics and debate. Much of the political movement is at the hands of conservative religious leaders. I don’t think it is a reasonable undertaking to debate the religious aspects of this debate because, ultimately, an argument of faith is exactly that. Logical argument is irrelevant to someone who believes God has inspired him or her to understand His desire. Even if the most logical argument could be made, it could not persuade someone who is convinced that he or she is divinely inspired. After all, God moves in mysterious ways and beyond human logic.

The argument I wish to make instead is that of human understanding of criminal law and its consequences. Many moral and religious rules are not violations of criminal law. Society must decide what rules it accepts and which ones of those are so offensive to the rights of others in society as to justify punishment.  For example, many feel it immoral to commit adultery or lie, yet these acts by themselves have not been determined to be of such a nature as to be subject to criminal law and its punishment.

To do so, I leave out many possibly more effective deterrents of abortion such as contraception, education, adoption etc. Ironically, many of these deterrents are not emphasized by proponents of a criminal law punishing the act of abortion. This leads some skeptics to argue that the real motivation for some political activists is to punish the sexual promiscuity of a woman and not protecting the fetus. Punishment of promiscuity through abortion law, especially when some in the population to be punished were not willing participants, is a weak argument and I exclude it from this treatise, except to the extent that it might be a hidden or subconscious motivation of those arguing other points.

To create a criminal law it must be specific. Otherwise society has not given the necessary foreseeability to those who might be subject to its wrath. This is an interesting problem in drug law. For instance Ecstasy was not an illegal drug for a period of time because it had not been carefully defined in the criminal statutes.  I hesitate to use this example since no criminal law should be enforced unless there is a direct relationship between the doing of the act and an unacceptable infringement on the rights of others. The use of Scotch or Ecstasy does not conflict with one’s peaceful membership in society unless he or she tries to drive a car on public streets or in some other way causes danger to others because of the use of the drug.

So what should be the specific law? It is illegal to intentionally kill another human being unless done so for self protection or protection of another. That sounds pretty good. However, technology has now made this simple criminal law less than clear. What about a couple that can not have a child so a doctor fertilizes several eggs to help cause the birth of a child who would not otherwise been born? The other fertilized eggs are now in a freezer. They are frozen, but for all intents and purposes are life forms that potentially could become self-determining humans if someone would donate her womb to incubate them.  Can we pull the plug on these freezers without committing mass murder? Whose responsibility is it to incubate all of these eggs? The woman from whom the eggs were derived? The doctor that caused the fertilization? What about the child that was a product of the fertilization that otherwise would not be born? Does his life justify the death of the other eggs? Actually, the operative question might be whether society should require a woman to use her womb to transform fertilized eggs to independent human beings.

What if scientists can fertilize eggs and use the DNA to dramatically change the quality of life or actually save the lives of autonomous human beings with otherwise incurable defects? Does that justify the creation of fertilized eggs that have no chance of maturing into humans free from the womb?  Is that the taking or saving life?

 

I am getting ahead of my analysis.  The question we need to answer is not only:  Is it wrong to take a human life?  But: What is a human life? Life itself is merely an organism of some DNA structure that has the ability to grow, maintain itself and reproduce—but what makes it human? Certainly a fetus in its early stages can not grow, maintain itself or reproduce independently. One could argue that it requires someone to dedicate her womb for its existence and only later does it have the ability to fulfill the entire definition of life. The moral and inspirational aspects that some argue distinguishes human life from others could be no more than a potential in the early months of a fetus.  The Supreme Court addressed this concept in Roe vs. Wade by dividing pregnancy into thirds, the last trimester being the most inviolate because of medical evidence of the fetus’ viability. This distinction is the issue that will soon be address by the current members of the Supreme Court.

I would argue that the definition of life is much more basic, however. Any organism that possesses the innate ability to struggle for survival is alive. Under that definition, however, every sperm and every egg are alive. If one wants to argue that human life is any life form that has the ability to become a thinking, feeling, human, then all eggs and all sperm are human life. If that be true then every act of abstinence or use of a condom can potentially cause the death of human life, and will if practiced long enough.

One only has to watch the evening news to appreciate the devastation if all efforts to kill life that would become a human were stopped. Our world would be stripped of its ability to support the overpopulation of humans in two or three generations.

Even if we escape this logic and claim human life exists only if the egg and sperm touch, the question is whether, at this point, killing of the fertilized egg should be a criminal act of murder. Secondly we must decide if the act of murder only exists if the killing takes place in the womb of a woman or if it also is murder to kill a fertilized egg in a lab or freezer. To limit the crime to killing of eggs in the womb opens the argument that the true crime is a woman refusing to use her body to bring the egg to independence and not the killing of the egg itself. This brings up an entirely new question as to whether society should be able to force a woman to use her body to support a life not yet ready to be an independent human being.  For instance, what if another human could live if I agreed to attach myself to a transfusion machine for nine months until the other person could live on his own—would I be guilty of murder if I chose not to do so?

Another issue that must be decided to form the proper question is: If the fertilized egg is for all intents and purposes a human, protected by the law against murder, can there be any justification for a lesser included offense merely because the fetus has yet to reach an independent maturity? After all, a killing of a human is a killing of a human. How can one justify letting an offender off merely because the fetus is the product of rape or incest? Could we justify the killing of a forty-year-old merely because he or she was the product of rape or incest?  How could we justify the killing of a fetus because of the health of his or her mother? Why would the new law in South Dakota only have a maximum punishment of five years for the doctor and no punishment for the mother?  If a four week old fetus occupies the status of a human then the punishment should be that appropriate for murder.

Our technology today opens all sorts of new decisions concerning murder of humans. Our government requires industry to comply with Threshold Limit Values for exposure of workers to toxic substances. These standards don’t protect every worker but an acceptable number, balanced with the need of the industry to produce its product in sufficient numbers, at a reasonable cost. The Environmental Protection Agency doesn’t set standards high enough to protect all children but an acceptable number of them, balanced with the needs of industry. We changed our speed limit nationally from 55 to 70. A statistician can tell you with 95% assurity how many additional children will be killed to accommodate our ability to get from one place to another faster. Soon we will have to decide whether it is in our national interest to continue spending the vast majority of medical expenses the last two years of a person’s life or reserve use of those resources to increase the quality of life in the early years—thereby allowing our elderly to die sooner than they might otherwise.  Collateral damage in modern warfare can kill hundreds of thousands of men, women, children and fetuses for the “greater good” of the conflict.  These issues probability will not be considered for criminal law sanctions.

As a matter of public policy, the punishment for disobeying an abortion law will fall disproportionably upon the poor. Rich people will always have access to doctors and hospitals to accomplish an abortion. The repercussions of obeying such a law will fall disproportionably upon the poor because of their lack of ability to care for an unplanned child. This argument is not by itself persuasive since almost all criminal laws affect the poor more than the rich. Abortion laws just do so with more weight.

 

The question is:  Are all or a clearly identifiable group of abortions so obviously wrong that they should be addressed by society’s criminal laws and punishment?  If society can not specifically define the circumstances of when an abortion is criminally wrong, or conclude that all abortions are criminally wrong regardless of circumstances, then society should look to other means to promote its agenda of moral and religious values.

 

Blake Bailey

112 S Broadway

Tyler, Texas 75702

blake@bailey-law.com  903-593-7660