By Nick Gier
“There is zero place for politicians to be involved in these very complicated medical decisions.” — Sen. Kirsten Gillibrand
Out of fear that the current Supreme Court may repeal Roe v. Wade and undermine women’s reproductive rights, legislators in Virginia and New York have offered bills to shore up those rights. In no way whatever does this legislation allow doctors, as Trump recently claimed, “to rip babies out of their mothers’ wombs.” As per usual, he is shooting from the hip without any facts or understanding in his holster.
In response to Trump, Dr. Kristyn Brandi, an obstetrician-gynecologist and a board member of Physicians for Reproductive Health, said that this is a “gross mischaracterization”: “It’s not something that any person would come seeking, and it’s not something that any doctor would provide.” Frances Kissling, President of the Center for Health, Ethics and Social Policy, agrees: “No matter what the laws were, in real life, these things don’t happen.”
New York Bill Removes Charge of Homicide
The New York bill, signed into law by Gov. Andrew Cuomo, would provide for third term abortions after 24 weeks when there is “an absence of fetal viability” or “if it is necessary to protect the patient’s life or health.” Significantly, the new bill removes the provision that a late term abortion could result in charges of homicide.
In 2017 Erika Christensen of Brooklyn was 30 weeks pregnant when her doctor informed her that her fetus had a fatal condition. She and her husband decided to fly to Colorado to have a legal abortion there at a cost of $10,000. Christensen said: “The cost and travel would be impossible for a lot of people. I counted myself lucky.” Fortunate, too, was any New York doctor would have risked a murder charge to perform the procedure.
Virginia Bill on Third Term Abortions Tabled
Virginia law already provides for third term abortions if there is a threat to the mother’s life or if her mental or physical health is “substantially and irremediably impaired.” Kathy Tran, a Democrat in Virginia’s House of Delegates, wants to delete the words “substantially and irremediably” and reduce the number of deciding doctors from three to one. Her bill has been tabled and has no chance of getting by a Republican majority.
Presumably, Tran was appealing to the constitutional provision, introduced in 1992 by former Supreme Court Justice Sandra Day O’Connor in Planned Parenthood v. Casey, that Virginia law presents an “undue burden” (O’Connor’s words) on the pregnant woman. In any case, this more liberal language does not constitute free-wheeling infanticide.
If only Rep. Tran had had the counsel of Brandi and Kissling above, she could have avoided the trap laid by GOP majority leader Todd Gilbert. He presented an extreme hypothetical, and got Tran to agree that a woman, citing mental health reasons, could demand an abortion after going into labor
Gov. Ralph Northam, trained as a pediatric neurologist, came to Tran’s aid and explained that Gilbert’s hypothetical was absurd, and that no doctor would perform an abortion on the delivery table. The medical details he gave about a mother and a disformed fetus was taken out of context by anti-abortionists to insinuate that Northam supported infanticide.
Megan McCain Wrong on Third Term Abortions
On ABC’s The View Megan McCain spoke falsely about third term abortions. He stated that “we are one of only seven nations in the world, along with North Korea and China, to allow abortion on demand after 20 weeks.” The facts of course are otherwise. According to Dr. Daniel Grossman, “65 countries allow abortion at this stage in cases of fetal malformations or anomalies.”
Third semester abortions are rare. Most (90 percent) happen in the first trimester (12 weeks), only 9 percent up to 20 weeks, and then a mere 1 percent thereafter. If abortions were offered at no cost, as they are in 78 percent of countries, and if there was universal access, then American abortions would be much earlier and much safer.
In his response to Megan McCain, Dr. Grossman reported that in 2013 “there was a 25 percent increase in second and third-trimester abortions because of the laws in Texas (which were later found unconstitutional) that made access to first trimester abortions difficult.” Furthermore, after the assassination of Dr. George Tilly in a Unitarian Church in 2010, there are now only about a dozen doctors who perform third trimester abortions.
Unless a woman is paying a “back-alley” provider, there is no such thing as abortion “on demand.” There are always consultations with a doctor (or with a team in case of third term procedures), and it is simply presumptuous and even cruel to suggest that women are thoughtless or immoral regarding one of the most vital decision of their lives
Unnecessary and Groundless Obstacles to Abortion
What is really cruel are laws that require a woman to endure invasive questions, obtain parental consent for minors, wait longer than necessary, read medically inaccurate information, and undergo ultrasound imaging. At 31 days a human embryo is little different from a pig embryo. An early chimp fetus is nearly indistinguishable from a human one, so “looks like” does not make chimps human persons, although they may well be persons in their own right for other good reasons.
Religious and Legal History of the Status of Fetus
Before I close, let us take a brief look at the religious and legal history of these issues. The ancient Jews believed, following Gen. 2:7, that the fetus becomes a person only after it draws its first breath. God “breathed the breath of life (neshamah) into the man’s nostrils, and the man became a living person (nephesh).” Presumably, God does the same for Eve after she is created from one of Adam’s ribs, but the Bible does not confirm this.
If there is a threat to the life of a pregnant mother, the rabbis decided that her rights are preeminent. This is clear in the rabbinic interpretation of Exodus 21:22-25, where the man who causes a woman to miscarry and die must give his life for hers. If only the fetus dies, he pays a fine to the husband.
Abortion of “Unformed” Fetus is not Homicide
The rabbis were using a different text, 800 years later, from which our current translations are made. Yet another text is the Greek translation done by Egyptian Jews in the 3rd and 2nd Centuries B.C., which was considered God inspired by the early Church Fathers. In this rendering of Exodus 21, we find a distinction between a “formed” and “unformed” fetus, and until Cannon Law was changed in 1916, Catholics believed that an abortion of an “unformed” fetus was not homicide.
In the mid-17th Century English jurist Sir Edward Coke cited Exodus 21:22-25 and agreed with the rabbis that the fetus is not a person until “it is born alive.” Significantly, current New York law, echoing Coke and precluding charges of homicide, defines a person as a “human being who has been born and is alive.”
Sir William Blackstone (1732-80) moved the cut-off point back to “quickening in the womb.” (This is the equivalent to the Catholic’s “formed” fetus.) Blackstone became the chief legal expert of the age, and our founding thinkers, especially those who studied law, would have read, and presumably affirmed, his views on abortion. If they had been confronted with the issue of third term abortions, I’m confident that they would have supported the rights of the mother.
“Quickening” is about four weeks earlier than the “viability” criterion of Roe v. Wade, but still conservatives on the Supreme Court who believe in “original intent” should be bound by Blackstone’s views. I’m not holding my soul-breath (nephesh) for them to do so.
P.S. Today conservative jurists are great admirers of William Blackstone.
Nick Gier of Moscow taught philosophy and religion at the University of Idaho for 31 years. Read his article on abortion webpages.uidaho.edu/ngier/abortion.htm. Email him at [email protected].
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