Endnotes Part 4: Death of a Child
10. On its face, individual rights are a cornerstone of American law and political philosophy. The more pressing question is: “individual rights” according to what standards? Who decides the balance between complete autonomy and complete submission? Christians seek that standard by looking to the character and preferences of God in scripture and His creation. Modern American Culture has shifted to “radical individualism”, that is, the practice of each person being a god unto himself, deciding in isolation, his own law of behavior. In common discussions, this attitude is often expressed as “What’s right for me may not be right for you”. The implication of this attitude is that there is no objective standard of right and wrong, and therefore you have no right to tell me my choices are wrong.
11. The standard for a “mental health” exception may be nothing more than the inconvenience of interrupting one’s education and career, with its attendant frustration and loss of income. These considerations are minimal in significance compared to the intrinsic value of human life that is destroyed to serve these less fundamental interests.
12. “Bioethics Class Visits Neonatal Facility” Elyse Graham, Princetonian Staff Writer, http://www.dailyprincetonian.com/archives/2004/. See also, “Fetuses and Newborn Infants at the Threshold of Viability—A Framework for Practice” [BAPM Memorandum], http://www.bapm.org/documents/publications/threshold.pdf . Neonatal life support procedures can now sustain prematurely born fetal life from as early as 22 weeks, prompting the World Health Organization as early as 1993 to define the perinatal period as commencing at 22 weeks completed gestation (154 days; birthweight approx. 500g.). This information is relevant to the partial birth abortion procedure because “viability” is the marker legally for when the States may constitutionally intervene to prevent abortion. As stated in Planned Parenthood of Pennsylvania v. Casey (1992) 1992.SCT.43970
13. [WebMD Health at www.webmd.com—“How can I make informed decisions about my extremely premature infant?” and “Gestational age”]. An infant born before 37 completed weeks’ gestation is considered premature. Births that occur between 22 and 26 completed weeks of pregnancy are termed extremely premature. An infant’s chances of survival significantly increase with each additional week of gestation. Neonatal life support procedures can now sustain prematurely born fetal life from as early as 22 weeks.
14. The requirement that exceptions to anti-abortion statutes be made for both the life and health of the mother really amount to only one exception: health. A mother’s health clearly includes consideration of the protection of her life. Protection of life as a medical standard is clear: the mother’s life, in the absence of the abortion, would be at significant risk. A Physician can assess that risk by a fairly obvious benchmark: the patient’s impending death. On the other hand, the requirement that the mother’s “health” be considered is much less clear. Health includes emotional and physical states that may be unpleasant and transitory, such as sadness or depression related to changes required in life style because of the pregnancy. These minimal and often subjective criteria, evaluated by a physician, without checks or balances, give a virtual carte blanche to the procedure even after “viability” at 24 weeks.
15. Of course, any physician has a duty to conform to minimum medical standards to avoid charges of malpractice, but that standard is not relevant to this legal analysis. “Standards of Practice” do not address the necessary justification for residing with a medical professional nearly complete power to decide questions concerning the value of human life. Even at the Court’s “post-viability” demarcation of the States right to restrict abortion, the Court appears ready to abdicate responsibility for ethical considerations to persons not equipped, trained, or elected to make these profound decisions.
16. The Nebraska statute defined “partial birth abortion” as a procedure in which the doctor “partially delivers vaginally a living unborn child before killing the . . . child,” The Statue also defined the “killing of the child” to mean “intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [abortionist] knows will kill the . . . child and does kill the . . . child.” The law provided for the automatic revocation of the license of a physician performing this “procedure” and treated the abortion as a felony by the doctor.
17. The trial in Stenberg v. Carhart turned into a battle of medical experts debating the relative safety of abortion procedures. The strange twist to this exercise is that the cruel and inhuman actions of the abortionist were not the focus of the analysis. All the procedures at the point of near viability involve the ripping apart of the human body, and inflicting a barbaric and unquestionably painful death. The bizarre nature of the trial, and the appeals, is reflected by the state’s implicit argument that the locus of where the unborn child is found at the time of the killing determines whether the procedure can be restricted. Even the dissenting justices argued that because the birth is partial, and we can see in open view the act of dismemberment, the state had a legitimate interest in restricting these kinds of awful acts, but had no similar interest in restricting more commonly practiced abortions. This approach of “see no evil” is the absurd result of a Court following the logical application of its reasoning in Roe v. Wade 27 years earlier.
18. The four dissenting justices in Stenberg v. Carthart strongly opposed this conclusion, and reviewed the ample body of medical opinion concluding there was no demonstrable safety advantage to partial birth abortions.
19. Does law have anything to do with morality? Of course it does, and every law is the imposition of morality by one group upon the society at large. However, many lawyers and judges declare that morality has nothing to do with the law. Every lawyer knows that some immoral acts may not be illegal while other laws may even advance an unethical outcome. Lawyers are not trained in to apply morality, but to apply and practice law. Morality, many lawyers would argue, just muddies the water, and is irrelevant. For example, in a trial court, procedures are set and followed which have an almost mechanical quality to them, with no regard to the ethical implications of the results such procedures produce. Questions of “right and wrong” and “public policy” are more appropriately argued by legislatures creating law. The role of judges generally is to interpret and apply the law which legislators enact. Unfortunately, this line between the makers of law and the interpreters of law is crossed in cases like Roe v. Wade where the private morality and politics of the justices became an unpopular pronouncement of public policy embodied as a constitutional principle, a principle created but not found within the Constitution.
20. Overturning Roe v Wade will not end abortion. Rather, the individual states would be free under our constitutional system to enact restrictions, including criminal statutes, intended to limit or prohibit abortion. A substantial number of states presumably would not significantly increase or change the laws they enacted while Roe v. Wade was law. Still, the question of public policy and morality in the law would be addressed appropriately where it should be—not in the courts, but in the individual state legislatures. In this regard, the original intent of the constitution, as expressed in the 9th amendment, was to reserve all powers to the states not specifically enumerated as federal powers in the Constitution.
