Respecting human life in 21st Century America: a moral perspective to extend civil rights to the unborn from creation to natural death.

• Author: Lugosi, Charles I.

1. Introduction

   What does respect for human life in the Twenty-first Century require of us? When we consider the controversial bioethical debates between those who believe in the sanctity of life of the "unborn," (1) and those who do not, it may require expanding our concept of what counts as human life. The Supreme Court has failed to take a position on when human life begins. How can law respect human life without understanding when a new human life is created?

   In addressing the question of whether the unborn human being is a "person," I contend there should be no distinctions in law and philosophy between human beings and persons and that human beings are endowed at creation with an inalienable right to life. This inalienable natural fight cannot be conferred because it is the common heritage of all human beings that we all are created equal. The current American constitutional doctrine of classifying the unborn as "separate and unequal" is immoral and unjust. Thus, there is a moral imperative to confer the status of constitutional personhood upon the unborn, as an expression of society's rejection of inequality and the discriminatory treatment of the unborn as biotechnological subjects in Twenty-first Century America.

   This article assumes that it is immoral and unethical to take the life of an innocent human being, even if domestic law sanctions acts such as abortion and contraception. It further assumes that unborn human beings are by their very nature innocent, even if their lives were created because of culpable criminal conduct, such as rape or incest. This article also assumes that it is morally unacceptable for one human being to enslave or experiment upon another, even if that other person is an unborn human being and is not a constitutionally legally protected person.

   First, this article will discuss the issue of abortion, as it is at the core of the moral debate concerning the constitutional depersonalization of the unborn. Second, this article will discuss how abortion is repugnant to and in conflict with the core values of liberal equality. Third, this article will review how philosophers use the device of depersonalization to justify abortion and to establish a new class of "separate and unequal" human beings in an attempt to morally justify the non-consensual use of embryos as biological subjects. Fourth, this article will briefly survey international ethical and legal standards that conflict with abortion. Fifth, this article will illustrate how moral questions plague scientific developments in cloning, embryonic stem cell research and vaccines, and consider whether those who benefit are morally complicit with evil. Finally, this article will argue for the abolition of the discriminatory treatment of the unborn by recognizing their humanity and conferring upon them constitutional personhood status from creation to natural death.

2. Abortion, The Moral Debate

   1. Background

      The history of the common law reveals that laws against homicide protected all human beings, including unborn children. When a pregnant mother felt her baby move within her, called quickening, this was considered evidence that the woman was "with child." Blackstone's Commentaries describes the right to life as "a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb." (2) In Blackstone's lifetime, legal protection of the fetus from homicide began at quickening, when it was assumed that life began for the unborn child. (3) In the Thirteenth Century, Brackton and Fleta ruled that killing an unborn child where there was evidence of quickening was homicide. (4) As the common law developed over several hundred years, famous legal authorities including Fleta, Staunford, Lambarde, Dalton, Coke, Blackstone, Hawkins, and Hale referred to the unborn human being as a child and never as potential life. (5) There was never an issue of personhood.

      The common law historically protected the unborn child after quickening to the fullest extent possible in accordance with the medical knowledge of the day. (6) Before quickening, it was assumed that the fetus was not alive until it moved because medical knowledge was not advanced enough to determine if a woman was in fact pregnant before fetal movement. (7) The first American criminal law statutes, enacted between 1820 and 1840, prohibited only post-quickening abortions. (8) This was because the common law, as it existed at the time of the American colonies, criminalized abortion only after the time of quickening. (9)

      Legal protection of the unborn from homicide expanded as medical knowledge increased. (10) In England, the advancement of medical science resulted in medical doctors believing that abortion before quickening was the killing of human life and therefore a crime. (11) As medical knowledge became more sophisticated, and the concept of quickening became obsolete, laws in England and the United States were enacted to prohibit abortion before quickening without regard to gestation. In England, Lord Ellenborough's Act of 1803 was the first statute passed that made abortions before quickening a criminal act (but not a capital crime like an abortion after quickening). (12) The Act was amended in 1837 by abolishing the quickening distinction and made abortion at any time during pregnancy a crime by both the doctor and the pregnant woman. (13)

      Francis Wharton, in American Criminal Law, writing in 1868, illustrates how medical science has informed the criminal law. As medical science advances, so has legal protection for the unborn:

      There is no doubt that at common law the destruction of an infant unborn is a high misdemeanor, and at an early period it seems to have been deemed murder. If the child dies subsequently to birth from wounds received in the womb, it is clearly homicide, even though the child is still attached to the mother by the umbilical cord. It has been said that it is not an indictable offence to administer a drug to a woman, and thereby to procure an abortion, unless the mother is quick with child, though such a distinction, it is submitted, is neither in accordance with the result of medical experience, nor with the principles of the common law. It appears, then, that quickening is a mere circumstance in the physiological history of the foetus, which indicates neither the commencement of a new stage of existence, nor an advance from one stage to another.... [T]he infant is as much entitled to protection, and society is as likely to be injured by its destruction, a week before it quickens as a week afterwards. (14) Physicians and moral reformers in the United States who opposed abortion lobbied for the suppression of information about abortion. (15) These efforts culminated in 1873 with Congress passing the Comstock law that banned dissemination of material pertaining to abortion. (16) By 1887, abortion, which in early America was not a crime before the fourth or fifth month of gestation when there was evidence of quickening, had now become a crime against unborn human beings regardless of the age or size of the fetus. (17) The early feminists strongly opposed abortion and saw it as a threat to motherhood and marriage. (18) In 1792, Englishwoman Mary Wolstonecroft urged that women must respect nature and let pregnancy take its course, as it was the first duty of a woman not to destroy the embryo in her womb. (19) Elizabeth Cady Stanton, a leader of the American Women's Rights movement, declared, "It is a mother's sacred duty to shield her children from violence from whatever source it may come." (20) Stanton rejected the hypocrisy of men who complained of social and economic oppression and "played the tyrant" at home over their women whom they treated as slaves. (21) Susan B. Anthony and Stanton dedicated their lives to emancipating women in Ninteenth Century America whom they viewed as depersonalized, for women were denied constitutional and legal equality to men. (22) Abortion was called "child murder" in Anthony's newsletter, The Revolution. (23) Stanton too opposed abortion, saying, "When we consider that women are treated as property, it is degrading to women that we should treat our children as property to be disposed of as we see fit." (24)

      It was not until Margaret Sanger led the way with her persuasive eugenics arguments that the issue of birth control and reproductive rights became a goal of the women's rights movement. (25) The liberalization of sexual mores, the political struggle for gender equality and the prominence of women in the workplace laid the groundwork for the use of contraceptives to be socially accepted as a private and personal decision of a woman. (26) Abortion was illegally practiced as a method of birth control, as women in their quest for equality with men sought control over their own destiny, and unwanted children who occupied their bodies had to be eliminated to avoid the consequences and the responsibilities of having and raising a child. (27)

      Beginning in 1961, abortion laws were relaxed to accommodate abortions under the following circumstances: where the physical or mental health of the mother was in danger; where the unborn child had a serious physical or mental defect (such as a deformity like missing limbs as a side effect of the drug thalidomide, an anti-depressant medication), or where the child was conceived as a result of rape or incest. (28) In 1963, Betty Freiden, who in 1968 became a founder of the National

      Organization of Women (NOW), did not discuss the subject of abortion in the first edition of her book, The Feminine Mystique. Instead her focus was on achieving liberation and equality for women, whom she believed suffered at home in "comfortable concentration camps" and were subjected to "progressive dehumanization." (29) According to obstetrician and gynecologist Dr. Bernard Nathanson, who in 1969 founded the National...