Skip to main content

See also:

Prolifers: discuss enabling legislation to counter images of mothers on gallows

Prolifers need to discuss "enabling legislation" that we will need when we finally get legal abortion "collapsed". Our discussion now can help bring that day closer, by countering the widespread public image of the resulting mothers on gallows. Here is a question and answer that is just a speck of the widespread misunderstanding of the concept of "enabling legislation" among prolifers, and even prolife leaders:

"I have a question about the personhood amendment. Basically it says life begins at conception, is that the deal? So if the law is made, then every pregnant woman that has a miscarriage will be investigated for murder, right?" - Tobra Potter, Texas

"Every other person who is found dead for any reason has to have a death certificate that gives the cause of death, and that certificate has to be signed by an official of the State. ... Logically, a miscarriage would, and in my opinion, should, set in motion the same series of events that is today set in motion by anyone else’s death. Rarely would a murder investigation ensue, except in those cases where the miscarriage was suspected to be a homicide, as in the case of abortion. And in those cases the death of the child would not be called a miscarriage but a homicide. That’s the way the law should operate were we to treat the unborn as deserving the same Rights afforded to every other citizen of the USA." - Neal Horsley, Georgia

This question is a great illustration of the wisdom of requiring "enabling legislation" (that defines what acts should trigger prosecution in what circumstances, and what the penalties should be) before prosecution can occur, a concept tragically lost to many in the personhood movement.

When Missouri enacted really great personhood language in, I think, 1986, when I married my wife, it was eventually reviewed by SCOTUS (Supreme Court Of The United States) in the Webster case in 1989. There was no "enabling legislation" that set forth penalties for harm to unborn babies in any situation. Besides that, weasel language was added that promised enforcement only "to the extent allowed by rulings of the Supreme Court". The lower court had overturned the statement because it conflicted with Roe, but SCOTUS let it stand, saying that a state can believe anything it likes about the unborn as long as it doesn't actually act on what it believes, and actually restrict abortion.

Perhaps it is failure to grasp the meaning of "enabling legislation" that has caused many prolifers to misunderstand Webster as saying a state personhood statement has no power to trigger Roe's "collapse" clause.

Webster said, rather, that they didn't need to decide whether Missouri's personhood affirmation triggered the "collapse" of legal abortion, because that issue is not yet properly before the court. A fundamental principle of lawsuits is that if no one has yet been harmed, it is premature to sue somebody because someone MIGHT be harmed in the future. O'Conner said, in Webster, that once a state actually passes enabling legislation restricting abortion, then it will be time to examine abortion's legality, "and to do so carefully". Why has no state responded to this invitation in all these years?

I have been frustrated in Iowa by a couple of good-hearted but weak minded lawmakers (including Kim Pearson, a lawyer) who wrote powerful personhood statements but stubbornly rejected as unnecessary any enabling legislation. They rejected it as distasteful because enabling legislation by its very nature can't protect all babies equally. They saw it as "compromise". But without enabling legislation, all babies remain UNprotected equally. Yet their dogged "purity" caused them to block another prolife bill with enabling legislation that had some hope of passage, delaying it until it ran out of time that year. Their uninformed "purity" cost unborn lives. They insisted that merely saying harm to unborn babies should be punished with the same penalties for killing adults was enough enabling legislation - as if penalties for killing adults are all the same! How could a lawyer think so? See a video of her responding to a Democrat who raises these questions. She just seems annoyed at the questions, not perceiving a real problem. Read a transcript in part of NoGreenerLight.pdf.

We know that all humans are created in the image of God, and yet not even God has the same penalties for killing a human, in every circumstance. God does not call for execution if the killing was accidental. Deuteronomy 19:5. The penalty for killing the unborn, during a fight between two men, is set by a jury, in Exodus 21:22. I read this as because the jury needs to review the evidence how the woman got in the middle of it, to see if the blow to her womb was even intended.

American law has a range of penalties appropriate to the circumstances under which adults die. Was it in self defense? Was it negligence, such as leaving ice on your sidewalk? Was it an auto accident? Was it selling someone a harmful substance? It would be absurd for anyone to think that different penalties for deaths under different circumstances proves that some adults have less value than others!

Sometimes the impossibility of evidence, or of positively connecting an act to a death, makes prosecution for contributing to a death impossible. So rather than convict cigarette makers of murder, we force them to put disclaimers on their products, and we prohibit them from selling to minors.

Prolifers need to be thinking ahead to the kinds of enabling legislation we would support in the future. Does anyone want mothers penalized as much as abortionists, considering their very different levels of culpability? Historically mothers were penalized little because their testimony was needed against the doctors, yet another consideration that requires uneven penalties.

Historic penalties for abortion were for chemical or surgical abortions. Some birth control today, we don't really know how it works - whether it kills after conception or before. With others, we know sometimes it is after and sometimes before, but no one can know which it was in an individual case. It would also be impossible, most of the time, to gather any evidence of when, or whether, a woman took a pill or used some device. There is seldom any corpse to examine, and if there is one, it is too easily disposed of for prosecutors to ever recover. Therefore, while God can judge thoughts, human courts in this situation may have to throw up their hands at penalizing women for individual acts of murder. However, human law can go after those who sell the products.

But even if a practical way is found for human courts to deal with induced miscarriage, that very trail of evidence would distinguish it from natural miscarriage, which no lawmaker would criminalize.

One of the greatest objections to outlawing abortion is the vision in the imaginations of way too many Americans of mothers on gallows. I think many prolifers would agree with me that the penalty for mothers should be far lower than for abortionists; first because abortionists are guilty of thousands of murders, not just one, and second because mothers range from the older, hardened, wicked, to the very young, deceived by public school propaganda, and under severe duress from relatives or rapists.

That reminds me of another Biblical factor we need to weigh: we can't convict people of crimes for which we are partly responsible. This is the message of the woman caught in adultery. See my article at http://www.examiner.com/article/the-woman-caught-adultery-how-u-s-law-fo...

Our culture is full of sexual lewdness and abortion. When we buy its music, its videos, and vote for politicians who promote it, do we share no responsibility for it?

How about sins of omission? Even those "evangelical" churches which have an annual sermon identifying abortion as sin, will not allow its members, on church premises, to organize to oppose it. That would be "political", to shine the light of the Gospel on sins which government protects. Consequently a huge percentage of Christians don't even vote, leaving the education of their own children in the hands of God's pro-death enemies. Do churches bear no responsibility for this? See www.Saltshaker.US.

According to this principle, the severity of a penalty must be appropriate to the purity of a society. The more Godly the society, the more obvious it is to a criminal - the more warning he receives from every quarter - that his contemplated behavior is wrong. Therefore, the greater his culpability. Conversely, the more wicked the society, the more God has had to "wink" at evil, while now calling all men to repentance, Acts 17:30.

If we would discuss, as a prolife community, the penalties we would consider appropriate for the whole range of threats to the unborn, I think we would heal this image of women on gallows that paralyzes prolife progress, and could achieve laws against abortion.

We who are the most committed to ending legal abortion actually have greater opportunity to remove this objection through this discussion, since the public thinks we are the most likely to lead those women to those gallows. If we can concur that is not our hope, much resistance to ending legal abortion will fall away.

Follow Dave Leach on Twitter at @PartnersNeeded

Support Dave Leach's business at https://www.facebook.com/familymusiccenterdesmoines

Dave Leach is listed in Marquis' "Who's Who in America". (This is to balance the other stuff you've heard.)