“A fetus is an unborn child.” So claim right-to-life advocates such as the National Right-To-Life Committee, the Pro-Life Action League, Operation Rescue and other anti-abortion organizations. If you are a member of one of these or are in agreement with this concept, you are entitled to your opinion. However, have you thoroughly investigated the legal and social consequences of this claim? If a fetus is an unborn child, it is obvious that this “child’*is endowed with all the rights of other individuals, human beings or people. You claim that the “child” has a “right to life,” so why should he or she be denied other human rights from which the living benefit. For example (yes, I’m serious) the right not to be kidnapped.
Some time back, a movie Rain Without Thunder explored this possibility with gut-wrenching candor. New York State enacts a statute declaring that “a fetus is a child from the moment of conception” and that consequently abortion is murder. Unlike prior right-to-life legislation, this statute made abortion a crime, not only for the doctor or party terminating the abortion (the terminator) but for the pregnant woman as well.
African-American groups sue New York, claiming this law is unconstitutional since it discriminates against blacks, many of whom
are too poor to go to another state or country for an abortion. Wealthy women, on the other hand, could avoid the law by travelling out of state. To counter this, the Legislature passes another law applying kidnapping statutes to any woman who leaves me State for the purpose of terminating her pregnancy.
A young pregnant woman, accompanied by her mother, goes to Sweden where abortion is legal. Shortly after returning to New York, they are arrested for conspiring to kidnap a child. An ambitious State Attorney General makes it a cause celebre, and both mother and daughter are
convicted and sent to jail for several years.
The plot of Rain Without Thunder is admittedly highly contrived. However, once the concept that a fetus is an unborn child becomes the law of the land, numerous other kidnapping scenarios are possible. For example, in a divorce action involving a pregnant woman, a husband claims his wife is an unfit mother, proves his case to the satisfaction of a judge, and is awarded legal custody of the unborn child. The mother promptly flees the state and is then caught and charged with kidnapping.
If the above sounds like fantasy, rest assured that it is legally consistent. According to the 14th Amendment to the U.S. Constitution, all citizens of the United States are entitled to “equal protection of the laws.” If a fetus is an unborn child and consequnetly entitled to all legal and constitutional rights other human beings enjoy, then tens of thousands of laws—national and local —.would have to be amended to take care of the following intriguing situations:
A. In an unfortunate automobile accident, you injure a woman who is two months pregnant. She loses the ‘”child.” Does the state now have the right to charge you with manslaughter in a criminal court? Does a legal representative of this unborn child have the right to sue you in a civil court for damages involving loss of the child’s earning capacity during its expected lifetime? Present laws in some states already allow such civil suits if death is caused to a “quick child,” i.e. one capable of independent existence outside the womb— normally an embryo in the third trimester. If a fetus is a child at conception, it would seem that this right to sue would be available in all cases of damage to or death of the fetus. (Incidentally, what is the expected lifetime of a two-month old fetus?)
B. A woman in her fifth month of pregnancy decided to see an R-rated movie. Can the unborn child be imputed to have viewed the movie? If so, the mother and the movie house contributed to the delinquency of a minor? To protect itself, should all movie houses refuse to admit any obviously pregnant women to R-rated or X-rated movies? Further, as with laws involving service of liquor to minors, should ticket sellers protect themselves by requiring that every woman submit an affidavit that, to the best of her knowledge, she is not pregnant.
C. Speaking of alcohol, if a bartender serves an obviously pregnant woman, is he breaking the law against service of alcoholic beverages to children below the age of 18 (or 21)? Here too, the burden of ascertaining facts lies with the bartender. Should he be required to have each female guest “prove”she is not pregnant?
D, What about incarceration? A pregnant woman is convicted of a crime and sent to jail. Can the unborn child (represented by a guardian ad litem) appear before the court on a writ of habeas corpus and ask to be released from unjust incarceration? A similar case in Florida created quite astir a number of years ago. A woman convicted of a crime discovered she was pregnant. Her attorneys requested a temporary release so that she could have an abortion. The judge refused, and the woman was forced to have a child against her will. If, however, the fetus had legally been considered a viable child, a lawyer acting as a guardian ad litem for the unborn child could logically have entered a plea of habeas corpus demanding release of the child from unjustifiable incarceration.
E. Now, enter the I.R.S. Can the unborn child be used as a tax deduction from the date of conception? Can trusts, bank accounts, investment portfolios, property deeds, etc. be established in his or her name? What will be the child’s official date of birth? (In China, the date of birth is considered one’s first birthday.) Must all our birth certificates now be backdated by approximately nine months? How will this affect voting rights, college entrance, military drafts, legal ages of consent or for marriage, the timing of Social Security payments, etc.?
F. Finally, you make love to your wife. She is four months pregnant. The unborn child could be aware of what is going on. Are you guilty of sexual abuse? Contributing to the delinquency of a minor?
Does the above sound ridiculous, even absurd? Believe me, it is not. Once society accept the concept that a fetus is an unborn child, we have opened up a Pandora’s box which will further clog the arteries of already overburdened courts. Untrod legal paths will need investigation, which means appeals and further appeals to superior courts and ultimately to the Supreme Court. Federal, State and City legislatures will be burdened with writing new laws to cover this new legal concept.
The aforementioned examples are certainly not all inclusive. An imagination more fertile than mine can come up with an unknown number of additional examples of the paths into which this concept will lead. An attorney specializing in the right of children could add to the list.
Not to mention a final moral problem. Are you willing to execute a woman for murder if she aborts a “child” conceived by rape or incest?
A fetus is an unborn child. Do you really believe it? Are you prepared to accept the consequences?
Note: The Curmudgeon is a member of the New York Bar and.of course, vro choice.
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