The Law and Abortion
by Rich Deem

The Legal Basis for a Prolife Position

As of this writing, abortion is fully legal (at least for the first trimester, and usually to full term) in all states of the United  States. Recently, state legislatures and the United States Congress have passed laws making it illegal to kill a fetus in the commission of a crime. These laws have been vigorously opposed by the abortion lobby, since a recognition of the fetus as a human life is a threat to the legality of abortion itself. How can killing a fetus be murder if committed against an unwilling mother and yet be legal if the mother requests such killing?

I am not an attorney, so this paper is not a rigorous examination of all the legal issues involved in murder and abortion. However, it is obvious, even to a legal novice, that the laws being applied to abortion and murder are not logically consistent.

Pro-abortion groups recognize that allowing a person to be convicted of the murder of a fetus indicates that there was a living person who was murdered. If the fetus is a human person, then it should not be allowed to be killed, even at the request of its mother. So how can these laws be applied selectively to unwanted killing of a fetus, while the complicity of the mother in the same killing is completely legal? Here is an excerpt from the California Penal Code Section 187:

SECTION 187-199

  1. Murder is the unlawful killing of a human being, or a fetus,
    with malice aforethought.
  2. This section shall not apply to any person who commits an act
    that results in the death of a fetus if any of the following apply:
    1. The act complied with the Therapeutic Abortion Act, Article 2
      (commencing with Section 123400) of Chapter 2 of Part 2 of Division
      106 of the Health and Safety Code.
    2. The act was committed by a holder of a physician's and surgeon's
      certificate, as defined in the Business and Professions Code, in a
      case where, to a medical certainty, the result of childbirth would be
      death of the mother of the fetus or where her death from childbirth,
      although not medically certain, would be substantially certain or
      more likely than not.
    3. The act was solicited, aided, abetted, or consented to by the
      mother of the fetus.
  3. Subdivision (b) shall not be construed to prohibit the
    prosecution of any person under any other provision of law.1

Pro-Life Answers to Pro-Choice ArgumentsWhat I find really bizarre about the law are the exceptions to it. If someone were to kill or have their own child murdered, complicity on the part of the mother or father would not make it legal. But this is the exact exception made in the law in regard to the fetus. Somehow, the fetus only has value as human life if it is wanted by the mother. If someone kills a fetus that the mother wants to keep, it suddenly becomes a living human being who can be murdered. If a human is only human on the basis of whether or not he is wanted, then this leaves open the option of killing "street people" and handicapped individuals simply because they are "unwanted."

In contrast to what the liberal agenda says, the Bible says that all people have equal worth, since all are created in the image of God.2 Although liberalism teaches that certain "unwanted" humans have less inherent worth than others who are wanted, the Bible states that all human life has worth in God's eyes.3

Additional note - The extremism of abortion advocates

In the summer of 2001, the Bush administration proposed a policy change to expand the number of poor women and children eligible for Medicaid. Under this new policy, unborn children would qualify as "targeted low-income" children - making them eligible for the federal government's Children's Health Insurance Program. The goal of the program was to "increase access to prenatal care for pregnant women . . . [with] the ultimate goal being healthier babies and healthier children. It could help many pregnant women who are not eligible for Medicaid or the children's health program."

The abortion advocates went ballistic. Instead of being pleased that prenatal care would be extended to more mothers, they claimed that the point was to give personhood to fetuses, thus eroding abortion rights.

Kate Michelman, head of NARAL, went into declaim-and-denounce mode. She accused the president of "seeking to score political points with . . . those who want to criminalize legal abortion by any means possible."

Michelman wasn't alone in her condemnation. Laurie Robinson, of the National Partnership for Women and Families, called the proposal a "backdoor attempt by the Bush administration to perpetuate its opposition to abortion rights." She told the New York Times that the "real goal" of the policy "is to establish a legal precedent for granting personhood to fetuses."

References Top of page

  1. CA Codes (pen:187-199)
  2. And God created man in His own image, in the image of God He created him; male and female He created them. (Genesis 1:27)
    There is neither Jew nor Greek, there is neither slave nor free man, there is neither male nor female; for you are all one in Christ Jesus. (Galatians 3:28)
  3. "Do we not all have one father? Has not one God created us? Why do we deal treacherously each against his brother so as to profane the covenant of our fathers? (Malachi 2:10)