Snatching Death from the Jaws of Life

Snatching Death from the Jaws of Life November 26, 2018

The core of HB 565 (and yes, I reviewed all 284 pages of it, and dozens of cross-references to current Ohio law) is to change the definition of “person” under Ohio criminal law to include ALL unborn humans, regardless of viability. (Ohio already gives viable unborn babies full rights under its criminal law today.) It erases the language that immunizes mothers from criminal prosecution if they give consent to abortion. It would allow criminal prosecution of mothers based on any action, attempt, or even threat to take action that could endanger the life or health of her unborn child. The effect of these changes is to apply the full force of homicide law to both mothers and medical professionals, including the potential death penalty for any person who “purposely, and with prior calculation and design, cause[s] the death of another.”

It would erase all exceptions for abortions performed because continued pregnancy would endanger the life of the mother, which is the only type of abortion that is allowable using Medicaid, ACA exchange-subsidized plans, state employer-sponsored plans, or other state funds under current Ohio law. The sole “exception” recognizing any right to life for the mother is a medical procedure to treat disease which “indirectly and unintentionally results in the termination of a human pregnancy and in which the medical practitioner has made every effort to protect the lives of both persons.”

This bill would incentivize citizens to report on each other for involvement in illicit abortion. It provides extensive whistleblower protections, even prohibiting “harsh language” towards an employee for reporting on suspected abortions. It states that anyone other than a medical practitioner involved who makes a report, provides information during investigation, or participates in a hearing concerning the provision or procurement of an abortion “shall not be subject to civil or criminal penalties.” It is not clear whether this immunity only applies to the provision of information that might otherwise violate laws like HIPAA or private wiretapping prohibitions, or whether it would immunize a mother from homicide prosecution if she cooperates with authorities—or an intimate partner from domestic abuse charges for reporting a suspected abortion, for that matter.

It is disturbing to think of the consequences if legislation like HB 565 actually could be implemented as law. An abusive intimate partner could use evidence of a miscarriage to threaten a woman with prosecution for murder. Since even a threat to harm an unborn child could be punishable as a lesser felony, abusers could make false reports in order to control or punish pregnant women. Women with ectopic and other life-threatening pregnancies would die if they couldn’t get treatment in another state. Women without access to good legal counsel, especially those who are poor, immigrants, or minors with abusive family members, could end up imprisoned for having a miscarriage, premature birth, or child with birth defects, as happens already in countries like El Salvador. The Ohio legislation would go even further than that because the death penalty is a theoretical possibility, and much further than the recently-rescinded Irish “ban” that allowed abortions by foreign-sourced prescription drugs or to save the life of the mother.

“Calm down,” I’ve seen many pro-lifers say on social media. “This isn’t mainstream pro-life legislation.” “The Supreme Court would never allow it.” While these two sentences are probably true in the present, there is still good reason to be very alarmed that this legislation has been introduced and has 18 legislators backing it. To understand why, we need to delve into the theory of the Overton Window.

This theory was developed about 15 years ago by Joe Overton of the conservative Mackinac Center for Public Policy. In a nutshell, it holds that public policy happens within a window of acceptable discourse, and that politicians have to stay in that window in order to stay in office. In order to move public policy toward aims outside that window, non-elected influencers like think tanks and other advocacy groups need to push hard promoting ideas that are currently thought radical or even completely unacceptable. By taking ideas that were unthinkable and making them seem acceptable in society, they shift the Overton Window in that direction. What was previously radical now becomes mainstream, and what was once acceptable towards the other end of a spectrum now becomes radical or even unthinkable.

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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.