ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, May 2, 1996 TAG: 9605020002
SECTION: EDITORIAL PAGE: A-11 EDITION: METRO
SOURCE: DAVID NOVA
WHEN DOES personhood begin? Does a fetus become a person at the moment of conception, at the moment of birth or somewhere in between? Great minds have pondered the question for centuries without clear resolution. Yet the issue is relevant today as legislators craft new laws that would alter the legal notion of what constitutes a person.
The catalyst for redefining personhood is the issue of legal abortion. Recent Supreme Court decisions enable states to restrict access to abortion early in pregnancy so long as they do not create an "undue burden" for women.
This presents a quandary for abortion foes. Any laws restrictive enough to end abortion are prima-facie unconstitutional. Yet without overly burdensome restrictions, most women are able to access abortion services - though they may have to travel out of state, face significant delays or compromise their privacy.
To overcome this Catch-22, the latest strategy for criminalizing abortion involves elevating the legal status of fetal life to that of persons already born.
Increasingly, social conservatives like Cal Thomas have adopted this approach. In his March 27 commentary, Thomas questioned whether human rights should always hold greater weight than fetal rights: "Why does a guilty murderer enjoy more protection under the law than an innocent unborn child?" By shifting society's perception of the fetus, he and others seek fewer rights for pregnant women and enhanced legal representation for the unborn.
Lawmakers in Virginia and elsewhere are already adopting this approach. During this year's General Assembly session, Sen. Mark Earley, R-Chesapeake, introduced a Feticide Bill that stated "for the purposes of the laws of the commonwealth relating to murder, a fetus is considered a person." The measure has since been amended in several ways, but would still grant personhood to the fetus.
Fetal personhood is a concept unprecedented in Virginia law since British rule. This measure has already passed in the Senate and could become law by next year.
Less obvious, but just as profound in its attempt to elevate fetal rights, has been the recent skirmish over dilation and extraction abortions, the so-called partial-birth abortions. Congress sought to ban the procedure except to save the life of the woman. President Clinton threatened to veto the measure if it did not offer an exception in cases where the woman faced "serious adverse health consequences," such as severe hemorrhaging or infertility.
Congress refused, partly because of election-year politics, but also because a growing constituency favors fetal rights over the health of the woman, even in cases where the fetus has no possibility of survival outside the womb. The quest to establish fetal personhood shaped the debate and kept a compromise version of the bill from becoming law.
Despite mounting momentum, those seeking to establish fetal personhood under the law face a daunting and ambitious task. Our system of local, state and federal laws consistently recognize personhood after birth. A fetus cannot be declared a dependent on a tax form, issued a Social Security number, counted by the Census Bureau or declared a United States citizen. Virtually every law associated with personhood or citizenship is reserved for communicative, relational, sensitive life - life after birth.
That is not to say that fetal life is devoid of value under the law. Certainly it is valued. Every state in the country prohibits late-term abortions unless the woman's life or health is at risk or the fetus is grossly deformed. Poor women are eligible for Medicaid once pregnant. An attack on a pregnant woman that causes a miscarriage but no other physical harm to the woman is often punished as aggravated malicious wounding. However, in these and other cases, it is the woman, not the fetus, that is endowed with additional worth and consideration. It is the pregnant woman who is granted Medicaid. It is the pregnant woman who is the victim of the malicious wounding.
Laws granting personhood after birth are rooted in British common law. Under common law, personhood was granted at birth and abortion was illegal only after "quickening," the detectable movement of the fetus that usually occurs in the fourth or fifth month of pregnancy. (The law was not enforced.)
The first abortion legislation passed in the United States was the Lord Lannsdownes Act of 1828, which made instrumental abortion after quickening a crime. (Even then, the law was rarely enforced despite the high rate of abortion. From 1830-40, there was approximately one abortion for every live birth.) Never in U.S. history has there been a law to punish abortion as murder.
British common law was ultimately based upon scriptural laws, primarily the Ten Commandments and other laws granted in the Book of Exodus. And though there are scriptural references where God recognizes fetal life (Jeremiah, Isaiah, etc.), the most cogent scriptural reference to personhood is found in Exodus 21:22-25:
"When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman's husband may exact from him, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise."
In other words, death to the woman is punished by death. Death to the fetus results in a fine. This crucial passage is used in arguments both for and against abortion rights. However, it clearly argues against the status of personhood for the fetus.
When considering the entire compendium of U.S. law, British common law and scriptural law, the value of fetal life is recognized, yet personhood is reserved for human beings once born.
Some would argue that such a legal system needs drastic overhaul. They believe it represents an unenlightened approach to personhood. For them, an approach that sanctions legal abortion, permits fetal-tissue research and rejects a particular religious interpretation is morally inadequate.
Yet by attempting to establish fetal personhood as a recognized standard within the law, they would do far more than outlaw legal abortion. Our system of justice is organic and designed to rid itself of ambiguity. If fetal personhood is recognized with regard to some laws, it will inevitably extend to other legal decisions.
Lawyers could file lawsuits on behalf of fetuses against doctors, parents and hospitals. Homicide detectives would need to investigate miscarriages. Women who self-induced termination of pregnancy would face murder charges. Pregnant women could face stiff civil and criminal penalties for smoking a cigarette, having a glass of wine or not wearing a seat belt. Birth-control pills and IUDs that allow for fertilization of sperm and egg without implantation in the uterine wall would be outlawed. And the laws sanctioned and affirmed by the prophets, the founding fathers and legal scholars would be turned on their heads.
In their zeal to outlaw abortion, some "pro-life" groups seek to create this brave new world. Yet they risk muddying the waters that distinguish human life from the human person. Each cell in our bodies has human life. Egg and sperm fuse to form human life.
To be a person, however, is more than mere biology. Personhood connotes qualities distinctly human: to think, feel, love, relate, commit, empathize, aspire and communicate. These are the qualities endowed in all persons that we hold as most sacred in our lives and our laws. Anything short of this cheapens our ideals of history, justice and life itself.
David Nova is public affairs director for Planned Parenthood of the Blue Ridge Inc.
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