Legal Affairs – The Drift Toward Infanticide-And How RU-486 Can Help

National Journal

The abortion-rights lobby has not yet publicly embraced the view of Peter Singer, a Princeton University bioethicist, that because "the fetus does not have the same claim to life as a person, it appears that the newborn baby does not either." Or that "killing a disabled infant is not morally equivalent to killing a person [and] often it is not wrong at all." Or that "the life of a newborn baby is of less value … than the life of a pig, a dog, or a chimpanzee." Or that "a period of 28 days after birth might be allowed before an infant is accepted as having the same right to live as others."

But some abortion-rights groups do seem to be inching toward a right to choose infanticide, especially when a baby is born with severe disabilities. So do some members of Congress. And the Supreme Court’s 5-4 decision on June 28 that finds a right to "partial-birth" abortion leaves even some supporters of early abortion (including me) worried that the Justices are vitiating the traditional legal and moral taboos against baby-killing.

Most of us don’t want to think about such things, any more than we want to look at pictures of aborted late-term fetuses. But the when-does-abortion-become-infanticide question keeps coming back, currently in the form of the Born-Alive Infants Protection Act. Sponsored by anti-abortion Rep. Charles Canady, R-Fla., the bill sailed through the House on Sept. 26 by a 380-15 vote. It specifies that when a baby (or a fetus, if you prefer) has been "born alive"-even if destined to expire within minutes or hours-he or she is a "person" with the same rights to life, care, and other legal protections as any other human being.

Who could be against that? The National Abortion and Reproductive Rights Action League could. Although it has lately muted its objections, NARAL warned in a July 20 press release that this is "yet another anti-choice assault" on "the basic tenets of Roe vs. Wade." The reason? The bill "would effectively grant legal personhood to a pre-viable fetus."

NARAL thereby implies that abortion rights include a right to kill (whether overtly or by neglect) an unwanted "pre-viable fetus" after complete delivery, as the newborn lies naked on the table, gasping for breath, heart still beating. In NARAL’s world, such a baby seems to have no more legal protection than a malignant tumor.

(The Canady bill defines born alive as a baby who after separation from his or her mother "breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.")

NARAL’s position, albeit chilling, is understandable. For if a woman and her doctor have no right to kill a baby (or fetus) once he or she is outside the woman’s body, then where does that leave the right to kill that same baby (or fetus) moments earlier, when he or she is unborn or partially born? What about the status of identical twins during the minutes after one has been delivered? If the first twin is already a person with a right to live, can the second in line nonetheless be killed (as current Supreme Court doctrine suggests) so long as he or she remains unborn or partially born?

Abortion-rights absolutists dismiss such hypotheticals as far-fetched mind games irrelevant to the real-life choices faced by pregnant women, doctors, and lawmakers. There is a bit of truth to this: Even NARAL has never argued overtly for a right to kill a viable fetus after birth. So the Canady bill’s most obvious impact could be to bar abortionists from accelerating (whether actively or through neglect) the inevitable deaths of those (presumably rare) pre-viable fetuses who-because of botched abortions, induced labor, or spontaneous miscarriages-did not already die before or during delivery.

Such cases do occur, however-perhaps by the hundreds. Nurses have testified that "induced-labor abortions" are sometimes performed by using a drug to cause a woman’s cervix to open so that she will deliver a premature baby who will die during the birth process, or within a few minutes or hours afterward. One such baby was accidentally thrown in the garbage.

Moreover, it seems probable that, in practice, hundreds (if not thousands) of viable fetuses are aborted, and that some of them are born alive and then left to die unattended, or even killed. Here’s why: 1) It is typically unclear at the time a 23- to 25-week fetus is aborted whether he or she could survive outside the womb. 2) Supreme Court rulings have made it almost impossible to disprove an abortionist’s claim (however implausible) that a fetus was not viable when killed. 3) Under Roe vs. Wade, a doctor can abort even a clearly viable fetus whenever necessary (in the view of the doctor) to protect the woman’s life or health. 4) The Court’s sweeping definition of threats to a woman’s "health," as including anything that an abortionist finds detrimental to her "emotional [or] psychological … well-being"-the burden of raising a disabled child, perhaps?-renders largely illusory the notion that current law restricts the abortion of viable fetuses at all. 5) Many abortionists might well be reluctant to tell a woman who came in for an abortion that something went wrong and she is getting a live baby instead.

Now consider the established right to abort (and kill) even a viable fetus minutes before birth, or during birth, in conjunction with NARAL’s implication that whether a fetus (at least a pre-viable one) has been born alive is irrelevant to his or her legal status. How big a leap is it to infer (as does Peter Singer) that there should also be a right to kill a viable fetus-a baby-immediately after live birth?

Is this drift toward infanticide the only alternative to the admirably principled but (to me) overly absolutist view of people such as Douglas Johnson, of the National Right to Life Committee, that the deliberate abortion even of an embryo little larger than the period at the end of this paragraph is the taking of human life and should be illegal? I think not.

To be sure-as Johnson argues with great cogency, and as Peter Singer would probably agree-it is impossible to identify any nonarbitrary magic moment when a fertilized egg becomes a "person" during the 10 months between intercourse and the 28th (or 27th, or 29th, or 60th, or 600th) day after birth. But the public’s approval of a right to early abortion and its disapproval of late-term abortions have considerable intuitive moral appeal. A born-alive baby is not quite the same as an unborn fetus; a nonviable fetus is not quite the same as a viable one; a minuscule embryo that looks nothing like a baby is not quite the same as a 20-week, 10-inch fetus looking very much like a baby; and so on. Even most anti-abortion advocates, who would call the deliberate killing of a month-old baby "murder" (as would I), avoid that word when referring to the abortion of a 2-week-old fetus.

Why does so substantial a minority of abortions take place several months (not just weeks) into pregnancy? Largely because it’s not always easy-especially for teenage girls and poor or unsophisticated women-to get early surgical abortions. It’s not easy to travel a long distance to one of the shrinking number of abortion clinics, or to run a gauntlet of pickets screaming "murderer," or to have one’s womb probed and evacuated by a stranger with gleaming metal instruments.

The best way to minimize the number of late-term abortions would be to make early abortion easier and more private. And the best way to do that would be to move rapidly toward approval and broad distribution of the so-called abortion pill (otherwise known as RU-486 or mifepristone), a prescription drug. The Food and Drug Administration did just that on Thursday by approving the use of RU-486 in the United States. The FDA will allow the drug to be distributed only to doctors who can operate, in case a surgical abortion is needed.

Until now, efforts to market such abortion pills here have been blocked by the passionate opposition of anti-abortion groups. But drug-induced abortions are deemed safe and legal in France and some other countries. If they become widely available here, the results will include both reducing the demand for late-term abortions and undermining the arguments that such abortions are necessary to accommodate desperate women and girls who lacked the resources to act sooner. Public horror at the current drift toward infanticide will increase. And the Supreme Court will eventually limit or end its protection of late abortions.

Such a scenario would not please either abortion-rights or anti-abortion absolutists. But it might be the least bad outcome for those of us who see a big difference between an embryo and a baby.