New York’s broad new abortion law, dubbed the “Reproductive Health Act,” was sold to the public as merely enshrining Roe v. Wade into state law. On the surface, it seems to do just that by extending abortion-on-demand to 24 weeks and allowing for exceptions beyond that point in cases where the fetus is unlikely to survive outside the womb or when “necessary to protect the patient’s life or health.” If the law only codifies what was already federal policy, it seems odd that the governor’s and Assembly’s official statements include multiple quotes praising New York’s “progressive” position on abortion. Perhaps this is a reference to just how “progressive” Roe is; after all, it created a national right to abortion so broad that babies could be killed at the point of birth based on an incorrect diagnosis or a temporary emotional state. But no, there are new abortion “rights” in this new law that put it outside even the realm of Roe, which the people selling the law knew even as they said it was the status quo. New York is again “leading the way,” but should anyone want to follow?
Apparently, Killing Shouldn’t Be a Crime
One notable change in the Act is that all language regarding abortion has been cut from the penal code and the new provisions were moved to the public health law. On a rhetorical level, New York is arguing that abortion is a health care right, even a “fundamental” one, and that as such it should not be considered part of criminal law. On a practical level, this means that, even though elective abortion after 24 weeks remains illegal, there are no legal grounds to prosecute whoever performs such an abortion. What exactly is the enforcement method for the few restrictions on abortion that survive this law? Are we relying on the moral conscience of late-term abortion practitioners to obey a law that shrinks their business yet has no method of enforcement? Consider me skeptical of the value of New York’s legal line in the sand at 24 weeks.
The move to strike any language about abortion or “born-alive infants” from the penal code also removes protection from two groups of children—well, two groups besides the vast number of children already being freely aborted under the law. In the first case, as was argued by opponents of the Act, there is now no law against the “involuntary termination” of a pregnancy, let alone a law against fetal homicide; this means that a woman whose child is killed prenatally in an assault or car accident can’t prosecute the killer in New York state. Supporters of the law attempted to argue that the woman has much better charges available with longer sentences, like felony assault, so it doesn’t matter that there is no law against killing the fetus. By this logic, a shooter who kills one person and injures nine others should only be charged for the one murder; the nine attempted murders don’t matter, since you’ll just get a life sentence under the higher charge anyway.
Why would state representatives say something that flies in the face of basic principles of criminal law? New York is unwilling to say that any injustice was done to the now-dead fetus, because, if it had any right not to be killed, it would be inconvenient for the logic of abortion as social good. They’re willing even to imply that the only right which is being violated is the mother’s right to her bodily integrity, but in that same bill they claim she has “a fundamental right to choose to carry the pregnancy to term.” On their own terms, they should argue that involuntary termination and fetal homicide are acts of injustice against the woman’s reproductive right, not only her right to bodily autonomy. The mother is disallowed by law from seeking justice for her child and is told that it is enough that the state might award justice to her. New York is so gripped by abortion fever that it would rather tell pregnant victims of assault how they should view their assault than grant them the right to seek justice for their murdered children.[Tweet that]
Bioethics is a broad and expanding field of ethical inquiry into questions concerning human life, its beginning and end, and its interaction with medicine and other technologies. When I began my formal study of bioethics, I noticed that many issues were interrelated, and the issue which had perhaps the most implications for the resolution of any other was the question of abortion. For example, a pro-life disability ethic is able to recognize that ableism begins prenatally, which prompts measures to protect fetal humans from discrimination on the basis of disability. It occurred to me only recently that, in at least some cases of abortion, the parents believe that they are aborting the child for its own good. That is to say, while abortion is the method by which the fetus is killed, the parents are really looking at the question through the lens of euthanasia.
There are many reasons why parents (or society) may believe that it would be better for a child if he or she wasn’t born. Often, the reason is a medical condition. There are cases in which a child will not survive birth, or in which the child will have a very brief and painful postnatal life. Another issue is that of prenatal diagnosis of disabilities, in which people argue that the child’s quality of life would be so low that it is hardly worth living. At times, economic factors may come into play. At least in conversations on college campuses, the possibility of hardship by way of the foster system is a concern. A lot of these concerns are understandable; people want their children to avoid pain, on the whole, and to have happy lives. But the desire to avoid pain and promote happiness is a questionable justification for depriving someone of life.
These concerns about the quality of a fetal human’s life after birth animate two different lines of argument. I want to distinguish between how each argument functions and give a response to the primary issue underlying each one. In each case, I’m going to assume a scenario in which a child has a disease which lowers the chances of surviving through hospital discharge and which would likely cause the child to have some amount of pain for the rest of its life.
What does it mean to be a father? What does the tragedy of miscarriage tell us about the unborn? And does this give us insight about abortion?
This question — am I a father? — is one whose answer matters a great deal to me, especially as Father’s Day draws near on the calendar. Of course, I already know the answer to the question; I’m not asking it because I have any doubt as to the fact that I am a father. Instead, I’m asking because I think that many people would try to have it both ways. If their philosophy was one which denied the personhood of the unborn, and they gave an answer consistent with that philosophy, then they would deny my fatherhood; but if they answered according to what they instinctively believe to be true, they would say I am a father.
Let me explain. On one hand, my wife is currently pregnant (about which we are both thrilled and nervous). There is a genetically unique child within her, and I am partially responsible (a little under 50 percent responsible, by gene count) for the genesis of that child. Therefore, unless one contests the premise that what is inside my wife is a child, I am a father, and can celebrate Father’s Day. If the four-odd month-old fetus inside my wife is not a child, then no change of import has happened to me; I am, at best, a potential father, a future father.
Perhaps it would change some people’s reactions if I told them that my wife is pregnant not with our first but our second child. Generally, people wish a happy Father’s Day to guys who already have a kid running around, because few people seriously doubt the status of a child who has been born. My situation is a bit different, though, because my wife and I lost our first child by miscarriage. And here the same question as above begins to arise: was what we lost a child? Should I have celebrated Father’s Day last year, since my child did not survive until a full-term birth? Or, in a twisted bit of logic, did I become a father only when my child was dead, since it was located in my wife’s womb beforehand but was outside afterward?