Russell and Duenes

A Glass of Wine at Dinner a Felony?

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mayamanianAs we look back on forty years of legalized abortion in this country, we do well to consider some of the more substantive objections to the pro-life position. In the recently decided, Ankrom v. State, 1110176, 2013 WL 135748 (Ala. Jan. 11, 2013), the Chief Justice of the Alabama Supreme Court voiced one of these objections in a clear manner, stating:

A simple application of the present state of the law set out by the majority to a woman who has conceived, but who is without knowledge that she is pregnant, and who thereafter has a glass of wine, makes her subject to a felony prosecution at the “discretion” of the State. Whether the chemicals that are harmful to the unborn child are legal or illegal, their ingestion or use by a woman who has conceived has become a felony even though the act that is criminalized is committed without knowledge or intent. . . . Finally, and sadly for the majority’s “common-sense” construction, the chemical-endangerment statue will now supply women who have, either intentionally or not, run afoul of the proscriptions of the statute a strong incentive to terminate their pregnancy. Id. at *25. (emphasis mine).

In other words, if the unborn is considered a “child” or a “person” in the full sense, and any chemical endangerment of a child is a felony under the statute, then a woman who injures her child, albeit ignorantly and inadvertantly, by having a glass of wine at dinner, is a criminal. Is this really where pro-lifers want to go? Yet deciding that the unborn are full human beings might at least produce some hard thinking, rather than just assuming that the pro-life position is ipso facto absurd.

In a piece entitled, The Side Effects of Abortion Restrictions, University of San Francisco law professor, Maya Manian, discusses the movement to classify the unborn as “persons.” This so-called “personhood” movement has not met with any legislative success, and Manian believes it is because “opponents of personhood proposals appear to have successfully reconnected abortion to pregnancy care, contraception, fertility, and women’s health in general. Public concern over the ‘side-effects’ of personhood laws seems to have persuaded even those opposed to abortion to reject personhood legislation.” Manian’s project is clearly to see not only the “personhood” movement brought down, but to use the movement to bolster the arguments for wider “reproductive freedom” for women. Thus, several points are worth raising with respect to her piece.

First, it is telling that nowhere in her article does Ms. Manian attempt to argue that the unborn are not persons. She engages in some rhetorical jabs, stating that the personhood movement would “establish fertilized eggs as persons,” and casting the movement as pushing “for zygote personhood.” Yet her entire piece begs the question: How do you know that the unborn aren’t persons?” A further question for her might be: “How do you define “person?” “What about the health issues for the unborn, and not just the mother?”

Second, Ms. Manian engages in a little definitional sleight of hand. She claims that “[p]ersonhood laws would not only ban all abortion care, . . . but would also . . . ban some of the most effective methods of contraception.” Yet Ms. Manian provides no definition or explanation of what these “most effective methods of contraception” might be. Surely she, being a lawyer, knows a thing or two about verbal gamesmanship. “Contraception” can mean methods that truly embody the meaning of the word “contraceptive,” namely, to prevent conception, or the word “contraceptive” can now, wrongly, encompass methods that do not prevent conception, but prevent implantation of the baby in the uterine wall, such as “morning after” pills. Calling the unborn “persons” has nothing to with preventing the former, but would infringe on the latter. Better to not come right out and say what you mean.

Third, Ms. Manian further hides the issues by switching from the term “abortion” to “abortion care.” She says that the personhood movement likely is failing because people recognize that it is crucial to preserve “access to abortion care in order to preserve access to less stigmatized forms of healthcare.” Some of these less stigmatized forms would include “infertility, birth control, potentially deadly ectopic pregnancies and the treatment of pregnant women with cancer.” Thus, her argument seems to be: We need abortion to remain legal and viable in order to keep these other women’s health issues viable. But is that true? Is there a difference between a doctor who goes in to “abort” a baby who is growing in a woman’s fallopian tube and, if left to grow there, will kill both mother and child, and a doctor who goes into a woman’s uterus solely for the purpose of killing the child? Is the former procedure really an “abortion” as understood in the whole debate over abortion? Ms. Manian explains that doctors will be chilled in their ability to handle miscarriages in a safe and healthy manner out of fear that they might be committing a “partial birth abortion.” Yet is this a legitimate fear for a doctor who is truly trying to handle a miscarriage? Are pro-lifers trying to enact legislation that will find doctors guilty of crimes where the doctor was taking necessary actions to, as far as possible, save and preserve the lives of both the mother and her child, sacrificing the life of the child only where medically necessary? I think not. The handling of miscarriages and ectopic pregnancies might fit under the term “abortion care,” as the author is using that term, but would not seem to fit under the term, “abortion,” as understood by most. There are certainly very good ways of protecting women who have true health issues related to their pregnancies without elective abortion being legal. The two are not inextricably bound, as Ms. Manian would have her readers believe. But the pro-life side has not done a good enough job of showing how this is so.

Fourth, people tend to recoil at the thought that, if a baby is considered a person, then a woman who has been raped or been the victim of incest must carry the child, lest she be considered a killer by the law. All too often, “rape and incest” is the trump card pulled out in favor of more expansive access to abortion. No one doubts rape and incest are difficult and weighty matters, involving as they do matters of wickedness, pain and suffering. But pro-lifers have little excuse for not considering the question more carefully, and finding loving and persuasive ways to show the difference it would make if we saw the unborn as they truly are: Valuable persons created in the image of God and loved by God. Perhaps, when confronted with the “what about rape and incest” questions, we ought to ask a few questions of our inquirer before attempting to answer, the first of which might be: “What is the unborn?” If they cannot answer this question, then the rape and incest questions are really secondary, no?

Fifth, Ms. Manian’s concern for women’s health does not seem to extend to the physical, emotional, psychological, and spiritual health of women who have had abortions. The toll that abortion takes on women has been the subject of one of the largest hush campaigns in recent memory, but the stories are continuing to be told (see here and here).

Sixth, Ms. Manian makes much of an Oklahoma law which “protect[s] from tort liability physicians who fail to disclose fetal anomalies to prenatal patients. . . . Proponents of this legislation claim that liability preclusion laws of this sort are only anti-abortion measures, thwarting women who would seek an abortion if they knew of the fetal anomaly.” Her point here is well-taken, and I do not think the pro-life cause is well-served by hiding information from women. That said, the article is strangely silent about the fact that somewhere in the neighborhood of 80-90% of women who find out that their baby has Down’s Syndrome go on to abort their babies. We ought not throw bad legislation after good, but we also ought not ignore our continual assessment that certain babies have “lives not worth living,” to put too fine a point on it.

The idea that “abortion cannot be isolated from women’s healthcare more broadly” is a red-herring, once we begin to define our terms, terms such as: “persons,” “contraception,” “abortion,” “healthcare,” “abortion care,” “women’s health,” and “reproductive freedom.” Ms. Manian’s piece falls into a long line of pieces that are short on defining these things clearly. Blowing away the fog of ambiguity and providing clear definitions has never been the friend of those who want to convince the world that the unborn are something less than fully human, of equal worth with born humans. Yet repentance and healing can only come when we are able to “speak the truth in love.” I pray that God will continue to help us do that when it comes to the unborn.



Written by Michael Duenes

January 21, 2013 at 1:26 pm

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