The Law, Double Standards & Abortion

The charging of a Utah woman with the murder of her unborn child has raised a number of perplexing issues. Melissa Rowland was pregnant with twins when she was warned that if she did not have the babies delivered by caesarean section they were likely to die. She refused the operation – reportedly because she did not want to be scarred – and one of the babies was subsequently delivered stillborn.

The murder charge was applied because under Utah law homicide is defined as the intentional, reckless or negligent killing of a human being – including an unborn child at any stage of its development.

John Seymour, Adjunct Professor of Law at the ANU, in an article for the Canberra Times published in March this year, expressed his views on the implications of this case. The following is a rejoinder to the points he raised in his article.

(Before proceeding it is worth pointing out that Seymour chose to use the term ‘foetus’ almost exclusively throughout his article. This could be seen as indicating a negative bias in Seymour’s thinking about the ‘entity’ carried by a pregnant woman. To some (many?) minds the word ‘foetus’ connotes a being of lesser value or significance than an ‘unborn baby’ or ‘unborn child.’ It is not as if ‘foetus’ is a legal term either, eg. in the Queensland Criminal Code the words ‘unborn child’ and ‘child’ are consistently used when referring to the being carried by a pregnant woman. Moreover it is the case that in everyday speech people refer to the ‘baby’ when talking to expectant mothers – certainly at least when the mother is happily pregnant.)

Seymour correctly identified the question that is at the heart of the whole issue: “Should a woman be criminally liable for conduct that destroys or harms her foetus?” In addressing this question he again correctly observed that the maternal/foetal relationship is unique. But he then goes on to make the much more contentious assertion that “a pregnant woman and her foetus are ‘not-one-but-not-two’.”

With that as his starting point, Seymour claimed that “any legal action to protect the foetus would require clumsy and unacceptable coercion of the woman.” He inferred that it would therefore not be appropriate to use the law to prevent women from endangering or neglecting their unborn children (eg. by taking illegal drugs or drinking excessive amounts of alcohol during pregnancy, or by refusing medical intervention such as a caesarean section, or, presumably, by having an abortion), nor to punish them if they should do so.

Instead, Seymour advocated that society should rely solely on education to protect the ‘foetus.’ While we wait for such education to take effect, or if it should fail, we simply have to live with the “occasional tragic consequences.”

Seymour though did not rule out the possibility of the law having some role to play in protecting the ‘foetus.’ While he argued that there should be no legal restrictions at all on the mother’s conduct during pregnancy, he was open to there being laws that are directed against other persons who attack a pregnant woman and kill or injure her ‘foetus.’

However, he pointed out that critics of such laws regard any law which implies that the pregnant woman and her ‘foetus’ are separate entities as having negative implications for laws allowing abortion, and so they reject them. In March this year just such a Bill, which made the destruction of the life of an unborn child following an assault on a pregnant woman an offence, was defeated in the ACT Assembly.

The crucial point with all this is, how valid is it to claim that “a pregnant woman and her foetus [unborn baby] are ‘not-one-but-not-two”? There is no argument that in a normal pregnancy (cf. to IVF pregnancy) the child is carried within the body of the mother throughout the pregnancy and in that sense there is a certain unity.

But from a biological perspective it is beyond dispute that from the time of fertilisation there are two (or more) individuals involved in the pregnancy. The new life that is formed at conception is genetically uniquely different to, and separate from the mother (with his/her own blood type and half the time of the opposite sex), although completely dependant upon the mother. If IVF has proven anything, it is that the mother and the embryo are not one physical entity.

A much more accurate way to describe the relationship between a pregnant woman and her foetus/unborn baby would be, ‘not-one-but-two-(temporarily)-conjoined-individuals.’

Seymour is correct that if legal recognition is given to the unborn child it will make things much more complex. Without doubt there will be many occasions when conflicts arise between what may be the interests of the mother and what are the best interests of the unborn baby. It cannot be pretended that sorting out those conflicts would not prove very difficult at times and undesirable outcomes may occur with some pregnant women having to be restrained in some way in order to try and protect the child from harm from their own mother.

As difficult as that may be, what of the alternative? For the sake of simplicity and the interests of some, we can continue to turn a blind eye to what we intuitively and scientifically know to be the case, that a young fellow human being grows within a woman during pregnancy. We can say to ourselves that it is just too bad for that section of humanity that they are deprived of the legal protection extended to the rest of the human family; that it is just tough luck that they can be killed by abortion if that is what their mother wants.

And we can idly wonder to ourselves, ‘Just how could slave-owners and Nazis have been so monstrously inhumane? I wouldn’t have gone along with those things if I had lived then.’

Seymour says that education and not legislation is all that should be done to protect the unborn. Certainly education is very important, but he seems to forget the very important educative role that the law has. The very fact that the law does not protect the unborn allows many people to tell themselves that the unborn mustn’t be very important – especially if it is in their interests to believe that. And the reverse would be true: if the law protected the unborn it would reinforce our intuitive sense of their humanity and inherent value.

The absolute inadequacy, indeed inconsistency, of Seymour’s position is shown up by his support for laws that recognise the unborn child if they are killed or injured in an assault on the mother. Such a law was passed in Queensland in 1997 following a man’s attack on his pregnant girlfriend which resulted in the child’s death. It was seen then that it was not right that an assailant could kill a child and yet not be charged with causing the child’s death. Now in that State a person can be sent to prison for life for killing a child before birth.

That however means that the situation in Queensland is now completely ridiculous. For example, if a pregnant woman standing on the footpath outside an abortion ‘clinic’ is attacked and she loses the baby, the attacker gets life imprisonment. But if the same woman walks through the doors of the abortion clinic and asks for that same baby to be killed, then it would be done and the killer/abortionist would be well paid for doing so!

It is no wonder that the ACT Parliament, which has completely legalised abortion, knocked back a proposed law that would give some recognition to the unborn. They want to avoid the blatantly hypocritical situation that now exists in Queensland. They are at least completely consistent in their heartless abandonment of the youngest members of the human family.

Providing legal protection to human beings before birth would be fraught with challenges, but there is no morally acceptable alternative.