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What The "Unborn Child" Health Care Proposal Reveals About Our Selective Capacity For Empathy


Wednesday, Feb. 13, 2002

On January 31, Health and Human Services Secretary Tommy Thompson announced a proposed federal regulation that would classify embryos and fetuses as "unborn children" for insurance purposes. The regulation would permit states to provide previously unavailable prenatal care to low-income women under the federally funded State children's health insurance program (or "SCHIP"), on the theory that the statute could be read to cover "children from conception to age 19."

Few, of course, would argue with the idea of giving poor women prenatal care. But pro-choice commentators have expressed the concern that defining an embryo or fetus as a "child" under the law, even in the limited context of SCHIP, could serve to undermine the right to abortion.

Responding to this concern, Secretary Thompson wrote a letter to the editor in the New York Times, denying any connection between the proposed regulation and abortion politics. "This is not a debate about abortion," he insisted. "It is about helping states provide vital health care for pregnant women and their babies."

It may nonetheless be difficult for many to avoid skepticism. If the point were simply to provide an additional medical service to low-income women, it seems peculiar that the Bush Administration would frame the regulation in the way it did. Would anyone, for example, propose extending health insurance to men with erectile dysfunction by classifying a penis as a "child"?

More is at stake, however, than the right to abortion. The focus on children alone - rather than on low-income people more generally, or even women in particular - reveals an ethos of dividing the unfortunate into two categories: the worthy innocent and the lazy undeserving.

"Innocent" Children Imply "Guilty" Adults

In this split, the child represents the innocent, deserving victim of circumstance. As such, the child is entitled to compassion and care in his struggle against pain and deprivation. The SCHIP statute itself - by providing coverage only to children up until the age of 19 - divides the world of the needy in just this way.

The low-income adult, by contrast, symbolizes a culture of dependency in which people would seemingly rather take charity than stand on their own two feet. For such individuals, many imagine, the best thing is to offer tough love: once they must fend for themselves, they will discover that there is dignity in self-reliance. They bear sole responsibility for their stations in life, and they could alter their circumstances by making a concerted effort.

Of course, children are "innocent," as are fetuses (and eggs and sperm too, for that matter), in the sense that they have not earned their suffering by committing a crime. But nor have low-income adults.

Nevertheless, the necessary implication of having a category of "innocents" is that some of those who suffer must fall outside of the designated group and accordingly carry guilt of some sort upon their shoulders. (Ironically, as children are increasingly tried as adults, there is a large category of "children" for SCHIP purposes who would be barred from juvenile court as responsible and potentially guilty adults).

A Failure of Empathy for Adults, As Shown with Welfare and the Homeless

Republicans and new Democrats alike share the ethos to which I refer. Recall President Clinton speaking proudly of having ended "welfare as we know it" - that is, as an entitlement. As we knew it, welfare meant that if you could demonstrate sufficient need, the government had to provide you with the benefit. One explicit purpose of welfare reform, by contrast, was "[n]o individual entitlement."

After welfare reform, a person with little education or opportunity for employment would now have her financial aid cut short after the passage of a fixed period of time, regardless of whether the need for the aid has passed as well. And even before reform, welfare mothers were demonized as parasites with a bad attitude who kept giving birth in order to collect their dole. Perhaps their "innocent" children deserved assistance, many believed, but not the adult women who could properly be faulted for giving birth to them.

The persistence of homelessness attests to the failure of empathy as well. We have come to think of the homeless as an aesthetic problem. Many of them are unable to support themselves due to circumstances that they played no role in creating - ranging from economic hard times to family disruptions and dislocations. Yet they are ineligible for assistance. In a country as rich as ours, the fact that people must live in the streets (or expose themselves to violence and disease in city shelters) is shameful.

Rather than correct the situation, however, we have tended to attribute homelessness to the failure of unworthy individuals to work hard and reach for the American dream. Or we classify them as mentally ill, when many of them are not (and some of them are, but only became that way from the stress of homelessness). We imply that mental illness means they have only themselves to blame, when it typically means just the opposite.

The Greatness of Americans' Generosity - and Its Limits

The desire to demonize some of the unfortunate is not a matter of stinginess. Americans have often been very generous to the suffering when we viewed them as innocent and deserving. After the horrific attacks of September 11, for example, many exhibited a stunning altruism and love for their fellow human beings.

Large numbers of people took hours and even days from busy schedules to stand in line waiting to give blood and volunteer their services in caring for victims' needs. The American Red Cross was overwhelmed with donations of food and supplies. Even realtors - a group that rivals us lawyers in their reputation for greed - came forward, offering free housing for those whose homes were damaged by the terrorist attacks.

Similar sentiment did not extend, however, to those who were already homeless when airplanes hit the World Trade Center - those who slept on the floors of New York City's Penn Station or outside on the grating over the subways. Such people were the victims who seemed less "innocent" than the children or adults struck by sudden, public tragedy.

Victims Who Resemble Us, and Victims We Have Forgotten

Perhaps we have an easier time recognizing as legitimate the needs of children and victims of violence. We were all children once, and many of us now know someone whose life has been touched by violence. We can imagine being in their shoes.

Infants and children, of course, will always need someone to care for them, no matter how much our civilization advances. Fetuses experience a dependency that is person-specific in a way that no child's or adult's is. And as long as there are human beings, violence will not disappear, nor will natural phenomena that destroy lives in great numbers and create need where previously there was none.

But there are others who are needy as well, and they are no less deserving of our attention and compassion. They are the people who have not been fortunate, whose lives have not brought them wealth and opportunity and networks of friends with influence who can pick them up when the chips are down.

Often, there is no "perpetrator" available for punishment. We must not, however, insist on a perpetrator for every "innocent" victim. Given our resources, we can and we should refuse to tolerate their suffering another day. With the reserves of generosity we have available, a shift of perspective alone - allowing us to see the innocence of all poor and downtrodden people - could make all the difference.

Sherry F. Colb is a visiting professor at University of Pennsylvania and a professor at Rutgers Law School.

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