Are There Any "Hard Cases"?
When questioned in Arizona about whether he would favor an exception to allow abortion for a woman who had been raped, presidential candidate Pat Buchanan revoiced his firm conviction that abortion should be totally prohibited, "I don't care about the circumstances of the child's conception. You want to execute somebody in the case of rape, execute the rapist and let the unborn child live." Buchanan said later that he did not endorse the death penalty for rapists, but he held firmly to his no-exception position on legal protection for the unborn.
Supporters of abortion attack the no-exception position as heartless and insensitive to the needs of the mother. And many abortion opponents concede that abortion ought to be allowed in "hard cases" -- when the mother's life or health is in danger, when pregnancy results from rape or incest, or when the unborn child is defective. It may be useful here to examine those "hard cases" to see if it really makes sense to forbid abortion in every situation.
Killing to Save a Life
The most difficult case is that in which an abortion is supposedly necessary to save the life of the mother. First, we should remember that an operation to remove the cancerous womb of a pregnant woman, or to relieve an extrauterine pregnancy, can be performed (even under Catholic teaching) where such surgery is necessary to save the life of the mother, even though it causes the death of the unborn child. Morally such an operation is justified by the principle of the double effect, since the death of the child is an unintended effect of an independently justified operation. The surgery does not involve the intentional killing of the child for the purpose of achieving another good. Legally, such an operation is not regarded as abortion at all. There is no need, therefore, to provide an exception for such cases in a law prohibiting abortion. Apart from cases such as the extrauterine pregnancy and the cancerous uterus, there appears to be no medical justification for terminating a pregnancy.
Dr. Bernard Nathanson, who himself was responsible for 30,000 abortions, wrote in his first book after he stopped doing abortions that "we proposed a lengthy list of illnesses (including but not limited to heart or kidney disease) which would justify abortion. We regard that list now with a growing sense of disbelief: if women with heart and liver transplants can be carried successfully through pregnancy, we can no longer conceive of any medical condition which would legitimize abortion. In short, we have slowly evolved to an unshakable posture of no exceptions...."
Even if there were a case in which an abortion was necessary to save the life of the mother, abortion should not be allowed. If two people are on a one-man raft in the middle of the ocean, the law does not permit one to throw the other overboard to save his own life. Otherwise, might would make right. In maternity cases, the duty of the doctor is to use his best efforts to save both his patients, the mother and her child. He should not be given a license to kill intentionally either of them.
Both Lives Count
Opposition to abortion in cases where it is supposedly necessary to save the life of the mother is dismissed by some as a cruel sectarian dictate of the Catholic Church, which is charged with preferring the life of the unborn child to the life of the mother. The reality is different. "Never and in no case," said Pope Pius XII in 1951, "has the Church taught that the life of the child must be preferred to that of the mother. It is erroneous to put the question with this alternative: either the life of the child or that of the mother. No, neither the life of the mother nor that of the child can be subjected to direct suppression. In the one case as in the other, there can be but one obligation: to make every effort to save the lives of both, of the mother and the child."
The moral prohibition against abortion, in whatever case, is an application of the absolute principle that no one ever has the right intentionally to kill the innocent. An incidental consideration is that any language in a law allowing an exception for abortion to save the life of the mother will be open to an expansive interpretation, allowing abortion, for example, whenever the physician claims he perceives a risk that the mother may commit suicide if she is not allowed to have her child killed.
If an exception should not be made where the life of the mother is concerned, then it 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 amounts to convenience. And to kill the unborn child because he may be defective is to do what the Nazis did to the Jews whose lives they regarded as not worth living.
Politically, the most appealing cases in which to allow abortion are those involving rape and incest. A victim of rape or incest has the right to resist her attacker. But the unborn child is an innocent non-aggressor and should not be killed because of the crime of his father. Since the woman has the right to resist the rapist, she also has the right to resist his sperm. Non-abortive measures can be taken, consistent with the law and even Catholic teaching, promptly after the rape, which are not intended to abort and which may prevent conception. However, once the innocent third party is conceived, he should not be killed.
The Incremental Approach
Since 1981, major elements of the pro-life movement have promoted incremental legislation that would allow abortion when the life of the mother is in danger, in pregnancies caused by rape or incest, and for minors who obtain parental consent. Such incremental legislative strategy, however, affirms the basic holding or Roe v. Wade, that the unborn child is not a person and therefore has no constitutionally guaranteed rights.
It is fair to suggest that these compromise approaches have served to increase the toll of lives from abortion. For example, the enactment of a law requiring an unmarried minor to obtain parental consent before an abortion will predictably decrease the number of abortions from those under the previously unrestricted law. The proper comparison, however, would be between a situation in which the law was either wholly permissive or required parental consent on the one hand, and, on the other, a situation in which the pro-life movement and the churches were insisting that the murder of the innocent can never be rightly allowed.
The dominant abortions of the near future will be committed by pills, implants, or other devices. The only effective way that the law can reach such abortions will be by licensing and prescription restrictions and similar regulations. But the only way to mobilize sufficient support for such restrictions will be to restore the public conviction that all life is sacred and must be protected by the law. The incremental strategy, which seeks to regulate rather than prohibit abortion, undermines that conviction because it permeates the public discourse with the message that even "pro-life" advocates agree that innocent life is negotiable.
Consider on example. Station KELO-TV in Sioux Falls, South Dakota conducted two polls on abortion, one in late 1990 and one in late 1991. The major pro-life news event in 1991 in South Dakota was an attempt to outlaw abortions except those for rape, incest, and the life or physical health of the mother. After that campaign, the second poll, which was identical to the first and covered the same audience, showed that more people favored some abortions, and fewer opposed all abortions, than had been the case with the first poll. As Paul R. Dorr of the organization Rescuing the Perishing explained, "the large body of the public who remain 'unsure' where they stand on abortion look to committed pro-life and pro-death forces to help develop their views. And with many pro-lifers willing to allow some abortions legislatively, it appears the public has followed their lead. As a result, we have lost ground with the public."
The 1992 election confirms that a pro-life strategy of compromise contributes to the institutionalization of the abortion ethic. The Washington Post- ABC News poll taken in January 1993 reported the percent of people who believe abortion should be legal and compared the results to those before the election. In the presidential campaign, Bill Clinton took the totally pro-abortion position. The "pro-life" candidate, President Bush, backed by much of the pro-life movement, supported legalized abortion in cases involving the life of the mother, rape, and incest. The result: Public attitudes shifted markedly in a pro-abortion direction in all categories. The post-election support for abortion was the highest in the history of that poll. And why not? When the "pro-life" people claim that the right to life is inalienable and then support its alienation, why should people take seriously "pro-life" rhetoric about the absolute sanctity of innocent life?
All Life is Sacred
While the effort to ban the partial birth abortion (PBA) will fail because of the President's veto, it has expose the barbarity of the abortion culture. "The moral gravity of procured abortion is apparent in all its truth," said Pope John Paul, "if we recognize that we are dealing with murder." In any civilized society, the issue must be whether innocent human beings may be legally murdered. Over the past two decades, however, the pro-life movement has sought to limit -- but not wholly prohibit -- abortion, thus framing the issue as which innocents may be killed. The PBA campaign is a further retreat, focusing on the issue of how innocents may be legally killed.
If the campaign against the PBA is interpreted by the public as opposition only to the method of the killing, that campaign will, ironically, reinforce the abortion culture. The murder of an innocent child by jamming scissors into his brain is qualitatively no different from murder by any other method, including morning-after pills and other abortifacients. The gruesome reality of the PBA reflects the intrinsic evil of any and all forms of abortion. The campaign to prohibit partial-birth abortions must not distract us from the reality that the law can never validly tolerate the execution of the innocent, no matter how that killing is done. The issue is whether, not which or how, innocent children should be legally killed.
The only chance for the restoration of the right to life in our law is for pro-life people to insist that life is sacred because it comes from God, not from the state, and that the state can never validly tolerate the intentional killing of innocent human beings. It is long past time for us to stop debating refinements of pro-death proposals. Rather, we must shift the debate to our own agenda. The pro-life movement must insist on protection of life, without exception, from the beginning. []
-- DR. CHARLES E. RICE
Dr. Rice is a professor at Notre Dame Law School.
