Abortion Rights by Any Means

By Nat Hentoff

For many years, a fervent priority of the American Civil Liberties Union (ACLU) has been to protect and expand abortion rights, thereby leaving defenseless the most vulnerable human beings, the not yet born, each of them with his or her own distinct genetic identity. Predictably, the ACLU has attacked what it scornfully describes as the "so-called Unborn Victims of Violence Act," which passed the House on April 26 252 to 172 with 53 Democratic votes. This bill, says the ACLU, is "a cunning attempt to separate the fetus from the mother in the eyes of the law and in the court of opinion."

The ACLU might be surprised to learn that according to a standard medical text, The Unborn Patient: The Art and Science of Fetal Development (W.B. Saunders, 2001), the fetus is an individual patient, and to be considered "as much a patient as any other patient."

The federal bill, which has yet to pass the Senate, concerns the unborn patient. That is why it alarms the ACLU, the New York Times editorial board, the National Abortion and Reproductive Rights Action League, and others who believe in "choice" although the choice in this case is unilateral.

If under 68 already-defined federal crimes of violence an attacker has injured a woman, and in that act has injured or killed an unborn child (a fetus), the perpetrator can be charged not only with violence against the woman, but also with the death of or injury to the unborn child.

This is not a radical bill. If it is passed by the Senate and signed by the president, it will not erase Roe v. Wade. H.R. 503, the Unborn Victims of Violence Act that passed the House, states explicitly that nothing in the legislation "shall be construed to permit the prosecution for conduct relating to an abortion for which the consent of the pregnant woman...has been obtained."

Indeed, as the National Right to Life Committee has pointed out and this has not been denied by pro-abortion extremists "twenty- four states have already enacted laws that recognize unborn children as victims of violent crimes, and these state laws have been upheld by the courts." In Arkansas, for example, a living fetus of 12 weeks gestation is a person.

Moreover, the U.S. Supreme Court in Webster v. Reproductive Health Services (1989) did not object to a Missouri law that confers on the "unborn child at every stage of its development all the rights, privileges and immunities available to other persons" - - provided, said the Supreme Court, that Missouri did not use the law to restrict abortions.

The Unborn Victims of Violence Act does not permit the death penalty to be imposed if the unborn child is killed, but it does speak of "a child who is in utero at the time the conduct takes place."

A further definition of the violently killed fetus is given as follows: "a member of the species homo sapiens at any stage of development, who is carried in the womb." The fierce opponents of this bill claim that the notion that there can be two victims when a pregnant woman is attacked is actually a stratagem to so undermine Roe v. Wade that it will eventually be inoperative.

I have no doubt that many supporters of this bill do desire the end of Roe v. Wade; but there are pro abortion rights believers, including my wife, who insist that the Unborn Victims of Violence Act makes sense, logically, legally, and morally.

Julia King, in a commentary on National Public Radio, said, "I've marched, picketed, telephoned and written letters in support of reproductive freedom."

But, she adds, "If a pregnant woman is assaulted and, as a result, loses her fetus, the bill would make it possible to prosecute her assailant for murder." She then makes the crucial point in favor of the bill: Prosecuting the assailant "affirms the woman's right to give birth a choice just as significant as terminating a pregnancy." Julia King prefers "the more scientific term 'fetus' over the politically charged 'unborn child.' "

OK, can we agree that he or she in utero is human? And Julia King and I do agree that, as she says, "fighting an acceptable bill today simply because one anticipates an unacceptable one tomorrow isn't good strategy. It's stubbornness."

It's also zealotry. A companion bill has been introduced in the Senate by Mike DeWine of Ohio. It's now in the judiciary committee. Last year, the House passed a similar bill, but it died in the Senate because Bill Clinton threatened to veto it. President Bush will sign it.

This year, will Senate extremists filibuster this affirmation of a woman's fundamental right to give birth?

Reprinted with permission of the author.