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The Human Life Amendment
by Charles Rice
Released October 4, 2005
Introduction
"If a human life amendment is added to the Constitution, the fertilized egg could have more rights than you do." So predicts Rhonda Copelon, writing in the February, 1981, Ms. magazine. A human life amendment, she warns, "could make women slaves to the fetus and thereby to the state." Clearly, the pro-abortion forces are worried. A full-page ad sponsored by the STOP HLA Campaign of the National Organization for Women, in the Washington Post (Feb. 4, 1981), warns that:
"The HLAs sponsored by leaders of the anti-abortion movement in Congress would outlaw the IUD and some birth control pills. These methods of birth control can prevent the implantation of the fertilized egg, thus denying it the 'right to life.' Under the HLA, some forms of birth control become the equivalent of homicide. Under the HLA, if a woman should have a miscarriage or a spontaneous abortion, she could be investigated to determine whether it was accidental or intentional. She could be subject to criminal prosecution."
"To enforce this 'right to life,'" writes columnist Ellen Goodman, "aborted women and their doctors would surely be charged with murder. IUDs would, in all likelihood, also be banned. But the amendment also would require ultimately a massive hunt, a government edict to investigate 'miscarriages,' to oversee the habits of pregnant women and monitor research from genetic screening to amniocentesis. This is not fantasy. It is probability" (Chicago Sun-Times, Feb. 1, 1981, p. 5).
These suggestions are essentially fantasy, but it is important to deal with them seriously. They indicate the new thrust of the pro-abortion campaign. The pro-abortionists are trying to make the issue a referendum on "birth control" in general, which term is broad enough to include contraception as well as abortion.
As long as the issue is the killing of preborn babies, clearly presented as such, the anti-life forces know that ultimately the American people will choose life and that they, the baby killers, will lose. But the American people are still apparently favorable to contraception. And the pro-abortionists are trying to frame the issue as if the Human Life Amendment would outlaw contraception as well as abortion.
It is true, of course, that the plague of abortion is attributable in large part to the mentality of unwanting babies that is characteristic of the contraceptive society that we have become. Nevertheless, the Human Life Amendment would not in any way outlaw contraception. Abortion is the taking of existing human life while contraception is the prevention of life. All that the Human Life Amendment would do is provide that the preborn child has the same right to live as his elder brother or his grandmother. It would not affect in any way the legalization of contraceptives.
Various forms of human life amendments have been proposed. But the one which most arouses the ire of the anti-life movement is the Paramount Human Life Amendment, which provides, "The paramount right to life is vested in each human being from the moment of fertilization without regard to age, health, or condition of dependency."
This is the strongest and most effective amendment pending in Congress. But to understand what it would accomplish and why the pro-abortionists' warnings about it are exaggerated, we have to consider the basic constitutional issue presented by the abortion controversy.
Your right to live is protected by the Constitution because you are a "person." But in Roe v. Wade (410 U.S. 113[1973]) and Doe v. Bolton (410 U.S. 179[1973]), the Supreme Court ruled that the preborn child is not a "person" at any time before birth, within the meaning of the Fourteenth Amendment, which protects the right of a "person" to life and the equal protection of the laws.
The mother's privacy right to have an abortion (a right which the Court discovered in its own rulings since 1965) was held by the Court to prevail over the non-right of the non-person in her womb. For the first two trimesters of pregnancy, the Court allows the states, in effect, to impose no prohibition at all on abortion. During the third trimester, the state cannot prohibit abortion where it is sought to preserve the life or health of the mother.
The health of the mother, however, includes "psychological as well as physical well-being," and "the medical judgment may be exercised in the light of all facts-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being" of the mother (Doe v. Bolton, 410 U.S. at 191-92). Mental health is such an elastic criterion that the rulings are in effect a license for elective abortion at every stage of pregnancy until birth. In practical terms, the life of the preborn child has no more constitutional protection than the life of a goldfish.
The Human Life Amendment would restore personhood to the preborn child. But the Constitution is not a code of criminal law. The implementation of the guarantee of personhood would be up to the state legislatures, just as the implementation of the Fourteenth Amendment's guarantees is for those legislatures with respect to the right to live of persons already born. The Supreme Court misinterpreted the Fourteenth Amendment in holding that the preborn child is not a "person." The basic thrust of the Human Life Amendment is merely to correct that misinterpretation to restore to the preborn child the same right to live that is enjoyed by his elder brother or his grandmother.
Against this background we should consider some of the exaggerated claims made by the pro-abortionists in an effort to scare off supporters of the Human Life Amendment:
The HLA would require the states to punish abortion as murder or as manslaughter.
Let us be clear about one thing. Abortion is murder in the moral sense because it is the directly intended taking of human life without justification. It was in this sense that Rev. Christian Bartholdy, a Danish Lutheran, observed in 1965 that permissive abortion was turning his country into "a nation of murderers" (Grisez, Abortion: The Myths, the Realities and the Arguments [1970], 349).
But in legal terms, the crime of abortion, for historical reasons, has not been defined as murder in criminal statutes or at common law. It is up to the legislature to determine the classifications and degrees of crimes, which generally depend on extenuating circumstances and the mental state of the defendant. Under the Human Life Amendment, the state legislatures would have flexibility in determining how abortion would be punished as it has such flexibility with respect to other unjustified killings. The irreducible minimum is that the preborn child would no longer be a non-person whose killing would be unpunished by the law. But the legislature could decide how to punish it.
It would be proper, for example, for the state to emphasize the punishment of the doctor; it would be proper for prosecutors or the legislature to minimize or even forgo punishment of the mother in order to focus on the doctors.
In any event, the above objection of the pro-abortionists is a scare tactic. The vision of women undergoing abortion and then being sentenced to the electric chair is a fantasy. The reality under the HLA will be no different in this respect from the reality under pre-1973 abortion laws. The real targets of prosecution will be the doctors and others who reap financial or ideological profit from their participation in the murder of preborn babies.
If a woman has a miscarriage or a spontaneous abortion, she will be investigated to determine whether it was spontaneous or intentional. She could be subject to criminal prosecution.
Under the HLA this will be no more true than it was under pre-1973 abortion laws. The common sense of the medical and legal professions can be relied on to prevent abuse here. This objection, incidentally, raises an interesting question with respect to child abuse and infanticide. If a child accidentally falls and dies or is accidentally scalded in a tub of hot water, it is possible that the question might arise as to whether the injury or death was due to child abuse. Yet the possibility of such questions being raised, as they should be by alert medical and law enforcement personnel, does not mean that we should abolish the general child abuse and homicide laws. If the HLA were adopted and abortion were made a crime, the mother experiencing a spontaneous abortion would have no more cause to worry about prosecution than does the mother whose two-year-old infant is accidentally drowned in the backyard pool. In neither case does the possibility that the death of the preborn or the infant might be suspected to be criminally caused in some cases argue for the abolition of the statutes making the deliberate killing of such a victim a crime.
The HLA would bring invasions of privacy. The government could require monthly pregnancy tests for all women; all pregnancies or suspected pregnancies would have to be registered; once pregnancy is established, the state could require the mother to give up smoking, drinking and so on, for the protection of the child.
This parade of horribles ignores the fact that we have in our Constitution a Fourth Amendment which prohibits "unreasonable searches and seizures." The HLA would not abolish the right of privacy. All it would do is restore to the preborn child the protection of the traditional principle that lesser rights such as the right of privacy do not outweigh the right to life.
If these and other conjectures of the pro-abortionists were realistic, why were no such excesses evident under the pre-1973 abortion laws? The answer is that the good sense of legislatures, courts and the people can be counted on now as before to prevent abuse.
Incidentally, prior to 1973, a woman could be required to undergo procedures which were not dangerous to herself in order to save the life of the preborn child she was carrying. Thus, in Raleigh-Fitkin-Paul Morgan Memorial Hospital v. Anderson (42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 [1964]), the New Jersey court required a woman to undergo a blood transfusion, despite her religious objections, in order to save the life of her preborn child.
But it is incorrect to suggest that under the HLA a pregnant woman could be required to take a drug dangerous to her own life, or undergo some procedure dangerous to her life, even to save the life of her child. She would have no right to kill her preborn child. But neither would she be required to kill herself even to save her child. This principle would be no more susceptible to abuse under the HLA than it was under the pre-1973 rulings.
Use of an lUD or a birth control pill would be a crime since they evidently interrupt a pregnancy after fertilization.
It is clear that the intrauterine device and many birth control pills are abortifacients rather than contraceptives. The HLA would permit a state legislature to control such abortifacients in the only practical way, which is through the licensing procedure. It would be impossible, however, to prosecute for abortion in such cases, since it would be impossible to prove that the pregnancy had actually occurred and had been terminated by the device or pill.
Where a device or pill has no other use than to terminate life, the legislature, pursuant to the HLA, could prohibit its manufacture and sale. Where a device or pill has alternate, non-abortive functions, its prescription by the medical profession could be subject to appropriate regulation.
This is a matter of great importance, because the abortion of the near future is going to be by pill or other do-it-yourself means. If we concentrate only on surgical abortions at later stages of pregnancy, we risk sanctioning a wholesale slaughter of persons in the earliest stages of life. There is a tendency in some parts of the pro-life movement to seek a "quick fix" by conceding the legitimacy of early abortions. This would be a fatal mistake. The fact is that the lUD and most birth control pills do kill people. Their victims are very little people but it surely is within the power of any civilized society to do whatever can be done to prevent those killings.
The HLA would outlaw contraception.
This is false. Abortion is the taking of life while contraception is the prevention of life. The HLA would not restrict contraception in any way. There is a definite connection between abortion and the contraceptive mentality of unwanting babies. But the HLA does no more than guarantee the rights of personhood once life has begun.
Eleanor Smeal, head of the National Organization for Women, said, "We need to make people aware that the proposed HLA will turn back birth control to 1900 and the amendment will be politically dead. It is a tragic waste that we have to fight Margaret Sanger's battles all over again..."
This is a revealing comment. Margaret Sanger was a strong advocate of eugenic sterilization. She called the "feebleminded" a "menace to the race" and she proposed "to apply a stern and rigid policy of sterilization and segregation to that grade of population whose progeny is already tainted, or whose inheritance is such that objectionable traits may be transmitted to offspring" (Elasah Drogin, Planned Parenthood's Margaret Sanger: Architect of Modern Society [Human Life Center, Collegeville, Minn., 1979]).
"There is only one reply," she stated, "to a request for a higher birth rate among the intelligent, and that is to ask the government to first take the burden of the insane and feebleminded from your back. Sterilization for these is the solution" (Ibid.).
Among the slogans she coined to promote her movement were "More children from the fit, less from the unfit-that is the chief aim of birth control" and "Birth control: to create a race of thoroughbreds" (Ibid.).
If the right to life is guaranteed by the HLA "irrespective of age, health, or condition of dependency," would not the state then be required to provide the basic necessities of life for people of all ages?
No. The experience under the Fourteenth Amendment is the guide here. The HLA, like the Fourteenth, is a protective amendment. It would require the states to protect life. But the fact that the life of a teenager or an adult is protected by the state does not mean that he has a right to a state subsidy. The HLA would make no change in this regard.
How can the duty to provide bodily sustenance to another be confined to pregnant women? Under the HLA, why can't the state require everyone, male and female, to provide a needed organ or other bodily material to save another person?
Here again the Fourteenth Amendment is the guide, since the HLA would merely correct the Supreme Court's erroneous interpretation which excluded the preborn child from the protection of the Fourteenth Amendment. Under the Fourteenth Amendment, the state cannot require people in general to donate an organ even to save another's life. The law here is protective. It sets a minimal standard to prevent invasion of rights. Only in very limited situations does the law impose affirmative duties. The pregnant woman has the duty merely to provide sustenance and protection to the child she is carrying. This is merely a recognition of her unique relation to the child she is carrying.
After birth the parental duty of sustenance and protection continues, though in a different form. But it is fantasy to suggest that the HLA would lead to such things as mandatory organ transplants.
The National Organization for Women claims, "Under laws defining murder, manslaughter, assault, kidnapping and myriad other crimes involving a person as victim, the fertilized egg and fetus would be included as potential victims."
The HLA restores personhood to the preborn child only with respect to his "right to life," since it was with respect to this right that the Supreme Court denied such personhood. Assault, kidnapping and other laws not involving homicide obviously would not be required to be enforced for his protection. With respect to homicide laws, the answer to question 1, above, is relevant.
Under the Human Life Amendment, wouldn't the preborn child have to be counted in the census, be considered a dependent for tax purposes, have to obtain a passport if his mother leaves the country, etc., etc.?
The answer to these and similar objections is: No. The Human Life Amendment would require only that the preborn child be treated as a person with respect to his right to life. It was with respect to that right to life that the Supreme Court denied his personhood. Inclusion in the census, passports, etc., would not be required under the HLA because those issues do not involve the deprivation of his right to life.
Under the Human Life Amendment, wouldn't the "right to life" attach to an egg fertilized in a dish by in vitro fertilizations?
Yes. There is no sense equivocating on this issue. When Louise Brown, the first "test-tube" baby, was born, the whole world acknowledged that her life had begun at the time of fertilization by the in vitro process. The common practice with in vitro fertilization is to fertilize several eggs, let them mature for a time, select the best one for use and throw the others away. The HLA would guarantee the right to live of all human beings, even the smallest. It would permit the states to regulate the process of in vitro fertilization so as to protect that right. In civilized society there can be no "throw-away" human beings.
Isn't it true the "no-exceptions" Human Life Amendment is an effort to enact into law a sectarian Catholic doctrine?
No. The "no-exceptions" position coincides with Catholic teaching. But so do the laws forbidding bank robbery. In neither case can such a law be condemned as a sectarian intrusion on public policy. The "no-exceptions" position is justified on grounds essential to the maintenance of any civilized society. And it is an insult to pro-life people who are not Catholic to suggest that the pro-life movement is a Catholic front. "As a Christian," writes Pastor Kent Kelly of Calvary Memorial Church in Southern Pines, North Carolina, "you have no business debating the abortion issue unless you are against abortion, period." The argument for an exception even to "save the wife," he concludes, "like every other argument of the abortionists, is based on a false premise to generate sentiment in favor of the murder of the unborn" (Kelly, Abortion: The American Holocaust. Calvary Press, 400 South Bennett St., Southern Pines, NC 28387; 1981, pp. 94, 96).
In fact, the official Catholic Church in this country has been put to shame by the pro-life zeal of other Christians, Mormons and Orthodox Jews. It would be a shame if some people were to allow the vestiges of a well-forgotten prejudice from the past to interfere with their total commitment to the restoration of the right to live. It is unthinkable that anyone dedicated to that cause would withhold his support merely because Catholics, acting in accord with their own convictions, are also engaged in that effort.
How should we deal with the endless objections and accusations that will be raised against HLA?
The important thing is to keep emphasizing the limited scope of the HLA, as outlined above. Pro-abortionists are trying to mislead people of good will. Our only recourse is to state the facts calmly and persistently. It is not the pro-life movement which is committing an outrage against the Constitution. The outrage was perpetrated by the Supreme Court and is being carried on by those who support the pro-death abortion rulings of the Court.
Shouldn't we try to find some middle ground that will not be subject to objections?
No. If the Ten Commandments were proposed for a vote, the same sort of tactics would be used by their opponents as are being used against the HLA, which is merely an application of the basic prohibition in the Decalogue against the murder of the innocent. There can be no compromise on this issue.
But the reassuring factor is that the pro-life movement grows and succeeds only to the extent that it refuses to compromise and to the extent that it puts its primary trust in God.
No constitutional amendment is perfect. And we should remain open to genuine improvements. But objections of the sort we have discussed herein are not raised in order to improve the amendment. They are the product of a campaign of wholesale misrepresentation. That campaign can be countered-and we can achieve success-only with the truth, hard work and prayer.
Basic questions and answers on the Human Life Amendment follow. Please turn the page.
HLA Basics
What is the essence of the 1973 Supreme Court ruling and how has that ruling affected abortion practices?
In its 1973 abortion decisions, the Supreme Court ruled that the preborn child is not a person within the meaning of the Fourteenth Amendment and that therefore the preborn child is not entitled to the right to life protected by that amendment. In providing guidelines, the Court allows the states to impose no prohibition at all on abortions performed during the first two trimesters of the pregnancy. During the third trimester, the Court held, the states could prohibit abortions except in cases where the abortion is sought to preserve the life or health, physical or mental, of the mother.
Since no restrictions are allowed on abortion in the first two trimesters, and since "mental health" is such an elastic criterion, the net effect of the Supreme Court rulings is to require the states to allow elective abortion at every stage of pregnancy until birth.
What is the remedy for the Supreme Court decisions that mandate such elective abortions?
The ultimate remedy to the Supreme Court decisions is an amendment to the U.S. Constitution. The amendment must accomplish the following three objectives:
- Expressly, or by clear implication, restore "personhood" to the unborn child with respect to his right to live;
- Apply the protection of the Constitution to the preborn child from the beginning of life, that is, from the moment of fertilization;
- Permit no exceptions.
Why shouldn't we be satisfied with a law that would stop most abortions, even if it allowed some abortions to continue?
Every year we "legally" kill by abortion innocent human beings in numbers equivalent to the combined populations of Kansas City, Minneapolis and Miami-at least 1,300,000. Because of the horrible dimensions of this mass slaughter, there is a tendency in some areas of the pro-life movement to favor whatever will promise an immediate reduction of the killings, even if that reduction is at the price of permanently legalizing abortion on a smaller scale. Those who insist, on the contrary, that the right to life must be restored, without exceptions, may appear to be heartless and more devoted to an abstract principle than to the saving of innocent lives. In fact, the Supreme Court rulings on abortion leave no alternative but to support a no-compromise, no-exception constitutional amendment that would prohibit all abortions. Such an amendment has already been proposed in Congress and is named for its co-sponsors, the Helms-Dornan amendment.
Why shouldn't abortions to save the life of a mother be permitted under the law?
There are no situations where abortion is medically or psychiatrically justified to save the life of the mother (see Wilson, "The Abortion Problem in the General Hospital," in Rosen, Abortion in America [1967], and Whitehead, Respectable Killing: The New Abortion Imperative).
We must be careful, however, to distinguish cases such as the cancerous uterus and the ectopic or tubal pregnancies. If a pregnant woman has a cancerous uterus and, to save her life, it is necessary to remove the uterus, and the operation cannot be postponed until the baby is born, then the uterus may be removed even though such an operation results in the death of the preborn child. Similarly, when a fertilized ovum lodges in the fallopian tube and begins to grow there, the damaged portion of the tube, containing the developing fetus, may be removed surgically where it is clearly and imminently necessary to save the life of the mother. Such operations as these are considered moral even under Catholic teaching (see Ethical and Religious Directive for Catholic Health Facilities, National Conference of Catholic Bishops, 1971, paragraphs 10-17).
Morally, these operations are considered indirect abortions and they are justified by the principle of the double effect, since the death of the child is an unintended effect of an operation independently justified by the necessity of saving the mother's life. They do not involve the intentional killing of the preborn child for the purpose of achieving another objective, such as the preservation of the mother's health or life. Morally, therefore, such operations may be justified.
Legally, they are not considered to be abortions at all. There has never been a prosecution even attempted in this country based on the removal of such a condition, even where the mother's life was not immediately threatened. There is no need, therefore, to provide a specific exception for such cases in a constitutional amendment prohibiting abortions.
Apart from such cases as the ectopic pregnancy and the cancerous uterus, there is no medical or psychiatric justification for terminating a pregnancy. But even if there were, a constitutional amendment should not legalize abortion in such cases.
For example, if two people in the middle of the ocean are on a raft that can hold only one person, the law does not permit one to throw the other overboard even to save his own life (see Regina v. Dudley and Stephens, 14 Q.B.D. 273, 15 Cox C.C. 624, 1884; and U.S. v. Holmes, 2G Fed Cases 360 [No. 15,383] C.C.E.D., Pa., 1842). Otherwise, might would make right. In maternity cases, the duty of the doctor is to use his best efforts to save both of his patients, the mother and her child. He should not be given a license to kill intentionally either of them.
Why shouldn't abortions be permitted to preserve a mother's health or when amniocentesis shows that the child will be born with serious defects?
If an exception should not be made where the life of the mother is concerned, it follows that an exception should not be made for any lesser reason. To allow abortion to prevent injury to the mother's mental or physical health (where her life is not in danger) is to allow killing for what ultimately amounts to convenience. And to kill a preborn child because he may be born defective is to do exactly what the Nazis did to the Jews whose lives they regarded as not worth living.
But why shouldn't abortions be allowed to those women who become pregnant by rape or incest?
The woman who is raped has a right to resist her attacker. But the preborn child is an innocent non-aggressor who should not be killed because of the crime of the father. More to the point, since a woman has the right to resist the rapist, she also has the right to resist his sperm. There are non-abortive measures that can be taken, consistent with the law and even with Catholic teaching, promptly after rape, which are not intended to abort and which will prevent conception.
However, once the innocent third party to a rape, the preborn child, is conceived, he should not be killed. The duty of the state and society in all cases of "troubled" pregnancies is to mobilize resources to solve the problems constructively with personal and financial support. A license to kill is not a constructive solution.
Incest is a voluntary act on the woman's part. If it were not, it would be rape. And to kill a child because of the identity of his father is no more proper in the case of incest than it is in the case of rape. Again, the positive solution of support should be pursued, not legalized murder by abortion.
Why is it so important for a Human Life Amendment to provide for granting the legal status of "personhood" to the preborn child?
In Roe v. Wade, the basic 1973 abortion ruling, the Supreme Court held that if the personhood of the preborn child is established, the pro-abortion case "collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment." This is because the law does not permit one person to kill another innocent person even to save the life of the killer. As the Supreme Court itself noted in Roe v. Wade:
When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other state are all abortions prohibited. Despite broad proscription, an exception contained in Article 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But 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?
It seems clear from those statements of the Court that a simple restoration of "personhood" to the preborn child, without exceptions, should prevent the states from legalizing any abortions, even when they are claimed to be necessary to save the life of the mother. Such a result is consistent with the common law, under which the principle of necessity does not justify anyone taking the life of an innocent non-aggressor even to save his own life. The Paramount Amendment implicitly, but clearly, restores "personhood" to the preborn child without any exceptions. The amendment provides:
The paramount right to life is vested in each human being from the moment of fertilization, without regard to age, health or condition of dependency.
It is true that the Paramount Amendment would not prevent the state legislatures and the Supreme Court from applying, incorrectly, the law of necessity so as to permit abortion to save the life of the mother. But no constitutional amendment on any subject can be drawn so as to be immune to misconstruction. The recent history of the Fourteenth Amendment is evidence enough on that point. The object of a Human Life Amendment should be simply to restore to the preborn child the same right to live which is enjoyed by his older brother and his grandmother. Even the Supreme Court acknowledged in Roe v. Wade that such recognition of personhood would prevent the legalization of abortions even where claimed to be necessary to save the life of the mother.
Wouldn't it be better to have a Human Life Amendment with limited exceptions so as not to invite courts and legislatures to write their own more far-reaching exceptions?
It has been argued by some that to write an amendment without exceptions is to invite the states and the Supreme Court to write their own exceptions which could be practically unlimited. But this contention is unsound. It argues that if you write in just one little exception, the states and the Court will not be able to add others. This is wholly unrealistic.
To argue that writing one exception into the amendment will prevent the Supreme Court from adding others is to rely on the Court's adhering to the canon of legislative drafting expressio unius est exclusio alterius-which means that the inclusion of one excludes others not mentioned. This canon of interpretation, however, is merely presumptive and has been disregarded by courts on numerous occasions.
Curiously, those who favor exceptions on this theory rest their case on the expectation that the Court will strictly adhere to this merely presumptive guide to construction while they wholly disregard the more basic concepts of personhood and necessity which were even acknowledged by the Court in Roe v. Wade. Advocates of an exception are sure the Court will disregard that very basic concept under which a restoration of personhood would prevent all abortions while they assume that if one exception is written in, the Court will feel itself bound by the merely presumptive rule of expressio unius and will go no further.
In fact, it is impossible to draft any exception clause which will not open the door to psychiatric abortions and, in ultimate practice, to abortions on request. Even the most limited exception would be broadly interpreted. For example, on the televised MacNeil/Lehrer Report, April 22, 1980, Dr. Michael Burnhill of the National Abortion Federation said that even an exception limited to abortions that would endanger the life of the mother would permit him to perform whatever abortions he thought were "medically necessary," which would include abortions to preserve the mother's "health," which he defines as "a condition in which one can actively participate in one's total life, that you are not a cripple or an invalid."
On a practical level, the recent experience with the Hyde Amendment indicates that when pro-lifers concede one exception, they disarm themselves and become incapable of resisting the arguments of those who would extend the exceptions to cover such cases as rape and incest. The preferable alternative is to restore personhood to the preborn child with respect to his right to live without exceptions.
But isn't it good tactics to include exceptions in an amendment to make sure it will gain a broad support?
No. Those in the pro-life movement who traffic with exception clauses are trying to gain support from those who favor "only a few" abortions. But such people are worthless as allies since they are basically opposed to an authentic pro-life position and since they are practically incapable of resisting the expansion of their exceptions.
On the contrary, the pro-life movement is only as strong as its refusal to compromise. In fact, there are no cases where a legal abortion is necessary even to save the life of the mother. The removal of a cancerous womb or an ectopic pregnancy is not an abortion in legal terms and therefore no exception clause is necessary to authorize such operations, which are permitted even under Catholic teaching.
Agreeing on amendment language is a problem mainly for those who are trying to carry water on both shoulders. If you want leeway for some abortions, or if you favor the intrauterine device or morning-after pill, which are early abortifacients, you will have trouble with the language, and you will end up with an "anything goes" amendment.
Those who propose exceptions to the right to live present themselves as pragmatic realists. But in fact the only practical solution here is one that adheres to principle. If an amendment with exceptions to the right to live were ever passed by Congress and sent to the states for ratification, it would have to be actively opposed by all who regard the right of innocent life as non-negotiable.
Such an amendment would never be ratified over the opposition of the strongest elements in the pro-life cause. To write into our Constitution a license for the intentional destruction of innocent life would be to adopt the jurisprudence that underlay the Nazi extermination of the Jews. This we can never allow.
What is really at stake in this matter of making exceptions to the right to live?
The real issue is whether life is a gift of God or of the State. Innocent life is non-negotiable precisely because it comes from God. The governing principles were stated by Pope John Paul II in his homily at the Capitol Mall on October 7, 1979:
I do not hesitate to proclaim before you and before the world that all human life-from the moment of conception and through all subsequent stages-is sacred, because human life is created in the image and likeness of God. Nothing surpasses the greatness or dignity of a human person... Let me repeat what I told the people during my recent pilgrimage to my homeland: "If a person's right to life is violated at the moment in which he is first conceived in his mother's womb, an indirect blow is struck also at the whole of the moral order, which serves to ensure the inviolable goods of man. Among these goods, life occupies the first place. The Church defends the right to life, not only in regard to the majesty of the Creator, who is the First Giver of this life, but also in respect of the essential good of the human person."
On a more specific level, the Declaration on Procured Abortion, issued with the approval of Pope Paul VI in 1974, said, "Man can never obey a law which is in itself immoral, and such is the case of a law whichlicityadmit in principle the liceity of abortion. Nor can he take part in a propaganda campaign in favor of such a law, or vote for it."
It is long past time for the pro-life movement to stop apologizing for itself and to affirm without compromise that life is a gift of God and not of the State. Our duty is to protect the right to live of each and every child of God.
By Charles Rice
Professor of law
University of Notre Dame
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