Safe, Legal, and Rare, Part 2: Legal?

Forty years following Roe v. Wade, we have been taking a look at how reality accords with the promised outcome of the ruling that abortion would become “safe, legal, and rare.”

Last time, we looked at “Safe.” Today, let’s look at “Legal.”

First, definitions. Legal can mean either “according to the laws of man,” or “according with the natural, moral law.” As we all know, “the law” as written by man only rarely coincides with what we term the “natural, moral law”—that is, a strict adherence to inalienable rights. The standard example given of the two diverging badly is slavery, which was certainly “legal,” but also certainly an egregious violation of the natural, moral law. Examples of laws currently on the books that violate our inalienable rights are too numerous to list.

So let’s start with the question of whether abortion as practiced today is “legal” as in “according to the law.”

Virtually all arguments around abortion involve consideration of when life begins. The Roe v. Wade ruling attempted to balance a right to abortion against the protection of potential human life, by affirming the state’s right to regulate abortion in the third trimester. Subsequent medical advances and evidence that a fetus is human earlier than the third trimester resulted in the Supreme Court replacing the “third trimester” guideline with “viability” in its Planned Parenthood of Southeastern Pennsylvania v. Casey ruling. Ironically, the result in many states has been that the previous prohibition against third trimester abortion has been dropped, with “viability” left to interpretation by abortion providers.

We know from the Gosnell and numerous other examples that this has resulted in the active killing of babies born alive during abortions. And while Gosnell himself was ultimately convicted of murder, his abortion crimes were discovered only because of a drug investigation.

The current Planned Parenthood/Stem Express undercover videos being released document Planned Parenthood’s altering abortion procedures—illegal under the law—in order to more successfully harvest baby parts, including organs, for sale to organizations such as Stem Express—illegal under the law. Planned Parenthood’s defense concentrates on its claims that the money collected for the baby parts is reimbursement for expenses, not a “sale.”

Now, many of us would argue that selling human organs better accords with natural moral law than its prohibition; that, in fact, a market in human organs would save lives and provide numerous benefits.

However, a “market” implies voluntary participation, and in no case can the babies whose bodies are being exchanged be said to be participating voluntarily. One could then argue that it is a case as with harvesting organs from the deceased: it is a question of the family’s consenting.

This then raises the question—related to that of a potential mother’s rights over her unborn child—of whether she has the absolute right to “consent” to the sale of her baby’s body parts.

Short of that question is the very real question as to whether these potential mothers really are consenting. There are at least three scenarios coming out that call this into question: 1) The women, frequently stressed in the face of an abortion, are asked to consent to their babies being used for research that will help cure Alzheimer’s and other terrible diseases—presented with a noble cause to which they should contribute; 2) The women are provided the consent form as part of a stack of papers and they don’t know what they’re signing; and 3) According to an employee of Stem Express, LLC, who worked full time onsite at a Planned Parenthood clinic procuring baby parts for her employer, “If there was a higher gestation and the technicians needed it, they would just take what they needed. And the mothers wouldn’t know.”

As far as abortion itself according with the natural moral law, again, the argument is usually framed in terms of whether or not a fetus is a human, or, at what stage it is deemed as endowed with inalienable rights.

Thanks to advances in medicine, we know that very, very young fetuses have very, very human characteristics. If you have the stomach for it, the videos show very clearly the product of abortions as including tiny human arms, legs, etc. (In this video, the CEO of Stem Express says of the labs receiving the body parts, “It’s almost as if they don’t want to know where it comes from. Where they’re like ‘We need limbs, but no hands or feet need to be attached. …Make it so we don’t know what it is.’” Elsewhere she jokes that when shipping “intact cases,” i.e., entire bodies, you must warn the lab in advance, or else a lab tech will open the package and scream “Oh my god!”)

And, as the Supreme Court’s Casey ruling acknowledged, unborn babies are “viable” life far earlier than previously believed.

So when is a human not a human and thus not protected under the natural, moral law? Peter Singer, for example, says human life requires “rationality, autonomy, and self-consciousness”—but how does this not open the floodgates for killing small children, the disabled, the infirm and elderly, the mentally ill, the unconscious, and the just plain dependent?

Defining the unborn as “potential” life—and thus somehow having not yet attained inalienable rights—thus seems a distinction lacking a difference.

If we want to live in free societies grounded in a commitment to human worth and dignity, we need to get out of denial and honestly face the reality of abortion.

And the wonderful reality of such free societies is that they well produce a rich array of social services and alternative solutions for those in need.

That’s the kind of choice I can really get behind.

Mary L. G. Theroux is Senior Vice President of the Independent Institute. Having received her A.B. in economics from Stanford University, she is Managing Director of Lightning Ventures, L.P., a San Francisco Bay Area investment firm, former Chairman of the Board of Advisors for the Salvation Army of both San Francisco and Alameda County, and Vice President of the C.S. Lewis Society of California.
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