Face the Fetus

Politics and policy.
March 29 2004 6:28 PM

Face the Fetus

It's time for abortion rights advocates to stop denying reality.

How long can supporters of abortion rights go on denying the distinct legal significance of unborn human life? Not any longer, if they want to save Roe v. Wade.

That's the message the U.S. Senate delivered Thursday as it passed the Unborn Victims of Violence Act. Under UVVA, which had already passed the House, anyone who injures or "causes the death" of a "child in utero" during a violent federal crime will get the same punishment "provided under Federal law for that conduct had that injury or death occurred to the unborn child's mother." The bill defines a "child in utero" as "a member of the species homo sapiens, at any stage of development, who is carried in the womb." President Bush will soon sign it into law.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

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Once enacted, the law will double the penalty for any boyfriend, husband, or thug who harms or kills a fetus in the course of beating or killing a pregnant woman. More broadly, it will enshrine in federal law the principle that killing a fetus is legally equivalent to killing a child. That's exactly the principle the Supreme Court rejected in Roe.

Advocates of UVVA say it won't affect abortion rights because it stipulates, "Nothing in this section shall be construed to permit the prosecution … of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained." But the exemption is plainly illogical. Imagine a federal ban on gay marriage that stipulated, "Nothing in this section shall apply to a daughter of the Vice President of the United States." A gay marriage is a gay marriage. A child is a child. Once the embryo is defined as a child, and killing it is defined as killing a child, abortion at any stage of pregnancy becomes murder—immediately in theory, and eventually in law.

Is this what the Senate intended? Not really. Last year, 52 senators voted for an amendment declaring that Roe "secures an important constitutional right" and "should not be overturned." Fourteen of those 52 pro-choice senators voted Thursday for UVVA. Five of them voted against an amendment to UVVA, offered by Sen. Dianne Feinstein, D-Calif., that would have preserved UVVA's penalties for assaults on pregnant women while changing its language to avoid a collision with abortion rights. Feinstein's amendment was the sole alternative put forward by abortion rights supporters. It was the whole ball game, and those five senators held the balance of power. With their support, Feinstein's amendment would have been adopted, and abortion rights would be safe. Instead, the amendment failed, 50 to 49.

Why did the pro-choice side lose those five votes? * The answer lies in the text of the Feinstein amendment. It says that anyone who commits one of the enumerated violent federal crimes and "thereby causes the termination of a pregnancy or the interruption of the normal course of pregnancy" will get a second punishment "the same as the punishment provided for that conduct under Federal law had that injury or death occurred to the pregnant woman."

One word is notably missing from the amendment. The word is "fetus." There is no fetus. There is only a "pregnancy."

This is not an accident. Each time pro-lifers have tried in recent years to treat the embryo or fetus as a person in one context or another, pro-choicers have responded by treating the fetus as a nonentity. When pro-lifers sought to ban human cloning, pro-choicers offered a counterproposal that would require the destruction of every cloned embryo—which they referred to only as "an unfertilized blastocyst" and "the product of nuclear transplantation"—within two weeks of its creation. When pro-lifers sought to make fetuses eligible for the State Children's Health Insurance Program, pro-choicers offered a counterproposal to expand the program's eligibility guidelines "as if any reference to targeted low-income children were a reference to targeted low-income pregnant women." The pro-choice alternative made no reference to the gestated entity until it was "born."

It's a strategy of denial. And this week, it ran into too much reality.

On the Senate floor, Sen. Sam Brownback, R-Kan., displayed a devastating series of pictures of murdered women accompanied by the viable fetuses who died with them. "The question is simple," Brownback told his colleagues. "Do we have one victim or two involved in violent crimes such as these?" In one case, Brownback pleaded, "Look at this photo again of Christina and Ashley in the coffin. Is there one victim? Or are there two?" In another case, Brownback noted that the woman survived, but the fetus died. "Any congressman who votes for the 'one-victim' amendment is really saying that nobody died that night," said Brownback, referring to the Feinstein alternative. "And that is a lie."

Sen. Mike DeWine, R-Ohio, turned that moral observation into a legal observation. "The Feinstein amendment does not punish the criminal for harming or injuring the baby," he noted. "It only punishes the criminal for 'interrupting or terminating a pregnancy.' … So if a child is injured, not killed, the pregnancy not terminated, the Feinstein amendment will not cover it." DeWine went on: "When it describes the punishment, it refers to injury or death. Whose injury or death are we talking about here? … The Feinstein amendment doesn't recognize that the interruption and termination of the pregnancy means the injury or death of the fetus, because it won't acknowledge the fetus, of course, as a separate being. …The injury or death provision has no object."

This is what happens when you deny reality. You have trouble making sense. You use words like "injury" and "death," forgetting that you've refused to acknowledge the existence of anything capable of being injured or dying.

Feinstein has a particular track record of denial on this subject. On June 14, 2002, defending stem cell research that entailed the destruction of cloned embryos, she told her colleagues, "This stem cell research can only take place on an unfertilized egg. This is important because many of the opponents of stem cell research say, 'Aha, this is an organism capable of being a living being.' It is no different than a clump of blood cells. They are alive. Those blood cells are not capable of becoming a human being. … An unfertilized egg is not capable of becoming a human being."

Tell that to all the unfertilized eggs that have become cloned mammals in the last seven years.

In Thursday's debate on UVVA, Feinstein charged, "The bill says a one-day-old fertilized egg is a member of the species Homo sapiens. Translation: It is a person." But those two sentences aren't an accurate description of UVVA. The first sentence is a fact; the second is a mistranslation. A human embryo is a member of our species. But that doesn't mean it's a person. An adult is a senior member of the species. A child is a junior member. A viable fetus is a more junior member. A pre-viable fetus is a still more junior member. A zygote is the most junior member. You can argue that personhood begins at viability while admitting that human distinctness begins at conception. On the other hand, if you deny the human distinctness of the fetus, most people will stop listening to you. Given a choice between calling the fetus a child and calling it a pregnancy, they'll call it a child.

That's the choice abortion rights advocates have offered the public and the Senate in the debates over cloning, prenatal health insurance, and violence against pregnant women. In two of the three cases, their rigidity has turned a morally and politically winnable debate over whether the fetus is a person into a morally and politically unwinnable debate over whether the fetus is a distinct human entity deserving of legal consideration as a member of our species. Such consideration need not override Roe's central principle that a woman's privacy rights trump the legal value of a pre-viable fetus. In fact, it can rest on Roe's acknowledgment of the state's "important and legitimate interest in protecting the potentiality of human life." Many states already criminalize, in language compatible with Roe, the killing or wounding of a fetus during an attack on its mother.

"If a state can put someone in jail for life because they took the life of an unborn child, then we're clearly saying there is something very valuable there," Feinstein warned Thursday. She wasn't endorsing that conclusion. She was reading aloud, with disapproval and alarm, the words of a Nebraska state senator. Guess what: There is something very valuable there. And if you can't see it, we can't hear you.

Correction, March 31, 2004: This article originally and incorrectly said that four senators who voted for the pro-Roe amendment in 2003 voted against the Feinstein amendment to UVVA in 2004. The correct number is five. (Return to the corrected sentences.)

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