Snatching Death from the Jaws of Life

Snatching Death from the Jaws of Life November 26, 2018

Ohio is expected to pass soon, even over the veto of Gov. Kasich, a prohibition on performing abortion when a fetal heartbeat is detected. This would generally prohibit abortions after about 6 weeks of gestation, and clearly violate the Constitutional standard enunciated by Roe v. Wade and Planned Parenthood v. Casey. The Ohio legislature is well aware of this, and the bill is explicitly crafted to go into full effect if and when the Supreme Court overturns Roe. Testing the appetite of the new array of Supreme Court Justices for overturning Roe is clearly a key aim in passing this legislation.

As someone who has extensive professional experience in legislative drafting, interpretation, and advocacy, and who has identified with and supported pro-life activism since I was a pre-teen, I think the Ohio “heartbeat bill” represents the best of pro-life efforts to pry public policy further open to life. It explicitly excludes non-uterine pregnancy (e.g. ectopic pregnancies, which are entirely unviable) and serious medical emergencies, as well as contraception. Ohio already prohibits abortions without first giving the mother the opportunity to see or hear the fetal heartbeat, except in documented medical emergencies, and gives the mother the right to sue the doctor for wrongful death if that was not done. This law, if the Supreme Court allows, would take the next step and prohibit medical professionals from proceeding with the abortion even after the mother’s heartbeat-informed consent. The offense would be a fifth degree felony (the lowest-level felony in Ohio law, often eligible for a year of community service as the penalty), in addition to the potential civil action and/or disciplinary action by the state medical board.

The Ohio heartbeat bill seems to me well-designed to preserve pregnancies that are statistically likely to result in a baby born alive. Because it is not overreaching in its penalties, it does not seem to punish women or scare doctors away from favoring the mother’s life in emergency situations. If the Supreme Court were to consider this law (a big if, to be addressed later) and decide that the right to privacy does not, in fact, shield abortion on demand before a child is developed enough to survive outside the womb, it would have a good set of facts to examine for other Constitutional concerns. Is the mother’s right to life adequately protected? Are the procedures and penalties for medical professionals fair under the 5th through 8th Amendments? Does this law impose moral standards on the general population that are idiosyncratic to certain religious sects, or does it protect human lives undeniably in being based on well-established scientific and clinical facts and evidence? This law is the perfect set for a pro-life Supreme Court, if we actually have one, to spike it.

But enter, stage right, another bill to prohibit abortion in Ohio, HB 565. This latter bill has not received a hearing, never mind a vote by the full legislature, and seems unlikely to progress any further this year. But it is co-sponsored by 18 legislators—27% of the Republican caucus in the Ohio General Assembly, where the Republicans currently hold a commanding 66 out of 99 seats. It is an anti-abortion bill, but it is not a pro-life bill by any means. Unless repudiated by mainstream pro-lifers, the mere existence of HB 565 with not-insignificant support has the potential to torpedo all hope of actually restricting abortion on demand in U.S. law.

Most of the criticism I have seen of this bill has focused on the theoretical possibility that a woman could face the death penalty for getting an abortion. Of course that is an absurdity, and one would have to imagine the United States dissolving into a dystopia in which the Constitution meant nothing at all for that to actually happen. That is not the real danger of HB 565. What is insidious and life-taking in this bill is that it shifts the Overton Window on what it means to support pro-life legislation, from the humanely secular contours of the “heartbeat bill” to the misogynistic oppression of women we now see in El Salvador.

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  • RoverSerton

    A very though provoking article. Thank you. Just one point of contention. I believe the Catholic position does not, in any case, allow for a termination of the pregnancy. No procedure that terminates the life of the fetus directly can be done. The way the catholic hospitals treat ectopic pregnancies is by cutting out the portion of the Fallopian tube (maiming the woman in the process). Life of the mother is not a reason for termination. Certainly, not my view , but the teaching of the church, as I understand it.

  • David Vun Kannon

    I realize that your Overton window graphics are your own categories, but I would strongly disagree with including forced abortions as policy positions to which “the Left” is open. In contrast to the “Abortion=Murder” choice, no American politician is advocating a law forcing a woman to have an abortion. In fact, the only American politicians pushing women to have an abortion are pro-life hypocrites that have impregnated their mistresses. The far left of American policy is government support and removing trimester limits, if anything – I would still make sure you actually have a source for that before putting it in.
    This is a well researched and earnestly argued piece, but it is marred by your fantasy about what the American Left actually feels.

  • Accidental Mystic

    Note that I put forced abortion in the category of “unthinkable,” so No, that does not express a fantasy about what the American Left feels. It does express a possibility for an extreme Left position that is demonstrated in China, but unacceptable in America. There are also theorists on the Left who would deny publicly-funded healthcare for delivery of babies with certain severe disabilities, or whose mothers are incarcerated or incapacitated, but pay for abortion, which is tantamount to forcing the abortion as illustrated in the “radical” position.

  • Accidental Mystic

    This article is not intended or presented as a statement of Catholic moral theological tradition. It is an assessment of legal and political questions in the secular American system of government.

  • David Vun Kannon

    I think the idea of an Overton window only works within a specific universe of discourse. The Overton window of China is different than the Overton window of America.

  • David Vun Kannon

    Far from unthinkable.
    “In Iowa, a pregnant woman who fell down a flight of stairs was reported to the police after seeking help at a hospital. She was arrested for “attempted fetal homicide.”” https://www.nytimes.com/2014/11/08/opinion/pregnant-and-no-civil-rights.html
    https://www.elle.com/culture/career-politics/a44552/when-a-miscarriage-becomes-a-crime/
    People want women to be charged with murder. Really.

  • RoverSerton

    I only mentioned it because you wrote ” I was repeatedly attacked as “pro-abortion” or “anti-Catholic” for taking the position that any legislation without an exception for endangerment to the life of the mother is categorically unacceptable. ” which actually is a view that is against Catholic teaching. I agree with your view btw.

  • Accidental Mystic

    Right. In China’s Overton Window, forced abortion is acceptable. In the United States currently it is completely out of bounds. But the whole point is that the Overton Window can shift. If the US Constitution doesn’t prevent death penalty for abortion from becoming a tolerable proposal on the Right, then neither does it prevent forced abortion from becoming a tolerable proposal on the Left, if a small but vocal group were to decide to advocate for that, e.g. as a “necessary measure” to combat climate change crisis.

  • Accidental Mystic

    Okay, but Catholic hospital standards and requirements under state law are entirely different things. I might as well be called “anti-Catholic” for thinking the state shouldn’t ban contraceptives. (Not to say there aren’t Catholics who would make such a claim. But it’s a fringe of a fringe.)

  • Michael Paterson-Seymour

    I do sometimes wonder how much impact a change in the law, without a corresponding change in public attitudes, would have on abortion rates.

    Anyone who remembers France in the 1960s & 1970s, before the Veil Law of 1975 (Law No. 75-17 of 18 January 1975), will know that pretty well every village seemed to have its « faiseuse d’anges » or “angel-maker.” Everyone knew about it, nobody talked about it and the police regarded it as “women’s business” and turned a blind eye. Occasionally a woman died and, then, the Parquet, like Captain Renault in “Casablanca” would be shocked, shocked to discover that such things went on and there would be a brief flurry of prosecutions of unqualified women, quickly rounded up and, so, obviously known to police. Medical practitioners, doctors and midwives were never, ever, prosecuted.

    Many people will recall « le manifeste des 343 salopes » on 5 April 1971, when 343 mostly prominent women admitted to having had an abortion and challenging the authorities to prosecute them. This, needless to say, did not happen, for corroboration was impossible. Perhaps, even more significant was the publication of a similar manifesto on 2 February 1973 by 331 doctors, including clinical professors in the leading teaching hospitals, admitting to performing abortions and, again, challenging the authorities to prosecute them. The Procurator of the Republic excused himself on the grounds of “lack of evidence,” for, once again, their admissions were impossible to corroborate.

    Does anyone imagine the position in the United States would be so very different?

  • ” imagine the United States dissolving into a dystopia in which the Constitution meant nothing at all”

    What do you mean imagine?

    Been that way since 2001.

    And unlike Ohio, I live in Oregon- where the Overton Window on abortion has taken a hard shift LEFT- into radical and coming close to reinstating the Eugenics Boards.

    This at the same time that we’ve advanced to the point that both mother and child can even survive an extra-uterus pregnancy.