Pro-Life and Pro-Choice Agree on Something

by Jay Johansen

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I must confess that I was quite surprised recently when I came across a statement from one of the nation's leading pro-abortion groups, the National Organization for Women, that I agree with one hundred percent. Oh, of course they haven't abandoned their support of abortion, but they made an important point that I am sure most pro-lifers will readily concede.

As you may know, Congress has twice passed (and the president has twice vetoed) a law that would have made it illegal to abort a baby who was partially born. That is, if this law had not been vetoed, once the baby began to emerge from the mother's womb, it would have been illegal to kill him.

Various pro-abortion groups worked hard to defeat this law, including the National Organization for Women. In March, 1997 they published a paper explaining what they saw as the devastating constitutional and logical flaws in this law.

Their most interesting argument was this:

The proposed statute ... appl[ies] to any fetus ... that may be brought into the vagina during an abortion. ... The proposed statute therefore seeks to make the legality of the physician's conduct in facilitating the woman's exercise of her reproductive freedom turn no[t] on the viability of the fetus or on its capacity to perceive or on the health of the woman, but, strangely, on the physical location of the fetus between the uterus and the vagina at the moment its development within the woman is deliberately halted -- as though the fetus that is being aborted were suddenly to acquire the capacity to experience sensations of pain, or were to acquire other traits of personhood, simply by virtue of having been moved from one point to another within the woman's body prior to completion of the abortion procedure, rather than by virtue of its own state of neurological or other development.1
In other words, NOW thinks it is absolutely absurd to suppose that the unborn baby's "personhood", and therefore her right to live, should be based on something as trivial and irrelevant as whether she is still completely in the womb, or has begun the passage down the birth canal, or if some part of her has actually emerged from within the mother's body.

Would NOW be surprised to learn that this is, in fact, a point that the pro-life movement has been trying to make for years? Whether or not someone is a "person" entitled to human rights has nothing to do with where they live. The person who lives in a mansion is not entitled to any special rights not available to the person who lives in a homeless shelter.

But here's the funny thing about NOW's position: They applauded -- and in the very article I quote above continue to applaud -- the Supreme Court's Roe v Wade decision. And the key point of that decision was:

There has always been strong support for the view that life does not begin until live birth.

[T]he law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn ... In short, the unborn have never been recognized in the law as persons in the whole sense.
We could certainly debate whether there was ever "strong support" for such a view or whether the law had truly been "reluctant" to endorse competing views, but the point is that this is the view that the Supreme Court endorsed and made the law of the land.

Because of Roe, in the United States today it is legal to abort any baby up to the moment when that baby is born -- but not after. Our courts have declared that a baby in the womb ten minutes before delivery is not a "person in the whole sense", and thus has no legal rights. But once he emerges into the light of day, suddenly he is a "person in the whole sense", and, presumably, can no longer be legally killed. That is, the whole basis of American abortion law since Roe is that a baby's personhood is entirely dependant on his physical location: whether he is stil in the womb or out of it. They left just one minor ambiguity, which we are now fighting out: Whether a baby is a "legal person" when he is part-way out of the womb.

The National Organization for Women now takes the position that the physical location of a baby is irrelevant to her personhood and should have nothing to do with whether or not this baby may be legally aborted. So, they say, as it is legal to abort a baby who is still entirely within the womb, it should also be legal to abort a baby who is halfway out of the womb.

I wasn't being sarcastic when I said that I was surprised to see a pro-choice organization make this point. Do they follow this reasoning to its natural conclusion? If the baby's physical location is irrelevant, and it is morally right and should be legal to abort a baby who is halfway out of the womb, then is it also morally right and legal to abort a baby who is all the way out of the womb?

If not, then why doesn't the reverse reasoning apply? If it is wrong and illegal to kill a baby who has already been born, why is it not also wrong and illegal to kill that same baby when, just a few minutes before, she was only halfway born? And if it is wrong to kill a baby who is halfway born, why is it not wrong to kill that same baby when, only a few minutes before, she was still in the womb? If the baby's "personhood" has nothing to do with her physical location, then a baby one day before birth is just as much a person as a baby one day after birth.

Did they think this out? If they use this argument to defend killing a partially-delivered baby and win, they have set the stage for killing fully-delivered babies. If the physical location of the baby is irrelevant, and it is legal to kill a half-born baby, then why not a new-born? If the physical location of the baby is irrelevant, and it is legal to kill a baby while he's still in the delivery room, then why not after his parents take him home? Where does he have to live before he acquires human rights?

Pro-life and pro-choice now agree: A baby's "personhood" does not depend on where he happens to live, whether it is in the womb, the birth canal, or on his way out of the birth canal. But this leaves the question, According to the pro-choicers, when does a baby become a "legal person" entitled to basic human rights? They don't seem to be willing to give a clear answer to that question.

1 Tribe, Laurence. "Constitutional Analysis of 'Partial Birth Abortion' Ban". National Organization for Women website. March, 1997. (accessed 4 April 1999)

Posted 3 Sep 2000.

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