| The Right to Life Amendment: the Politics of Pregnancy |
| ©2008
David C. Hanson, Virginia Western Community College |
[Right to Life Amendment] |
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Amending the Constitution In the summer of 1787, the founding fathers gave the American people a great gift: a constitutional republic with the capacity to bend and stretch without breaking. Many changes, unimaginable in 1787, have occurred in our nation: democracy has expanded like the land within our borders. Life has become much more complicated, and the relationship between the people and our government has evolved in ways that are both comforting and worrisome. Much has been written by historians and constitutional scholars about the “elastic clause” of Article I, Section 8: Congress shall have the power “to make all laws necessary and proper....” The Supreme Court has interpreted that and other provisions narrowly at times, and broadly at other times, throughout our nation’s history. The truly open-ended framework of the government is embedded elsewhere in the Constitution; to date, twenty-seven amendments have been made to the Constitution in accordance with Article V. It is quite probable that the founders would be astounded, perhaps even appalled, by some of the changes in their handiwork. But that was a different time, when women were second-class citizens, African-Americans were slaves, and Native-Americans were “savages.” That observation is not meant to denigrate the founders, but only to illustrate the point. A lot has changed. |
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The first ten were perhaps the most important of the amendments.
It is hard to imagine our government without the Bill of Rights;
that realization makes it all the more remarkable that they were an
afterthought, and addendum to the original product of Mr. Madison
and his associates in the summer of 1787. The founders
enumerated what the President and Congress could do and did not see
the need to spell out what they could not do. Maybe that was a
bit naive on their part, but it is revealing nonetheless.
(Perhaps they should have added that "Congress shall make no laws
respecting the private sexual behavior of consenting adults or the
possible consequences of such behavior in matters of maternity."
Hopefully Mr. Madison is not spinning in his grave over that
remark.) They
truly believed in limited government, even if it meant accepting the
inhumanity of slavery for the sake of political unity. They
were, after all, pragmatic conservatives, despite their idealistic
revolutionary rhetoric. |
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In 1865 a true social revolution occurred as an unintended consequence of
secession and the civil war that reunited the nation: four million
black slaves became free citizens with the ratification of the
Thirteenth Amendment. This was done as a matter of principle
and also for practical reasons. Destroying slavery was
instrumental to the defeat of the Confederacy; then the votes of
freedmen (guaranteed by the Fifteenth Amendment) were courted by
Republican politicians. In 1920 the Eighteenth Amendment took effect, prohibiting alcoholic beverages. It was repealed by the Twenty-first Amendment in 1933 because, put simply, Prohibition did not work. In 1920 the states also ratified the Nineteenth Amendment extending voting rights to women. More recently, in 1971 the Twenty-sixth Amendment lowered the voting age to eighteen. The last one, the Twenty-seventh Amendment ratified in 1992, prevents Congress from giving itself a raise in salary without an intervening election. |
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The Right to Life Amendment With the possible exception of same-sex marriage, it is hard to image a subject further from the minds of the founders' conception of the role and scope of government than that of the medical termination of pregnancy. In 2005 an amendment to the Constitution was drafted by Congress that would prohibit all abortions except in cases of rape, incest, or a pregnancy that threatens the life of the mother. If those pragmatic conservatives from 1787 were alive today, they might suggest that the proposed amendment raises some perplexing questions. |
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1. Who's Your Daddy? If abortion
is immoral and unacceptable, why should exceptions be made for rape
or incest? Is a child conceived in such circumstances any less
entitled to the “right to life?” If we allow such exceptions,
essentially for social reasons, how are the conditions under which
conception occurred to be determined? How likely is it that a
confession, DNA confirmation, or conviction in criminal court will
occur within the first two trimesters? |
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2. Infanticide or Matricide? There are many different disorders that can occur during pregnancy,
some of which present a relatively low level of risk and are
treatable; but others such as preeclampsia are a leading cause of
maternal and infant death. Preeclampsia--pregnancy induced
hypertension and toxemia--causes approximately 80,000 deaths each
year. Since preeclampsia usually occurs in the third
trimester, it often does not necessitate an abortion. The baby
can be delivered prematurely in an effort to save the mother, but
the risk is still high.
Pregnancy
can be very dangerous to women in other circumstances where
abortion is more likely to be medically indicated; for
example, in the case of a woman with serious
cardio-pulmonary problems, where the risk of death from
pregnancy to a mother can be 50 percent; or a woman whose
water breaks at eighteen weeks, making her at significant
risk of developing a serious and potentially
life-threatening infection before the baby could be
delivered with a chance of survival. The normal term of a
pregnancy is 37-40 weeks; a prenatal baby is commonly
considered viable at 24 weeks (i.e., the youngest baby able
to be kept alive in a newborn intensive care unit; before
this, virtually no babies can be kept alive even with the
best care). If the maternal mortality risk is at least
50 percent, a life-or-death coin toss, and the baby is
unlikely to survive, an immediate termination of
pregnancy often would be recommended.
Returning to
the proposed amendment, who will determine whether or not the pregnancy is
sufficiently life-threatening to the mother for an abortion to be
legal, and how will that determination be made? How long
will it take for the determination to be made? Sometimes a
pregnant woman admitted to the ER cannot wait for extended judicial
review while her life hangs in the balance. Might the proposed
“Right to Life Amendment” have the unintended consequence of causing
the death of countless pregnant women in a vain effort to extend the
term of a nonviable fetus for moral or legal reasons that disregard
medical considerations? It seems conceivable that the chief
beneficiaries of this amendment might be attorneys representing
mothers, fathers, unborn babies, doctors, hospitals, insurance
companies, clergy, and miscellaneous "friends of the court." |
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3. Imperfect Babies. Opponents of the proposed amendment note that it
allows no exception for serious birth defects.
Birth defects are defined as abnormalities of structure, function,
or body metabolism that are present at birth. These abnormalities
lead to mental or physical disabilities or are fatal. According to
the Department of Health’s Centers for Disease Control and
Prevention (CDC),
birth defects affect about one in every 33 babies born in the United
States each year.
There are more than 4,000 different known birth defects ranging from
minor to serious, and although many of them can be treated or cured,
they are the leading cause of death in the first year of life.
Serious birth defects account for more than 20% of all infant
deaths.
The American College of Obstetricians and Gynecologists (ACOG) says
that out of every 100 babies born in the United States, three have
some kind of major birth defect. |
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Abortion opponents commonly insist that every human life is equally
precious. (That is a noble rhetorical statement; but as a
father, I unhesitatingly assert that my daughters' lives are more
precious to me than any fertilized egg, embryo or fetus.) They characterize abortion as the cold-blooded murder of
“imperfect babies.” (As a rhetorical tactic, they prefer to
use the terms baby or child rather than fetus. This creates a
mental image of a baby such as the one pictured above rather than an
undeveloped baby with extreme deformities.) Supporters of
abortion rights counter that no purpose is served by extending the
prenatal life of a doomed baby. They ask, what woman would
find joy in delivering a stillborn baby, or holding a dying newborn
in her arms? Many ill-fated pregnancies end in miscarriage,
but modern medical care often can extend a pregnancy beyond its
natural expiration. Generally in such cases, the outcome is
the same. |
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In cases where tests indicate a near-certainty of a serious birth
defect, termination of the pregnancy is a common consideration.
Physicians usually present the risk of a serious birth defect in a
range of probability from low to high.
Often the level of certainty depends on what diagnostic tests are
used, such as ultrasound, amniocentesis, or blood tests. Abortion
opponents cite instances where a pregnant woman was told her baby
might have a serious defect and an abortion was recommended, but
the woman chose to have the baby and it was fine. They also point
to happy children who have a good quality of life despite birth
defects such as cerebral palsy, cystic
fibrosis, spina bifida, Down syndrome, Fragile X syndrome, muscular
dystrophy, sickle cell anemia, and fetal alcohol syndrome.
Abortion opponents rarely consider disorders such as anencephaly
(which admittedly occurs in only one out of 2,000 pregnancies). |
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An
anencephalic baby is missing a major portion of the head and brain.
If a baby with anencephaly is not stillborn, it may show reflex
actions such as breathing or responses to sound or touch, but it has
no consciousness or possibility of ever gaining it. It is usually
blind, deaf, and unable to feel pain. Inevitably it dies within a
few hours after birth. There is no cure for anencephaly. The only
treatment is grief counseling for the mother. Though exceedingly
rare, anencephaly is as relevant to the abortion debate as the
“miracle baby” that defies a grim medical diagnosis by being born
perfectly healthy. Abortion rights proponents point out that women
are more inclined to talk about their exceptional pregnancy that
beat the odds than to talk about their abortion and speculate about
what “might have been.” |
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The
Politicization of Pregnancy In ways unlike any other medical procedure, abortion has become inextricably linked to broader political, cultural, and socioeconomic concerns. In that sense, it is much like slavery in the 1850s. When abolitionist John Brown said he felt the pain of the lash, he was being rhetorical, but he was sincere. Some opponents of abortion feel a profound empathy for unborn babies. Anti-abortion slogans on bumper stickers, billboards, and protest signs might seem absurdly trite to objective observers, but they represent genuine and deeply heartfelt emotions. At the same time, sympathy for unborn babies can seem bizarrely cold toward women, as when abortion is characterized as homicide or the irresponsible exercise of “after the fact birth control” to terminate an “inconvenient” baby. There is no joy in terminating a pregnancy; nor is there cause for celebration upon giving birth to a stillborn baby. In either case, nonjudgmental comfort, not condemnation, is perhaps the best treatment for the mother. |
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Defenders of abortion rights question the moral or
social value of proliferating a population of children with severe
birth defects, or children born into a miserable life of dismal
poverty, neglect, and abuse. Adoption is the common solution
suggested by abortion opponents, without an honest consideration of
the impracticality of finding good homes for millions of unwanted
babies or the socioeconomic costs of caring for them. The
truth of the matter is that despite the widespread availability of
abortion, foster homes and residential institutions are already full
of orphans with little hope of adoption. Instead of debating
an unrealistic amendment to the Constitution, perhaps our society should focus more attention on ways to
reduce the number of unplanned, unwanted, and unhealthy pregnancies.
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Limited
Government? The medical consultant for this article was S.J. Hanson, MD, a resident in gynecology and obstetrics at Johns Hopkins University Hospital. The opinions expressed here are those of the author and do not represent the official position of either Virginia Western or Johns Hopkins on matters of women's health and public policy. |