Are New Pro-Life Laws Riddled With Loopholes?

By John Zmirak Published on May 23, 2019

We’re entitled to feel some hope as a wave of pro-life laws is sweeping American states. These laws will likely force the Supreme Court to re-examine the lawless, incoherent decisions on which our status quo now rests: Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey. We welcome such laws.

And we applaud the success of powerful films such as Gosnell and Unplanned. We see the growth of such school-based groups as Students for Life, and the shift in opinion polls in a pro-life direction. Each of these is a tangible sign that Americans are unhappy with our abortion laws. It would be shocking if we weren’t. They’re among the worst on earth. Our laws are laxer than any other country except China, North Korea, and (alas) Canada.

Those three infamous court decisions I named above left a bleak legacy. Thanks to them, it’s de facto legal to abort any child for any reason at all, at any point in the pregnancy, in each of the 50 states. Whatever incremental pro-life laws our dogged legislative supporters have passed? Those three decisions carve out loopholes you could drive a Mack truck through. States such as New York and Rhode Island, where the Culture of Death steers the ship, don’t even really need to pass such radical pro-abortion laws. That’s mostly grandstanding on the part of leftist politicos. We’re already stuck in a hellish dystopia for unborn children.

What Pro-Life Laws Need to Be

Given how bad things are, it’s tempting to see any change whatsoever as progress. But in fact, if we are serious about extending protection to unborn Americans, we have to do better than that. We must pass laws that

  • Are intellectually coherent, so they stand up in court. And so we can advocate them in the court of public opinion. Imagine President Trump at the 2020 debates against his opponent. We want something he can persuasively defend.
  • Reflective of reality. That is, the fact that unborn children are alive, human, and deserving of protection under the Fourteenth Amendment.
  • Resilient, comprehensive, and able to withstand the most diabolical efforts to abuse them or exploit them. Remember that the U.S. abortion industry took in three BILLION dollars in revenue in 2018 alone. Those profiteers won’t walk away from that pot of money lightly. Given that our culture of throwaway sex rests on abortion as back-up birth control, many Americans will seek every loophole they can in the most well-intentioned pro-life law. And the radical feminists who have completely taken over the “women’s movement” will put all their brainpower and legal talent at the disposal of the abortionists.

Build a Wall to Protect the Unborn

Imagine that laws meant to protect unborn children are levees. They’re meant to hold back a storm. Or visualize them as a border wall. One which will suffer unrelenting attack and continual challenge, from devious human smugglers linked to drug cartels.

When we build a Wall to defend our unborn fellow Americans, it needs to be too strong to knock down. Too high to climb. Too well-anchored for any to undermine with tunnels.

What About Rape Exceptions?

I don’t want to spend too much time on the question of rape exceptions. (We should toss out the “incest” provision as absurd, unless it refers to statutory rape, which is still legally rape.)

Could this law be any more toothless? If this wall of protection for unborn children were a border wall, it would have unguarded gaps every hundred yards.

Except to say this. Any such exemptions, if granted out of deference to political reality, are liable to gross abuse. Do we really believe that unborn children are human persons, deserving protection? Then we cannot let doctors destroy them on the “honor system.” Nor on the ludicrous premise that “women don’t lie.” (I leave my female readers to evaluate that assertion. When you’ve stopped laughing and dried your tears, please resume reading.) Recall that divorce attorneys regularly use false claims of child abuse as cudgels in custody fights. Women are willing to lie about that, apparently.

Let’s say we surrender to the argument that pregnancy due to rape is a gross imposition on a woman’s liberty. So we allow a narrow rape exemption. Then we must take care that it doesn’t become a universal “get out of motherhood free card.” Such exceptions would undermine the legal status of unborn children. That is, unless we surrounded them with such serious barriers that it was clear we took fetal personhood seriously. Here are some features we should demand, if we’re forced to grant the rape exception.

  • The alleged rape would have to be reported to police. The woman would have to cooperate with investigators.
  • The procedure for preventing or ending a pregnancy would have to occur before the 5th week of pregnancy. That’s around when brainwaves and heartbeat commence.
  • False rape claims would be subject to criminal prosecution.

Essentially, we should treat such rape claims as we do the claim of self-defense in a homicide investigation. Such claims need proof, and are subject to legal judgment.

Medical Exceptions Can Make Laws Utterly Useless

With all this in mind, I have some bad news. You know the recent, well-intentioned laws in Alabama and Louisiana? Each of them seems to be vulnerable. Let’s say they go to the U.S. Supreme Court. And it’s willing to review them. And by some divine intervention, the court upholds them. Then the states enforce them. Even if all that happens, they might do very little to protect unborn Americans. And that’s because of flaws in their construction.

The Alabama law’s provision on abortion for the health of the mother is unduly lax, and might not protect unborn children from unscrupulous doctors willing to lie. (Think of Kermit Gosnell; such doctors are out there.) It states that abortion is allowed if

In reasonable medical judgment, the child’s mother has a condition that so complicates her medical condition that it necessitates the termination of her pregnancy to avert her death or to avert serious risk of substantial physical impairment of a major bodily function. [emphasis added]

Do we really believe that Planned Parenthood wouldn’t furnish its Alabama facilities with doctors willing to make such claims? But the law gets worse. 

An abortion shall be permitted if an attending physician licensed in Alabama determines that an abortion is necessary in order to prevent a serious health risk to the unborn child’s mother. Except in the case of a medical emergency as defined herein, the physician’s determination shall be confirmed in writing by a second physician licensed in Alabama. The confirmation shall occur within 180 days after the abortion is completed and shall be prima facie evidence for a permitted abortion. [emphasis added]

What’s an “emergency” according to this law? 

A condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman that her pregnancy must be terminated to avoid a serious health risk as defined in this act.

Again, would Planned Parenthood or other abortion profiteers find it hard to furnish doctors willing to attest to spurious emergencies?

No Penalty for Doctors Who Lie?

Ah, but if doctors lied, they could get in trouble, right? Nope. Again, per this law:

Section 5. No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable. Furthermore, no physician confirming the serious health risk to the child’s mother shall be criminally or civilly liable for those actions. [emphasis added]

The law makes some effort to address the old 1960s-era “mental health” loophole. That was the provision in pre-Roe state abortion laws that let psychiatrists write permission slips for abortions based on spurious suicide threats. But the Alabama law doesn’t close this loophole. It just requires one surgeon and one psychiatrist to sign off on it. And both seem to be protected by Section 5, above, if it turns out they’re lying.

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Could this law be any more toothless? If this wall of protection for unborn children were a border wall, it would have unguarded gaps every hundred yards.

Louisiana Law Not Much Better

The Louisiana bill which should soon be signed? It’s almost as bad, alas. The law allows for abortion if it’s

a medical procedure designed to or intended, in that person’s reasonable medical judgment, to prevent the death of a pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. The person must declare in writing, under penalty of perjury, that the medical procedure was necessary, to the best of that person’s reasonable medical judgment, to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.

The person must also provide in that written statement the specific medical condition of the pregnant woman that the medical procedure was performed to address, and the medical rationale for the conclusion that the medical procedure was necessary to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. The written documentation required by proposed law must be placed in the pregnant woman’s medical records, and a copy maintained for at least seven years.

At least the Louisiana bill provides for prosecution under perjury laws. It doesn’t offer the blanket immunity apparently present in the Alabama law.

People, we need to do better than this. Much better. If we don’t take the eventual enforcement, and efforts to evade, pro-life laws seriously, people will know what to conclude. That we aren’t serious, because unborn children really don’t matter.

And if that’s the message we’re willing to send … well our law says that already.

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