The Elephant in the Room: An issue that everyone knows about but no one wants to discuss because it is controversial, inflammatory, or dangerous.
Last month I discussed white elephants. This month, the “elephant in the room” is abortion. Most avoid the topic, too afraid of alienating those of a differing viewpoint. I, however, was never very good at coloring within the lines and so, true to form, I am going to go where most fear to trod and talk about abortion — the great taboo.
Is a baby fetus entitled to legal protection? This is the quintessential question to be answered when discussing abortion.
If you believe life begins at conception because, absent an intervening act internally (miscarriage) or externally (abortion), a child will be born, you look at abortion as the taking of a life.
If you believe, however, that no life exists until the child takes its first breath outside the womb, then you may view abortion simply as a medical procedure for a woman to remove an unwanted substance from her body, like a cancer or a tumor.
There might even be a third category of people who believe that abortion is the taking of a life but since the fetus is in a woman’s body, it is her right to take that life free of consequences because in 1973, seven old owls wearing black robes said so in Roe v. Wade.
In Roe, alias Jane Roe sought an illegal abortion in Texas.
Texas argued that its abortion statute was valid because it had the right to protect the interests of the unborn child because life begins with conception.
The Supreme Court held, however, that since the written language of the United States Constitution did not include fetus in the definition of a person, the unborn fetus was not entitled to constitutional protection for abortion purposes.
“[Wade argues] that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment,” Justice Harry Blackmun wrote.
But “The Constitution does not define ‘person’ in so many words,” the judge continued. “In nearly all these instances” of the word “person” in the Constitution, “the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.”
It was upon this one premise that the entire case of Roe hinged, as this Court intentionally dodged the question of whether life begins at conception.
In essence, those seven wise owls claimed that since the law did not recognize a fetus as a person, aborting that unborn child was legal in light of the privacy interests of the mother.
It’s this last contention that sticks in my craw because in many other legal instances, the law does recognize that unborn children are entitled to protection.
The law must be consistent, rational and logical.
In the case of whether a fetus is a person entitled to protection, there are glaring inconsistencies under the law and that is why I and many others take issue with the rationale of Roe v. Wade.
Consider the following:
Nancy (an entirely fictitious person) is 23 weeks pregnant and driving to her local abortion clinic to terminate her pregnancy. One block from the clinic and well on her way to make her 1 p.m. appointment, she is T-boned by Chucky (another entirely fictitious person). Chucky is legally intoxicated, speeding and just ran a stop sign. Nancy is rushed to the hospital where she survives, but her unborn child dies.
When the prosecutor looks at the case, she charges Chucky with negligent homicide, manslaughter and/or vehicular homicide over the death of Nancy’s fetus.
Is Nancy’s fetus entitled to legal protection? Will the charges stand? How can the charges stand if those seven wise old owls previously hooted that Nancy’s fetus is not a person entitled to protection under the law in Roe?
In most states, including the state of Washington, the charges will stand.
Why? If that unborn fetus is not a person for abortion purposes under Roe, how can Chucky face homicide charges which requires the taking of another person’s life? How is that unborn child a person for one law but not for another? It makes absolutely no sense.
Currently, 38 states have fetal homicide laws which will, under the law, prosecute Chucky and send him to prison.
Additionally, when an unborn child dies at the hands of a person who is engaged in one of 60 different assorted crimes, Federal Law imposes liability for the death of that unborn child under the Unborn Victims of Violence Act of 2004.
Proponents of abortion were so upset by this legislation that they specifically carved out an exception for abortion, but it affirmatively answered the question of whether a fetus is entitled to protection under federal law.
Case in point, Washington State has fetal homicide laws but also allows abortion for Nancy’s 23 week old baby — she can visit a website which directs here to where an abortion can be obtained and how to pay for it.
On the one hand, Chucky will face prison time in Washington for having killed Nancy’s unborn baby. How come Chucky gets charged for killing Nancy’s unborn child while Nancy, if she had made her abortion appointment on time, would face no charges?
Is Nancy’s fetus a person for all others except Nancy?
This is why I object to Roe and those supposedly wise old owls who disingenuously claimed that the law did not recognize an unborn child as a person. How can an unborn child be a person in some cases and not in other cases under the law?
Are you not troubled by this legal jumble mumble? I am.
And if not, you will be after my next segment.
I see people holding signs all the time which say “My body — My choice” as if the government does not already tell you what to do with your own body. This is nonsense — the government tells you all the time what you can and cannot do with your own body.
For example, you cannot sell your body in prostitution. The military demands soldiers be vaccinated or they are discharged. Employees with federal agencies are required to take the shot. The government tells you to wear a seatbelt, to wear a helmet, they tell you what drugs you can legally take and what you can’t ingest such as heroin, meth or cocaine, and some even tell you what you can do and not to do regarding your own unborn child.
Consider the following:
Let’s look at Nancy again. This time, Nancy is pregnant but addicted to meth and continues her habit while pregnant. Nancy’s concerned neighbor sees her smoking meth and calls Social Services to report Nancy for child abuse. How can it be child abuse if the baby is not born? Can it be child abuse if it’s merely a fetus and not a breathing baby? Is that unborn fetus entitled to protection?
The answer is yes; it is considered child abuse in 23 states, and in three of those states it is grounds for involuntary committal of the mother.
Moreover, in some cases, it results in criminal prosecution for the mother. Consider this: between 1977 and 2015, 29 women were prosecuted in 19 states for charges including child endangerment, child abuse, attempted aggravated child abuse, chemical endangerment of a child, child neglect, child mistreatment, homicide, manslaughter, and reckless injury to a fetus for ingesting illegal drugs while pregnant.
So if Nancy ingests illegal drugs during pregnancy she can be held liable for child abuse of her unborn child but if she aborts the child, she gets a pass?
Are you now shaking your head? Are you now wondering how an unborn child is protected when the mother is held liable for child abuse for ingesting illegal drugs while pregnant, but if that same mother terminates her own child via abortion, there are no consequences to her?
What is the worse outcome as far as the unborn child: mother’s drug use or abortion? Abortion is okay but drug use while pregnant is not? It’s entirely illogical.
And go one step further: how about if Nancy then decides to abort her child after she is brought up on child abuse charges for the illicit drug use while pregnant? Can she then be charged with tampering with evidence or obstruction of justice for destroying the fetus?
Is an unborn baby entitled to legal protection? The above legal examples certainly suggest so. And if that is the case, you can then balance the interest of that unborn child with the privacy interest of the mother for abortion purposes.
That is truly where the tire meets the road and a debate I am willing to undertake.