When It Comes to Abortion Bans, Exceptions Break the Rule

If it is true that the party which frames the argument is halfway to winning the debate, then the perception that the pro-abortion side is winning the abortion debate may be accurate. For the pro-life side has stopped arguing its own position – that there is no "right" to abortion – and has joined in the debate over which babies can be killed. With "pro-life" bills proliferating around the country which would ban abortion except in cases of rape, incest, fetal deformity, etc., etc., the dispute seems no longer to be whether one has a "right" to abortion, but when and under what circumstances.

To a certain extent, this is not a new phenomenon. Some in the pro-life movement have always argued for exceptions to the absolute ban on killing babies, beginning with the well-known "life of the mother" exception.

While this very exception in the Texas abortion law challenged in Roe v. Wade gave Justice Blackmun and his cohorts ammunition for their argument that the preborn child is not a person constitutionally protected by the Fourteenth Amendment, conceivably "life of the mother" could be defended on the basis of a conflict of equal rights – the life of the mother versus the life of the child – if the clause were so framed as not to subordinate the right to life of one to the right to life of the other party.

Unfortunately, because the primary defense offered for exceptions is political, the pro-life movement has ignored or forgotten how Blackmun justified his claim in Roe that the child to be born is not, and never has been, a "person" under the Fourteenth Amendment.

Without this denial of personhood to preborn human beings, Blackmun could not have "found" a new constitutional "right" to abortion, since the right to life of a person is paramount and cannot be subordinated to any lesser right of any other person.

Blackmun himself stated in Roe v. Wade, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." And the pro-aborts agreed: Blackmun's next statement is, "The appellant conceded as much on reargument."

Blackmun got around this problem by pointing to the "life of the mother" exception in the Texas abortion law (and those of other states). "If the fetus is a person who is not to be deprived of life without due process of law," he asked rhetorically, "and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?"

Thus was it determined, based on the existence of an exception clause, that the preborn are not "persons" under the Fourteenth Amendment. Had no such exception existed, Roe v. Wade might well have been impossible.

If the "life of the mother" exception could allow the Supreme Court to declare the preborn non-persons, how much more difficult will it be to reverse that ruling if additional exceptions – for indisputably less grave reasons than the mother's survival – become common in our state laws?

But in recent years debate over the personhood of the preborn child has been almost wholly ignored, making it easy for those pro-life organizations primarily concerned with politics to seek to expand exceptions to any abortion ban in order to gain political victories.

Hardly anyone has looked at the legal position in which the pro-life movement will be placed if we continue to add exceptions to what is purportedly a ban on abortion.

Before we proceed too far, let us be warned that while we may indeed win a few political battles with this strategy, we may also end up losing the war so many have fought so valiantly.

From the beginning, the basic tenet of the pro-life movement has been that the preborn child is a person whose right to life is protected by the Constitution and that, therefore, the activist Court has simply created a new "right" which is not constitutionally correct. Even many admitted pro-abortionists were appalled at the Roe v. Wade decision and foresaw the outcome in the case of Nancy Cruzan, a human being already born.

For once any group of human beings are considered non-persons, the personhood of all human beings is called into question. The equation of personhood and humanity has been discarded while no new definition of personhood has been adopted.

In Roe v. Wade Blackmun stated that "we need not consider the difficult question of when life begins" – but if the simple fact of biological humanity sufficed to establish personhood, Blackmun could not have avoided this question, since it can be established scientifically that the preborn child belongs to the human species. The question of when life begins can only be left unanswered if personhood requires more than simple biological humanity.

But the correlation between biological humanity and legal personhood is so intrinsic that instead of new requirements for personhood, we are now seeing proposals for a new definition of "humanity."

For example, in an article titled "The Right to Life" in the May 1989 Journal of American College Health, author Robert Wennberg proposes three different principles for determining who is "human" – only one of which is biological. Since the purpose of the article is to determine whose "right to life" will be protected and whose will not be, it is clear that the author has subverted the biological term "human" and used it to mean "legal personhood."

It seems, then, that if the pro-life movement abandons its position of demanding personhood for the admittedly human preborn child, we also abandon society to those who need a list of criteria for criteria for recognizing the humanity of others.

And the adding of exceptions calls into question the personhood of the child to be born by implicitly recognizing a "right" to abortion. For while the "life of the mother" exception could possibly be justified as a conflict of equal rights, there is no conflict of rights caused by the circumstances of the child's conception (rape or incest) nor a doctor's belief that the child will be born with a handicap, unless there is a right to abortion in the first place. Consider: Killing the preborn child does not erase the fact that the mother has been raped. Neither does it bring the rapist to justice. It only adds to the injustice already done the mother, the injustice of inflicting capital punishment on the second innocent victim, the child to be born.

The same is true of the child who may be born with handicaps. Abortion will not cure the child's handicap, nor will it uphold any right of the mother unless there is a right to abortion.

These exceptions are being sold to the pro-life movement as "smart politics" which will save some babies, arguments which appeal both to the politicians among us and to those in the movement who feel the death of these babies in the very depths of our souls.

But William Buckley, writing about the abortion debate in National Review, injects a dose of reality: "The positions of such as Mario Cuomo, Patrick Moynihan and Edward Kennedy remind us that the temptation to be guided by political considerations not only shapes our public declarations, but tends to calcify our consciences."

And in The Abolition of Man, C.S. Lewis tells us that if we throw away the yardstick we no longer have anything by which to measure. If the pro-life movement throws away its moral yardstick by admitting, however tacitly, a "right" to abortion, by what standard will we measure the right to life of anyone?

I submit that ours is not a political movement. It is a moral movement brought into the political arena through no fault of our own. But if we are not a political movement, then politics cannot save us – or the babies.

On the cover of the same National Review quoted above is a picture of a lady bearing the ironic title "Another Pro-Life Extremist." The "extremist" is Mother Teresa of Calcutta.

In defense of the right to life, I am happy to stand with that lady and be called "another pro-life extremist."

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