Sending Out Partial Birth Announcements:
Symbolism and Deception by Pro-Life Legislators

By SHERRY F. COLB

Wednesday, Jun. 18, 2003

During the first week of June, the House of Representative approved a ban on a procedure that opponents call "partial birth abortion." Because the Senate has already passed a version of the bill, we will likely have a brand new federal abortion law on the books soon. President Bush recently expressed support for the ban, reportedly saying that "[p]assage of this important legislation is a shared priority that will help build a culture of life in America."

The abortion bill in question, however, is unlikely to survive in the face of an already developing judicial challenge. The Supreme Court struck down similar legislation in Stenberg v. Carhart and would likely do the same to the newest ban.

To take care of these contingencies, the President may be planning to replace retiring personnel on the Supreme Court with abortion opponents. If the balance on the Court shifted, Carhart and other pro-choice decisions (notably Roe v. Wade) might make their way to what one abortion opponent called "the big abortuary in the sky."

But retirements take time, and unless and until they occur, "partial birth abortion" bans are likely to remain unenforceable. So why does Congress (and the lobbyists who provide its financial incentives) bother to conceive a statute that is headed for an almost certain stillbirth?

Aesthetics: The Public Relations Advantage of Enacting the Bill

Whether or not the law "lives," it makes wonderful copy. The lead sponsor of the bill, Representative Steve Chabot of Ohio, described the procedure at issue as follows: "Partial birth abortion is the termination of the life of a living baby just seconds before it takes its first breath outside the womb."

Even more dramatic were the words of House Majority Leader Tom DeLay, who urged lawmakers to "think of the frantic wriggling of that little body in that gloved hand, think of that moment of pure terror when those sanitized scissors puncture the baby's neck." Such descriptions give legislators and their constituencies a vivid and profoundly disturbing image of abortion-as-infanticide, an image that is also deeply misleading.

The pro-life lobby has recently focused on a relatively rare type of abortion that resembles infanticide (and that therefore generates revulsion in the public). In doing so, it distracts our attention from two facts: First, eighty-eight percent of abortions occur during the first trimester of pregnancy, long before the fetus is capable of experiencing "pure terror" or pain.

Second, those who describe themselves as pro-life oppose abortion at every stage of pregnancy, no matter how early and therefore no matter how unlike infanticide the procedure may actually be. Even a zygote - a fertilized egg - is a person entitled to life, in the view of self-described pro-lifers.

The Pro-Life Position: Undifferentiated Clumps of Cells Are People Too

Recall the controversy over stem cell research. It arose because fertility clinics deliberately produce many more embryos than will ever be implanted in a woman's uterus. The large number maximizes the odds of a pregnancy for each specific patient but necessarily creates a surplus of embryos as well.

This surplus could, in theory, provide a wealth of material for research and promising breakthroughs for people suffering from such conditions as Alzheimer's and Parkinson's diseases. But alas, such potential has gone and will continue to go almost completely untapped.

In the second week of August 2001, a month before the terrorist attacks on the World Trade Center and the Pentagon, the President aborted the promise of the surplus embryos. He determined that only research involving pre-existing stem cell lines would be allowed to continue in institutions receiving federal funding. With respect to these lines, he explained, the embryos had already been destroyed and thus the "life-and-death decision has already been made."

The President accordingly prohibited research institutions that receive federal dollars from working with discarded, frozen embryos created after the date of his speech. At least in part as a result, according to recent reports, the number of embryos currently in frozen storage in this country approaches 400,000. They are kept in suspended animation while neurological disorders destroy human lives, because President Bush and, more importantly, his core supporters, believe that life begins at conception.

Does the hypocrisy about "life" really matter? After all, if most Americans are horrified by so-called "partial-birth abortion," then isn't it appropriate for lawmakers to seek to ban it, if only to send a message?

Not necessarily. To press such legislation is to imply a deceptive level of urgency. The reality is that late-term abortions are rarely undertaken, and almost never in the absence of medical necessity. Yet the singling out of these procedures for censure suggests otherwise.

Further, feeling, caring people react as they do to images of late-term abortion not because of some abstract philosophical or theological position on when "life" begins. They react with revulsion because the procedure looks violent and cruel, particularly when observed outside of the context in which it actually occurs.

Pro-lifers thus adhere to a pretense when they say "we oppose this specific procedure." The pretense is that, like nonpartisan members of the public, they recoil from what is distinctive about late-term abortions. But in truth, they don't make such distinctions; they likewise oppose the destruction of a five-cell, undifferentiated mass, or a woman's taking of a morning-after pill that prevents such a mass from attaching to her uterus in the first place.

To press a ban on "partial birth abortion," then, is the equivalent of holding up a color poster of a late-term abortion in front of a clinic in which the vast majority or all of the procedures occur during the first trimester. To put forward late term abortions as representative of what pro-lifers oppose, in other words, misrepresents both abortion itself and the position for which the pro-life speaker stands.

Hypocrisy on the Part of Pro-Choice Forces

Hypocrisy is, of course, hardly unique to those who oppose abortion. Proponents of reproductive choice often publicly accept the faulty premise of the pro-life movement that abortion is only acceptable as long as a fetus has not yet become a "person." They therefore oppose statutes that would classify the fetus as a "person" for any purpose, including the punishment of assault against a pregnant woman.

Refusing to experience empathy for a late-term fetus whose mother is assaulted by a third person, however, only exhibits an apparently callous prejudice against fetuses - not a principled position in favor of choice. If a late-term fetus suffers when its life is terminated, then that suffering ought to be acknowledged, regardless of one's position on abortion.

Especially when there are no valid interests in opposition to those of the fetus - such as when an assailant beats a pregnant woman to death - consideration of fetal interests is entirely proper. Accordingly, it is troubling to hear that supporters of women's rights are reflexively up in arms in opposition. It is no more appropriate for pro-choice people to pretend that a late-term fetus is a non-entity for all purposes than it is for pro-life people to pretend that stem cell research or first-trimester abortion resembles the work of Nazi Doctor Josef Mengele.

Symbolism as Oversimplification, and Ultimately As Deception

I have suggested here that engaging in symbolic gestures, through posters, slogans, or legislation, is a species of lying. On the pro-life side, people lie by implying (or by projecting images that subliminally convey the view) that abortion looks (to spectators) and feels (to the fetus) like the killing of an infant during delivery. That equation of abortion and infanticide is simply inaccurate on the facts.

On the pro-choice side, people lie by pretending that up until the moment of birth, the fetus lacks any characteristics that would justifiably trigger a decision to extend cognizable interests to it/him/her under any set of circumstances.

Each side deliberately erases the merits of the other side's arguments and suggests that any nuanced consideration of reality at the margin is tantamount to betrayal of the cause.

As a teacher, I find the lies and symbolic oversimplification troubling. For better or for worse, moreover, my sense is that the lies of pro-choice advocates have been largely unsuccessful. When a prominent leader of a pro-choice organization says that a law protecting the fetus from violence by third-party assailants would be outrageous, she sounds shrill and unconvincing.

Much more effective have been the deceptive tactics of the pro-life movement in pulling on our heartstrings with pictures of violence against a full-term fetus inside an invisible woman.

In the face of the propaganda war I have described, people on the fence will begin (or continue) to focus on the violence of late-term abortion. They will ask themselves whether such violence is troubling enough to force women to sustain the burdens and pains of pregnancy. And their views on abortion might change.

Important Facts That Should Inform the Abortion Debate

My hope is that as people agonize over these issues, they remember three things.

First, the easier it is to obtain an early abortion (in which a non-sentient creature is destroyed), the fewer late-term (and far more troubling) abortions there will be.

Second, right now, an overwhelming majority of abortions occur before the fetus is capable of experiencing pain.

And third, as food for thought, consider another kind of cruelty that occurs regularly without event. The animals whom many people eat without a second thought, including pigs, cattle, lambs, and chickens, unquestionably experience horrible pain as they are subjected to excruciating "living" conditions and procedures on factory farms in preparation for a merciless slaughter. The only interest on the other side of the ledger in the case of meat production, moreover, is the tastiness of these intelligent animals' flesh.

Though I leave further discussion of animal rights for another day, it is worth pondering the reality of animal pain when considering whether, as a matter of compassion for those who are helpless, a non-sentient fetus who happens to share our DNA ought to have the right to occupy a grown woman's body against her will, while baby and adult mammals and birds, whose capacity to feel pain and terror resembles our own, are tortured and cruelly killed to satisfy our cravings.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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