By Diana Hsieh
This post is drawn from Ari Armstrong's and my new policy paper: The 'Personhood' Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception. I'm currently posting the full paper as a series of blog posts. You can read the full paper in PDF format or HTML format.
The 'Personhood' Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception
By Ari Armstrong and Diana Hsieh, Ph.D
A policy paper written for the Coalition for Secular Government (www.SecularGovernment.us)
Published on August 31, 2010
The Destructive Effects of 'Personhood'
Abortions to Protect a Woman's Health
Thankfully, modern medicine makes both pregnancy and abortion relatively safe. The Centers for Disease Control reports, "The risk of death from complications of pregnancy has decreased approximately 99% during the twentieth century, from approximately 850 maternal deaths per 100,000 live births in 1900 to 7.5 in 1982. However, since 1982, no further decrease has occurred in maternal mortality in the United States." The report notes that most women who die from pregnancy die during live birth. By way of comparison, the Guttmacher Institute notes, "Fewer than 0.5% of women obtaining abortions experience a complication, and the risk of death associated with abortion is about one-tenth that associated with childbirth."
However, for some small fraction of pregnant women with health problems, getting an abortion is far safer for her than attempting to give birth. The advocates of "personhood" laws claim that they would allow doctors to intervene to save the life of the mother. However, these laws would force doctors to balance the health of the woman with the life of the embryo or fetus, resulting in permanent injury or death for some women who would otherwise choose the relative safety of an abortion.
Personhood Colorado denies that Amendment 62 would "threaten the death penalty on doctors who do legitimate invasive surgery that could unintentionally harm a child in the womb." The organization continues:
In Colorado, the death penalty is only available for first degree murder with aggravating factors. First degree murder requires deliberation and intent. There are no legitimate medical procedures that are intended to kill the child in the womb, and in those extremely rare situations where a woman needs treatment that might unintentionally result in the death of the child, the doctor would not have acted with intent to kill or even harm the child, but with intent to cure the mother. Before Colorado passed [its] abortion law legalizing abortion in 1967 there were no prosecutions of doctors for legitimate medical treatment. There will be no threat whatsoever to doctors practicing legitimate medicine when the Colorado Personhood Amendment passes. This is a scare tactic. ...Personhood Colorado's claims about the lack of prosecutions under previous anti-abortion laws are meaningless, as those laws were dramatically different from any "personhood" measure.
[Amendment 62] won't ban surgeries for women who have tubal pregnancies, also known as ectopic pregnancies.
The crucial issue in criminal law is always intent. Law School 101 teaches you that the basic elements of any crime are a guilty mind (mens rea) and a guilty act (actus reus). A doctor who performs a procedure to cut out a damaged section of a fallopian tube where a human embryo is lodged is not intending to kill the human embryo, instead she is attempting to cure a physical ailment, and unintentionally causing the death of a human embryo.
More importantly, Personhood Colorado ignores the fact that first degree murder is not the only relevant statute. Colorado statute 18-3-105 states, "Any person who causes the death of another person by conduct amounting to criminal negligence commits criminally negligent homicide which is a class 5 felony." Statute 18-1-501(3) clarifies: "A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists." Felony negligence does not require deliberation or intent.
True, a jury might apply the "reasonable person" standard in order to rule that any medical intervention to protect the life or health of the mother constitutes an appropriate "standard of care." Alternately, the legislature might pass statutes clarifying that such medical interventions are legal. However, law enforcers would also be constitutionally bound to grant embryos and fetuses full legal rights, and they would urge juries to consider the implications of the language of Amendment 62. Even if a criminally prosecuted woman or doctor won in court, just the financial costs and emotional distress of a trial could take a heavy toll.
Moreover, it is not clear that, according to the language of "personhood," a doctor could intervene to save the health (rather than the life) of a woman by terminating a pregnancy. Colorado Right to Life recognizes exceptions only when "the mother's life" is "in danger." And even "under those circumstances, those responsible must make every legitimate effort to save the life of both mother and child." In a separate statement, Colorado Right to Life recognizes the legitimacy of terminating a pregnancy only "when the mother's life is seriously threatened." Likewise, in a memorandum for the religiously motivated Thomas More Law Center, Robert Muise refers only to terminating a pregnancy to save a woman's life. In other words, a doctor may be legally required to save the life of the embryo or fetus even if the woman will suffer permanent physical injury as a result.
Ultimately, legislation and court cases would determine whether a doctor could terminate a pregnancy to save not only the life but also the health of a woman. However, even if the law were clear, the broader problem is that doctors can rarely predict with certainly when a patient's life or long-term health is at risk. A doctor who terminated a pregnancy, either to save the health or life of a woman, might be second-guessed by a prosecutor. The advice and decisions of doctors would be distorted by fear of possible prosecution, rather than based solely on their best judgment of the woman's condition and prospects. As an inevitable result, some women would receive sub-standard medical care, and perhaps suffer permanent injury or death.
Abortion bans have produced legal problems and medical horrors even in the seemingly clear-cut case of ectopic pregnancies. Ectopic pregnancies, "the leading cause of pregnancy-related death during the first trimester in the United States," occur when a fertilized egg develops outside of the uterus. An ectopic pregnancy occurs in about two percent of all pregnancies, and in 1992 about half of all ectopic pregnancies (58,200 out of 108,800) resulted in hospitalization. Following a total ban on abortion in Nicaragua, many doctors refused to perform even emergency abortions for ectopic pregnancy, and at least one woman with an ectopic pregnancy died because doctors refused to treat her, apparently out of fear of prosecution.
The lives of American women with ectopic pregnancies likely would be at similar risk under an enforced "personhood" measure. The Ohio-based Association of Prolife Physicians claims that medical intervention may not be justified even in cases of ectopic pregnancies, because "there are several cases in the medical literature where abdominal ectopic pregnancies have survived," and even in cases of "pregnancies in a fallopian tube...chemical or surgical removal of an ectopic pregnancy is not always necessary to save the mother's life."
Other anti-abortion groups agree that medical intervention may not be warranted even in cases of ectopic pregnancies. The website Abort73.com emphasizes that the only relevant consideration is the life, not the health, of the pregnant woman: "making an exception for the life of the mother is by no means comparable to making an exception for the health of the mother." However, the essay continues, "We can never say with certainty that if the pregnancy continues, the mother will die." Regarding ectopic pregnancy, Abort73.com states that it might "pose a significant threat to a woman's life during the first trimester." But "there have been a number of documented cases where undiagnosed ectopic pregnancies have yielded successful live births," even after a zygote "implanted in his mother's fallopian tube." The essay concludes on an ambiguous note:
[I]t is safe to say that ectopic pregnancy, even an untreated ectopic pregnancy, is not as life-threatening as most people are led to believe. At the same time, the risk that an ectopic pregnancy poses to the mother's life is real and sometimes fatal, while the baby's chance of survival is extremely slim. There are no easy answers and no "one-size-fits-all" solution. If you're facing an ectopic pregnancy, make sure you have a pro-life doctor to walk this road with you--one that prescribes abortion as a means of last resort, not as a means of first resort.Under Amendment 62 and similar measures, how would prosecutors treat doctors who prescribe medical intervention as a "first resort" in cases of ectopic pregnancy to better protect the woman's life and health? The question is impossible to answer in advance--and that uncertainty could impel doctors to refuse to treat women suffering from ectopic pregnancy.
Alternatively, Priests for Life maintains that some kinds of medical interventions, but not others, are justified in cases of ectopic pregnancies. The organization features an exchange with a nurse, who states, "I am an oncology nurse and was asked to give methotrexate for an ectopic pregnancy...I believe the pregnancy was tubal. Needless to say I refused because I was unsure of the morality of it." Priests for Life replies:
The relevant moral question is whether the method or action is in fact a killing of the child. If so, that is a direct abortion, which is never permissible for any reason. ...Sometimes ectopic pregnancies are handled this way, killing the child but leaving the tube intact. Such an action is morally wrong."Personhood" laws could require doctors to conduct such bizarre theological debates before providing medical care in an emergency. Doctors might be forced to use less effective or more dangerous methods of treatment. Even doctors who attempted to comply with the law could be subject to criminal investigation and prosecution if they used a method deemed inappropriate by a police officer or prosecutor. Once again, the result could be that doctors refuse to treat women with ectopic pregnancy.
However, if what is done is that the damaged portion of the tube is removed because of the threat it poses to the mother, that is not a direct abortion, even if the child dies. What is done is the same thing that would be done if the tube were damaged from some other cause. The mother is not saved by the death of the child but by the removal of the tube. Because the death of the child in this case is a side effect which is not intended, and because the saving of the mother's life is not brought about by the death of the child, such a removal of the damaged portion of the tube is morally permissible.
Ectopic pregnancy is not the only serious risk to a woman's life and health in pregnancy: "a variety of medical conditions in pregnant women have the potential to affect health and cause complications that may be life threatening." For example, about one in a thousand women get cancer during pregnancy. To delay treatment until birth would be dangerous if not deadly to the pregnant woman, while to treat the woman while pregnant would be dangerous if not deadly to the embryo or fetus.
Due to its total ban on abortion, Nicaragua recently denied cancer treatment to a ten-weeks pregnant woman with cancer suspected to have spread to her brain, lungs, and breasts. The anti-abortion news service LifeSiteNews.com decried calls to permit her to terminate the pregnancy as unnecessary. Ultimately, the woman was allowed chemotherapy, and as a result, the fetus was stillborn five months later. In this case, as in many others, the life of the woman could only be saved at the expense of that of the embryo or fetus. Yet under "personhood" laws, the embryo or fetus has the same right to life as the woman, so any priority given to her life must be regarded as criminally suspect.
Ultimately, under an enforced "personhood" law, a woman might not be able to obtain an abortion even if she feared for her heath or life. Depending on legislative actions and prosecutorial zeal, doctors might not be willing to terminate a pregnancy except in cases of extreme risk to a woman's life. In cases of lesser risk to a woman's health or uncertain risk, doctors likely would be wary about terminating a pregnancy, fearing prosecution. Women might even need to obtain bureaucratic or judicial approval to obtain an abortion, resulting in potentially dangerous delays. The result would be that some women would face increased danger of permanent physical injury or death.
Abortions for Rape, Incest, and Fetal Deformity
By establishing rights from conception, Amendment 62 and other "personhood" measures would outlaw abortion for pregnancies resulting from rape and incest. Whether the embryo was created in an act of consensual love or brutal force would not impact its legal rights. Without "morning after" medication or abortion to protect themselves from pregnancy, brutalized girls and women might be forced to endure an inescapable reminder of their attack for nine months thereafter, if not longer. Recall that Colorado Right to Life asked candidates whether they "agree that abortion is always wrong, even when the baby's father is a criminal (a rapist)," and numerous respondents answered yes. While a small fraction of abortions terminate pregnancy resulting from rape or incest, in those few cases this legal implication of "personhood" measures become very important.
Amendment 62 also would outlaw the abortion of severely deformed fetuses without any reasonable hope of a life outside the womb. Although women's bodies usually naturally abort in such cases, they do not always do so. A 2008 article in Boulder Weekly quotes a doctor from Georgia who discusses the devastating effects on parents if abortion is forbidden in such cases:
There were countless couples who got up and told their story [in a legislative hearing in Georgia] about how they had to have an abortion because of a child that was an[en]cephalic [missing most of the brain] or deformed in some terrible way... [T]o think that you have to carry that child, go through the pain of the delivery process and then watch it die...Recall that some variants of the "personhood" language would explicitly ban abortion "regardless of...[a fetus's] level of functioning," and clearly that is the intent of every "personhood" measure. Under Amendment 62, aborting a deformed fetus would be just as much murder as killing a deformed infant. Thus, under "personhood" laws, painful family decisions would become political spectacles for anti-abortion activists under the false banner of "protecting life," just as happened in the Terri Schiavo case. Leslie Hanks, who helped submit Amendment 62 to the Secretary of State, attempted to "peacefully but physically intervene" in the Schiavo case, and no doubt she would be equally prepared to intervene in the private decisions of Colorado families.
Read the full paper in PDF format or HTML format.