Much has been made lately of language in a
recently enacted New York state statute that permits abortion up to the time of
birth if necessary to preserve the life or health of the mother. New Jersey has
had the same provision for two generations via a regulation of the Board of
Medical Examiners.
Sadly, when New York Gov. Andrew Cuomo
signed the new legislation into law two weeks ago, he did so in a joyful and
celebratory atmosphere. What moral person could find joy in this?
The joyless debate over the
issue of how late in a pregnancy is morally or legally too late for abortion
was crystalized when the Virginia General Assembly was prepared to vote last
week on legislation nearly identical to New York’s, only to have that legislation
inadvertently sabotaged by one of its most ardent supporters, Gov. Ralph
Northam, a pediatric neurologist.
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When
Gov. Northam was asked on a Richmond radio show how the law would address a
baby’s surviving an abortion procedure in the ninth month of pregnancy and his
cold and startling answer was that the proposed legislation would permit the
mother and the physician to let the unwanted baby passively die, outrage
ensued, and the legislation was defeated by one vote.
That
outrage was soon diverted to Gov. Northam’s fitness for office, not over his
abortion comment but because his medical school yearbook page showed a photo
with a person in blackface and another in Ku Klux Klan garb — together
depicting horrid, hateful, hurtful imagery reminiscent of an awful white
supremacist-dominated time in American history that took bloodshed to erase.
This shocking revelation and the defeat of the proposed Virginia legislation
changed the public debate from letting babies who survive abortion procedures
die to ridding the Virginia government of a potential, likely or former white
supremacist.
Gov.
Northam at first apologized, not for supporting legislation that would permit
the passive deaths of unwanted babies but for his youthful blackface-posed
photo. Then, on second thought, he denied that the photo was of him. Then
political hell broke loose among Democrats who want him out of office.
But
the issue remains and cannot be buried by the firestorm over the governor’s
35-year-old yearbook page: What is the legal status of a baby who survives a
late-term abortion procedure? Here is the back story.
In
January 1973, the Supreme Court issued two abortion decisions on the same day.
The better known of the two, Roe v. Wade, has been the fulcrum for political,
legal, moral and religious debate as fierce as any this country has seen since
the abolitionist movement challenged slavery in the era before the War Between
the States.
Roe established that the fetus in
the womb, notwithstanding human parentage and the possession of all the genomic
material needed to develop into a full postnatal human, is legally not a
person. This echoed another Supreme Court decision, Dred Scott v. Sandford,
which was in the abolitionist era and effectively denied the personhood of
African-Americans.
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The personhood of a human fetus is not
a mere academic question. If the fetus is a person, then it is protected from abortion by
the Fifth and 14th amendments to the Constitution, which command the government
to protect equally the lives of all people. But Roe did not stop with the
personhood issue. It also decreed that the states may not regulate abortions in
the first trimester of a woman’s pregnancy, may regulate in the second trimester
only for the health of the mother and may prohibit or permit abortions in the
third trimester.
Yet
here is the kicker, which has been below the Roe radar screen while 55 million
babies have had their lives snuffed out in the past 46 years. Roe decreed that
all states must permit abortions at any time in the pregnancy if necessary to
save the life or preserve the health of the mother. Pregnancies that threaten
the life of the mother are extremely rare, thanks to modern medicine. However,
thanks to Roe’s little-known companion case, Doe v. Bolton, the phrase “the
health of the mother” can mean the physical, mental, psychological or emotional
health of and (inexplicably) the age of the mother.
Stated
differently, under Roe v. Wade and Doe v. Bolton, if a mother satisfies a
physician that she would suffer emotionally if she were to carry her baby to
term or is too old to be a mother, in all states in the union, she can have an
abortion at any time in her pregnancy — even at the end of the ninth month.
Now, back to the question put
to Gov. Northam. Suppose the baby is not butchered in the womb but survives and
is delivered alive. When the Philadelphia abortionist Kermit Gosnell was
confronted with this, he used his scalpel to stab babies to death. At his murder
trial, at which he was convicted, the prosecution presented evidence to show
that if he had passively allowed the born-alive babies to choke or starve to
death, he would not have committed a crime.
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Physicians are taught from day one, “First, do no harm.” What physician
could let a baby die?
The
dirty secret of abortion law is that mothers and abortion physicians may
legally let unwanted babies born alive suffer and die with impunity. What about
personhood? Isn’t a living baby a person entitled to the equal protection of
the laws? Under the natural law, yes. Under the Constitution, yes. Under Roe v.
Wade and Doe v. Bolton, no.
No society that permits the active or
passive killing of people because they are unwanted can long survive. No
society that defines away personhood has any claim to knowing right from wrong.
Whose personhood will the government define away next?
Reprinted with the author’s
permission.
Andrew
P. Napolitano [send him mail], a former judge of the Superior
Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge
Napolitano has written nine books on the U.S. Constitution. The most recent
is Suicide Pact: The Radical Expansion of Presidential
Powers and the Lethal Threat to American Liberty. To find out more
about Judge Napolitano and to read features by other Creators Syndicate writers
and cartoonists, visit creators.com.
Copyright © 2019 Andrew P. Napolitano
