Abortion is, of course, a serious issue fraught with moral tensions. So it’s not hard to see how abortion policy can raise a challenge for our legal system. But does abortion constitute a legal contradiction? Does abortion choice policy somehow betray the very legal and judicial system whereby abortion-choice is an established social policy?

Recently, a friend named Johnny asked this very question.  Referring to the Unborn Victims of Violence Act (H.R. 1997), he argues that it’s inconsistent for the legal system to treat unborn babies as murder victims in one law, and then excuse the same killing across the rest of abortion-choice policy. He then asked for resources to help build his argument. I agree with Johnny, and I’m pretty excited about this line of argument. While I’m not a lawyer, there are a lot of reasons to agree with him. I could not help but respond to him.

My response

Johnny, I think you have several options for arguing that our legal system contradicts itself [in regards to] abortion. The case you mentioned, the Unborn Victims of Violence Act (H.R. 1997), linked below, is one of the best reference points to build your case. Here are some of the contradictions/inconsistencies that come to mind, for me:

1. Federal-vs.-State inconsistency: the federal law may be understood to imply a presumptive right of protection for children-in-utero whereby any inconsistent/contradictory state laws may be challenged. This “presumptive right of protection” refers to the negative implications of “rights.” The child may or may not have any “right to life” [intrinsically], but … until it has been shown that the killer was entitled to take that child’s life, then this law suggests that there are federal protections for that child whether or not they are traceable to [fetal] “human rights.”

2. Scientific Inaccuracy: various laws and bills, including H.R. 1997, employ the findings of up-to-date science whereas Roe v. Wade is scientifically dated. In particular, Justice Blackmun, issuing the majority opinion for the case, claimed that we don’t even know when human life begins – that was false at the time of the RvW decision, and it’s been falsified even more since then. Blackmun understood that personhood and humanity were closely tied so he argued beyond the pale of good science so he could deny even the biological humanity of the child-in-utero. This left that court ruling vulnerable to future challenges on the basis of bad science. If a court ruling was fundamentally rooted in astrology, the theory of ether, or a ‘quickening view’ of biological humanity, these should all be subject to repeal today on the same basis.

3. Life bias: the Unborn Victims of violence act need not “prove” that fetal humans have a right to life, so long as it establishes a judicial precedent where the legal bias favors life. In other words, if you don’t know, don’t shoot. Our judicial system is replete with this bias in favor of the victim. This is a good thing since it means we demand the highest level of proof before passing a death sentence. We demand proof beyond a reasonable doubt).

4. Right to life: H.R. 1997 may demonstrate that there is in fact a right to life for all fetal humans, a right which is only partly and inconsistently secured by the government – so far. But it remains a right nonetheless.

5. Death Profiteering/Mercenary Killing: there are laws prohibiting and or restricting paid-killing (mercenary work/contract killing). Since abortion procedures both kill a biological human and generate a profit, they can qualify as death profiteering and could be prohibited on those grounds.

6. Child-protection: H.R. 1997 identifies the fetus as a “child-in-utero.” This terminology may be understood as involving the vast legal field of child protective services, and family law. Even if we could not prove that abortion is murder, it is still child-abuse, child-neglect, cruel-and-usual treatment of a child, etc.

7. Racism/Sexism: several laws are in place to prevent institutional racism and sexism. Abortion-choice policy, however, currently permits deliberately killing one’s child on the base of race or sex. [Also, considering the disproportionate rate of black and hispanic abortions, one may argue that abortion-choice policy has turned into a racist institution, regardless of good intentions and socio-economic rationalizations. The practical outcome is still killing, by ratio, more black and hispanic children-in-utero than white. Any institution deserves reconsideration when it generates hundreds of thousands of deaths while operating more on minority families than on white families.]

Sources

• Francis J. Beckwith. Defending Life: A Moral and Legal Case Against Abortion. Cambridge: Cambridge Univ. Press, 2007.
• John Ferrer. “A Documentary History of Human Rights Regarding Abortion.” AbortionHistoryMuseum [Website] 12 October 2017.
• ________. “A Documentary History of Abortion in America.” AbortionHistoryMuseum [Website] 9 October 2017.
• ________. “The Child in Utero: A Medical-Scientific Analysis.” AbortionHistoryMuseum [Website] 3 January 2017.
• Unborn Victims of Violence Act or “The Laci and Connor Law” (H.R. 1997) Public Law 108–212, 108th Congress, 1 April 2004.