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Alice’s Baby (Part 2) – a law graduate comments

23 Feb

Welcome to Part 2 of “Alice’s Baby” – my look at the implications of abortion for the law, and the implications of the law for abortion and society. In Part One I outlined the hypothetical case of a woman killing her prematurely-born child just hours before he would have been aborted, had an accident not intervened.

I’ll get to the discussion questions in a moment, but first I’d like to frame the discussion by explaining what this is about and why I’m writing this pair of posts. I’ve been hoping to write this article for a while as I think there is some important light that the law, and legal philosophy, can shed on abortion, particularly in light of the fact that premature babies born before the legal abortion limit are now surviving in considerable numbers, and also following on from revelations about partial-birth abortions, as practised in the Kermit Gosnell abortion clinic case.

(EDIT These posts seem all the more timely, given that the British Pregnancy Advisory Service (BPAS) has this same week called for the legalisation of abortions up to term, for any reason, and claimed that the Royal College of Midwives (RCM) supports this. Members  of the RCM claim that they were not consulted and have denounced the move. END EDIT)

I’m also going to anticipate some questions and objections that people might bring up.

i.) Isn’t this case study all a bit silly and arbitrary?

No. Laws exist for a reason. Good law protects people from all kinds of negative conduct and consequences. Bad law does the opposite. Law students – and indeed lawmakers – study legal problem questions such as this one in order to understand how the law works and how it might affect the people it governs.

University students all over the world get their law degrees in part by studying questions like this one.

ii.) Isn’t this case study loaded in favour of your (i.e. my) Christian pro-life outdated religious bigoted views?

No. The case study is an invitation to discuss a set of hypothetical facts which are plausible and adequate for the purposes of examining the implications of particular judgments that we might make about those facts. These facts do not in themselves presuppose any particular judgment. That this study might lead some people to agree or disagree with a particular stance on pro-life versus pro-abortion does not mean that the case study itself is rigged.

iii.) Does this case study bear any relation to real life?

Yes. The issue we are trying to decide is not only whether a woman should be convicted in the rare event that she would do what Alice has done, but to shed light on the issues surrounding abortion and the value of human life in general. These issues affect us whether we want them to or not.

iv.) Is this case study intellectually tenable?

Yes. Law is very much a science, and forms the bedrock of every society. Whether we agree or disagree with certain laws, the law in itself is an intellectually demanding field of study with complex foundations and principles that have developed considerably over time.

Law operates entirely independently from the laws of nature as observed by science, although science can inform the law and vice versa.

v.) Are you going to get to the discussions soon?

Okay.  :o)

I will both explore the questions in brief and give my own answers as well as trying to examine other possible views.

1.) Has Alice committed murder or infanticide? Has she taken a human life?

The Crown Prosecution Service (the body responsible for the prosecution of serious crime in England and Wales) defines murder thus:

Subject to three exceptions the crime of murder is committed, where a person:

  • of sound mind and discretion (i.e. sane);
  • unlawfully kills (i.e. not self-defence or other justified killing);
  • any reasonable creature (human being);
  • in being (born alive and breathing through its own lungs – Rance v Mid-Downs Health Authority (1991) 1 All ER 801 and AG Ref No 3 of 1994 (1997) 3 All ER 936;
  • with intent to kill or cause grievous bodily harm (GBH).

Under this law (which I guess to be broadly similar in most other jurisdictions), Alice could only exonerated from murder if found not to be sane. It does not matter that her child has been born prematurely and could have been aborted – at the time of its death, the child was “in being”, capable of independent life by its own strength.

The alternative offence exists of infanticide, whereby a mother who deliberately killed her new born child while the balance of her mind was disturbed as a result of giving birth receives a lesser sentence than she would for murder.

The burden then lies with the prosecution to prove that the balance of the mother’s mind was affected such that she killed her child when she would otherwise not have done so. If Alice can reasonably be said to be rationally in charge of her own decision-making, the offence is murder; otherwise it is infanticide.

In all cases, however, it is clear that the child, while legally capable of being aborted whilst still in the womb, is a human being in its own right once born. Alice has unlawfully taken the life of a human being, not merely fulfilled the intent of aborting her pregnancy.

In short, Alice is guilty of killing her child. This has, or should have, implications for our understanding of the value of that child, whether born or unborn, and thus should have implications for abortion too.

2.) If Alice has committed murder (or infanticide), what implications does this have for abortion?

This is where abortion most obviously becomes problematic. Children are surviving increasingly premature births at increasing rates, thanks to the development of neonatal medicine and technology. Abortion is legal in the UK up to 24 weeks’ gestation.[1] Premature babies can survive from as young as 22 weeks’ gestation, with the survival rate for babies born at 23 weeks ranging from 15 to 40%. [2]

The implications are clearly serious: if a premature child has a viable (albeit fragile) life and reasonable (if low) prospects of living, by what mechanism are we able to claim that the unborn child is not a life while the born child is?

What about child destruction?

The doctrine of “life in being” is helpful in distinguishing murder from the crime of child destruction, i.e. the unlawful killing of a child in utero. Child destruction too is a serious offence, punishable by imprisonment for life. The fact that a child has not yet been born does not mean that it is not subject to the protection afforded by the law – indeed the law extends protection of life beyond life “in being” (actual persons) to life still in the womb.[3] While the law against child destruction does not of itself criminalise abortion, the distinction between life in being and the life of the unborn child, and its implications for Alice’s case, are not at all helpful to the case in favour of abortion.

It is worth pointing out that the offence of child destruction, rather than murder, applies if the killing is so proximate to the birth as to constitute an inseparable act. Alice’s case, however, involves a noticeable delay between the child’s birth and its death (and the case study was deliberately designed that way so as to create clarity), so the offences of murder or infanticide apply.

What does abortion law cover?

English law permits the termination of a pregnancy on the grounds of grave risk to the physical health, mental health or life of the mother, and similar. [4] Clearly this is routinely being ignored since abortion is essentially available on demand.

What does the offence of infanticide imply for abortion?

If Alice can be said to have committed the offence of infanticide rather than murder – a reasonable conclusion if the balance of her mind was upset by her accident and the birth of her child – the infant is still that: an infant. While abortion may be acceptable, and indeed desirable to many in society, it is this point about life and the viability or life, and the morality (or otherwise) of taking that life that is at issue here.

Does abortion take a life? And if a baby born prematurely can be the victim of infanticide (or murder, if a third party such as an “Angel of Death” nurse, or a friend acting on Alice’s behalf, were to kill the child), what moral distinction separates that baby’s life from the life of an unborn child which is aborted?

Should we continue to support abortion so broadly in the face of clear evidence that it kills viable babies?

Besides this, to what extent is viability a forceful argument in law? It is commonly claimed that abortion is justifiable because the foetus is entirely dependent upon its mother and is not a separate life. As we have already seen, this argument carries no weight as a defence to the crime of child destruction. And one might add that in addition to all foetuses, all 18-month olds are arguably fully dependent upon Mother and largely incapable of independent survival. Are they too candidates for termination?

3.) If Alice has not committed murder, or we would like to say that she has not, what implications does this have for the value of human life?

Is it reasonable for abortion’s supporters to claim that a child that has somehow escaped abortion should still be capable of being put to death legally? This is not idle kite-flying. There are some who argue that parents should have the right to have a newborn child put to death, since ending their lives is no different to abortion.

The obvious observation to make here is that this is the thin end of the wedge. What holds us back from broadening the scope of legislation that permits postnatal killing once it gains a foothold and becomes accepted? Moral philosopher (I cannot bring myself to use the word “ethicist”) Peter Singer has stated that no child should be considered a human life until it is 30 days old, and that some disabled children should be put to death without delay. Because they are not self-aware, he argues, “…they are not persons”; therefore, “the life of a newborn is of less value than the life of a pig, a dog, or a chimpanzee.” [5]

Richard Dawkins, for many the chief spokesperson for popular atheism, has said via Twitter that it would be immoral not to abort a foetus that was seen to have Down’s Syndrome. He has since apologised for the outrage this caused, but still he seems to be committed to the idea that aborting Down’s syndrome babies is a legitimate course of action and, as Singer’s words prove, he is not the only one who thinks this way. This argument for eugenics is clearly an acceptable view in at least significant parts of the academic establishment, and the fact that so many are articulating it proves that it is no flash in the Twitter pan.

Where does this shocking logic end? It is an argument based on a subjective view of quality of life, rather than the objective and simple (but not simplistic) view that all life has equal, supreme value, and that quality of life is very much a secondary concern – a notion not conferred on us by evolutionary science, but drawn from the idea that all human beings are valuable because we are created in the image of God. While some might laugh at the idea of God having anything to say about our worth, this has been the basis of our laws in the West for almost two millennia

It is worth noting that most secularists and political and religious liberals normally consider it to be a sign of our increasingly civilised and morally irreproachable values that we have done away with the death penalties and cruel and unusual punishments that featured in earlier times. Of course this is put down to the triumph of science and reason, but with our leading “reasoners” calling for babies to be put to death, can we be so sure that it is secularism and science that have given us our most cherished values, or does God provide us with transcending moral imperatives that do not shift with the whims of society and the opportunities afforded by technology?

Are we in danger of taking away those historical killings with one hand, only to bring them back in a different guise with the other? [6]

Furthermore, Singer’s is an argument that is capable of shifting quickly to encompass all kinds of persons whom we might find it more convenient to consider “non-persons”. What is to stop us (or our representatives in Government) from deciding that along with severely disabled babies, healthy babies can also be put to death if there are grounds for the parents to wish they taken up the offer of an abortion when they had the chance? Arguments for abortion up to full term are being made by some who see no reason to limit abortion to 24 weeks; why not allow that to spill over into killing babies after birth, since the difference between born and not-born is only as thin as the skin of the womb?

And why stop there? If babies (disabled or otherwise) are non-persons, or persons not worthy of the same consideration as the rest of us, why not euthanise severely disabled people of all ages, and with them the old, the mentally infirm, the simple, people with Down’s syndrome, people with incurable diseases, people who refuse to work for a living, or anybody else whom the political class considers beyond the pale?

If we cannot value the lives of unborn babies consistently and without partiality, is there any substantial hope that we will be able to value the rest of us?

Conclusion: Is this a realistic assessment?

Is this simplistic alarmism? Or are these things knocking at our door? Ideologies that valued some people-groups and severely denigrated others knocked on the door in many European countries in the 1930s and were welcomed in, resulting in body counts in the millions that we still condemn today. These ideologies included eugenics and discrimination against the disabled and infirm. Is there any reason – in a Europe or an America once again beset by ethnic conflicts, political challenges, and financial difficulties – why such measures might not be taken again?

It is common for liberals to argue that such things couldn’t happen here, or again. We know better now, supposedly. But is that true? The current times, with the National Health Service being broken up in spite of the concerns of a nation, and rights and benefits for the disabled being undermined, with disastrous consequences for many, prove that much decisionmaking is beyond the control of the ballot box. Politics is too complex – and courageous voices too few – for all evil to be restrained. The current combination of financial crises and increasing demands on public services make it all but inevitable that there will be increasing calls to wipe out of existence first individuals, and then some whole class of humans who we feel are a burden to society.

We haven’t arrived at such dark days yet. But we are getting there. Can anybody honestly say that the foundations are not being laid? Surely a society in which there is hope for all life to be valued looks different from what we are building at present. The trend would run in the opposite direction, and our prominent ethicists would call for us to protect the life of the child, disabled or otherwise, for in so doing we would be protecting the lives of us all.

In a society in which many of us arguably consider abortion to be routine, desirable and a human right, what is to stop us from hardening our hearts against lives in being?

Law protects life

To begin where we started, law protects life. While it may be argued that the law encodes principles that most of us already hold in our hearts, it nevertheless carries a force that shapes both the views and practices of individuals and the destiny of whole societies. Bad law can be identified by its propensity to lead to bad consequences. Law that blurs the definition of the value of life and renders other lives susceptible to being deemed not worthy of living by a process of logical extension is self-evidently bad law.

The problem with the current law on abortion is perhaps not that it is flawed so much as that it is being flouted. In other words, it is clear, but it is being ignored. It defines abortion as a crime expect in very specific circumstances, but it is not being enforced as such. Poorly-enforced law is as bad for society as poorly-drafted or poorly-conceived law. And poorly-enforced law in turn may lead to more extreme laws being written that grow out of behaviours formerly considered extreme which society has come to accept as normal.

Let us hope that those days don’t come, or else future Alices may be responsible for the killing of more than premature children.

The author holds a bachelor’s degree (LLB) in law and French from the University of Bristol.

Footnotes

[1] Abortion Act 1967

[2] http://preemiehelp.com/about-preemies/preemie-facts-a-figures/preemie-outcomes/outcomes-by-gestational-age

[3] Infant Life (Preservation) Act 1929, section 1(1)

[4] Abortion Act 1967, section 1 (1)

[5] Peter Singer, Practical Ethics, 1st ed. (Cambridge: Cambridge University Press, 1979), 122–23, quoted at http://www.equip.org/article/peter-singers-bold-defense-of-infanticide

[6] It is also worth pointing out that, while considered barbaric by many today, capital punishment and amputations in history generally took place in the course of execution of sentence by the courts. Today’s call for putting human beings to death is not on the basis of guilt for crimes committed, but on the basis of a subjective view of their worth, and even the inconvenience posed by their existence. Which is more barbaric?

Alice’s Baby (Part 1) – a law graduate examines abortion

23 Feb

Where does abortion lead us morally and legally? I’m a law graduate, so by nature I like to examine the legal aspect of trends in society. I’ll save all the explanations for the follow-up article, in which I attempt to answer the questions posed by this post, but for now, here’s a legal problem of the kind you’ll find in degree-level tutorials at university law schools across the world, particularly on courses such as Medicine, Law and Ethics.

Introducing Alice: A Theoretical Case Study

Alice is a woman who has become pregnant and has subsequently decided to terminate the pregnancy. Her abortion is booked for Wednesday, the last day on which it is legally permissible for her to have the termination procedure. On the Monday morning directly preceding her abortion date, Alice is involved in a car accident and is rushed to hospital with life-threatening injuries.

The doctors are able to save Alice’s life. To achieve this, they have to remove her baby from the womb by means of an emergency Caesarean section.

On Tuesday, Alice wakes from her coma to be told that her baby has been placed in the Neonatal Intensive Care Unit and is doing as well as any premature baby, with very good prospects for a healthy future.

That night, Alice decides that she still does not want to be a mother and, in spite of her pain and the risk to her health, is able to leave her bed and slip into the unit where her baby is in an incubator.

She kills her child by means of smothering and then goes back to bed. On Wednesday morning, a nurse comes to tell her that her child has died in the night.

Questions for discussion

1.) Has Alice committed murder or infanticide? Has she taken a human life?

2.) If Alice has committed murder or infanticide, what implications does this have for abortion?

3.) If Alice has not committed murder, or we would like to say that she has not, what implications does this have for the value of human life?

I hope that’s all pretty clear and straightforward. I’ll see you on the other side in Alice’s Baby, Part 2.

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