An Abortion Public Policy Proposal

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Since all human life is sacred and a precious gift from God, the over 50 million abortions in the United States since abortion was legalized in 1973 are a profound human tragedy. The lack of significant political and legal progress in reducing the number of abortions is also very disconcerting.

It is not widely known, but the United States Supreme Court is likely to uphold the constitutionality of a statute prohibiting abortion after both "vital signs" of life (i.e., brain function and heartbeat) are present in the unborn child. A brief justification for this proposal is outlined in an article, entitled "Abortion: A Principled Politics," which was published in the Dec. 27, 1993 issue of National Review, and reprinted in the Winter 1994 edition of Human Life Review.

This proposal does not compromise the pro-life tenant that human life begins at conception. Rather, it merely seeks to use the widely accepted and legally recognized medical definition of the "vital signs" of life as a reasonable justification for legally protecting early fetal life. It's a significant, but partial, step in the right direction - a step unfortunately limited by current political and judicial realities. There are, however, several advantages to this "vital signs" proposal as an incremental first step.

First, a statute prohibiting the abortion of any unborn child with both "vital signs" of life (heartbeat and brain function) could be a test case for the U.S. Supreme Court. Unfortunately, pro-life legislative options are still constrained by the Supreme Court. Outright overturning of Roe v. Wade is unlikely anytime soon, because it was reaffirmed in the 1992 Planned Parenthood v. Casey decision and has been supported by a majority of justices.

The Casey opinion reaffirmed Roe's "central" holding that "the Constitution protects a woman's right to terminate her pregnancy in its early stages." It also asserted that the Court "must justify the lines we draw. And there is no line other than viability which is more workable."

As the Court recognized, fetal viability (the age at which a prematurely born baby can be kept alive outside the womb) occurs at "23 to 24 weeks" gestation. The assertion that the sixth month is the "early stages" of pregnancy is confusing at best. A legal "line" drawn when both "vital signs" of life are present should be seen by the Supreme Court, and the public, as more balanced and workable than the current "line" drawn at viability. Prohibiting abortions after eight weeks gestation (by which point heartbeat and brain wave activity are universally present) would leave ample time for a woman to confirm that she is pregnant and to make a decision whether or not to abort.

Over half of all abortions are performed after eight weeks gestation. Reducing the number of abortions by over half, without having to first overturn Roe v. Wade, would be a significant pro-life achievement.

Second, prohibiting abortion after the onset of brain function would eliminate the possibility of pain being consciously experienced by the unborn child during an abortion. The pain and suffering experienced by the unborn child during mid- and late-term abortions make them particularly abhorrent. Let's at least be compassionate enough to stop those abortions (like Partial Birth Abortions) that could cause the unborn child pain and suffering.

Third, seeking to prohibit the abortion of unborn children with both "vital signs" of life will provide a significant opportunity for public education on fetal development. Even if never enacted, merely attempting to protect the life of any child with a beating heart and measurable brain waves begs the question: "When does that first occur?" Most Americans would undoubtedly be surprised to learn it's as early as eight weeks after conception. The resultant news media coverage would be free and extensive publicity on the humanity of the unborn, fetal development, and life in the womb.

Some progress is better than no progress. Pro-lifers cannot wait for the perfect time to pass the perfect law. They should try to save as many unborn children as possible as soon as possible. What other alternative is now available which would save the lives of as many unborn children and also stop their pain and suffering?

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