Sebastian's Point is a weekly column written by one of our members regarding timely events or analysis of relevant ideas, which impact the Culture of Life. All regular members are invited to submit a column for publication at firstname.lastname@example.org. Columns should be between 800 to 1300 words and comply with the high standards expected in academic writing, including proper citations of authority or assertions referred to in your column. Please see, Submission Requirements for more details.
What Don't You Understand
Ana Brennan, J.D.
Society of St. Sebastian | 19 October 2023
Since the Dobbs decision was handed down in June 2022, many states have had their pro-life trigger bans challenged by abortion advocates. A familiar refrain is these pro-life laws are unenforceable because they do not clearly state what behavior is being outlawed. All of a sudden doctors do not know how to apply medical standards and differentiate between a spontaneous and an induced abortion. Doctors refuse to treat miscarriages even after an unborn child has died because they are unable to comprehend that fetal heartbeat laws only apply when an unborn child actually has a heartbeat. State employees challenge laws prohibiting state funding of abortion, claiming infringement of freedom of speech, because the concept of the state not funding abortion is just too difficult to grasp.
Are we experiencing a mass onset of societal stupidity? Are these laws really that convoluted? No. What appears to be willful ignorance is actually a legal ploy. Under the law, there is a doctrine called “void for vagueness,” which means a law must clearly state what is being legislated so people know what behaviors are prohibited. If a court finds that a law is too vague, it is unenforceable.
The void-for-vagueness doctrine is founded upon the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. When applying this doctrine, courts apply the “reasonable person” standard. According to the Supreme Court, “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory treatment.”[i]
One state where abortion advocates claim the trigger-ban law is beyond comprehension is Idaho. The law prohibiting abortion in Idaho was enforced from 1864 to 1973. The argument abortion advocates would have to make is that the law was reasonably understood by ordinary people for 109 years, but for some reason, it is no longer clear. This leads to a second problem for the abortion lobby. During the last legislative session, the Idaho legislature did amend its trigger ban to make it more specific.[ii]
Abortionists complained that the law was not clear as to whether or not treating an ectopic pregnancy or a miscarriage would be considered an abortion under the law, so the law was specifically amended to address these concerns.[iii] Idaho does not have the old, broad “health” standard that was imposed by
Doe v. Bolton,[iv] but it does contain “medical emergency” language:
“. . .means a condition that, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.”[v]
This language is much more concise than just “health,” and that is why abortionists do not like it. The Idaho legislature amended the law to try and appease those who claimed the law was too vague, so why are they still complaining; because it does not have an exception for killing disabled unborn babies, which the abortion lobby considers “medically necessary”[vi] or a “medical emergency,” The problem is not that the law is vague, the problem is that the law very clearly outlaws abortion, and abortion advocates want nothing less than a return to life under Roe.
In Idaho, abortion advocates do not want a clarification of the law. The law is clear. Killing a disabled child is not a medical emergency or necessary. We have seen this story many times since Roe was overturned. We have gone from “what about rape, incest, or life of the mother” to “what about rape, incest, life of the mother, or a disabled baby?” We must remember that many babies are not diagnosed with a disability until the 20-week ultrasound. Most Americans are repulsed by late-term abortions, but somehow it is fine as long as the child is disabled. This is nothing short of pre-natal eugenics.
Laws outlawing abortion are not vague to reasonable, ordinary people, but abortion advocates are not reasonable. Hopefully, the courts will see through their charade.
[i] Kolender v. Lawson, 461 U.S. 352 (1983)
[ii] Kelcie Moseley-Morris, “Idaho legislators pass contentious bill that adds clarification language to abortion ban,” Idaho Capital Sun, March 29, 2023, accessed October 15, 2023, https://idahocapitalsun.com/2023/03/29/idaho-legislators-pass-contentious-bill-that-adds-clarification-language-to-abortion-ban/#:~:text=Although%20nearly%20every%20person%20who,abortion%20laws%20while%20providing%20care; Idaho Code 18-622
[iii] Idaho Code 19-604(1)(a)(b)(c)
[iv] “. . .that the medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient. All these factors may relate to health.” Doe v. Bolton, 410 U.S. 179 (1973)
[v] Idaho Code 18-604(9)
[vi] Steve Ertelt, “Pro-abortion Lawsuit Falsely Claims Killing Babies in Abortions is Medically Necessary,” LifeNews.com, Sept 12, 2023, accessed October 15, 2023, https://www.lifenews.com/2023/09/12/pro-abortion-lawsuit-falsely-claims-killing-babies-in-abortions-is-medically-necessary/;
Carter Sherman, “When a fetal scan showed a problem, she fled Idaho for an abortion – now she is suing,” The Guardian, Sept. 13, 2023, accessed October 15, 2023, https://www.theguardian.com/world/2023/sep/13/idaho-extreme-abortion-ban-medical-emergency.