Paul Ryan, the Fourteenth Amendment, and “personhood”

The “Sanctity of Life” bill, if it became law, would require states to treat abortion – all abortion – as murder.

With more and more smart, honest conservatives getting fed up and switching sides, the remaining smart, honest conservatives are especially precious for those of us who don’t want to talk only to members of the Blue team. So Ramesh Ponnuru is a scarce resource, and I wouldn’t criticize him if I didn’t have to.

But I’m utterly puzzled by Ramesh’s criticism of Amy Odell and his followup criticism of Kevin Drum over the proposed Sanctity of Life Act, a Congressional “personhood” bill sponsored by a 55 extremists, including Paul Ryan.

Ramesh’s position is that the bill wouldn’t criminalize abortion. He accuses Kevin, who disagrees, of bad lawyering.

Well, I’m not a lawyer at all, but (as Sam Ervin once said) I understand the English language; it’s my mother tongue.

The full text of the bill is at the jump. The substance of it is that Congress, acting explicitly under its power “to enforce, by appropriate legislation,” the provisions of the Fourteenth Amendment, declares that every fertilized egg is a person, with all the legal rights of a person, including the “right to life.”

Now, what does the rest of the Fourteenth Amendment say? Why, it says, among other things, that “no state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So, for example, a law forbidding the murder of white people only, leaving blacks unprotected, would be void as denying equal protection.

Assume for the moment that the law were to pass both Houses, that President Romney were to sign it, and that the Supreme Court’s Right-to-Life caucus were to get a fifth vote to hold that the law was constitutional.

Then no state could criminalize the killing of the “post-born” without also criminalizing the killing of the “pre-born,” any more than it could criminalize the murder of whites while permitting that of blacks. (That’s what makes “Dred Scott” a RTL dog-whistle, valid even in Confederate territory.)

Thus, unless a state wanted to declare open season on all of its citizens, it would have to criminalize abortion, and do so without any exceptions whatever: not rape, not the life of the mother, not nothing. I suppose you could run an IVF clinic, but you’d have to keep every fertilized egg alive indefinitely; it would be a person in law, and disposing of it would be murder.

So when the bill goes on to provide that “the Congress, each State, the District of Columbia, and all United States territories have the authority to protect the lives of all human beings residing in its respective jurisdictions,” “authority” really means “obligation.” Buzzfeed backed off on the original claim, but it seems to me they were wrong to do so.

So yes: Mitt Romney, who said in an unguarded moment that he’d be “delighted” to sign a bill banning “all abortion,” has chosen as his running-mate a Congressman who co-sponsored a bill to do precisely that.

Footnote Note that the short title of the bill betrays its theocratic roots. Congress has extensive powers, but even under the most generous interpretation of the Necessary and Proper clause they don’t extend to defining or protecting sanctity.

H. R. 212

To provide that human life shall be deemed to begin with fertilization.

January 7, 2011

Mr. BROUN of Georgia (for himself, Mr. AKIN, Mr. ALEXANDER, Mr. BARTLETT, Mr. BISHOP of Utah, Mr. CARTER, Mr. CHAFFETZ, Mr. COLE, Mr. CONAWAY, Mr. FLEMING, Mr. FORBES, Ms. FOXX, Mr. FRANKS of Arizona, Mr. GARRETT, Mr. GINGREY of Georgia, Mr. GOHMERT, Mr. JONES, Mr. KING of Iowa, Mr. KINGSTON, Mr. KLINE, Mr. LAMBORN, Mr. LATTA, Mr. MANZULLO, Mr. MARCHANT, Mr. MCHENRY, Mr. MCKINLEY, Mr. MILLER of Florida, Mrs. MYRICK, Mr. NEUGEBAUER, Mr. OLSON, Mr. ROE of Tennessee, Mr. ROGERS of Kentucky, Mr. ROGERS of Alabama, Mr. ROONEY, Mr. SCALISE, Mr. SCHOCK, Mr. TERRY, Mr. THOMPSON of Pennsylvania, Mr. WESTMORELAND, Mr. SAM JOHNSON of Texas, Mr. HERGER, Mr. BURTON of Indiana, Mr. RYAN of Wisconsin, Mr. GARY G. MILLER of California, Mr. ADERHOLT, Mr. BACHUS, Mr. CRAWFORD, Mr. LONG, Mr. PEARCE, Mrs. BLACK, Mr. GIBBS, Mr. HUELSKAMP, Mr. LUETKEMEYER, Mr. ROKITA, and Mr. WITTMAN) introduced the following bill; which was referred to the Committee on the Judiciary

To provide that human life shall be deemed to begin with fertilization.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

This Act may be cited as the `Sanctity of Human Life Act’.

In the exercise of the powers of the Congress, including Congress’ power under article I, section 8 of the Constitution, to make necessary and proper laws, and Congress’ power under section 5 of the 14th article of amendment to the Constitution of the United States–
(1) the Congress declares that–
(A) the right to life guaranteed by the Constitution is vested in each human being, and is the paramount and most fundamental right of a person; and
(B) the life of each human being begins with fertilization, cloning, or its functional equivalent, irrespective of sex, health, function or disability, defect, stage of biological development, or condition of dependency, at which time every human being shall have all the legal and constitutional attributes and privileges of personhood; and
(2) the Congress affirms that the Congress, each State, the District of Columbia, and all United States territories have the authority to protect the lives of all human beings residing in its respective jurisdictions.

For purposes of this Act:
(1) FERTILIZATION- The term `fertilization’ means the process of a human spermatozoan penetrating the cell membrane of a human oocyte to create a human zygote, a one-celled human embryo, which is a new unique human being.
(2) CLONING- The term `cloning’ means the process called somatic cell nuclear transfer, that combines an enucleated egg and the nucleus of a somatic cell to make a human embryo.
(3) HUMAN; HUMAN BEING- The terms `human’ and `human being’ include each and every member of the species homo sapiens at all stages of life, beginning with the earliest stage of development, created by the process of fertilization, cloning, or its functional equivalent.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

61 thoughts on “Paul Ryan, the Fourteenth Amendment, and “personhood””

  1. You are of course correct in describing the logical consequences of this theocratic power grab, but how do you figure that the author of Party Of Death qualifies as a “Smart, Honest Conservative”?

      1. Thank you for saying this, Barry. Could someone demonstrate why we should take Ramesh Ponnuru seriously? What makes him different from the rest of the red-faced, pop-eyed ignorati?

  2. This business about “only giving the states *authority* to ban abortion” is nonsense. If Congress does have the constitutional authority to decree a zygote a person for purposes of law, and it uses that authority, then a zygote is a person for purposes of law. If a zygote is a person for purposes of law, then it must be a crime to kill that person, as it would be a crime to kill other persons. And if states refuse to prosecute abortion as homicide, the federal government could prosecute it as a civil rights violation (as it did when Southern communities wouldn’t prosecute the murderers of civil rights workers). If Congress doesn’t have that authority, then the whole bill is pointless.

    1. I knew that damned 14th Amendment would eventually come in handy, and be useful to, instead of an impediment to, proper, Godly government.

  3. By the way, if Congress has the authority to endow zygotes with personhood and all the rights of personhood, wouldn’t they also have the authority to *remove* personhood and its rights from any group which currently enjoys them? Couldn’t they declare atheists “non persons,” for example?

  4. Mark is indeed not a lawyer. States are permitted to discriminate on categories of persons, unless the category is a protected one. For example, most states view copicide as a worse crime than homicide. This easily passes Constitutional muster: non-cops are not a protected category. Are the unborn a protected category? I dunno. They’re not persons yet. If they become persons, it depends on what the Supreme Court says.

    I would rather take issue with Mark’s basic assumptions: that people on Team Blue need smart honest people on Team Red to argue with. Don’t worry, Mark, there are many smart, honest people on Team Blue who have very fundamental disagreements. You might want to start with those who hate plutocrats, and those who are friendly with plutocrats. If you don’t want to argue along these lines, there are the communitarians and the rights-based folk. If you don’t want your interlocutor to have Team Blue credentials, there are libertarians and some non-Team Red conservatives. Etc. I don’t see why Mark wants a sparring partner on Team Red. Dealing with Team Red is not a debating exercise; it is more in the nature of boring (if you like Weber) or plowing and salting.

    1. Hi Ebbie!

      I’m not sure I followed all of your Team Red discussion, but I think Team Red needs a big internal struggle. Some kind of metaphorical internecine bloodletting needs to happen. I agree that there is some unknown number of Republicans who are not in fact crazy or awful. But they keep too darned quiet. I understand that their identity prevents them from switching sides, so I don’t expect it, but they really need to be doing more to heal their party. Passivity in the face of today’s GOP is simply not acceptable.

    2. You describe aggravating factors that allow the law to make some persons into super-persons. It’s rather a leap to say that phenomenon means the law can make some persons into non-persons.

      1. Chestnuts, my precious, chestnuts.

        Children are persons under the Constitution. You can’t deprive them of life, liberty or property without due process. However, they are non-persons for the purpose of many civil rights. They can’t vote, or serve on juries. Or contract, at common law, with a few exceptions. Or–if young enough–commit crimes. Or exercise their elders’ right of free speech (“Bong hits for Jesus.”)

        1. I’m not sure anything you list is a “civil right” as such, or at least a Constitutional right. I am very certain – though not happy – that you have according to current jurisprudence no right to vote under the Constitution.

          1. Huh? I’m not sure what you are arguing. It’s true that nobody has a Constitutional right to vote, but all kinds of people have a right not to be discriminated against by whatever test we use in voting. We have several constitutional amendments concerning abridgements of the right to vote: race, gender, poll tax.

  5. Like you and Sam Ervin, I understand the English language, which is why I am more sympathetic to Ramesh Ponnoru’s argument than you are. Equal protection of the laws cannot possibly mean what it literally says, considering that the entire point of law is to give some people different rights in the same situation. If I come into my room and see Paul Ryan using my computer and eating my rice, it does not matter that he is clearly considered a person with all of the rights that personhood involves. I have a higher and unequal right than he does to use “my” stuff and if he does so without my permission he may be sued for the damages he has caused me or even punished by the government as a criminal. Therefore, for a discriminatory law to be unconstitutional for violating equal protection depends on (1) what groups of people it discriminates against and (2) how strictly the courts are supposed to scrutinize laws that discriminate in that way.
    The argument may be that while some states would make abortion against the law (and because of a newly expansive definition of personhood be able to defeat lawsuits that they are violating the due process liberty rights of pregnant women by saying that the protection of the lives of fetuses is now part of protecting the lives of people), other states would at least try to amend their laws to define criminal homicide as the unjustified killing of an “ex utero person” only so that abortion could continue. I guess somebody could sue (who? an aborted fetus?) and say that discrimination on the basis of being a fetus, by continuing to allow abortion, should be given such a kind of scrutiny that would make the courts say it is unconstitutional, and they might win with this new definition and the anti-abortion block of the Supreme Court, but I do not think it is as clear as you suggest. There may be more steps.

    1. “there may be more steps.”

      i balance being a dreamer/idealist with being a practical person/realist. tell me, whether it takes 1 step to get to criminalizing abortions nationwide or 7 steps to get to criminalizing abortions nationwide, how does that line of argument demonstrate any errors in mr. kleiman’s reasoning?

    2. other states would at least try to amend their laws to define criminal homicide as the unjustified killing of an “ex utero person”

      This is possibly even scarier than what Ryan actually proposes, as Jeffrey Kramer points out. What other class of persons do you figure can be declared nonpersons and subject to vigilante violence? You think states could declare that personhood begins at, say, five years old? Or that people with blue eyes could be subject to violence?

      Even when, say, African Americans were subject to vigilante murder, it wasn’t legal.

  6. Why is the issue the personhood of the embryo rather than the obligations of the pregnant woman. If my undoubtedly human daughter needed a transfusion of her rare blood type, I might be expected to provide it, but I would not be legally obligated to do so. I am not obligated to take the homeless into my apartment even though some of them die on cold nights. Why can a woman be obligated to provide a uterine home complete with nourishment for nine months?

    1. Because the laws of human biology are not necessarily designed to make it easy to fit them into our norms and customs; they are largely an accident of evolution, not designed for our convenience. Childbearing is just a notoriously difficult subject in that regard.

      By the same token, why do parents have obligations, once a child is born to raise and provide for that child? The way we do parenting is a cultural thing; other species (and even some human cultures do it differently.

      Also, if you assume that an unborn child is a person, then the situation is not really all that different from that of conjoined twins, where both of them have to make allowances for each other.

      1. Not sure if cojoined twins is the example you want to use here since they are often separated surgically and the decision to have the surgery performed is made by the parents, not the twins, who as babies would be much too young to give consent, let alone understand the situation.

        It is also worth noting that the decision is sometimes made with the certain knowledge that one twin will die in order to allow the other a life unencumbered by being attached to another. Medical ethics allows this decision to be made.

        “Why can a woman be obligated to provide a uterine home for nine months?” Sexism.

        1. I think the comparison is to conjoined twins who are not separated. It’s a very rare instance, but theoretically with a lot in common. Perhaps I just think about it since I run into Abby and Brittany Hensel at the Panera in Roseville on a semi-regular basis, but I can see the potential for all sorts of bizarre legal conundrums if the two of them stopped getting along.

        2. I chose the conjoined twins analogy with care, specifically because of these factors. I don’t subscribe to the pro-life agenda; on the other hand, I don’t subscribe to the pro-choice point of view, either. I think that abortion is a difficult ethical problem and that both pro-life and pro-choice positions provide simplistic answers to a complex dilemma.

          Let’s start at the beginning. Few people think that one minute after conception a fertilized egg qualifies as human life (even Catholic doctrine didn’t claim that until the 19th century); but few people think that one minute prior to birth you don’t have human life, either. Somewhere you have to draw the line between there being life and there not being life. The decision will be somewhat arbitrary, but these days a commonly held position is that at the very least until about the end of the first trimester we don’t have human life and when viability begins we do.

          Then, even when we assume a point in time where we have human life, we may have to deal with situations such as rape, health problems for the mother or child, genetic defects, poverty, inability to raise a child, and so forth.

          This creates a whole lot of gray areas when it comes to balancing the interest of the mother and the child. There’s nothing sexist about saying that a conflict of interest may exist between the interests of the two and may need to be resolved one way or another, but that you generally look to minimize the harm to both where possible; quite similar to the situation of conjoined twins.

          Some situations are relatively unproblematic. You generally have a broad consensus that there is no human life being destroyed for using emergency contraception. However, if I had consensual, informed, unprotected sex with a man (I chose the qualifiers carefully), got pregnant, had a pregnancy without complications, and waited a few months before deciding to have an abortion and then ran into problems? That wouldn’t be sexism, that woiuld be actions (of both partners, mind you) having consequences. So, yes, I think that there can be (depending on the circumstances) an ethical obligation for a woman to carry a child to term even after she decides that she does not want the child, not because of sexism, but as a matter of personal responsibility (that personal responsibility is difficult to assess objectively does not mean that it cannot exist).

          (A whole different issue is that criminalizing abortion is not only generally ineffective, but also does more harm than good and rarely can deal with all the thorny ethical issues involved. But that’s entirely separate from the existence of those ethical concerns.)

          1. I’m with you on the gray areas. I am pro-choice because I don’t see how involving a lot of (male) legislators and judges will anyhow improve these difficult situations.

            But I think those few people who try to “celebrate” abortion are also wackos. It’s just not a happy thing, anytime ever. Though I don’t think it is something women do lightly very often, either. Who even likes to go to the gyno for a checkup? Rightwingers have such strange ideas about women.

            And I’ve said it before: birth control is much too expensive. It should be free.

          2. Nicely written.

            I see the question of personhood to be the key question. I don’t believe a fetus is a person until it can live outside the mother’s womb. But I know many good people who really *do* believe “that one minute after conception a fertilized egg qualifies as human life.” When good, moral, ethical people disagree on fundamental moral and ethical issues that cannot be empirically decided by science, then freedom of religion, the right to pursuit of happiness, and the need to protect minorities from the tyranny of the majority, all require that government legislation should stay OUT.

            Yes, a “personhood” bill would not necessarily criminalize abortion, because prosecutors have discretion about how they enforce laws. But it sure would immediately criminalize abortion in strong pro-life states. And I have no confidence that the supreme court would not uphold that law. What a terrible, expensive, chaotic mess would ensue.

          3. NCG, free contraceptives are only part of the problem. The more general problem is how America treats pretty much everything surrounding pregnancy, including when women actually want children.

            I think that Bill Clinton nailed it when he said that we’d like abortions to be legal, safe, and rare; but the only idea the far right comes up with to make them rare is criminal punishment of abortion. But no woman really wants to have an abortion procedure; abortions generally happen when women are out of better options. So, what you really want to do is to prevent situations where that happens or make it so that a pregnant woman has genuine alternatives. Criminal punishment for something that a woman would rather avoid if she could generally has predictably little effect.

            One way to make abortions rarer is, as you said, facilitate birth control. Not just by making it free, but also by educating families, so that we maybe we can stop leading the developed world as the country with the most teen pregnancies per capita. And it’s not just lack of birth control in the case of teenagers, despite the woefully low rate of contraceptive use. Many are also pressured when they do not feel ready.

            But that’s not the only problem. Having an abortion is already a traumatic event, but an even worse situation is having an abortion when you actually want a baby. Sometimes that cannot be helped for medical reasons, but that still leaves a lot of pregnancies where a woman has an abortion because she simply cannot afford to have a baby. Starting with the lack of paid maternity leave, potentially losing your job, and the cost of daycare, having a baby is first and foremost an economic catastrophe for many American women.

            Unfortunately, our country tends towards a culture of punishment rather than a culture of support (not just when it comes to abortions). As I said before, trying to regulate abortions by means of criminal penalties has failed, historically. It does very little to reduce the number of abortions and causes considerable harm. If, as a society, we want fewer abortions, the best results have generally been achieved through making contraceptives (including emergency contraceptives) accessible, making having a baby not be an economic hardship, and providing advice to pregnant women (and by advice I don’t mean artificial bureaucratic barriers that are meant to terrify pregnant women, but genuine advice intended to help).

            Oh, and doing something about our abysmal poverty levels would likely help a lot, too. All of that would require CHINOs to put their money where their mouth is, though, so I’m not holding out too much hope.

          4. Katja, I can’t find the right Reply button, but I absolutely agree with you about financial security, and what a truly feminist and humanist world would look like. You should be cloned!! (One of my favorite compliments to give…)

      2. Well I’m not an expert in this area, but parents are considered fiduciaries of (or is it “to?”) their children. They have legal duties the rest of us don’t have based on this legal distinction, which I agree came from our culture.

        I also think Bostonian raises a strong legal objection though, on the grounds that the state has no right to interfere in what goes on inside a woman’s body. I don’t even see how it has the right to inquire whether she is pregnant or just putting on weight. Whose business is it? But that’s why I’m pro-choice.

      3. Adding on:

        “Why can a woman be obligated to provide a uterine home complete with nourishment for nine months?”

        The law has been dealing with the fact of pregnancy for oh, a few thousand years by now. Please don’t expect a facile comparison to forcing an organ donation or quartering somebody in one’s house to cause judges to slap their foreheads in amazement 🙂

    2. A parent cannot be compelled to donate blood for transfusion to their child, but I believe a parent is also not permitted to interfere with medically necessary transfusions to their child, even if their principles do not permit transfusions. You assume a pregnancy would be considered the former situation; I suggest to you it could as easily be considered the latter.

      1. Thanks to all the people who gave such thoughtful replies. I really liked the conjoined twins example. I do think that framing the question in terms of what can one legally expect of the pregnant woman respects some of the gray areas. If a woman who was eight months pregnant with a healthy baby decided that she wanted to end it, I would not be horrified if she were told that she would have to put up with it for another month. I would feel the same if there were two months left but not four months.

        For a long time, anti-abortionists allowed for exceptions in the case of rape or incest. This makes no sense (and is being abandoned) if the abortion is regarded as the killing of an innocent human but does make sense if one feels that having the woman endure such a pregnancy is just too much to ask.

        I am not sure I follow Warren Terra’s example that a parent cannot interfere with medically necessary procedures. It seems so very different when some one else does the procedure. Could you elaborate?

  7. The life of the mother thing… Do none of the men who vote for this understand ectopic pregnancy? Where the zygote implants outside of a nice cushy home in the uterus and starts expanding? Like in the Fallopian tubes, far too small to support a viable pregnancy. And then the embryo bursts through the tube as it grows, causin hemmorage and death, if there is no abortion. My sister, who wounded a baby, would have died without an abortion. In no possible world would the embryo have survived. I hate theses people who would want my sister dead. For a man,imagine the embryo implanting itself in you urethra, then expanding as it divides and grows, until the tube bursts. Seriously WTf. Also, what about all the nay urial miscarriages, are people in pain over their loss going to need to prove it wasn’t an unspontaneous abortion?

    1. The right dosen’t want to get all tangled up in all those messy details. It just sounds good in campaign speeches. Heck, they don’t even want to make it law. If they actually outlawed abortion what would they have to rave about? Just give ’em some good simplistic amunition and they’re off to the races.

      1. If they actually outlawed abortion what would they have to rave about?

        The commercial ships that would set up in International waters to service American woman wanting an abortion.

        1. American women who could afford the helicopter ride, among other things. The daughters of the wealthy who become pregnant as a result of misjudgment in a moment of passion will have no problem. Sluts, on the other hand, can live with the consequences of their immoral ways.

    2. “Do none of the men who vote for this understand ectopic pregnancy?”

      Not really, and the hardcore ones don’t care (unless it’s one of their own women, in which case they’d currently have it ‘taken care of’, a la Mrs. Santorum).

      1. I believe that the male of the wingnut species is much too delicate and gentlemanly a critter to even approach such indecorous and repellent details, Kt. It’s not so long ago that a woman legislator was barred from the floor of a certain *cough* Michigan *cough* state house for using the V-word.

    3. Actually, the right wing (or at least the bishops) have dealt with the issue of ectopic pregnancy. It’s okay (according to the bishops) to abort an ectopic pregnancy, because the intent of the mother was to save her own life, and the intent of the doctor was to save the mother’s life. When you are balancing one human life against another (so say the bishops), you are entitled to choose. When you are balancing a human life against anything else, you are not (again according to them.)

      So there is no necessary inconsistency between treating an embryo as a person and abortions for ectopic pregnancy. (Roll out the trolley!)

      I’m not sure that all wingnuts agree with the bishops. IIRC, in Nicaragua, they don’t abort ectopic pregnancies until the tubes burst.

      As Kt points out at the end of the post, a state this is serious about preventing all abortions will have a miscarriage police. It will also probably do a blood test on all women of childbearing age who are leaving the jurisdiction for another jurisdiction that permits abortion. (I’m sure there would be some exception that applies to Mitt Romney’s granddaughters, maybe involving the inalienable privacy rights of those with access to private jets.) And I’m sure that the professional misogynists in the anti-abortion movement will think of all kinds of other interesting oppressive rules, especially now that anti-contraception is a semi-official part of the anti-abortion movement.

      1. Actually Eb, it’s unclear that the Bishops really believe that bit about being able to choose when balancing one life against another. There was a case in Arizona a few years ago where a woman came into a Catholic hospital with severe pre-eclampsia (gestational hypertension). It was severe, uncontrolled and treatments weren’t working. The fetus wasn’t anywhere near viability. The choices: try to save the fetus (and both die) or abort the pregnancy. The hospital administrator authorized the abortion and the bishop landed on the hospital like a ton of bricks.

        1. Thanks for the info. I should also have been more careful to distinguish the OFFICIAL SEAMLESS WEB position of the bishops from the actual views of many actual bishops. They tend to differ quite a bit, especially with regard to the death penalty, war, and poverty.

        2. Would that he had indeed landed on it, Dennis. The quality of the local church might well have improved greatly.

      2. Do you have a source for that? As I understand it, Catholic teaching (reaffirmed by Pius XI in Casti Connubii) prohibits abortion even when the life of the mother is in danger:

        “As to the “medical and therapeutic indication” to which, using their own words, we have made reference, Venerable Brethren, however much we may pity the mother whose health and even life is gravely imperiled in the performance of the duty allotted to her by nature, nevertheless what could ever be a sufficient reason for excusing in any way the direct murder of the innocent? This is precisely what we are dealing with here. Whether inflicted upon the mother or upon the child, it is against the precept of God and the law of nature: “Thou shalt not kill:” The life of each is equally sacred, and no one has the power, not even the public authority, to destroy it. It is of no use to appeal to the right of taking away life for here it is a question of the innocent, whereas that right has regard only to the guilty; nor is there here question of defense by bloodshed against an unjust aggressor (for who would call an innocent child an unjust aggressor?); again there is not question here of what is called the “law of extreme necessity” which could even extend to the direct killing of the innocent. Upright and skillful doctors strive most praiseworthily to guard and preserve the lives of both mother and child; on the contrary, those show themselves most unworthy of the noble medical profession who encompass the death of one or the other, through a pretense at practicing medicine or through motives of misguided pity.”

        Also, the Declaration on Procured Abortion:

        “We do not deny these very great difficulties. It may be a serious question of health, sometimes of life or death, for the mother; it may be the burden represented by an additional child, especially if there are good reasons to fear that the child will be abnormal or retarded; it may be the importance attributed in different classes of society to considerations of honor or dishonor, of loss of social standing, and so forth. We proclaim only that none of these reasons can ever objectively confer the right to dispose of another’s life, even when that life is only beginning.”

        1. Katja,
          I think that the key word is “direct.” You can’t intend to kill a fetus or embryo to save the life of the mother. But you can intend to save the life of the mother, with the death of the fetus/embryo an unintended (but known) consequence of saving the life of your mother.

          Think trolleys with censers.

          This distinction is found in American criminal law. Some crimes only require knowledge that an act will lead to forbidden consequences; others require primary intent. Murder, for example, is a knowledge crime; you don’t have a defense to murder by claiming that you were only shooting at a target collinear with the victim and the gun. Theft, on the other hand, is an intent crime. If I grab your iPhone from wherever you put it without asking your permission because it is about to get drenched, I am not a thief.

          1. Correct, Catholic doctrine (as far as I know) allows actions that save the life of the mother where there is no intent to harm the child (see the doctrine of double effect). However, abortions do not fall in that category, to the best of my knowledge.

          2. So then the procedure that Mrs. Santorum underwent (induction of labor at 20 weeks which pretty much guarantees that the fetus will not survive) would NOT be direct? I guess I don’t understand the “unintended (but known)” distinction.

          3. Removal of a cancerous gravid uterus would be permitted and not considered to be an abortion. The fetus is removed “indirectly.”

            For pulmonary hypertension in pregnancy, the fetus is not strictly analogous to a cancerous uterus, and therefore is removed “directly.”

            Ain’t casuistry grand?

            Also, most estimates of the prognosis of pulmonary hypertension place the risk of death between 30% and 50% with optimum medical management. Termination of pregnancy does not “save the life of the mother,” but merely reduces the risk of death.

            Not having a uterus, I hereby pronounce termination of pregnancy for pulmonary hypertension to be a grave sin.

          4. It is worth remembering that the doctrine of double effect is complete bunk. It basically says that the act is OK as long as you lie about your intention.

            In reality the Catholic doctor who performs the tubal surgery intends the abortion.

            It is a screwed up religion that preaches that lying makes the act ethical.

        2. For ectopic pregnancy, I thought, it was something about double effect. It is (as far as anyone knows) impossible for an ectopic pregnancy to come to term, so the life there is already lost. As a result, you can argue that treating the ectopic pregnancy doesn’t change the outcome. In all the other cases, it’s apparently the duty of the woman to give her life so that the fetus has a (tiny but nonzero) chance at independent life.

    4. Not only don’t they understand (or care about) ectopic pregnancies, they also have no clue about teratomas.

      Sure, these things could be fixed, given enough time and enough political will (yeah, right). But it’s not certain they would be (especially in a political climate where such an abomination had been passed and ruled constitutional) and in the meantime untold numbers of women would have their lives placed in jeopardy.

  8. I suggest that all of you who don’t believe that personhood would outlaw abortion might want to reread the Roe v Wade decision. In that case, the Supreme Court considered, and ultimately denied, the concept of fetal personhood. The whole idea of personhood is drawn from this so-called “Blackmun exception”: “If this suggestion of personhood is established, [Jane Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.” .

    Moreover, Blackmun went on to overturn the original Texas statute in part because it contained an exception for abortion to preserve the life of the mother. In Footnote 54, he specifically notes that the maternal-life exception is incompatible with the idea of personhood rights under the 14th Amendment: “if the fetus is a person who is not to be deprived of life without due process of law, 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?”

    1. Very good points. At the very least, then, in any case where a pregnancy endangered a woman’s life– like an ectopic pregnancy or uncontrollable gestational hypertension– a court order would be needed before anything could be done medically. That means a hearing and presumably paying lawyers. Probably the same would be needed before even starting any in vitro procedures, and I can imagine the arguments over whether freezing deprives a person of life or not.

      Pace Wido Incognitus, this bill would make abortion and probably many kinds of birth control (after adjudication, no doubt) flat-out unconstitutional. What other point could there be? That means states would not be able to allow them no matter what public opinion might be. Furthermore, if we think about juvenile rights and that whole structure of law, it’s pretty certain that this bill would open up a whole new very rich area lawyerizing over pre-natal rights and how they differ from post-natal but pre-majority rights. Would the state be obliged, for example, to come between a pregnant woman and a Big Mac? Would she be allowed one glass of wine, or two?

      Mentioning alcohol reminds me how similar this is to Prohibition. It wasn’t enough to outlaw alcoholic beverages state-by-state (except for medicinals, wink wink), as was happening over the years. No, it had to be national. And it had to be not only illegal to have a drink, but it had to be *unconstitutional* to have a drink. Not just against the law, but against the very Constitution itself. Given that the Constitution is often called our “fundamental law,” this is really a kind of civic fundamentalism at base. It isn’t politics and it really isn’t law. It seem like a kind of mystical belief in the power of texts more than anything else.

      1. In the interests of disclosure, I’m from Mississippi, and was personally very active against our personhood amendment last year. I have publicly debated personhood supporters about these same issues, and work closely with experts in ART and infertility law. There’s a reason why the American Society for Reproductive Medicine and the National Infertility Association (RESOLVE) vociferously oppose personhood, because we’re all aware that IVF is simply not compatible with personhood.

        Personhood supporters at the local and national level were quite clear that embryo cryopreservation would not be permissible under personhood. Not only does it deprive the embryo of the opportunity to live its life, but the cryopreservation procedure itself unfortunately destroys a significant percentage of the embryos. Depending on the lab, up to 50% of them won’t survive the freezing and thawing, and the ones which do successfully thaw are less likely to implant and develop. As the medical spokespeople for the personhood campaign said on numerous occasions, “You can’t freeze people”. Since IVF is not practical without embryo cryopreservation, it would be effectively impossible under personhood. No doctor would be willing to take on the legal and civil liabilities, and IVF without cryopreservation would actually pose a serious risk to the physical health of some patients.

    1. And what is he going to do about all those frozen embryos confined to freezers, being deprived of liberty without due process of law, in a clear violation of their constitutional rights?

  9. I suspect that the principal objective of the proponents of the proposed statute here is to set up a test case to litigate the continued validity of Roe v. Wade. Indeed, it may even be a challenge to Chief Justice John Marshall’s pronouncement in Marbury v. Madison that it is the province and duty of the judicial branch to say what the law is, in that SCOTUS opined as a matter of constitutional law in Roe that the word “person”, as used in the Fourteenth Amendment, does not include the unborn.

    Even if the proposed statute were to pass, however, that would not mean that states would be required to criminalize all abortions. Indeed, while the federal Constitution may limit the ability of a state to declare protected conduct to be criminal, it does not require a state to define any particular act as a crime.

    What acts do or do not constitute criminal homicide is primarily a matter for state law determination. For example, the killing of a viable fetus was not a crime at common law, but many states have enacted statutes imposing criminal penalties for the killing of a fetus.

    Roe v. Wade and its companion case of Doe v. Bolton permit a state to outlaw third trimester abortions, subject to exceptions where necessary to preserve the life or health of the mother. These decisions do not require a state to do so. If a state decided not to criminalize abortion until the thirty-ninth week of pregnancy, (not that any state would actually do so,) that would be the state’s prerogative. For that matter, if (hypothetically) a state were to define murder as the killing of a human more than twelve years of age and to provide that a killing of a younger person carries no criminal penalties, there would be no constitutional infirmity unless such a killing occurred under auspices of the state or by agents thereof–in which case due process of some kind would be necessary.

  10. tells of a pregnant 16 year old in the Dominican Republic who needed treatment for leukemia but did not receive chemotherapy until it was too late because abortion protects life from conception to death. Now the girl is dead, and this did not save the life of anyone, not even the baby she was carrying. In acute leukemia, a delay in treatment can have adverse effects.

    To their credit, there are Dominian lawmakers who realize this is wrong. But one concrete case illustrates how the consequences of certain ideas are not academic but matters of life and death.

    1. Make that “because Dominican abortion law protects life from conception to death”

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