Earlier this year, the US House of Representatives attempted to vote on a bill that would ban abortions after 20 weeks of gestation. This bill had several flaws in it and received opposition from several personhood groups until it was eventually pulled from the calendar. Now, a revised version of this bill has been proposed by Representative Trent Franks (R) of Arizona. This new bill still has many of the flaws contained in the previous bill, but now some personhood organizations are saying that it would be a good bill if just the rape and incest exceptions were removed.
Members of Personhood Alabama may have noticed several e-mails and facebook postings from personhood groups in other states and even from the national Personhood Alliance urging us to contact our representatives and ask them to remove the rape and incest exceptions from this bill. In light of these requests I would like to offer an explanation for why Personhood Alabama will not support the Pain Capable Unborn Child Protection Act even if these exceptions are removed.
1. The Pain Capable Bill explicitly states that abortions prior to 20 weeks are acceptable.
In section (a), this bill states that it is unlawful to perform an abortion “unless in conformity with the requirements set forth in subsection (b).” The use of the word “unless” indicates that any abortion which complies with the requirements is acceptable. For example, if I tell my son that he cannot play video games unless he first finishes his school work, then I have told him that playing video games after he finishes his work is acceptable. To state in law that abortions prior to 20 weeks are acceptable is to claim that personhood does not begin until after 20 weeks of gestation.
2. Pain Capable Legislation explicitly denies equal protection to the very same babies that it claims to save.
According to section (c), violations of the 20 week ban on abortion are punishable by fine and up to 5 years of imprisonment. This level of punishment means that the killing of children older than 20 weeks is only a class E felony. Class E is the lowest classification of a felony in federal law. This classification places the intentional murder of prenatal children on the same level of offense as drug possession. In contrast, the murder of a child who has already been born is a class A felony – the highest classification of a federal crime. Anyone who violates the prohibition against murdering a postnatal child must receive either the death penalty or life imprisonment. To place the murder of prenatal children as a lower level of felony than the murder of postnatal children is an unconstitutional violation of their right to the equal protection of the law.
3. The mother is not allowed to be punished even if she is guilty of violating the law.
Section (d) states that a woman who violates the pain capable bill by seeking an abortion “may not be prosecuted,” and section (e)(6) states that the woman cannot be sued in civil court for violations of this law.
In Roe v. Wade, the lack of severity of the punishment for abortion was a critical factor in the Court’s denial of the personhood of the child.
Justice Marshall asked: “If a doctor performs a brain operation and does it improperly, he could be guilty of manslaughter, couldn’t he? Well, why couldn’t you charge him with manslaughter if he commits an abortion?” The attorney for Texas was unable to provide a satisfactory answer to this question and Justice Blackmun wrote in the majority opinion that:
“There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out that, in Texas, the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?”
The same challenge can be brought against pain capable legislation. In every instance of this legislation, the punishment for committing an abortion after 20 weeks is much less severe than the punishment for killing a person. This differentiation between punishments is an explicit denial of the personhood of the prenatal child.
4. The Pain Capable Bill explicitly denies any equality between the mother and the child.
Section (b)(2)(I) of the Pain Capable Bill states that abortions can be performed after 20 weeks if there is a risk that continuing the pregnancy might result in “the death of the pregnant woman” or “the substantial and irreversible physical impairment of a major bodily function.” Thus, according to this bill, the child is not an equal person with the mother. If the child were an equal person, then the law would not be able to place the life and health of the mother above the life of the child. If they are both persons under the equal protection of the law, then they should both be treated equally by the law.
In Roe v. Wade, this unequal treatment was specifically cited as a reason that the Court rejected Texas’ argument for the personhood of the prenatal child.
Texas argued: “it is the position of the State of Texas that upon conception we have a human baby, a person within the concept of the Constitution of the United States.”
Justice White asked: “If you’re correct that the fetus is a person, then … the state would have great trouble permitting an abortion … in any circumstance … to save the life of the mother or her health or anything else?”
Justice Marshall asked: “could the State of Texas say that if it’s for the benefit of the health of the wife, they can kill the husband? … If it comes to a situation for the benefit and the health of the wife that the husband has to die, could they kill him?”
Justice Rehnquist asked: “doesn’t the fact that so many of the state abortion statutes do provide for exceptional situations in which abortion may be performed … suggest that the absolute proposition that a fetus from the time of conception is a person … is at least against the weight of historical legal approach to the question?”
Texas failed to answer these questions and Justice Blackmun wrote in the majority opinion that:
“When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother’s condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment’s command?”
Because of these four flaws, the Pain Capable Unborn Child Protection Act actually strengthens the case for abortion. These flaws are explicit denials of equal protection to the prenatal child and thus are denials of that child’s personhood. We at Personhood Alabama cannot support such a dangerous bill, and we call upon our members to contact their US Representatives and ask them to vote against this bill.