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Dismemberment Abortion Bans: A New
Joe Kral, M.A., 28 June 2018
For years, many in the pro-life movement have advocated for dismemberment abortion bans. Many have cited studies as to the excruciating pain the unborn child endures during the process of dismemberment. This strategy has paid off in the passage of dismemberment bills on the state level but has seen more complications within the federal courts where they are not necessarily convinced by the argument. At present, there is still a question as to whether the United States Supreme Court will uphold these measures as constitutional based on the question of fetal demise before dismemberment takes place. But this tends to raise another question, are the other forms of fetal demise any less painful? If not, or if there is no data suggesting that they are not, is there another way of lobbying for this bill to prove the need for such legislation?
The issue of pain needs to be looked at rationally and as it stands now, the medical consensus is that at 20 weeks gestation the unborn child has the capability to feel pain.[i] Some experts believe the capacity to feel pain is present much earlier, by the eighth week of gestation[ii] since the physiology to feel pain is present by this time. Truly, it is becoming much clearer, scientifically, that the unborn child is much more developed than previously thought. As a result, there is little doubt that dismemberment abortion would be excruciating for the unborn child being aborted. Yet, what about other forms of abortion, are they less painful? Saline abortions are known to chemically burn the child and this is a process that takes at least 2 hours, sometimes many more, to complete. The child is literally burned to death over quite a long period of time. Another method where digoxin is injected into the child is known to cause cardiac arrest, but that certainly does not mean an instantaneous death, nor does it mean the death is painless. The simple fact is that abortion, no matter the method, is potentially excruciatingly painful for the unborn. As a result, this may be a problem for an organization or an attorney general that may have to explain why they want to ban dismemberment abortions versus other types of abortion procedures whether this explanation is in the courtroom or the legislature.
Many may argue that not only has the federal ban on partial-birth abortion been upheld, but some states have even passed these types of prohibitions since the Gonzales v. Carhart ruling. However, there is a constitutional difference between banning partial birth abortion and dismemberment abortion and that difference is that in one instance the child is being born and in the other, the child is not being born. In some ways, this is even addressed legally in the Roe v. Wade decision when the court did not rule on Texas Penal Code Chapter 9 Article 1195.[iii] This point is even further elaborated by then-Texas Attorney General, John Hill, who, in an opinion on the Roe decision, stated the following, “Article 1195, presently Art. 4512.5, V.T.C.S., is left unaffected. However, Art. 4512.5 is not, in truth, an abortion statute. The elements of the offense there described require that the child “be in a state of being born”; “that the mother was in the act of giving birth to a live child”, Hardin v. State, 106 S.W. 352 (Tex. Crim., 1907) holding that the ingredients of the statute were somewhat different from those of the abortion statute.[iv] So even, from a legal perspective, the elements between an abortion in utero and a partial birth abortion are different. This author has also argued from a moral/Natural Law perspective as well[v] that partial-birth abortion is morally different because the circumstances are different. While both seek the same object, a dead child, one is done in utero while the other is during parturition. It is possible that the US Supreme Court may have drawn a fine line in the sand so to speak when it comes to the destruction of the child because of this circumstance as seen in their 2007 ruling and the leaving intact of the Texas parturition statute.
This raises an important question regarding the strategy for pursuing dismemberment abortion bans and why they are needed; what may be another reason to pass such legislation? As it stands now, there is no constitutional ruling or provision within the US Constitution that states that fetal organ harvesting and trafficking are constitutionally protected rights. Currently, the preferred method of acquiring fetal organs is either through partial birth abortions or dismemberment abortions. The body parts are not tainted with poisons as would be found with either saline or digoxin abortions. As a result, the latter two types of abortions would not be beneficial to organ harvesting. It has been made quite clear that the abortion industry has been engaging in this sordid practice as revealed by the Center for Medical Progress.[vii] It is also clear that by focusing on the brutality of dismemberment that pain is an issue that is front and center that drives these legislative debates currently. Little is discussed how dismemberment abortion bans can be used as a deterrent from fetal organ harvesting and trafficking and that there is no constitutional right to the practice of harvesting organs.
This sort of strategy not only brings to the forefront the barbarity of the procedure but also the real reason why it is used currently—to get more money out of the abortion by harvesting and selling of fetal organs. One reason why Justice Kennedy, the author of the majority opinion, was willing to prohibit partial birth abortions was precisely because other late-term abortion procedures were available. As he states, “The Court rejects respondents’ argument that the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad.”[vii] In other words, the ban was not so broad that it affected other procedures that were available to women. Furthermore, the state also has an interest in “protecting the medical community’s ethics and reputation.”[viii] When it comes to the horror of dismemberment abortion, the videos released by the Center for Medical Progress have shown the depths the abortion industry will go to obtain fetal organs. The state surely has an interest in protecting the dignity of the medical profession and prevent it from doing itself harm by ensuring they do not commit a double indignity against the unborn child by dismembering the child and then medically strip mining the organs. This horrific practice surely has an impact on the medical community as a whole and seeing that most people oppose late-term abortions[ix] and that a vast majority of Americans oppose fetal organ harvesting[x] it is not unreasonable to assert that the state has a legitimate interest in protecting the reputation of its medical industry.
Consequently, it may be critical in changing direction on strategy when it comes to dismemberment abortion bans. It may be prudent, for example, to create legislation that not only prohibits the practice of dismemberment abortions but also prohibits the practice of partial birth abortions. While there is a federal ban on partial-birth abortion, it became clear the Obama administration did little to enforce it. The states need to ensure they have the power to prosecute if the federal government fails in its obligations. It is in this capacity that the states have a legitimate interest in ensuring that the preferred abortion methods for fetal organ harvesting are thwarted thereby protecting the integrity of the state’s medical community. Furthermore, it is important that organizations that are lobbying for such legislation begin to change their focus from preventing unbearable pain to stopping the trafficking of fetal body parts. This is not to say the pain issue cannot be used, it can. However, there seems to be a need for a shift in focus that goes beyond just the barbarity and pain of dismemberment abortion.
The truth seems to be that when it comes to banning dismemberment abortions one needs to take precaution because all abortion procedures are very painful for the unborn child. This is a real issue that pro-life organizations and their legislative advocates may have to face. There is, however, a way to lobby for dismemberment abortion bans that are also truthful and may be as effective and it is to focus on the reality that the state has an interest in protecting the medical community from seemingly being savages that have no problem tearing an unborn child limb from limb and then harvesting its organs for sale. As it stands now, the videos produced by the Center for Medical Progress seem to indicate that some in the medical community have no problem with this sort of reputation. A change in strategy, such as the one mentioned above, might be helpful for those state attorney generals who are seeking inventive and truthful ways to defend these types of statutes. This sort of tactic may be the tide that helps keep these sorts of laws on the books.
iii] The statute (currently Texas Civil Statute, Title 71, Ch. 6 ½, Article 4512.5) reads as follows: Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.
[iv] Texas Attorney General Opinion No. H-369, page 3. The document may be viewed at: https://www.texasattorneygeneral.gov/opinions/opinions/45hill/op/1974/pdf/jh0369.pdf.
[v] See “Why Partial Birth Abortion Bans Are Needed In The States: A Moral Perspective” by Joe Kral. The article may be retrieved at https://www.societyofstsebastian.org/sebastian-s-point.
[vii] Gonzales v. Carhart, 550 US 124.
Joe Kral, M,A., is president of the Society of St. Sebastian and Editor-in-Chief of the Journal of Bioethics in Law & Culture