A mother's choice can't define life
Hugo Gurdon, National Post - Friday, October 18, 2002

A Michigan appeal court has drawn new battle lines in America's cultural conflict over abortion, ruling that a woman who fatally stabbed her boyfriend may argue that she was protecting the quadruplets gestating inside her.

Jaclyn Kurr is in jail for the manslaughter of Antonio Pena, whom she killed after he punched her in the belly when she was 16-17 weeks pregnant. Her counsel had to argue that this was self-defence after the trial judge, Richard Lyon Lamb, knocked aside the defendant's main argument by ruling that the four fetuses' interests were irrelevant.

"I believe in order to be able to assert a defence of others there has to be a living human being existing independent of your client," Judge Lamb told Ms. Kurr's attorney with icy clarity: "Under 22 weeks, there are no others." The appeal court now says otherwise.

The status of unborn babies is not settled in society's mores or in law. And it never will be while the debate is framed as an issue of location (the womb) and choice (the mother's). That requires people to accept what they cannot -- the intellectually incoherent position that the nature of a being depends on where it is and what someone else thinks of it.

Willing though many people are to muddle along with this -- because of political conviction, or lack of it, or for a quiet life -- we know it is nonsense. If a fetus is not a person, then homicide in its defence is no more justifiable than homicide in defence of, say, a pet cat. But if it is a person, then it remains a person with rights irrespective of whether the mother wants to be rid of it.

Canada has no abortion law and we adopt arch locutions such as"potential" human beings when we want to dispose of the unborn without guilt. But we refer to babies -- as in "Tobacco smoke hurts babies" -- when the pregnancy is welcome.

The implications of fetuses' variable status are almost too jarring to believe. In Britain, a driver knocked down a pregnant woman, killing her unborn child, but he escaped homicide charges because it died inside her. Another driver was convicted of homicide in identical circumstances except that, in his case, the baby died from its injuries after it was born prematurely rather than in the womb. Both drivers did the same thing with the same result, but one was deemed a killer and the other not.

Roe v. Wade, which legalized abortion in the United States in 1973, went far beyond the Constitution by inventing a "right to choose." But it did not go nearly so far as to close avenues of attack. Indeed, what the court did in Roe was grant pro-abortion opinion a position that was both legally indestructible and logically indefensible -- resolving nothing and guaranteeing perpetual struggle.

The Michigan appeal court made its ruling with its eyes open: "We are obviously aware," said the three-judge panel, "of the raging debate occurring in this country regarding the point at which a fetus becomes a person entitled to all the protections of the state and federal constitutions.

"Those who support abortion rights are already in hand-to-hand legislative combat with the Bush administration over plans to give fetuses a right to ante-natal care; both sides recognize the implications of granting rights to the unborn. And when Congress last year debated legislation to criminalize assaults causing miscarriage or stillbirth, Jerrold Nadler, a pro-abortion Democratic congressman from New York, warned: "If causing a miscarriage is murder, then, by implication, so is abortion." His point, that killing a fetus cannot be murder because abortion cannot be murder, is intellectually consistent, but blatantly begs the question.

Public acceptance of abortion climbed steadily for more than 20 years after Roe, according to Gallup, but the tide has flowed back since 1996. The most recent figures show that 26% of Americans believe abortion should be legal in all cases; 17% say it should be banned entirely, and the majority; 56%, believe it should be allowed only in certain cases. This means three in four believe abortion should be banned in some circumstances -- that is, they accept that the fetus has a moral status independent of its mother's opinion.

This was generally accepted in liberal democracies 50 years ago -- which is why the World Medical Association promulgated, and doctors everywhere accepted, a universal physician's oath in 1948 in which physicians swore to "maintain the utmost respect for human life from the time of conception."

And today, a quarter of a century after abortion became common, the majority view on abortion is still founded on an understanding that human life - and rights -- begin before a pregnancy comes to term.

The abortion wars can end only when society tires of relativist intellectual fashion, and accepts again that some things are not matters of opinion but are simple truth. Mankind, T.S. Eliot noted, cannot bear too much reality.

But it cannot bear too much falsehood either.

Copyright 2002 National Post