09-30-2000
LEGAL AFFAIRS: The Drift Toward Infanticide-And How RU-486 Can
Help
The abortion-rights lobby has not yet publicly embraced the view of Peter
Singer, a Princeton University bioethicist, that because "the fetus
does not have the same claim to life as a person, it appears that the
newborn baby does not either." Or that "killing a disabled
infant is not morally equivalent to killing a person [and] often it is not
wrong at all." Or that "the life of a newborn baby is of less
value ... than the life of a pig, a dog, or a chimpanzee." Or that
"a period of 28 days after birth might be allowed before an infant is
accepted as having the same right to live as others."
But some abortion-rights groups do seem to be inching toward a right to
choose infanticide, especially when a baby is born with severe
disabilities. So do some members of Congress. And the Supreme Court's 5-4
decision on June 28 that finds a right to "partial-birth"
abortion leaves even some supporters of early abortion (including me)
worried that the Justices are vitiating the traditional legal and moral
taboos against baby-killing.
Most of us don't want to think about such things, any more than we want to
look at pictures of aborted late-term fetuses. But the
when-does-abortion-become-infanticide question keeps coming back,
currently in the form of the Born-Alive Infants Protection Act. Sponsored
by anti-abortion Rep. Charles Canady, R-Fla., the bill sailed through the
House on Sept. 26 by a 380-15 vote. It specifies that when a baby (or a
fetus, if you prefer) has been "born alive"-even if destined to
expire within minutes or hours-he or she is a "person" with the
same rights to life, care, and other legal protections as any other human
being.
Who could be against that? The National Abortion and Reproductive Rights
Action League could. Although it has lately muted its objections, NARAL
warned in a July 20 press release that this is "yet another
anti-choice assault" on "the basic tenets of Roe vs. Wade."
The reason? The bill "would effectively grant legal personhood to a
pre-viable fetus."
NARAL thereby implies that abortion rights include a right to kill
(whether overtly or by neglect) an unwanted "pre-viable fetus"
after complete delivery, as the newborn lies naked on the table, gasping
for breath, heart still beating. In NARAL's world, such a baby seems to
have no more legal protection than a malignant tumor.
(The Canady bill defines born alive as a baby who after separation from
his or her mother "breathes or has a beating heart, pulsation of the
umbilical cord, or definite movement of voluntary muscles, regardless of
whether the umbilical cord has been cut, and regardless of whether the
expulsion or extraction occurs as a result of natural or induced labor,
cesarean section, or induced abortion.")
NARAL's position, albeit chilling, is understandable. For if a woman and
her doctor have no right to kill a baby (or fetus) once he or she is
outside the woman's body, then where does that leave the right to kill
that same baby (or fetus) moments earlier, when he or she is unborn or
partially born? What about the status of identical twins during the
minutes after one has been delivered? If the first twin is already a
person with a right to live, can the second in line nonetheless be killed
(as current Supreme Court doctrine suggests) so long as he or she remains
unborn or partially born?
Abortion-rights absolutists dismiss such hypotheticals as far-fetched mind
games irrelevant to the real-life choices faced by pregnant women,
doctors, and lawmakers. There is a bit of truth to this: Even NARAL has
never argued overtly for a right to kill a viable fetus after birth. So
the Canady bill's most obvious impact could be to bar abortionists from
accelerating (whether actively or through neglect) the inevitable deaths
of those (presumably rare) pre-viable fetuses who-because of botched
abortions, induced labor, or spontaneous miscarriages-did not already die
before or during delivery.
Such cases do occur, however-perhaps by the hundreds. Nurses have
testified that "induced-labor abortions" are sometimes performed
by using a drug to cause a woman's cervix to open so that she will deliver
a premature baby who will die during the birth process, or within a few
minutes or hours afterward. One such baby was accidentally thrown in the
garbage.
Moreover, it seems probable that, in practice, hundreds (if not thousands)
of viable fetuses are aborted, and that some of them are born alive and
then left to die unattended, or even killed. Here's why: 1) It is
typically unclear at the time a 23- to 25-week fetus is aborted whether he
or she could survive outside the womb. 2) Supreme Court rulings have made
it almost impossible to disprove an abortionist's claim (however
implausible) that a fetus was not viable when killed. 3) Under Roe vs.
Wade, a doctor can abort even a clearly viable fetus whenever necessary
(in the view of the doctor) to protect the woman's life or health. 4) The
Court's sweeping definition of threats to a woman's "health," as
including anything that an abortionist finds detrimental to her
"emotional [or] psychological ... well-being"-the burden of
raising a disabled child, perhaps?-renders largely illusory the notion
that current law restricts the abortion of viable fetuses at all. 5) Many
abortionists might well be reluctant to tell a woman who came in for an
abortion that something went wrong and she is getting a live baby
instead.
Now consider the established right to abort (and kill) even a viable fetus
minutes before birth, or during birth, in conjunction with NARAL's
implication that whether a fetus (at least a pre-viable one) has been born
alive is irrelevant to his or her legal status. How big a leap is it to
infer (as does Peter Singer) that there should also be a right to kill a
viable fetus-a baby-immediately after live birth?
Is this drift toward infanticide the only alternative to the admirably
principled but (to me) overly absolutist view of people such as Douglas
Johnson, of the National Right to Life Committee, that the deliberate
abortion even of an embryo little larger than the period at the end of
this paragraph is the taking of human life and should be illegal? I think
not.
To be sure-as Johnson argues with great cogency, and as Peter Singer would
probably agree-it is impossible to identify any nonarbitrary magic moment
when a fertilized egg becomes a "person" during the 10 months
between intercourse and the 28th (or 27th, or 29th, or 60th, or 600th) day
after birth. But the public's approval of a right to early abortion and
its disapproval of late-term abortions have considerable intuitive moral
appeal. A born-alive baby is not quite the same as an unborn fetus; a
nonviable fetus is not quite the same as a viable one; a minuscule embryo
that looks nothing like a baby is not quite the same as a 20-week, 10-inch
fetus looking very much like a baby; and so on. Even most anti-abortion
advocates, who would call the deliberate killing of a month-old baby
"murder" (as would I), avoid that word when referring to the
abortion of a 2-week-old fetus.
Why does so substantial a minority of abortions take place several months
(not just weeks) into pregnancy? Largely because it's not always
easy-especially for teenage girls and poor or unsophisticated women-to get
early surgical abortions. It's not easy to travel a long distance to one
of the shrinking number of abortion clinics, or to run a gauntlet of
pickets screaming "murderer," or to have one's womb probed and
evacuated by a stranger with gleaming metal instruments.
The best way to minimize the number of late-term abortions would be to
make early abortion easier and more private. And the best way to do that
would be to move rapidly toward approval and broad distribution of the
so-called abortion pill (otherwise known as RU-486 or mifepristone), a
prescription drug. The Food and Drug Administration did just that on
Thursday by approving the use of RU-486 in the United States. The FDA will
allow the drug to be distributed only to doctors who can operate, in case
a surgical abortion is needed.
Until now, efforts to market such abortion pills here have been blocked by
the passionate opposition of anti-abortion groups. But drug-induced
abortions are deemed safe and legal in France and some other countries. If
they become widely available here, the results will include both reducing
the demand for late-term abortions and undermining the arguments that such
abortions are necessary to accommodate desperate women and girls who
lacked the resources to act sooner. Public horror at the current drift
toward infanticide will increase. And the Supreme Court will eventually
limit or end its protection of late abortions.
Such a scenario would not please either abortion-rights or anti-abortion
absolutists. But it might be the least bad outcome for those of us who see
a big difference between an embryo and a baby.
Stuart Taylor Jr.
National Journal