Politics & Policy

The Great Compromise of 2003

Pre-persons and the law.

Fetal rights have been much in the news ever since either Scott Peterson or some unknown assailant in a brown van brutally terminated the lives of Laci and Conner Peterson at 324 and 8 months of gestation, respectively, last Christmas Eve. No longer can a vicious attack on a pregnant woman be dismissed with an airy, “Well, she’s dying for two now.” Instead, staunch abortion-rights activists are reluctantly acknowledging that the unborn might have certain rights — to a smoke-free environment, for example — while diehard pro-lifers, as it were, are said to be reconsidering embryonic research.

Abortion used to be such a simple decision. On one side of the birth canal you were a fetus, a blob of cells, a growth. On the other side of the birth canal — a distance of only a few centimeters, ideally — you were Junior, the blessed event, or our next contestant on American Idol with all the legal rights, privileges, and obligations thereof. The only thing missing was a velvet rope and a Eurotrash bouncer with a clipboard and a list on which your name either did or did not appear, depending on your degree of viability. As if even a full-term, healthy baby outside of the womb would be “viable” without being fed, burped, and changed every two hours.

Plus the pro-choice crowd had a fallback argument in defense of abortion-on-demand which could be filed under “Live and Let Live” if that weren’t so ironic: If you don’t like abortion, read their bumper stickers, then don’t have one. Which made about as much sense to the pro-life side as a bumper sticker reading, “If you don’t like rape, then don’t rape anybody”.

The birth of the fetal-rights movement roughly coincided with the era during which fetal alcohol syndrome and crack babies started showing up in America’s hospitals and pre-schools. In a world where an entire village might feel duty bound to raise a single child, it occurred to some that even a blob of protoplasm has the moral, if not the legal right to gestate in an amniotic environment relatively free of Jack Daniel’s.

But even this realization was slow in coming, as numerous hospitals learned when a federal court ruled against them in a privacy case last year. Nurses and doctors were informed that by law they could not notify the police when a woman arrived to deliver her baby more coked up than Gary Busey at his last three bachelor parties, regardless of the condition in which their newborns emerged. Then there was the case of the pregnant woman who decided to induce a miscarriage by going on a weeklong drug, alcohol, and cigarette-smoking binge which culminated in the poor creature throwing herself down a flight of stairs. Her self-inflicted mayhem failed to have the desired effect, although the other girls in the sorority said it was the best Rush Week they’d ever been to. Rather than being tried for attempted murder, as some might have preferred, the woman was charged with a misdemeanor and later gave birth to a normal, healthy child she’s currently raising in a loving and secure atmosphere just steps away from a major freeway.

Meanwhile, several state legislatures have ruled that compensation for the negligent death of a pet — due to an auto accident, say, or to a veterinarian’s error — need not be limited to the purchase price of the pet, but can be a considerably higher sum. This is based on the understandable belief that a pet is not mere property, but an actual family member. With that in mind a number of state and federal lawmakers have begun to introduce new legislation regarding fetal rights. Their apparent, controversial goal is to create a legal environment in which an unborn human baby enjoys the same legal rights as does a dog.

Having secured the family pet’s rights to life, liberty, and the pursuit of cars, what have state legislatures accomplished to date on behalf of the unborn? As of today 28 U.S. states have laws which regard a homicidal act involving a fetus to be a crime. Within this pro-life confederacy some 14 states have fetal-homicide laws which apply from the moment of conception. The inconvenient fact that such statutes are irreparably at odds with current abortion law is explained by Congresswoman Melissa Hart (R., Pa.), who tells us that the Unborn Victims of Violence Act only applies in cases where the mother-to-be wants the child. Which is to say, if two identical fetuses at the exact same stage of development are killed, one of whose mother’s desires a live birth and the other whose does not, the first act would be considered murder and the second a routine medical procedure. Asked to account for this gaping deductive leap, pro-choice advocates tend to respond, “Hey, if you don’t like abortion, don’t have one.”

Thus the debate over fetal rights has placed pro- and anti-abortion forces on a collision course which threatens the very bonds of our great nation. Reasonable people (at least on this side of the birth canal) can find merit in each of their arguments, yet it seems inevitable that one side or the other must prevail. Especially as advances in embryonic technology and prenatal medicine, respectively, yield new insights such as the recent discovery that extremely young fetuses can feel pain (which led to the perfectly serious suggestion that perhaps the unborn could be anesthetized prior to being aborted).

It would seem that some compromise between the two sides will have to be forged in order for the peculiar institution known as abortion to be retained. One in which the unborn fetus is not granted full personhood, which would preclude its termination, but rather some fraction of legal personhood in recognition of its right to gestate in relative safety until such time as its mother either A) gives birth or B) terminates the pregnancy. This would seem to satisfy abortion abolitionists and abortion proponents to the fullest extent possible within current law.

For the sake of simplicity, let us agree upon some arbitrary fraction of full personhood — say, three-fifths — to be assigned to each unborn fetus. This should ensure that the unborn — and can we please start calling them “pre-persons”? — will be able to exist relatively free from the deleterious effects of drugs, alcohol, tobacco, amusement-park rides, X-rays, and wayward haymakers from common-law dads-to-be with half a bag on. By the same token, what reasonable person could object to the termination of a living entity which, however adorable, is a mere three-fifths of a potentially reasonable person?

Granted, every fetus is the result of reproductive activity between either a man and a woman or two lesbians, a gay guy who lives down the hall, and a turkey baster. Also, an unborn fetus shares the same D.N.A. and other physical characteristics as each of its undoubtedly human parents. In fact, it could even be argued to some effect that an unborn fetus is more or less a real person in a relatively early stage of development.

Even so, it’s not as if we’re talking about an actual human being here, is it?

Ned Rice is a staff writer for Real Time with Bill Maher.


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